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queensland

court_judgement

Queensland Information Commissioner 1993-

H52 and Department of Environment and Science [2022] QICmr 55 (20 December 2022)

H52 and Department of Environment and Science [2022] QICmr 55 (20 December 2022) Last Updated: 27 March 2023 Decision and Reasons for Decision Citation: H52 and Department of Environment and Science [2022] QICmr 55 (20 December 2022) Application Number: 316695 Applicant: H52 Respondent: Department of Environment and Science Decision Date: 20 December 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - DOCUMENTS NONEXISTENT OR UNLOCATABLE - whether agency has conducted reasonable searches - whether access to further documents may be refused on the basis they are nonexistent or unlocatable - sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of Environment and Science (Department) for access under the Right to Information Act 2009 (Qld) (RTI Act) to all documents between 1 January 1985 and 21 December 2021 ‘regarding’ a letter that the Department’s Deputy Director-General (DDG) had written to the applicant on 28 July 2021 concerning the re-development of the Brickworks site at Newmarket in Brisbane. The Department did not make a decision within the timeframe specified in the RTI Act.[2] It was therefore deemed to have refused access to the requested information under section 46 of the RTI Act. The applicant applied[3] to the Office of the Information Commissioner (OIC) for external review of the Department’s deemed refusal. Early in the external review, the Department searched for and located 77 pages that it regarded as relevant to the access application. It agreed to release these pages to the applicant, except for a small amount of personal information (comprising mostly signatures and mobile phone numbers) the disclosure of which it claimed would, on balance, be contrary to the public interest.[4] Upon receipt of this material,[5] the applicant raised a ‘sufficiency of search’ issue, contending that additional responsive documents existed in the Department’s possession. For the reasons explained below, I vary the Department’s deemed refusal of access decision by finding that there are no reasonable grounds for believing that additional documents responding to the terms of the access application exist in the Department’s possession or under its control. Background In 2017, Brisbane City Council approved the re-zoning of a 4.6 hectare industrial site in Brisbane’s inner north (known as the Newmarket Brickworks site) for residential use. In 2020, Council approved a development application for townhouses and units to be built on the site. The applicant is a resident of the area who has concerns about the development, and the actions of the various government agencies involved in approving or monitoring the development. He and other residents have made a number of applications under the RTI Act seeking access to a wide range of documents concerning the development, including information about the history of the site and its status as contaminated land, as well as safety aspects of the development. Reviewable decision The decision under review is the Department’s deemed refusal of access decision. Evidence considered Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). I have taken account of the applicant’s submissions to the extent that they are relevant to the issues for determination in this review.[6] 10. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[7] I consider a decision-maker will be ‘respecting, and acting compatibly with’ that right, and others prescribed in the HR Act, when applying the law prescribed in the RTI Act and the Information Privacy Act 2009 (Qld).[8] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[9] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[10] Issue for determination The applicant does not dispute the refusal of access by the Department to the small amount of personal information contained in the released documents. The only issue for determination is whether there are reasonable grounds for believing that the Department holds additional documents that respond to the terms of the access application, and, if so, whether the Department has taken all reasonable steps to locate such documents. Relevant law Under the RTI Act, access to documents may be refused where they are nonexistent or unlocatable. A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist: section 52(1)(a) of the RTI Act. A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document, but it cannot be found: section 52(1)(b) of the RTI Act. To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience and have regard to a number of key factors, including:[11] the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. If searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case as the search and enquiry process an agency will be required to undertake will depend on the particular circumstances. To determine whether a document exists, but is unlocatable, OIC is required to consider: whether there are reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency’s possession; and whether the agency has taken all reasonable steps to find the document. Generally, the agency that made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[12] However, where an external review involves an applicant arguing that there are missing documents, the applicant has a practical onus to establish reasonable grounds to be satisfied that the agency has not discharged its obligation to locate all relevant documents. It is important to note that suspicion and mere assertion will not satisfy this onus.Applicant’s submissions Following negotiations with the Department, the agreed scope of the access application was: All documents ... (excluding those previously released by RTI20-... [ie another individual’s earlier access application[13]]) regarding The Deputy Director-General response to [the applicant] dated 28 July 2021 concerning the Old Newmarket Brickworks. described by the property addresses 81 and 117 Mina Pde, 34 Yarradale St. Time period. 1 January 1985 to 21 December 2021. In the attachment to his email to OIC of 15 August 2022, the applicant set out an 11 page schedule in which he extracted various statements from the DDG’s letter and identified documents that had not been provided to him by the Department but which he contended it was reasonable to assume existed, and that the Department must have relied upon in making the statements contained in the DDG’s letter. The applicant’s contentions were based upon the actions that he considered it was reasonable to expect that the Department should have taken. For example, the DDG’s letter contains a statement as follows: The department has reviewed the development approval as approved by the Council and can confirm that a condition relating to contaminated land has been imposed and has been repeated throughout all stages of the development. This condition means that a suitably qualified person must be engaged to undertake all investigation and remediation works at the site and provide a summary of all works undertaken in a contaminated land investigation report. The applicant submitted as follows in respect of this statement: In July 2021 the site works had been underway for approximately 5 months: Expect that DES officers would have informed DDG that works had been ongoing for 4 months (DES would have known this by web search of the address, Nearmap photos routinely used by DES or a site visit.) As regulator DES would have knowledge and been fully informed of the sites prior condition by way of scientific reports and associated recommendations for its use. Any differences between the information DES/Owner had not contained on the EMR. As regulator had the previous and current DES known site conditions been changed by the works. The regulator at this time would know who the nominated suitably qualified person was. The investigation and mediation work at the site and Contaminated land investigation report would have been asked for and in the possession of DES – It is key information. Documents Item 3 – 1 to 7 have not been observed in the documents released to date. In respect of another statement contained in the DDG’s letter concerning the responsibilities of the Department as opposed to the responsibilities of Brisbane City Council, the applicant submitted: The documents at Page 6 & 7 show that the DDG was well aware that the issue related to the use of public records. It was a major risk given it impacted DES as regulator. If they exist but DES does not have them then how do they regulate or how can DES verify information they publish is correct. DES’s role as regulator may be compromised but DDG would be expected to know and manage these risks by seeking advice. The DDG would document his request to departmental officers for advice regarding at least three key points: Does the regulator DES they have all the public documents? If not, who has them and? How does the regulator get informed so it can regulate? [My] document went to the Minister: Where is the MECS document records showing the officers responsible, identification and traceability of the information between the Ministers Office and DES. Documents Item 1 – 1 to 4 have not been observed in the documents released to date. In my letter to the applicant in response,[14] I stated that I had formed the preliminary view that his submission was unreasonably speculative and oppressive in nature because: it did not describe the documents that he sought with sufficient certainty to allow the Department to identify them it asked questions of the Department, which was not permitted under the RTI Act it speculated about the actions that the applicant considered it was reasonable for the Department to have undertaken in preparing the DDG’s response even if the documents existed, I was not satisfied that the terms of the access application could reasonably be interpreted as covering the breadth of highly detailed, source documentation that the applicant described; and even if the terms of the access application did cover such documents, the Department would have been entitled to refuse to deal with the application under section 41 of the RTI Act on the ground that to do so would substantially and unreasonably divert the resources of the Department in the performance of its functions. The applicant lodged a further submission on 3 October 2022.[15] The thrust of his submission was that he sought access to ‘public records about inconsistencies in public records’. He asserted that the DDG’s letter evidenced a change in the Department’s previously-held position concerning the status of the Brickworks site and it was reasonable to expect that the Department would have ‘substantial evidence documented’ concerning the change: The applicant simply wants to identify the information contained in the DES held documents or obtained for the DDG to respond. The variance in the DES position before and after 28 July 2021 is sufficient to conclude that a science-based organisation would have some basis of fact by way of a document to substantiate the change. Amongst other attachments, the applicant provided another version of his original schedule in which he again extracted statements from the DDG’s letter; summarised his understanding of the Department’s position on the relevant issue prior to the letter; and discussed the responsive documents that he stated he had a genuine belief existed. However, again, he sought to ask questions of the Department, or speculated about what he considered should have occurred. For example, the following statement is contained in the DDG’s letter: At any stage of the development if something happens involving a hazardous contaminant or if there is a change in the condition of the land likely to or having caused serious or material environmental harm, the relevant person must provide the department with written notice of the nature and the circumstances in which it happened within 24 hours after becoming aware of the event. In respect of this statement, the applicant submitted: In July 2021, the regulator DES and DDG had approx. 6 months to identify the change in the condition of the land as shown in Appendix 1. DES had the 1998 Dames and Moore contaminant information. ...What documents did the DDG use when determining whether environmental harm was occurring and ... What documents did the DDG use to verify compliance with this requirement Another statement contained in the DDG’s letter is as follows: The contaminated land investigation report is then submitted to an independent contaminated land auditor, who will review all works and determine what land use the site is suitable for, before submitting a site suitability statement to the department. The site can only be removed from the EMR if the contaminated land auditor determines the site is suitable for any land use and subsequently should be removed from the EMR. The applicant submitted as follows: Discussions in November 2021 concerning RTI...[16] with DES Sherman/Thomas and [the applicant and another resident] DES confirmed the DES current position had not changed in that DES had insufficient contamination data for 117 Mina Parade and the adjoining 34 Yarradale St properties. Knowing that DES did not know the extent of contamination since 1998 the DDG would have asked for ... all of the DES required DDG referenced reports used in the DDG response. I responded to the applicant’s submission on 12 October 2022. I advised him that I considered that his submission remained unreasonably speculative and oppressive in nature. He continued to speculate about what actions the Department should reasonably have taken in preparing the DDG’s response. He also continued to ask questions of the Department with a view to requiring the Department to identify source documents that he contended the Department should have referred to when preparing the DDG’s letter, rather than offering a sufficiently precise description to permit the Department, as a practical matter, to locate the documents sought. I concluded that it remained my preliminary view that a reasonable interpretation of the scope of his access application was that it covered the documents relied upon in preparing the DDG’s response, and that ‘[e]ven if your contention that the Department held a different position about relevant issues prior to July 2021 is correct, I do not accept that the scope of your application covers what you refer to as ‘public records about inconsistencies in public records’.’ The applicant provided a final submission dated 28 October 2022. He referred to documents that had been released by the Department in response to another resident’s earlier access application shortly after the DDG’s letter had been issued. These documents were the documents expressly excluded from the agreed scope of the applicant’s access application by the words ‘(excluding those previously released by RTI20-...)’[17]. The earlier application by the other resident had sought access to contaminated land documents concerning the Brickworks site that had been submitted to or issued by the Minister/Department, or created internally by the Department between 1 January 1985 to 31 December 2014 and 31 December 2020 to 21 April 2021. The applicant contended that officers who were involved in identifying the documents responsive to RTI20-... were also involved in preparing the DDG’s letter and therefore had both sets of records before them. To the best of my understanding, the applicant is of the view that documents responsive to RTI20-... were used in preparing the DDG’s letter, and therefore are responsive to his access application (despite being expressly excluded from the agreed scope); whereas the documents identified by the Department as responsive to his application were not relied upon when preparing the DDG’s letter, and therefore should not have been located in response to his application. In this regard, I have carefully considered the applicant’s following submissions: Conclusion 1 – The issue for OIC is not about whether the documents exist - the regulator DES had the documents/records at the time – the records exist with the same DES DDG staff releasing the documents to the public at the same time the DDG letter was released. Conclusion 2 – The facts show what DES documents the specific officers had yet DES have also made matters worse by providing documents they represent as having been used but obviously could not have used – Documents not in the RTI request and obviously so given the dates. Conclusion 3 – OIC cannot place themselves in the DES office where the drafting and final decision was made. Whatever decision they make must be reliant upon some level of acceptance and scrutiny of DES representations made to OIC. (The OIC external review decision must objectively identify the documents used, reject the documents DES represent they did use but did not and stipulate where OIC rely upon the representations received from DES. Conclusion 4 – The Applicant considers that OIC have an obligation to limit the reliance it places on DES statements. To do this OIC must ask and document in its External Review decision placed on the public record the DES response to the following key questions: Did DES use any of the documents in 20-345 in its decision? and If so what 20-345 documents were they? Will DES identify the documents that they released under instruction from OIC which were not part of the RTI? ... It is simply the obligation of OIC in the external review decision to: identify the DES records/documents used identify the DES records/documents which DES represent were used but by the external review show they could not have been. Where DES are unable to identify the known DES records/documents used (from the totality of documents known to having been held by the two DES at the same time) the OIC clearly communicate any reliance it places on representations made to OIC by DES as to what documents were used. Discussion Contrary to the applicant’s assertions, and, in particular, his concluding comments in the preceding paragraph, it is not OIC’s role or obligation to identify the documents that the Department relied upon in preparing the DDG’s letter, nor to identify the documents that could not have been relied upon by the Department. The Department has identified what it regards as responsive documents. The applicant contends there should be more documents, thereby raising a ‘sufficiency of search’ issue for OIC to consider. When considering a sufficiency of search issue under the RTI Act, the only questions for OIC to consider are: whether there are reasonable grounds for believing that additional responsive documents exist in the Department’s possession or under its control; and, if so whether the searches and inquiries that the Department has conducted in an effort to locate such documents have been reasonable in all the circumstances. The applicant has a practical onus to establish reasonable grounds to be satisfied that the agency has not discharged its obligation to locate all relevant documents. As noted above, suspicion and mere assertion will not satisfy this onus. During the external review, the Department located and released 77 pages to the applicant. As regards the applicant’s complaint that one of those documents[18] does not fall within the terms of his access application because it post-dates the DDG’s letter, the only practical effect of such a release is that the Department is to be regarded as having given administrative access to this document, rather than access under the RTI Act.[19] An agency is free to give administrative access to any documents in its possession if it so chooses and an applicant suffers no prejudice through release in this form.[20] However, the applicant appears to contend that, in giving access to this document in response to the terms of the access application, the Department has falsely represented that it relied upon the document in preparing the DDG’s letter. I consider it is more likely that the Department simply failed to alert itself to the date of the document when giving access. But in any event, access has been given and it not OIC’s role under the RTI Act to enquire into the Department’s intentions or motives in giving access. For the reasons explained to the applicant in the preliminary view letters I issued during the review, I am not satisfied that he has discharged the onus upon him to establish reasonable grounds for believing that the agency has not complied with its obligation to locate all responsive documents. It is clear that the applicant holds strong views about what actions he considers the Department should have undertaken in preparing the DDG’s letter, and what documents it should have created, reviewed or had regard to. However, in considering sufficiency of search issues, OIC often finds that the documents that an applicant expects should have been created, do not necessarily equate with what a government agency actually creates (or is required to create), in practice. Submissions in which an applicant speculates about the steps an agency should have taken in dealing with a matter and speculates about what documents should therefore exist do not ordinarily give rise to reasonable grounds for requiring an agency to conduct further searches for responsive documents. As I have noted, I regard the applicant’s various submissions about missing documents to be both speculative and unreasonable in their terms, and oppressive in form. I do not accept that a reasonable interpretation of the terms of his access application – all documents regarding the DDG’s response – would cover the breadth of highly detailed source documentation that the applicant contends should have been created across many years, that he apparently seeks to have the Department identify for him by asking a series of questions in connection with statements contained in the DDG’s letter. I am not satisfied that the applicant has offered a sufficiently precise description of what he contends are missing responsive documents to permit the Department, as a practical matter, to locate the documents sought. The Department has not made any ‘representations’ to OIC about what documents it relied upon in preparing the DDG’s letter, beyond providing OIC with copies of documents that were located after conducting searches of the Department’s records and that were subsequently released by the Department to the applicant. As I advised the applicant during the course of the review, I have reviewed those documents and I consider that they support a finding that the DDG’s letter was primarily informed by the ‘points of relevance’ summary contained at pages 57-58 of the released information (and various duplicates). I noted to the applicant that the email dated 23 July 2021 at page 69 (and duplicates) requests that the relevant officer prepare the response for the DDG and ‘to include the facts about EMR, DA conditions about CLA, etc (from the attached dot points will be fine)’. [my emphasis] Further, to the extent that the applicant’s final submission dated 28 October 2022 contends that officers involved in identifying the documents responsive to RTI20-... (the earlier access application by another resident) were involved in preparing the DDG’s letter and therefore had both sets of records before them and, accordingly, documents responsive to RTI20-... were relied upon when preparing the DDG’s letter, I again observe that this submission is speculative and that it disregards the course of events evident on the face of the released information noted in the preceding paragraph. I also note that, even if the applicant’s submissions in this regard were correct, the agreed scope of his application expressly excludes documents released in response to this earlier access application by another resident. In summary, there is nothing before me to establish reasonable grounds for believing that, in preparing the DDG’s letter, material beyond the documents released to the applicant was relied upon. The applicant has attempted to assert otherwise by seeking to ask questions of the Department and speculating about what steps he considers the Department should reasonably have undertaken in preparing the response. However, mere assertion is not sufficient to discharge the onus upon him. Furthermore, as identified in paragraph 37, the released documents do not support such an assertion. Given my views above, it is not strictly necessary for me to do so, however, I would also take the opportunity to note (and as explained to the applicant in my letter dated 30 August 2022) that, even if it could be established that the Department had referred to the broad range of detailed source documents contended for by the applicant such that they could be regarded as falling within the terms of the access application, I consider it is likely that the Department would have been entitled to refuse to deal with the application under section 41 of the RTI Act on the grounds that to do so would substantially and unreasonably divert the resources of the Department in the performance of its functions. Given the volume of potentially responsive documents identified by the applicant in the attachments to his submissions, I consider that the work involved in the Department conducting searches for and assessing located documents would likely be unreasonable in the circumstances and unable to be carried out within the statutory timeframe. Finding For the reasons explained above, I am not satisfied on the material before me that the applicant has discharged the practical onus upon him to establish reasonable grounds for believing that the Department holds additional documents that respond to the terms of the access application. DECISION I vary the decision under review by finding that there are no reasonable grounds for believing that additional documents responding to the terms of the access application exist in the Department’s possession or under its control. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.A Rickard Acting Right to Information CommissionerDate: 20 December 2022 APPENDIX Significant procedural steps Date Event 4 May 2022 OIC received the application for external review. OIC requested preliminary information from the Department. 12 May 2022 OIC received the preliminary information from the Department. 3 June 2022 OIC advised the applicant and Department that the application for external review had been accepted. 17 June 2022 OIC received copies of the information in issue from the Department. 28 June 2022 The Department advised OIC that it did not object to disclosure of the information in issue with the exception of some personal information. 20 July 2022 The Department released the information in issue to the applicant. 15 August 2022 The applicant provided a submission. 30 August 2022 OIC conveyed a preliminary view to the applicant. 3 & 5 October 2022 The applicant provided a submission. 12 October 2022 OIC conveyed a further preliminary view to the applicant. 28 October 2022 The applicant provided a submission. 1 November 2022 OIC advised the Department that the matter would proceed to a formal decision. [1] Access application received on 15 December 2021. The scope of the application was initially much wider. The Department issued the applicant with a notice under section 42 of the RTI Act indicating that it was considering refusing to deal with the application on the ground that to do so would substantially and unreasonably divert the Department’s resources. The applicant then revised the scope of the application to the terms outlined in paragraph 1 above, and the Department accepted the revised scope. [2] The Department requested several extensions of tine during the processing period, which the applicant granted. It requested a further extension of time on 26 April 2022 to enable it to undertake third party consultations, which the applicant did not accept. [3] On 4 May 2022. [4] During the review, OIC identified a document from a related external review that was considered to fall within the terms of the access application. The Department agreed to give the applicant access to that document. [5] The documents were released to the applicant on 20 July 2022. [6] Including the external review application and the submissions dated 15 August 2022, and 3, 5 and 28 October 2022. [7] Section 21(2) of the HR Act. [8] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[9] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [10] XYZ at [573].[11] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [19] which adopted the Information Commissioner’s comments in PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009). [12] Section 87(1) of the RTI Act. [13] This individual being another resident of the area who also has concerns about the development.[14] Dated 30 August 2022.[15] The attachment to the submission was provided on 5 October 2022. [16] Ie the previous access application (made by another local resident who also has concerns about the development) which the applicant excluded from the scope of his access application – see paragraph 18 above. [17] See agreed scope at paragraph 18 above.[18] Page 36 of 77 pages. [19] Under the RTI Act, an agency is only obliged to deal with documents that fall within the terms of the access application. [20] The only disadvantage for an applicant arises if an agency gives only partial administrative access to a document. If the applicant wishes to pursue access to the information that has been withheld, they will be required to make a fresh application to the agency seeking access to that information. If the agency again refuses access, the applicant will then have review rights under the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Q45 and Council of the City of Gold Coast [2021] QICmr 2 (4 February 2021)

Q45 and Council of the City of Gold Coast [2021] QICmr 2 (4 February 2021) Last Updated: 13 May 2021 Decision and Reasons for Decision Citation: Q45 and Council of the City of Gold Coast [2021] QICmr 2 (4 February 2021) Application Number: 315282 Applicant: Q45 Respondent: Council of the City of Gold Coast Decision Date: 4 February 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - IRRELEVANT INFORMATION - request for information concerning the applicant’s complaint about Council officer conduct - whether information may be excluded on the basis it is irrelevant to the scope of the application - section 88 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - personal information of other individuals - whether disclosure would, on balance, be contrary to the public interest - whether complaint information comprises routine work information - whether access may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Council of the City of Gold Coast (Council) under the Information Privacy Act 2009 (Qld) (IP Act) for access to documents relating to his complaint about a Council employee. Council did not make a decision within the required statutory timeframe and was therefore taken to have made a decision refusing access to the requested information.[1] The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s deemed decision. During external review, Council located relevant documents and disclosed them to the applicant, subject to deletion of irrelevant information and the personal information of other individuals from 119 pages. The applicant remains dissatisfied with the level of information released by Council and seeks access to the refused information.[2] For the reasons set out below, I vary Council’s decision and find that: certain information may be deleted under section 88 of the IP Act, on the basis it is irrelevant to the scope of the application; and access may be refused to information on the basis that disclosure would, on balance, be contrary to the public interest.[3] Background In September 2019, the applicant made a complaint against a Council employee (Complaint).[4] In late November 2019, Council notified the applicant that it had taken appropriate action and the matter was considered closed. The applicant advised Council he was dissatisfied about the way Council had handled the Complaint and, on 23 December 2019, Council notified the applicant that, after assessing the Complaint, it had decided to not investigate the Complaint and would take no further action. On external review, the applicant asked OIC to conduct ‘a complete and impartial investigation into’ the Complaint.[5] Under the IP Act, a person affected by a reviewable decision[6] may apply to have the decision reviewed by the Information Commissioner. Council’s decision regarding the Complaint is not a ‘reviewable decision’ under the IP Act. As such, OIC’s jurisdiction in this review does not extend to investigating the Complaint.[7] Significant procedural steps taken during the external review are set out in the Appendix to this decision. Reviewable decision and evidence considered The decision under review is the decision refusing access to all requested information, which Council is deemed to have made under section 66 of the IP Act. The evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[8] particularly the right to seek and receive information as recognised in section 21 of the HR Act. I consider that a decision-maker will, when observing and applying the law prescribed in the IP and RTI Acts, be ‘respecting’ and ‘acting compatibly with’ this right and others prescribed in the HR Act.[9] I further consider that, having done so when reaching my decision, I have acted compatibly with and given proper consideration to relevant human rights, as required under section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between the Victorian equivalents of Queensland’s IP and RTI Acts and HR Act: ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[10] Issues for determination The issues for determination in this review are whether the applicant is entitled to access: parts of 107 pages deleted by Council on the basis that it is irrelevant to the access application (Irrelevant Information); and parts of 43 pages redacted by Council on the basis that disclosure would, on balance, be contrary to the public interest (CTPI Information). The applicant does not seek access to private telephone numbers and email addresses.[11] Irrelevant Information Relevant law Under the IP Act, an individual has the right to be given access to documents of a Queensland government agency, to the extent they contain the individual’s personal information.[12] However, section 88 of the IP Act permits an agency to delete information that is not relevant to an access application from a document before giving access to a copy of the document. In deciding whether information is irrelevant, it is necessary to consider whether the information has any bearing upon, or is pertinent to, the terms of the application.[13] Findings Council deleted information from 107 pages[14] on the basis it was irrelevant to the application. Most of the Irrelevant Information appears within email chains and, as a result, there is a significant level of duplication in portions of the Irrelevant Information.[15] The access application requested information about the Complaint and ‘all of the documents related to the investigation and outcome of the interview’.[16] Having considered the Irrelevant Information, I am satisfied that this information does not relate to the particular complaint, investigation or interview identified in the access application.[17] It is not open for an access applicant to unilaterally expand the scope of an access application on external review.[18] I consider the terms of the access application are clear, as they expressly seek only information relating to the Complaint. I have carefully reviewed the Irrelevant Information and I am satisfied that it is, on its face, information about matters other than Council’s investigation of the Complaint. While these matters also involve the applicant, they do not relate to the specific subject matter that is identified in the access application. On this basis, I find that the Irrelevant Information was validly deleted from the documents that Council has disclosed.[19] Information to which access was refused The remaining information in issue appears on 43 pages.[20] While I am limited in the extent to which I can describe the CTPI Information,[21] it includes the personal information of Council staff, including their opinions and experiences in relation to non-routine events that occurred in the Council workplace, and the personal information[22] of other individuals. Relevant law The access right under the IP Act is subject to limitations, including grounds for refusing access.[23] One ground for refusing access is where disclosure of information would, on balance be contrary to the public interest.[24] In deciding where the balance of the public interest lies, the IP Act and RTI Act requires a decision-maker to identify factors for and against disclosure and decide, on balance, whether disclosure would be contrary to the public interest.[25] In balancing the public interest, a decision-maker is prohibited from taking into account irrelevant factors.[26] In making this decision, I have not taken into account any irrelevant factors. Findings Factors favouring disclosure The RTI Act recognises the following factors favouring disclosure will arise where disclosing information could reasonably be expected to: enhance the government’s accountability[27] inform the community of the Government’s operations, including, in particular, the policies, guidelines and codes of conduct followed by the Government in its dealings with members of the community;[28] and reveal the reason for a government decision and any background or contextual information that informed the decision.[29] Council must be transparent and accountable in how it deals with complaints it receives about Council staff. I consider that Council’s accountability and transparency has been substantially enhanced by the information released to the applicant. I acknowledge that disclosing the CTPI Information would provide the applicant with further details of how Council handled the Complaint, and provide the applicant with a better understanding of the decisions made by Council. However, I consider the weight that can be attributed to this factor is reduced by the level of information that Council has already disclosed to the applicant. On this basis, I afford moderate weight to these factors favouring disclosure.[30] The applicant has raised general concerns about Council’s conduct in dealing with the Complaint.[31] Where disclosure of information could reasonably be expected to allow or assist inquiry into possible conduct deficiencies of agencies or officials, or reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct, public interest factors favouring disclosure will arise.[32] I have carefully considered the CTPI Information (together with the applicant’s submissions and the information which has been released to the applicant) and I am satisfied that there is nothing in that information which gives rise to an expectation that disclosure would allow or assist enquiry into, reveal or substantiate, agency or official conduct deficiencies. In these circumstances, I afford low weight to these factors favouring disclosure. The applicant submits that the CTPI Information ‘does not contain personal information about individuals other than [the applicant] as it directly addresses [the applicant] and [the Complaint]’.[33] Some, but not all, of the CTPI Information relates to the applicant and comprises his personal information[34] and I attribute significant weight to this disclosure factor in respect of that information.[35] However, this personal information of the applicant is inextricably intertwined with the personal information of other individuals and cannot be disclosed without disclosing the personal information of these individuals, which raises a factor favouring nondisclosure discussed below. Of key factual importance in my consideration here is that the Complaint in issue was made by the applicant against a Council officer. The allegations are of an extremely personal nature and extend to considerations beyond the routine work of that officer. The applicant submits that ‘the information about [his] complaint should be disclosed in fairness to provide for a fair hearing on the complaint’.[36] Public interest factors favouring disclosure will arise where disclosing information could reasonably be expected to: advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies[37] contribute to the administration of justice generally, including procedural fairness;[38] and contribute to the administration of justice for a person.[39] In this case, the applicant is the Complainant rather than the subject of Council’s investigations. The fundamental requirements of procedural fairness—that is, an unbiased decision-maker and a fair hearing—should be afforded to a person who is the subject of an investigation or decision. The fair hearing aspect of procedural fairness requires that, before a decision that will deprive a person of some right, interest or legitimate expectation is made, the person is entitled to know the case against them and to be given the opportunity of replying to it.[40] Council has advised the applicant of its decision on the Complaint. Taking into consideration the information which Council has disclosed, I consider procedural fairness for the applicant would not be significantly advanced by disclosure of the CTPI Information. Accordingly, I afford this factor[41] low weight. The public interest factor relating to advancing the fair treatment of individuals does not require a decision-maker to ensure that an applicant is provided with every piece of information that was considered as a result of the applicant’s complaint. Rather, it is about providing information to ensure fair treatment in an applicant’s future dealings with agencies.[42] I am not satisfied that disclosure of the CTPI Information would further advance the applicant’s fair treatment in his future dealings with Council in any significant way. On this basis, I afford low weight to this factor favouring disclosure.[43] In determining whether the disclosure of the CTPI Information could reasonably be expected to contribute to the administration of justice for the applicant, I must consider whether:[44] the applicant has suffered loss, or damage, or some kind of wrong, in respect of which a remedy is, or may be, available under the law the applicant has a reasonable basis for seeking to pursue the remedy; and disclosing the information held by an agency would assist the applicant to pursue the remedy, or evaluate whether a remedy is available or worth pursuing. The applicant has referenced in submissions to OIC that he is involved in legal proceedings concerning the Complaint.[45] That is, the applicant is already pursuing a remedy based on the information he has. There is no evidence before me to indicate that disclosure of the CTPI Information is required to enable the applicant to pursue a remedy or evaluate whether a remedy is available or worth pursuing. For these reasons, I do not consider this factor favouring disclosure[46] applies. I have taken into account the pro-disclosure bias[47] and considered whether any other public interest factors favouring disclosure apply, including those listed in schedule 4, part 2 of the RTI Act.[48] I cannot identify any other public interest consideration favouring disclosure of the CTPI Information that would carry weight in these circumstances.[49] Factors favouring nondisclosure The RTI Act recognises that there is a public interest harm[50] in disclosing the personal information of other individuals and that disclosing information which could reasonably be expected to prejudice the protection of an individual’s right to privacy gives rise to a public interest factor favouring nondisclosure.[51] The CTPI Information includes personal information about individuals other than the applicant, which appears in a sensitive context.[52] As noted above, some of this information is intertwined with the applicant’s personal information. I consider that disclosing other individuals’ sensitive personal information would be a significant intrusion into their privacy. While the CTPI Information discusses incidents that took place in a Council workplace, it is not wholly related to the routine day-to-day work activities of Council staff.[53] The nature of the Complaint is personal and sensitive and goes to the character of a Council officer, as opposed to their routine Council work. Given the nature of this information[54] I am satisfied its disclosure would be a significant intrusion into the privacy of the relevant staff and the extent of the harm that would arise from its disclosure would be significant. I acknowledge that the applicant will be aware of some of the CTPI Information. However, I do not consider that reduces the weight of these nondisclosure factors to any significant degree, particularly as there can be no restriction on the use, dissemination or republication of information disclosed under the IP Act. Accordingly, I afford these factors favouring nondisclosure[55] significant weight. The RTI Act also recognises that a public interest harm can result from the disclosure of information that could have a substantial adverse effect on the management or assessment by an agency of its staff.[56] Public interest factors favouring nondisclosure will also arise where disclosing information could reasonably be expected to: prejudice an agency’s ability to obtain confidential information;[57] and prejudice the management function of an agency or the conduct of industrial relations by an agency.[58] The allegations within the Complaint are of a highly sensitive and personal nature, as they raise concerns about the character and integrity of a Council officer. Council must be able to consider and discuss such sensitive matters discretely and ensure that disclosure of information does not unduly impact its ongoing employment relationship with its staff. In this context, I consider that disclosing the CTPI Information would have a significant and negative impact on Council’s ability to manage its staff in relation to the investigation of complaints involving allegations of a sensitive and personal nature. It is also generally recognised that there is very strong public interest in protecting the ability of agencies to obtain information which is relevant to the investigation of complaints, including the opinions and observations of concerned individuals.[59] Routinely disclosing this type of information would tend to discourage individuals from coming forward with relevant information or participating openly in future investigations, particularly where the information involves sensitive personal matters or where information has been provided on a confidential basis. Accordingly, I afford significant weight to these factors favouring nondisclosure. Where disclosing information could reasonably be expected to prejudice security, law enforcement or public safety, a factor favouring nondisclosure will arise.[60] Some of the CTPI Information reveals investigation procedures and methods employed by Council. Disclosing information of this nature could allow individuals to use the information to modify their behaviour so as to avoid detection, thereby compromising the ongoing effectiveness of those procedures and methods and detrimentally effecting Council’s ability to effectively discharge its obligations to investigate complaints. On this basis, I afford significant weight to this factor favouring nondisclosure. Under the RTI Act, a further factor favouring nondisclosure arises where disclosure could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct.[61] On the information before me, it is my understanding the Council did not find the applicant’s allegations in the Complaint were substantiated and, given the nature of the allegations, I am satisfied that it could reasonably be expected to impact of the fair treatment of the subject Council officer. In these circumstances, and given the highly sensitive nature of those allegations, this factor deserves significant weight in respect of the CTPI Information. Balancing the public interest I have taken into account the pro-disclosure bias in deciding access to documents under the IP Act.[62] I have afforded significant weight to the factor favouring disclosure of the applicant’s personal information within the CTPI Information,[63] however, that personal information of the applicant is inextricably intertwined with the personal information of other individuals. In addition, and for the reasons outlined above, I have identified additional factors favouring disclosure of the CTPI Information (including those relating to Council’s transparency and accountability, fair treatment and administration of justice).[64] However, taking into account the nature of the CTPI Information, I afford these factors moderate to low weight. On the other hand, I have afforded significant weight to the nondisclosure factors which relate to protecting the personal information and right to privacy of other individuals and ensuring the fair treatment of individuals, in a highly sensitive context.[65] Additionally, I consider that nondisclosure factors relating to protecting Council’s investigation procedures and methods and its ability to obtain confidential information and manage its staff deserve significant weight.[66] On balance, I am satisfied that the public interest factors favouring nondisclosure outweigh the factors favouring disclosure. Accordingly, I find that disclosure of the CTPI Information would, on balance, be contrary to the public interest and access may be refused on this basis.[67] DECISION For the reasons set out above, I vary Council’s deemed decision and find that: the Irrelevant Information may be deleted under section 88 of the IP Act; and access to the CTPI Information may be refused as disclosure would, on balance, be contrary to the public interest.[68] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. S MartinAssistant Information Commissioner Date: 4 February 2021 APPENDIXSignificant procedural steps Date Event 24 March 2020 OIC received the external review application. 16 April 2020 OIC notified the applicant and Council that the application for external review had been accepted and requested information from Council. 25 May 2020 OIC received the requested information from Council. 24 June 2020 OIC notified the applicant that Council had agreed to release some of the requested information. 30 June 2020 Council released information to the applicant and OIC received the applicant’s notification that he was dissatisfied with the level of disclosed information. 3 July 2020 OIC asked the applicant to identify whether there was particular information that he continued to seek access to. 5 July 2020 OIC received the applicant’s notification that he sought access to all information redacted from the released documents, excluding private telephone numbers and email addresses. 20 July 2020 OIC provided an update to the applicant and sought confirmation of whether the applicant sought access to mobile telephone numbers and direct landline numbers of Council staff. 6 and 7 August 2020 OIC received the applicant’s submissions. 10 August 2020 OIC received a number of further submissions from the applicant. 21 August 2020 OIC conveyed a preliminary view to the applicant and invited the applicant to provide submissions if he did not accept the preliminary view. OIC received the applicant’s submissions contesting the preliminary view. 6 September 2020 OIC received the applicant’s further submissions and his request for unredacted copies of the documents. 7 September 2020 OIC conveyed a further preliminary view to the applicant and invited the applicant to make further submissions if he maintained his disagreement with the preliminary view. OIC received the applicant’s further submissions. 14 September 2020 OIC received the applicant’s further submissions. 25 September 2020 OIC received the applicant’s further submissions and a request that OIC issue a formal decision. 29 September 2020 OIC notified the applicant that OIC did not have jurisdiction to undertake an investigation of the Complaint, as requested by the applicant. [1] Under section 66(1) of the IP Act. In accordance with section 66(2) of the IP Act, Council provided a notice of the deemed decision to the applicant on 25 March 2020. [2] Submissions dated 30 June 2020. [3] Under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) (RTI Act). Section 67(1) of the IP Act sets out that an agency may refuse access to information in the same way and to the same extent that the agency could refuse access to the document under section 47 of the RTI Act were the document the subject of an access application under the RTI Act. [4] Although the applicant withdrew the Complaint on 4 October 2019, he subsequently re-activated the Complaint on 25 October 2019, withdrew it on 4 November 2019 and then re-activated it again on 5 November 2019. [5] By email dated 25 September 2020. [6] ‘Reviewable decision’ is defined in schedule 5 of the IP Act. [7] This was explained to the applicant in OIC’s email dated 29 September 2020. [8] Relevant provisions of which commenced on 1 January 2020.[9] See XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; and Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. [10] XYZ at [573].[11] Applicant’s email to OIC dated 5 July 2020, which did not exclude the mobile telephone and direct landline numbers of Council staff. [12] Section 40 of the IP Act. [13] O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [52]. [14] Being Bundle 2 – pages 25-28, 30, 32-34, 37, 39-43 and 45-50; Bundle 3 – pages 4-6, 10-12, 14-20, 28-30, 32, 35-38, 40 and 44-46; Bundle 4 – pages 7-8, 12, 15-16, 21-28, 30-31, 33-39, 41-43, 45-47 and 49-50; and Bundle 5 – pages 2, 4, 6-11, 14-22 and 24-38. [15] For example, the portions of Irrelevant Information deleted at page 26 in Bundle 2 (which appear in an email Council sent to the applicant, dated 31 October 2019) are duplicated at Bundle 2, pages 32, 40-41 and 47-48; Bundle 3, pages 4-5, 10, 17, 28-29, 35-36 and 44-45; Bundle 4, pages 24-25, 34-36 and 46-47; and Bundle 5, pages 7-8 and 19-20. [16] Access application dated 7 January 2020. The application also specifically requested ‘a copy of [the applicant’s] original written submission, the documental evidence showing the complaint was investigated, by whom, where and when, as well as the process which was followed when dealing with complaints of this nature and justification of the decision council made (their findings)’. [17] Some of the information that has been removed as irrelevant is likely to be known to the applicant as it appears in correspondence to or from him in relation to matters other than the subject the of this access application. [18] Robbins and Brisbane North Regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30 at [17]. See also 8RS6ZB and Metro North Hospital and Health Service [2015] QICmr 3 (13 February 2015) at [14]. [19] Under section 88 of the IP Act. As notified to the applicant on 21 August 2020 and 7 September 2020, if he wishes to access information outside of the scope of his access application, he may lodge a fresh application to Council. [20] Which Council redacted from the following pages: Bundle 2 – pages 30, 37, 39, 45 and 46; Bundle 3 – pages 8, 14-16, 26, 32-33 and 42; Bundle 4 – pages 7-8, 15, 16, 21, 22, 23, 24, 30, 31, 33-34, 42, 43 and 45; Bundle 5 – pages 2, 4, 6, 13, 15, 16 and 17-18; and Bundle 6 – pages 2-6 and 11-12. [21] Section 121 of the IP Act.[22] ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. [23] The grounds for refusing access are set out in section 47 of the RTI Act. Section 47(2) of the RTI Act states that it is Parliament’s intention that the grounds on which access may be refused are to be interpreted narrowly. [24] Sections 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. See Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12, 14-16. [25] Section 49(3) of the RTI Act. [26] Including those at schedule 4, part 1 of the RTI Act.[27] Schedule 4, part 2, item 1 of the RTI Act. [28] Schedule 4, part 2, item 3 of the RTI Act. [29] Schedule 4, part 2, item 11 of the RTI Act. [30] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act.[31] For example, in his emails dated 5 July 2020 and 7 September 2020. [32] Schedule 4, part 2, items 5 and 6 of the RTI Act. [33] Email dated 5 July 2020. [34] Section 121 of the IP Act prevents me from describing this personal information of the applicant in any further detail in this decision. [35] Schedule 4, part 2, item 7 of the RTI Act. [36] Email dated 21 August 2020. [37] Schedule 4, part 2, item 10 of the RTI Act. [38] Schedule 4, part 2, item 16 of the RTI Act. [39] Schedule 4, part 2, item 17 of the RTI Act. [40] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584 per Mason J.[41] Schedule 4, part 2, item 16 of the RTI Act. [42] F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 (9 June 2017) at [101]. [43] Schedule 4, part 2, item 10 of the RTI Act. [44] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 at [17] and confirmed in 1OS3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011) at [16].[45] For example, in his emails dated 6 August 2020 and 7 September 2020. [46] Schedule 4, part 2, item 17 of the RTI Act. [47] Section 64 of the IP Act. [48] Taking into account the nature of the CTPI Information, I am unable to identify how disclosure could, for example, contribute to positive and informed debate on important issues or matters of serious interest (schedule 4, part 2, item 2 of the RTI Act); reveal the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant (schedule 4, part 2, item 12 of the RTI Act); or contribute to the enforcement of the criminal law (schedule 4, part 2, item 18 of the RTI Act). [49] In the event that further relevant factors apply in favour of disclosure, I am satisfied that there is no evidence to indicate that any would carry sufficient weight to outweigh the significant weight that I have afforded to the public interest factors that favour nondisclosure, as discussed below.[50] Schedule 4, part 4, section 6 of the RTI Act.[51] Schedule 4, part 3, item 3 of the RTI Act. The concept of ‘privacy’ is not defined in either the IP Act or RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others (paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 12 August 2008, at paragraph 1.56). [52] Section 121 of the IP Act prevents me from providing further detail about the nature or content of the CTPI Information. [53] Refer to BFU12E and Metro North Hospital and Health Service [2015] QICmr 21 (31 August 2015) at [29] to [31] and F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 (9 June 2017) at [118] to [120]. [54] The direct contact details of Council staff constitute routine personal work information. The applicant’s submissions of 5 July 2020 and 7 September 2020 indicate that he is not seeking contact details of Council officers and rather the discussions between Council staff in relation to his Complaint. [55] Schedule 4, part 4, section 6 and schedule 4, part 3, item 3 of the RTI Act. [56] Schedule 4, part 4, section 3(c) of the RTI Act.[57] Schedule 4, part 3, item 16 of the RTI Act. [58] Schedule 4, part 3, item 19 of the RTI Act. [59] See for example: P6Y4SX and Queensland Police Service [2015] QICmr 25 (11 September 2015) at [27] to [31], P6Y4SX and Department of Police (Unreported, Queensland Information Commissioner, 31 January 2012) at [35] to [40], SW5Z7D and Queensland Police Service [2016] QICmr 1 (15 January 2016) at [27] to [31] and Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [29]. [60] Schedule 4, part 3, item 7 of the RTI Act.[61] Schedule 4, part 3, item 6 of the RTI Act.[62] Section 64 of the IP Act. [63] Schedule 4, part 2, item 7 of the RTI Act. [64] Schedule 4, part 2, items 1, 3, 5, 6, 10, 11 and 16 of the RTI Act. [65] Schedule 4, part 4, section 6 and schedule 4, part 3, items 3 and 6 of the RTI Act.[66] Schedule 4, part 3, items 7, 16 and 19 and schedule 4, part 4, section 3(c) of the RTI Act. [67] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. [68] Section 67(1) of the IP Act and section 47(3)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

T50 and Sunshine Coast Hospital and Health Service [2023] QICmr 4 (31 January 2023)

T50 and Sunshine Coast Hospital and Health Service [2023] QICmr 4 (31 January 2023) Last Updated: 14 April 2023 Decision and Reasons for Decision Citation: T50 and Sunshine Coast Hospital and Health Service [2023] QICmr 4 (31 January 2023) Application Number: 316708 Applicant: T50 Respondent: Sunshine Coast Hospital and Health Service Decision Date: 31 January 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - CONTRARY TO PUBLIC INTEREST INFORMATION - medical records - accountability, transparency, fair treatment and administration of justice - personal information, privacy and ability to obtain information - whether disclosure would, on balance, be contrary to the public interest - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Sunshine Coast Hospital and Health Service (Health Service) under the Information Privacy Act 2009 (Qld) (IP Act) to access information relating to certain meetings she had with various Health Service staff, during her attendance at the Sunshine Coast University Hospital (Hospital) in January and February 2022.[1] The Health Service located 28 pages of medical records relevant to the application and decided[2] to refuse access to one full page[3] and portions of information on a further three pages.[4] The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Health Service’s decision.[5] During the external review, the Health Service agreed to disclose a small amount of the refused information to the applicant. However, the applicant continues to seek access to the remaining refused information, which appears on three pages. For the reasons set out below, I affirm the Health Service’s decision and find that access may be refused to the information remaining in issue in this review, on the basis its disclosure would, on balance, be contrary to the public interest.[6] Reviewable decision The decision under review is the Health Service’s decision dated 19 April 2022. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). The significant procedural steps taken during the external review are set out in the Appendix. The applicant provided a number of submissions to OIC in support of her case.[7] In her submissions, the applicant provided some sensitive, personal information about her health. The applicant also raised concerns in her submissions which are beyond the jurisdiction of the Information Commissioner and fall outside the scope of this review.[8] I have carefully reviewed the applicant’s submissions and, in reaching this decision, I have only taken into account the parts of those submissions which are relevant to the issue for determination. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[9] I consider a decision-maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the IP Act and RTI Act.[10] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act.[11] Information and issue for determination As noted in paragraph 4, following the disclosure of a small amount of information, the remaining refused information appears on three pages—namely, one full page (page 16) and parts of two pages (pages 2 and 4) (Information in Issue). While I am unable to describe the content of the Information in Issue in any detail,[12] I can confirm that it appears in the applicant’s medical records and broadly comprises information which the Health Service obtained from individuals who are not part of the Health Service’s clinical team providing patient care. The issue for determination in this review is whether access to the Information in Issue may be refused on the ground that disclosure would, on balance, be contrary to the public interest. Relevant law Under the IP Act, an individual has a right to be given access to documents of an agency, to the extent they contain the individual’s personal information.[13] However, this right is subject to limitations, including the grounds for refusal of access.[14] One refusal ground is where disclosing information would, on balance, be contrary to the public interest.[15] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests.[16] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[17] identify factors irrelevant to the public interest and disregard them identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Findings I have not taken any irrelevant factors into account in reaching my decision. Factors favouring disclosure Some of the Information in Issue relates to the applicant and comprises her personal information. This gives rise to a factor favouring disclosure,[18] to which I attribute high weight. However, this information about the applicant is intertwined with the personal information of other individuals to such an extent that it cannot be disclosed without also disclosing the personal information of those other individuals (giving rise to factors favouring nondisclosure discussed below). The RTI Act recognises that public interest factors favouring disclosure will arise where disclosing information could reasonably be expected to: enhance the government’s accountability[19] inform the community of the Government’s operations, including, in particular, the policies, guidelines and codes of conduct followed by the Government in its dealings with members of the community;[20] and reveal the reason for a government decision and any background or contextual information that informed the decision.[21] The applicant argued[22] that disclosure of the Information in Issue will inform her of all the factors that ‘led to the decision to utilize’ the Mental Health Act 2016 (Qld) (MH Act) in her care. The applicant also submitted that certain medical treatment was forced upon her[23] and she considered the Information in Issue will ‘further inform’ her about whether the MH Act was applied appropriately.[24] There is a strong public interest in hospitals, and their staff, being accountable for their treatment of patients and for the decisions they make as part of that treatment. While I accept that disclosing the Information in Issue would provide the applicant with some further background information that was available to her treating doctors, the Health Service has disclosed most of the information in the applicant’s medical records which concern her attendance at the Hospital in January and February 2022. I consider this disclosed information has substantially advanced the disclosure factors relating to accountability and transparency,[25] by enabling scrutiny of the Health Service’s treatment actions and providing background information which informed those actions. Taking into account the limited nature of the Information in Issue, I do not consider its disclosure would further advance these factors in any significant way and accordingly, I afford them only low weight. Given the applicant raised general concerns about the medical treatment she received in January and February 2022, I have also considered whether disclosing the Information in Issue could reasonably be expected to allow or assist enquiry into, or reveal or substantiate, deficiencies in the conduct of the Health Service or its officers.[26] While I acknowledge the applicant disagrees with the medical diagnosis she received at the Hospital in early 2022, I am satisfied that there is nothing within the Information in Issue itself which gives rise to an expectation that its disclosure would reveal, or substantiate, any conduct deficiencies. Accordingly, I find that these factors do not apply. The applicant also submitted that access to the Information in Issue would alert her to any incorrect or misleading information.[27] A factor favouring disclosure arises where disclosing information could reasonably be expected to reveal the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[28] As I have noted above, the Information in Issue broadly comprises information which was obtained from other individuals. Information of this nature is shaped by an individual’s observations, perceptions, concerns and opinions. This inherent subjectivity does mean that the information is necessarily incorrect or misleading.[29] Having reviewed the Information in Issue, there is nothing before me to suggest that this information is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. On this basis, I find that this factor does not apply to favour disclosure of the Information in Issue. Public interest factors favouring disclosure also arise where disclosing information could reasonably be expected to: advance the fair treatment of individuals in accordance with the law in their dealings with agencies[30] contribute to the administration of justice generally, including procedural fairness;[31] and contribute to the administration of justice for a person.[32] The applicant asserted[33] that ‘[t]he release of [her] personal information will ensure that there is procedural fairness by having access to all of the material within [her] medical records’. As I have noted above, most of the requested medical records have been disclosed to the applicant. I also note that, although the applicant has raised general fairness arguments,[34] she has confirmed that, based on information she already possesses, her previous treatment authority has been revoked.[35] Taking the particular nature of the Information in Issue into account, I am not satisfied that that there is a reasonable expectation its disclosure would, in any meaningful way, advance the applicant’s fair treatment or contribute to the general administration of justice, including procedural fairness. On this basis, while these factors may apply,[36] I afford them only low weight due to the nature of the Information in Issue. In determining whether the disclosure of the Information in Issue could reasonably be expected to contribute to the administration of justice for the applicant, I must consider whether:[37] the applicant has suffered loss, or damage, or some kind of wrong, in respect of which a remedy is, or may be, available under the law the applicant has a reasonable basis for seeking to pursue the remedy; and disclosing the information held by an agency would assist the applicant to pursue the remedy or evaluate whether a remedy is available or worth pursuing. The applicant submitted[38] that disclosure of information would allow her to ‘get independent legal advice on any actions against the Queensland Health Services including compensatory or criminal’. There is no evidence before me to indicate that disclosure of this particular Information in Issue is required to enable the applicant to pursue a legal remedy or evaluate whether a remedy (legal or otherwise) is available or worth pursuing. I also note that, if the applicant does commence any legal action, it is reasonable to expect that relevant court disclosure processes will be available to her. Taking into account the information which has been disclosed by the Health Service and the limited nature of the Information in Issue, I do not consider this factor applies to favour disclosure. The applicant also submitted[39] that disclosing the Information in Issue could reasonably be expected to: reveal environmental or health risks or measures relating to public health and safety, by allowing her to ‘ensure that the measures by which Queensland Health Services make a decision to enact provisions under the [MH Act] are not jeopardising public health and safety by subjecting individuals to involuntary treatment unnecessarily’[40]; and contribute to the enforcement of the criminal law.[41] As noted above the Information in Issue is limited and broadly records information health care providers obtained from other individuals to assist in the applicant’s medical treatment. Given this, I find these factors do not apply to favour disclosure of that information. Taking into account the particular nature of the Information in Issue, I cannot identify any other public interest considerations favouring its disclosure.[42] Factors favouring nondisclosure The RTI Act recognises that there is a public interest harm[43] in disclosing an individual’s personal information to someone else and that disclosing information which could reasonably be expected to prejudice the protection of an individual’s right to privacy gives rise to a public interest factor favouring nondisclosure.[44] The concept of ‘privacy’ is not defined in the IP Act or the RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others.[45] Having carefully reviewed the Information in Issue, I am satisfied that most of it comprises the personal information of individuals other than the applicant, which appears in a sensitive context. As noted above, some of this information is intertwined with a small amount of the applicant’s personal information. Given the sensitive and (in some cases) highly personal nature of this information, I am satisfied that its disclosure would be a significant intrusion into the privacy of these other individuals and the extent of the harm that could be expected to arise from its disclosure would be significant. On this basis, I afford significant weight to these factors which favour nondisclosure of this information. The applicant submitted[46] that she believes she is aware ‘of the individual who provided’ the Information in Issue and that it relates to a conversation which occurred while she was present. I am unable to describe the Information in Issue in any detail in this decision[47] and cannot address the applicant’s speculation about the contents of that information. While I accept that, as a result of processes and interactions which occurred subsequent to the applicant’s Hospital attendance in early 2022, she may know some of the Information in Issue, I do not consider this reduces the weight of these nondisclosure factors, particularly given the sensitive nature and context of this information and that there can be no restriction on the use, dissemination or republication of information disclosed under the IP Act. A public interest factor favouring nondisclosure will also arise where disclosing information could reasonably be expected to prejudice an agency’s ability to obtain confidential information.[48] The applicant submitted that the information is not confidential, as she believed that the Information in Issue relates to a conversation that occurred when she was present.[49] As noted above, I am unable to address the applicant’s speculation about the contents of the Information in Issue. This information was obtained from other individuals, by health care workers, to assist in the treatment of the applicant. Based on the nature of the information in Issue and the context in which it appears, I am satisfied it was communicated in confidence and on the expectation that it would remain confidential. Healthcare workers often rely on information being provided by individuals to assist in the diagnosis and treatment of health conditions. I consider it is reasonable to expect that individuals may be discouraged from providing information to healthcare workers if they are aware that it might be disclosed to the patient under the IP Act. This could significantly prejudice the ability of healthcare workers to care for patients. On this basis, I consider these nondisclosure considerations are also deserving of significant weight. Balancing the relevant public interest factors I have taken into account the pro-disclosure bias of the IP Act.[50] For the reasons set out above, I am satisfied that the nondisclosure factors relating to the protection of privacy and personal information of other individuals and the ability of agencies to obtain confidential information are deserving of significant weight. On the other hand, I have afforded high weight to the factor favouring disclosure of the applicant’s personal information within the Information in Issue, however, that personal information of the applicant is inextricably intertwined with the personal information of other individuals. In addition, and for the reasons outlined above, I have identified additional disclosure factors which favour disclosure of the Information in Issue (such as those relating to accountability and transparency, fair treatment and the administration of justice). However, taking into account the nature of the Information in Issue, I have afforded these factors only low weight. On balance, I am satisfied that the public interest factors favouring nondisclosure outweigh the factors favouring disclosure. Accordingly, I find that disclosure of the Information in Issue would, on balance, be contrary to the public interest and access may be refused on this basis.[51] DECISION For the reasons set out below, I affirm the Health Service’s decision and find that access to the Information in Issue may be refused, as its disclosure would, on balance, be contrary to the public interest.[52] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.T LakeActing Assistant Information Commissioner Date: 31 January 2023 APPENDIX Significant procedural steps Date Event 17 May 2022 OIC received the external review application. 17 June 2022 OIC notified the applicant and the Health Service that the application for external review had been accepted and requested information from the Health Service. 21 June 2022 OIC received the requested information from the Health Service. 27 July 2022 The Health Service agreed to the release of 5 words to the applicant (which appeared on pages 1 and 4). 2 August 2022 OIC confirmed the 5 words which the Health Service had agreed to disclose and conveyed a preliminary view to the applicant in respect of the remaining refused information. OIC invited the applicant to provide a submission if she did not accept the preliminary view. 18 August 2022 OIC received the applicant’s submissions dated 16 August 2022. 15 November 2022 OIC conveyed a further preliminary view to applicant and invited the applicant to provide submissions if she did not accept the preliminary view. 28 November 2022 OIC received the applicant’s further submissions dated 21 November 2022. 6 December 2022 OIC reiterated the preliminary view to the applicant and indicated a formal decision would be required to finalise the review. OIC invited the applicant to provide any further information that she wished to be considered by 20 December 2022. [1] The access application dated 7 February 2022 was received by the Health Service on 9 February 2022. [2] Decision dated 19 April 2022. [3] Numbered page 16. [4] Numbered ages 1, 2 and 4. [5] The external review application, which is dated 12 May 2022 and was received by OIC on 17 May 2022, seeks review of the refusal of access to information on pages 1, 2, 4 and 16 of the located documents. [6] Under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) (RTI Act). Section 67(1) of the IP Act sets out that an agency may refuse access to information in the same way and to the same extent that the agency could refuse access to the document under section 47 of the RTI Act were the document the subject of an access application under the RTI Act. [7] As set out in the Appendix. [8] For example, the applicant disagrees with the medical diagnosis and treatment she received in January 2022 and she also raised concerns about the manner in which she was treated by police and the Hospital. [9] Section 21 of the HR Act. I have also given specific consideration to the right of protection from involuntary treatment (section 17(c) of the HR Act); the right to freedom of movement (section 19 of the HR Act); the right to privacy and reputation (section 25 of the HR Act); and the right to liberty and security of person (section 29 of the HR Act), which the applicant submitted were relevant (submissions dated 16 August 2022, which were received by OIC on 18 August 2022). [10] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. [11] I note the following observations made by Bell J in XYZ at [573], on the interaction between equivalent pieces of Victorian legislation (namely, the Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic)): ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’. I further note that OIC’s approach to the HR Act set out in this paragraph was considered and endorsed by the Queensland Civil and Administrative Tribunal in Lawrence v Queensland Police Service [2022] QCATA 134 at [23] (where Judicial Member McGill saw ‘no reason to differ’ from our position).[12] Section 121(3) of the IP Act which relevantly requires the Information Commissioner not to disclose information that is exempt or claimed to be contrary to the public interest information in a decision or reasons for a decision.[13] Section 40 of the IP Act. ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[14] The grounds on which access can be refused are set out in section 47 of the RTI Act. As noted above, section 67(1) of the IP Act provides that access may be refused to information in the same way and to the same extent as information may be refused under the RTI Act.[15] Sections 47(3)(b) and 49 of the RTI Act.[16] However, there are some recognised public interest considerations that may apply for the benefit of an individual. See Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12, 14. [17] Section 49(3) of the RTI Act. [18] Schedule 4, part 2, item 7 of the RTI Act. [19] Schedule 4, part 2, item 1 of the RTI Act. [20] Schedule 4, part 2, item 3 of the RTI Act. [21] Schedule 4, part 2, item 11 of the RTI Act. [22] Submissions dated 16 August 2022. [23] Submissions dated 21 November 2022, which were received by OIC on 28 November 2022. [24] Submissions dated 16 August 2022. [25] Substantially advancing the disclosure factors in schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [26] Schedule 4, part 2, items 5 and 6 of the RTI Act. [27] Submissions dated 16 August 2022. [28] Schedule 4, part 2, item 12 of the RTI Act. [29] Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [15]‑[20]; Brodsky and Gympie Regional Council [2014] QICmr 17 (2 May 2014) at [32]. [30] Schedule 4, part 2, item 10 of the RTI Act. [31] Schedule 4, part 2, item 16 of the RTI Act. [32] Schedule 4, part 2, item 17 of the RTI Act. [33] Submissions dated 16 August 2022. [34] Submissions dated 16 August 2022. [35] Submissions dated 21 November 2022. [36] Schedule 4, part 2, items 10 and 16 of the RTI Act. [37] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 at [17] and confirmed in 1OS3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011) at [16] and C98 and Cairns and Hinterland Hospital and Health Service [2021] QICmr 46 (9 September 2021) at [26]. [38] Submissions dated 16 August 2022. [39] Submissions dated 16 August 2022.[40] Giving rise to the factor in schedule 4, part 2, item 14 of the RTI Act. [41] Schedule 4, part 2, item 18 of the RTI Act. [42] Having carefully considered all factors listed in schedule 4, part 2 of the RTI Act, I cannot see how disclosing the Information in Issue could, for example, contribute to positive and informed debate on important issues or matters of serious interest (schedule 4, part 2, item 2 of the RTI Act); ensure oversight of expenditure of public funds (schedule 4, part 2, item 4 of the RTI Act); or contribute to the maintenance of peace and order (schedule 4, part 2, item 15 of the RTI Act). In the event that further relevant factors exist in favour of disclosure, I am satisfied that there is no evidence before me to suggest that any would carry sufficient weight to outweigh the significant weight that I have afforded to the public interest factors that favour the nondisclosure of the Information in Issue. [43] Schedule 4, part 4, section 6 of the RTI Act.[44] Schedule 4, part 3, item 3 of the RTI Act. [45] Paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 12 August 2008, at paragraph 1.56.[46] Submissions dated 16 August 2022. [47] Under section 121(3) of the IP Act. [48] Schedule 4, part 3, item 16 of the RTI Act. Schedule 4, part 4, section 8(1) of the RTI Act also recognises that disclosure of information could reasonably be expected to case a public interest harm if the information consists of information of a confidential information that was communicated in confidence and disclosure of the information could reasonably be expected to prejudice the future supply of information of this type. [49] Submissions dated 16 August 2022. [50] Section 64 of the IP Act.[51] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. [52] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Queensland Law Society Inc and Legal Ombudsman [1998] QICmr 5; (1998) 4 QAR 328 (24 June 1998)

Queensland Law Society Inc and Legal Ombudsman [1998] QICmr 5; (1998) 4 QAR 328 (24 June 1998) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 98005Application S 10/96Application S 74/96Application S 103/97S 10/96 Participants: QUEENSLAND LAW SOCIETY INC Applicant LEGAL OMBUDSMAN Respondent SIR LENOX HEWITT Third PartyS 74/96 Participants: QUEENSLAND LAW SOCIETY INC Applicant LEGAL OMBUDSMAN Respondent SIR LENOX HEWITT Third PartyS 103/97 Participants: SIR LENOX HEWITT Applicant QUEENSLAND LAW SOCIETY INC Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - letter of advice from a firm of solicitors retained by the Queensland Law Society to provide legal advice in respect of a complaint against another solicitor - whether letter of advice subject to legal professional privilege - whether disclosure to the complainant of a summary of the conclusions reached in the letter of advice, together with a statement by the respondent to the effect that it "adopted" the advice in resolving to take no action on the complaint, gave rise to a waiver by imputation of the privilege attaching to the letter of advice - application of s.43(1) of the Freedom of Information Act 1992 Qld. ii FREEDOM OF INFORMATION - 'reverse FOI' applications - memoranda from a salaried lawyer employed by the Queensland Law Society to the Society's Professional Standards Committee concerning complaints of unprofessional conduct against a solicitor - whether segments of the memoranda comprise legal advice given on a professional matter referable to a professional relationship of lawyer and client - whether segments of legal advice, in documents that would have been brought into existence for administrative purposes in any event, are capable of satisfying the 'sole purpose' test to attract legal professional privilege - application of s.43(1) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - 'reverse-FOI' applications - memoranda from salaried lawyer to the Queensland Law Society's Professional Standards Committee - whether analysis and legal opinion expressed by salaried lawyer is deliberative process matter falling within the terms of s.41(1)(a) of the Freedom of Information Act 1992 Qld - whether any of the matter in issue is excluded from eligibility for exemption under s.41(1), because it is merely factual matter within the terms of s.41(2)(b) - whether disclosure would, on balance, be contrary to the public interest - public interest in accountability of the Queensland Law Society for the regulatory functions which it discharges for the benefit and protection of the Queensland public - application of s.41(1) of the Freedom of Information Act 1992 Qld. FREEDOM OF INFORMATION - 'reverse-FOI' applications - memoranda from salaried lawyer to the Queensland Law Society's Professional Standards Committee: whether disclosure of legal opinions expressed by the salaried lawyer could reasonably be expected to prejudice the investigation of a contravention or possible contravention of the law in a particular case - application of s.42(1)(a) of the Freedom of Information Act 1992 Qld; whether disclosure of legal opinions expressed by the salaried lawyer who investigated complaints against a solicitor could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law - application of s.42(1)(e) of the Freedom of Information Act 1992 Qld; whether disclosure to the complainant of legal opinions expressed by the salaried lawyer who investigated the complaints could reasonably be expected to prejudice a system or procedure for the protection of persons or property - application of s.42(1)(h) of the Freedom of Information Act 1992 Qld; whether matter in issue can be characterised as related to a "test, examination or audit" within the terms of s.40(a) of the Freedom of Information Act 1992 Qld - whether disclosure of matter in issue could reasonably be expected to prejudice the effectiveness of a method or procedure for the conduct of a test, examination or audit - application of s.40(a) of the Freedom of Information Act 1992 Qld. Freedom of Information Act 1992 Qld s.5, s.7, s.21, s.26, s.40(a), s.41(1), s.41(1)(a), s.41(1)(b), s.41(2)(b), s.42(1), s.42(1)(a), s.42(1)(e), s.42(1)(h), s.43(1), s.51, s.52, s.87Freedom of Information Act 1982 Cth s.42(1)Freedom of Information Act 1992 WAEvidence Act 1995 Cth s.122Evidence Act 1995 NSW s.122 iii Independent Commission Against Corruption Act 1988 NSW s.37(2), s.37(5)Judicial Review Act 1991 Qld s.4, s.5, s.31Queensland Law Society Act 1952 Qld (as in force in August 1996) s.6(2), s.6(2B), s.6O, s.6SQueensland Law Society Legislation Amendment Act 1997 Qld s.9Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No. 2) [1972] 2 QB 102Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (1996) 69 FCR 149Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] NSWSC 7; (1996) 40 NSWLR 12Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd & Ors [1996] HCA 15; (1996) 137 ALR 28Argyle Brewery Pty Ltd (t/a Craig Brewery Bar and Grill) v Darling Harbourside (Sydney) Pty Ltd [1993] FCA 648; (1993) 120 ALR 537Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52Baker & Ors v Evans & Ors (1987) 77 ALR 565Bayliss v Cassidy & Ors (Supreme Court of Queensland - Court of Appeal, No. 1225 of 1998, Williams J, Davies and McPherson JJA, 11 March 1998, unreported)Brambles Holdings Ltd v Trade Practices Commission (No. 3) [1981] FCA 83; (1981) 58 FLR 452BT Australasia Pty Ltd v State of New South Wales & Anor (No. 7) [1998] FCA 294; (1998) 153 ALR 722Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121; 129 ALR 593Clements v Grayland Hospital and Anor (Sup Ct of WA, No. SJA 1198 of 1996, Owen J, 4 April 1996, unreported)Colonial Mutual Life Assurance Society Ltd and Department of Resources and Energy, Re (1987) 6 AAR 80Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 71 ALJR 327; 141 ALR 545Criminal Justice Commission and Director of Public Prosecutions, Re (Information Commissioner Qld, Decision No. 96012, 28 June 1996, unreported)Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re [1993] QICmr 2; (1993) 1 QAR 60Esso Australia Resources Limited & Ors v Plowman & Ors (1995) 183 CLR 10Ferrier and Queensland Police Service, Re (Information Commissioner Qld, Decision No. 96016, 19 August 1996, unreported)General Accident Fire & Life Assurance Corp Ltd v Tanter [1984] 1 All ER 35Godwin and Queensland Police Service, Re (Information Commissioner Qld, Decision No. 97011, 11 July 1997, unreported)Goldberg v Ng (1994) 33 NSWLR 639Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83; 69 ALJR 919; 132 ALR 57Grant v Downs [1976] HCA 63; (1976) 135 CLR 674Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529, [1981] 2 All ER 485Grofam Pty Ltd v Australian and New Zealand Banking Group Ltd (1993) 116 ALR 535Gunawan and Directorate of School Education, Re (1994) 6 VAR 418Hongkong Bank of Australia Ltd v Murphy [1993] VicRp 83; [1993] 2 VR 419Hudson as agent for Fencray Pty Ltd and Department of the Premier, Economic and Trade Development, Re [1993] QICmr 4; (1993) 1 QAR 123Independent Commission Against Corruption v Cripps & Anor (Supreme Court of New South Wales, ALD No. 30082/96, Sully J, 9 August 1996, unreported) iv McCann and Queensland Police Service, Re (Information Commissioner Qld, Decision No. 97010, 10 July 1997, unreported)Munday and ACT Attorney-General's Department, Re (Australian Capital Territory Administrative Appeals Tribunal, Professor L J Curtis (President), No. C95/85, 29 August 1996, unreported)Myles Thompson and Queensland Law Society Inc, Re (Information Commissioner Qld, Decision No. 97003, 28 February 1997, unreported)Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corp (No. 2) [1981] Comm LR 138Pemberton and The University of Queensland, Re (1994) 2 QAR 293Potter and Brisbane City Council, Re [1994] QICmr 18; (1994) 2 QAR 37Price and the Director of Public Prosecutions, Re (Information Commissioner, Decision No. 97016, 24 October 1997, unreported)Queensland Law Society Inc v Albietz [1996] 2 Qd R 580R v Derby Magistrates Court; Ex parte B [1995] UKHL 18; [1996] 1 AC 487"ROSK" and Brisbane North Regional Health Authority and Ors, Re (Information Commissioner Qld, Decision No. 96019, 18 November 1996, unreported)Smith and Administrative Services Department, Re [1993] QICmr 3; (1993) 1 QAR 22South Australia v Peat Marwick Mitchell [1995] SASC 5261; (1995) 65 SASR 72Spier and ACT Electoral Commissioner, Re (1995) 41 ALD 374Sullivan and Department of Industry, Science and Technology, Re (Commonwealth Administrative Appeals Tribunal, Mr P Bayne (Senior Member), No. A95/157, 6 June 1997, unreported)"T" and Queensland Health, Re [1994] QICmr 4; (1994) 1 QAR 386Trustees of the De La Salle Brothers and Queensland Corrective Services Commission, Re [1996] QICmr 4; (1996) 3 QAR 206Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54; 61 ALJR 350; 71 ALR 673Weeks and Shire of Swan, Re (Information Commissioner WA, Decision No. D00595, 24 February 1995, unreported) DECISION 1. In application for review no. S 10/96, I affirm the decision under review (which is identified in paragraph 4 of my accompanying reasons for decision).2. In application for review no. S 74/96, I affirm the decision under review (which is identified in paragraph 4 of my accompanying reasons for decision).3. In application for review no. S 103/97, I set aside the decision under review (which is identified in paragraph 6 of my accompanying reasons for decision), and, in substitution for it, I decide that the matter in issue (which is identified in subparagraphs 8(e) and (f) of my accompanying reasons for decision) is not exempt from disclosure to the applicant under the Freedom of Information Act 1992 Qld.Date of decision: 24 June 1998............................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background 1Application of s.43(1) of the FOI Act 4 Imputed waiver and the letter of advice from Corrs Chambers Westgarth 5 Legal principles concerning waiver of privilege 6 Imputed waiver and s.43(1) of the FOI Act 8 Do Australian authorities support the application of principles of imputed waiver in extra-curial disputes? 10 Application of the principles of imputed waiver of privilege in the circumstances of this case 19 The matter in issue in Ms Dreghorn's memoranda to the Professional Standards Committee - communications made in a professional capacity as a lawyer, or made merely in the capacity of an employee? 25 Application of the 'sole purpose' test to matter in issue in Ms Dreghorn's memoranda to the Professional Standards Committee 30 Approach of the dissenting judges in Waterford 32 Approach of the majority judges in Waterford 34 Can the approach of the dissenting judges in Waterford on the issue of severance of legal advice be reconciled with the majority judgments in Waterford? 36 Conclusion on the application of the 'sole purpose' test 42Application of s.41(1) of the FOI Act 43Application of s.42(1) of the FOI Act 48 Application of s.42(1)(a) 50 Application of s.42(1)(e) 50 Application of s.42(1)(h) 51Application of s.40(a) of the FOI Act 51Conclusion 52 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 98005Application S 10/96Application S 74/96Application S 103/97S 10/96 Participants: QUEENSLAND LAW SOCIETY INC Applicant LEGAL OMBUDSMAN Respondent SIR LENOX HEWITT Third PartyS 74/96 Participants: QUEENSLAND LAW SOCIETY INC Applicant LEGAL OMBUDSMAN Respondent SIR LENOX HEWITT Third PartyS 103/97 Participants: SIR LENOX HEWITT Applicant QUEENSLAND LAW SOCIETY INC Respondent REASONS FOR DECISION Background1. These cases arise out of successive access applications made by Sir Lenox Hewitt in an effort to obtain access, under the Freedom of Information Act 1992 Qld (the FOI Act), to documents concerning the handling by the Queensland Law Society Inc (the QLS) of formal complaints of unprofessional conduct made to the QLS by Sir Lenox Hewitt against a solicitor who had acted on behalf of Sir Lenox Hewitt in a civil action, and in a series of property transactions.2. Until 1 March 1996 (when Derrington J of the Supreme Court of Queensland published his reasons for decision in Queensland Law Society Incorporated v Albietz (1996) 2 Qd R 580), the QLS had adopted the position that it was not an agency subject to the application of the FOI Act. Presumably, that was the reason Sir Lenox Hewitt lodged his first two access applications, dated 16 November 1995 and 28 February 1996, with the Lay Observer (the predecessor of the Legal Ombudsman), and why the Lay Observer was prepared to deal with those applications. (When the Lay Observer received Sir Lenox Hewitt's third access application, dated 10 February 1997, he transferred the application to the QLS, which consented to deal with the application in accordance with s.26 of the FOI Act.) The Lay Observer was a statutory office established by the former s.6O of the Queensland Law Society Act 1952 Qld, with a function of monitoring written complaints to the QLS against solicitors or employees of solicitors, and the manner in which such complaints were dealt with by the QLS. For that purpose, the Lay Observer was empowered by the former s.6S of the Queensland Law Society Act to investigate, examine, and make reports and recommendations to the relevant Minister and to the QLS concerning prescribed categories of written complaints against legal practitioners or their employees, and was also empowered to require the QLS to furnish any information in its possession or control relevant to the discharge of the Lay Observer's functions. The office of Lay Observer has since been superseded by the office of the Legal Ombudsman: see s.9 of the Queensland Law Society Legislation Amendment Act 1997 Qld, and Part 2B of the Queensland Law Society Act, as thereby amended.3. Sir Lenox Hewitt's first FOI access application, dated 16 November 1995, was for a copy of the complete report (his solicitors having previously been provided with an edited version) by Ms Linda Dreghorn (a solicitor employed in the Professional Standards Department of the QLS who had carriage of the investigation of the complaints lodged by Sir Lenox Hewitt) which report was referred to the QLS's Professional Standards Committee at its meeting on 31 August 1995. His second FOI access application, dated 28 February 1996, was for "the further reports on this matter that have been made to the Professional Standards Committee since my application of 16 November 1995". In both instances, the Lay Observer consulted with the QLS pursuant to s.51 of the FOI Act. In the first instance, the QLS objected to disclosure of all of the requested information, asserting that it was exempt matter under s.40, s.41, s.42 and s.43 of the FOI Act. In the second instance, the QLS objected, on the same grounds as before, to the disclosure of specified passages in four reports to the Professional Standards Committee prepared by Ms Dreghorn. (The QLS also objected to disclosure of another document, but it was later acknowledged that it had previously been disclosed to Sir Lenox Hewitt, and it is no longer in issue in this review.) 4. In both instances, by decision letters respectively dated 19 December 1995 (application for review no. S 10/96) and 4 April 1996 (application for review no. S 74/96), the Lay Observer rejected the arguments of the QLS and decided to grant Sir Lenox Hewitt access in full to the requested documents. The QLS subsequently lodged 'reverse FOI' applications with me (by letters dated 11 January 1996 and 2 May 1996) seeking review, under Part 5 of the FOI Act, of each of the Lay Observer's decisions.5. Sir Lenox Hewitt's third FOI access application, dated 10 February 1997, was for "copies of the further reports to the Professional Standards Committee subsequent to 4 April 1996, the date of your decision on my previous request ...". The QLS agreed to accept a transfer ofthat FOI access application from the Lay Observer, in accordance with s.26 of the FOI Act.By letter dated 21 May 1997, Mr Steven O'Reilly, on behalf of the QLS, informed Sir Lenox Hewitt that he had decided to grant access to a memorandum dated 8 July 1996 by Ms Dreghorn to the Professional Standards Committee, subject to the deletion of the portion of the memorandum entitled "Analysis of Investigation", which he found to be exempt matter under s.43(1) of the FOI Act (the legal professional privilege exemption). In respect of a letter dated 9 August 1996 containing legal advice that had been requested by the QLS from Mr Brian Bartley, a partner in the firm of Corrs Chambers Westgarth, Solicitors, Mr O'Reilly also decided to refuse access on the ground that the letter of advice was exempt matter under s.43(1) of the FOI Act.6. Sir Lenox Hewitt applied for internal review in accordance with s.52 of the FOI Act. By letter dated 18 June 1997, Mr Scott Carter, Solicitor to the QLS, informed Sir Lenox Hewitt that he had decided to affirm Mr O'Reilly's decision in all respects. Sir Lenox Hewitt applied to me for review, under Part 5 of the FOI Act, of Mr Carter's decision.7. The QLS has responsibility under the Queensland Law Society Act for regulating compliance by Queensland solicitors with proper standards of professional conduct. The arrangements in place at the time that Sir Lenox Hewitt's complaints were being dealt with by the QLS were described in detail in a written submission from the QLS dated 25 October 1996. In summary, any aggrieved person was entitled to make a written complaint to the QLS alleging malpractice, professional misconduct, or unprofessional conduct or practice, against a solicitor or employee of a solicitor. Any such complaints were referred in the first instance to an organisational unit of the QLS known as the Professional Standards Department, for investigation. (Ms Dreghorn was employed in that Department.) That Department appears to have had the authority to resolve complaints by negotiation between complainant and solicitor, or to decline to deal further with complaints which, even if proved, were not capable of constituting malpractice, professional misconduct, or unprofessional conduct.However, complaints which were subject to detailed investigation were ultimately considered by the Professional Standards Committee (the PSC), which was a Committee of the Council of the QLS to which the Council had delegated relevant powers. The PSC consisted of five members of the Council of the QLS (all of whom were, of course, solicitors) and two lay persons. The Lay Observer attended meetings of the PSC but was not a voting member of the PSC. The PSC reviewed investigations of complaints and decided whether or not action against a solicitor was warranted. The PSC could decide to take no action, or to censure or admonish a solicitor. In more serious cases, the PSC could decide that a disciplinary charge was warranted, in which case it would make a recommendation to the Council of the QLS.The Council of the QLS would make any final decision to prefer a disciplinary charge against a solicitor, and any charge would be brought in the name of the Council of the QLS. In the discussion which follows, the PSC can be treated as the alter ego of the QLS, it being the delegate through which the Council of the QLS had chosen to exercise certain of the powers, functions and duties committed to the Council of the QLS by the Queensland Law Society Act.8. Each of the documents which contains or comprises matter remaining in issue was prepared for consideration by the PSC in conjunction with its consideration of what action, if any, should be taken in respect of the formal complaints lodged by Sir Lenox Hewitt. The matter remaining in issue in the three applications for review is:(a) in a memorandum dated 18 January 1994 from Ms Dreghorn to the PSC - the three paragraphs which appear under the heading "Conclusion:" on pages 3 and 4;(b) in a memorandum dated 13 April 1995 from Ms Dreghorn to the PSC - the five paragraphs which appear under the heading "Analysis of Investigation" on pages 3 and 4;(c) in a memorandum dated 22 January 1996 from Ms Dreghorn to the PSC - the paragraphs numbered 20-27 (inclusive);(d) in a memorandum dated 27 February 1996 from Ms Dreghorn to the PSC - the four paragraphs which appear under the heading "Analysis of Investigation" on pages 2 and 3, plus the one paragraph under the heading "Recommendation" on page 3;(e) in a memorandum dated 8 July 1996 from Ms Dreghorn to the PSC - the sentence under the heading "Analysis of Investigation" on page 3; and(f) a letter of advice dated 9 August 1996 from Corrs Chambers Westgarth, Solicitors, to the Director, Professional Standards, of the QLS.9. In assessing the claims by the QLS that the matter listed above is exempt matter under the FOI Act, I have taken into account: copies of the documents referred to in paragraph 8 above, which were provided by the QLS for my inspection; the reasons for decision given in the decisions under review; the arguments raised by the participants in s.51 consultation letters, applications for internal review, and applications for external review; written submissions/points of reply by the QLS dated 6 March 1996, 9 May 1996, 25 October 1996 and 7 November 1997; written submissions/points of reply by Sir Lenox Hewitt dated 18 April 1996, 31 January 1997, 8 September 1997 and 5 December 1997.(All written submissions were exchanged between the participants, with an opportunity given for reply.)Application of s.43(1) of the FOI Act10. All of the matter in issue is claimed by the QLS to be exempt matter under s.43(1) of the FOI Act, which provides: 43.(1) Matter is exempt matter if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.11. The s.43(1) exemption turns on the application of those principles of Australian common law which determine whether a document, or matter in a document, is subject to legal professional privilege. The grounds on which a document can attract legal professional privilege are fairly well settled in Australian common law. In brief terms, legal professional privilege attaches to confidential communications between lawyer and client made for the sole purpose of seeking or giving legal advice or professional legal assistance, and to confidential communications made for the sole purpose of use, or obtaining material for use, in pending or anticipated legal proceedings. Inevitably, there are qualifications and exceptions to that broad statement of principle, and due regard must be paid to issues like waiver of the privilege, and the principle that communications otherwise answering the description above do not attract privilege if they are made in furtherance of a crime, fraud, illegal purpose, or abuse of statutory power.12. The matter in issue in this case raises three comparatively difficult issues in the application of Australian law with respect to legal professional privilege. The first, which concerns document (f) described in paragraph 8 above, is whether the disclosure (by the QLS to Sir Lenox Hewitt) of a summary of the conclusions reached in the legal advice the QLS had obtained, together with the statement by the PSC that it "adopted" the advice (in resolving to take no formal action in respect of one of the complaints lodged by Sir Lenox Hewitt), gave rise to an imputed waiver of the legal professional privilege that would otherwise attach to the letter of advice. 13. The communications comprised in the matter in issue described in subparagraphs 8(a) to (e) above raise two issues -(a) whether those communications, made by a salaried legal officer to her employer, can properly be characterised as communications for the purpose of giving legal advice or professional legal assistance on a professional matter referable to the relationship of lawyer and client, or whether they were communications made merely in the capacity of an employee; and(b) to the extent that the communications fall into the first category described in (a), whether the communications satisfy the 'sole purpose' test.14. I will deal with those three issues in turn.Imputed waiver and the letter of advice from Corrs Chambers Westgarth15. It is clear from my examination of the letter dated 9 August 1996 from Corrs Chambers Westgarth, Solicitors, to the QLS that -(a) Mr Bartley, a partner in the firm of Corrs Chambers Westgarth, had been retained by the QLS to provide legal advice to the QLS on issues relevant to the consideration by the QLS of Sir Lenox Hewitt's complaints against his former solicitor; and(b) the letter dated 9 August 1996 was created for the sole purpose of communicating legal advice to the QLS on those issues. 16. Thus, at the time of its creation, the letter attracted legal professional privilege according to well established principles (see Re Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 at pp.51-52, paragraph 82, and the cases there cited), the privilege being that of the QLS as client.17. In a submission to me dated 8 September 1997, Sir Lenox Hewitt questioned the entitlement of the QLS to claim legal professional privilege for the letter of advice dated 9 August 1996, having regard to the contents of a subsequent letter dated 22 August 1996 from the QLS to the solicitors acting for Sir Lenox Hewitt, advising the outcome of his complaint against his former solicitor. The letter from the QLS dated 22 August 1996 had first advised that the PSC had resolved not to take any action in respect of the complaints concerning the conveyancing matters. That letter continued as follows:The Committee resolved at the same meeting that one of the Society's panel solicitors for disciplinary matters be instructed on the Society's behalf to advise in relation to your complaints arising from the [litigation matter].Mr Brian Bartley of Corrs Chambers Westgarth was engaged and his opinion was considered by the committee at its meeting held on 15 August 1996. Mr Bartley's opinion was that the conduct of [the solicitor complained against] did not amount to unprofessional conduct and did not warrant disciplinary action being taken to safeguard the public interest. The Professional Standards Committee adopted the advice of Mr Bartley and resolved that no disciplinary action would be taken against [the solicitor complained against] in respect of any of the matters raised by your firm on behalf of Sir Lenox Hewitt.The Society's file has now been closed.18. By letter dated 11 September 1997, a copy of the submission by Sir Lenox Hewitt was forwarded to the Law Society for response. That letter raised the issue of whether legal professional privilege in the letter of advice dated 9 August 1996 had been waived, having regard to the summary of that advice which was set out in the letter quoted above. The QLS was referred to the decision of the Western Australian Information Commissioner in Re Weeks and Shire of Swan (Information Commissioner WA, Decision No. D00595, 24 February 1995, unreported) and the cases cited in that decision. The QLS lodged a written submission addressing the issue of waiver, and I will refer further to that submission below.Legal principles concerning waiver of privilege19. In Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, Gibbs CJ said (at pp.480-481): ... like every privilege properly so called [legal professional privilege] can be waived, although only by the person entitled to claim it, that is the client, and not the client's legal representative. A person entitled to the benefit of legal professional privilege can waive the privilege through intentionally disclosing protected material (see Maurice at p.487, per Mason and Brennan JJ). If disclosure is incompatible with retention of the confidentiality which is necessary for maintenance of the privilege, there will ordinarily be a general waiver of privilege: see Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 per Deane, Dawson and Gaudron JJ at p.95, per Toohey J at p.106. However, the courts will allow an exception for a limited intentional disclosure of privileged material, if the disclosure is compatible with the retention of confidentiality. Thus, disclosure of privileged information by the beneficiary of the privilege to another person for a limited and specific purpose, on the clear understanding that the recipient is not to use or disclose the information for any other purpose, will not involve a general waiver of privilege, and, subject to questions of imputed waiver, may not disentitle the beneficiary of the privilege from asserting the privilege against other persons: see Goldberg v Ng per Deane, Dawson and Gaudron JJ at p.96, per Toohey J at pp.106-109, and per Gummow J at p.116.20. The judgments of the High Court of Australia in Maurice and in Goldberg v Ng also confirmed that a doctrine of waiver by implication, or imputed waiver, applies with respect to legal professional privilege. In Maurice, Gibbs CJ (at p.481), Mason and Brennan JJ (at p.488) and Dawson J (at p.498) endorsed a passage from Professor Wigmore's text, "Evidence in Trials at Common Law" (1961) vol. 8, paragraph 2327, at p.636. The same passage was quoted, with apparent approval, by Gummow J in Goldberg v Ng (at p.120):... in answer to the question what constitutes waiver by implication, [Wigmore] said:Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final.21. In Goldberg v Ng, Deane, Dawson and Gaudron JJ said (at pp.95-96):The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance. The most that can be done is to identify a number of general propositions.Necessarily, the basis of such an imputed waiver will be some act or omission of the persons entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether "fairness requires that his privilege shall cease whether he intended that result or not". ...In Attorney-General (NT) v Maurice, it was accepted in all judgments that the question of whether a limited disclosure gives rise to an implied or imputed waiver of legal professional privilege ultimately falls to be resolved by reference to the requirements of fairness in all of the circumstances of the particular case.22. In Goldberg v Ng itself, there was no limited actual or purported disclosure of privileged material by the privilege-holder (Mr Goldberg) to the party asserting that privilege had been waived by imputation (Mr Ng). Rather the disclosure of privileged material was made to the New South Wales Law Society (in answer to a complaint lodged against Mr Goldberg by Mr Ng). The New South Wales Law Society was not a party to the litigation between Mr Goldberg and Mr Ng. The majority in the High Court held that Mr Goldberg's privilege in the documents supplied to the Law Society had been waived by imputation, even though the conduct said to warrant that finding did not occur in the course of the legal proceeding in which the issue of imputed waiver was raised for adjudication (in that regard, see also paragraph 39 below).23. It is notable that, while the act or omission which gives rise to a question of imputed waiver will ordinarily involve or relate to a limited actual or purported disclosure of privileged material, the passage quoted at paragraph 21 above allows that other acts or omissions (not involving a limited actual or purported disclosure of privileged material) by the privilege holder which bear on maintenance of the privilege, may give rise to a question of imputed waiver. In the present case, the conduct of the QLS which gives rise to a question of imputed waiver consists of the disclosure to Sir Lenox Hewitt of a summary of the conclusions reached in the legal advice which the QLS had obtained from Mr Bartley, coupled with the written statement that the PSC had "adopted the advice of Mr Bartley" in resolving that no disciplinary action should be taken against the solicitor who was the subject of Sir Lenox Hewitt's formal complaints alleging unprofessional conduct.24. It is a point of considerable significance (at least to the issue I am required to determine in this review) whether the reference at the end of the passage quoted at paragraph 21 above to a "particular case" was intended (and indeed whether references to similar effect in other passages in the leading authorities were intended) to indicate that the principles of imputed waiver operate only in the context of proceedings before a court or tribunal, by reference to what fairness requires in the particular circumstances of any given case (being an issue upon which the presiding judge or tribunal member is well placed to adjudicate), or whether the principles of imputed waiver can apply to a dispute over access to privileged information which does not arise in the context of proceedings before a court or tribunal (hereinafter referred to as an "extra-curial dispute"). Moreover, if the doctrine of imputed waiver can apply in the latter case, does it apply by reference to what ordinary notions of fairness require, having regard to all relevant circumstances attending the extra-curial dispute, or would such a standard be effectively unmanageable outside the context of a proceeding in a court or tribunal where the issues in dispute requiring determination are clearly defined, and the court or tribunal has power to compel a party to the proceeding to produce relevant evidence where that is required for the fair resolution of the issues in dispute?25. I will endeavour first to explain the significance of the questions posed in the preceding paragraph for cases which, in the context of an FOI access application for a document which prima facie attracts legal professional privilege, raise an issue of imputed waiver of the privilege. I will then analyse the assistance to be gleaned from Australian authorities in attempting to answer the questions posed above.Imputed waiver and s.43(1) of the FOI Act26. The FOI Act affords a citizen or corporation a source of legal authority to compel the production of documents (without having to commence a legal proceeding and invoke the coercive powers of the relevant court or tribunal), provided they are documents of an agency subject to the application of the FOI Act, and provided the documents do not fall within one of the exceptions to the right of access that are provided for in the FOI Act itself (the significant exception, for present purposes, being the s.43(1) exemption provision in the FOI Act). The FOI Act therefore affords a possible source of power, in an extra-curial setting, to compel the production of a legal opinion in respect of which there has been a limited actual or purported disclosure (or some other conduct of the privilege-holder which, though falling short of intentional waiver, is inconsistent with the maintenance of the privilege), by asserting imputed waiver in answer to a claim of legal professional privilege (cf. paragraph 42 below).27. I do not see any bar to the consideration of questions of waiver of privilege in the application of s.43(1) of the FOI Act. In Re Colonial Mutual Life Assurance Society Ltd and Department of Resources and Energy (1987) 6 AAR 80, a case which applied the legal professional privilege exemption in s.42(1) of the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act), Jenkinson J, sitting as a Deputy President of the Commonwealth Administrative Appeals Tribunal (AAT), expressed the view (at p.83) that:... the operation of s.42(1) is unaffected by any conduct which in legal proceedings would be regarded as having constituted waiver of legal professional privilege. The subsection does not require that the document would be privileged from production, but that the document be "of such a nature that it would be privileged". The criterion of exemption, so expressed, is in my opinion framed by reference to acts and events which precede or are contemporaneous with the making of the document: the nature of the document is determined by what occasioned, and by what went into, its making and is unaffected, in my opinion, by subsequent events of the kind which might constitute waiver of legal professional privilege.28. It is clear, however, that Jenkinson J's view was based on the significance of the words "of such a nature that", which appeared in s.42(1) of the Commonwealth FOI Act, but which do not appear in s.43(1) of the Queensland FOI Act. Jenkinson J said that s.42(1) of the Commonwealth FOI Act did not require that the document in issue would be privileged from production (in a legal proceeding), but the terms of s.43(1) of the Queensland FOI Act do expressly require that the matter in issue would be privileged from production in a legal proceeding. (I note that other tribunals applying s.42(1) of the Commonwealth FOI Act, or corresponding exemption provisions in other jurisdictions, have held that waiver of privilege is to be taken into account: see the discussion of this point in Re Sullivan and Department of Industry, Science and Technology (Commonwealth AAT, Mr P Bayne (Senior Member), No. A95/157, 6 June 1997, unreported) at paragraphs 52-58.)29. Section 43(1) of the Queensland FOI Act requires an authorised decision-maker under the FOI Act to assess whether the matter in issue would be privileged from production in a legal proceeding on the ground of legal professional privilege. (I note that "legal professional privilege relates to production, not admissibility": per Toohey J in Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 71 ALJR 327 at p.341). In my opinion, it is proper for an authorised decision-maker under the FOI Act to take into account any conduct of the privilege holder, apparent as at the time the authorised decision-maker comes to make a decision on access, which raises a question of waiver of privilege in respect of the matter in issue. Where a privilege holder has intentionally disclosed privileged material in such a manner as to result in a general waiver of privilege in the material thus disclosed (see paragraph 19 above), it can safely be said that the material thus disclosed would not be privileged from production in any legal proceeding on the ground of legal professional privilege, and hence does not qualify for exemption under s.43(1) of the FOI Act.30. However, where imputed waiver of privilege is relied upon by an applicant for access to matter that prima facie attracts legal professional privilege, the issues stated in paragraph 24 above become significant. If, under the general law, the principles of imputed waiver operate only in proceedings before courts and quasi-judicial tribunals, by reference to what fairness requires in the particular circumstances of the case in which a court or tribunal is required to rule on an issue of imputed waiver, then, in my opinion, it will not ordinarily be possible for an authorised decision-maker under the FOI Act, applying s.43(1) by reference to whether the matter in issue would be privileged from production in a hypothetical legal proceeding, to be satisfied that the court in the hypothetical legal proceeding would make a finding of waiver of privilege, by imputation of law, in respect of matter that prima facie attracts legal professional privilege.31. The confines of what can be reasonably hypothesised about the legal proceeding to which the terms of s.43(1) direct attention, must, in my view, be narrow. It is probably appropriate to hypothesise that the applicant for access under the FOI Act is the party in the hypothetical legal proceeding who seeks production of the matter in issue. However, I do not think it would be proper to hypothesise as to the nature of the issues for determination in the hypothetical legal proceeding, and whether the requirements of fairness in all the circumstances of the particular casewarrant a finding of imputed waiver, since that would inevitably be an exercise in mere speculation. It would be inherently unreliable and/or capricious, since, in most situations, it would be possible to hypothesise different kinds of proceedings, and different issues in the proceedings, such that it would be just as easy to produce a hypothesis supporting a finding of imputed waiver (e.g., with reference to the present case, an action of the kind referred to in paragraph 73 below) as to produce a hypothesis in which fairness would not require a finding of waiver by imputation.(I note that if a question of imputed waiver arises in the application of s.43(1) of the FOI Act, it will ordinarily be by reason of some limited actual or purported disclosure of privileged material that has occurred otherwise than in the course of a legal proceeding, so there is no warrant for assuming that the same consequences would apply as when a partial disclosure of privileged material is made by the privilege holder in the course of a legal proceeding, whereupon the privilege holder would ordinarily be imputed to have waived the privilege: see the passages quoted in paragraphs 40 and 64 below.)32. Thus, if, under the general law, the principles of imputed waiver operate only in proceedings before courts and quasi-judicial tribunals, by reference to what fairness requires in the particular circumstances of the case in which a court or tribunal is required to rule on an issue of imputed waiver, I could not be satisfied on the balance of probabilities that imputed waiver applies to the letter of advice dated 9 August 1996 from Corrs Chambers Westgarth to the QLS, which (as I have stated at paragraph 16 above) otherwise satisfies the relevant tests for attracting legal professional privilege.33. If, on the other hand, the principles of imputed waiver can also apply in the context of an extra-curial dispute, by reference to what ordinary notions of fairness require having regard to all relevant circumstances attending the extra-curial dispute, it may be possible for an authorised decision-maker under the FOI Act (having regard to some prior conduct of the privilege-holder which, though falling short of intentional waiver, appears to be inconsistent with maintenance of the privilege) to determine that privilege has been waived by imputation, according to those criteria. Accordingly, the material subject to imputed waiver would not be privileged from production in a legal proceeding on the ground of legal professional privilege, and hence would not be exempt from disclosure to the applicant for access under s.43(1) of the FOI Act. Is there sufficient indication in Australian authorities for me to be confident that that is the correct legal position?Do Australian authorities support the application of principles of imputed waiver in extra-curial disputes?34. In the introduction to his judgment in Maurice, Deane J made a point of highlighting the fact that, since Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, legal professional privilege has been a substantive general principle of Australian common law, and not merely a rule of evidence. (In Baker v Campbell, it was decided that a citizen could rely on legal professional privilege to resist a demand for production of documents in an extra-curial setting, i.e., pursuant to the execution by police of a search warrant.) Deane J went on in Maurice (at pp.492-493) to state principles in respect of imputed waiver in language that was consistent with their application in either a curial or an extra-curial setting:Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage.(Deane J then went on to give a specific example of the application of the principle in circumstances where an assertion of the effect of privileged material, or disclosure of part of its contents, is made in the course of proceedings before a court or quasi-judicial tribunal: the example is quoted in paragraph 64 below.)35. The analysis by other judges in Maurice could not be regarded as inconsistent with an understanding that imputed waiver, as an exception or qualification to legal professional privilege, remained merely a principle of evidence (i.e., capable of application only in legal proceedings, according to the requirements of fairness in the circumstances of the particular case). Since, in Maurice, the issue of imputed waiver arose in the course of curial proceedings, it was unnecessary in practical terms for the Court to consider whether it was applying a substantive principle of common law (operating as an exception or qualification to another substantive principle of Australian common law in legal professional privilege) or merely a rule of evidence. The same observations can be made of the judgments of the members of the High Court in Goldberg v Ng, and most other judgments of superior courts in Australia which have dealt with imputed waiver, post 1983. Of course, prior to the High Court's decision in Baker v Campbell in 1983, there would have been no reason to consider imputed waiver as being other than a rule of evidence.36. In dealing with imputed waiver in General Accident Fire & Life Assurance Corp Ltd v Tanter [1984] 1 All ER 35, Hobhouse J said (at p.47): "The underlying principle is one of fairness in the conduct of the trial and does not go further than that". However, until recently (see R v Derby Magistrates Court; Ex parte B [1995] UKHL 18; [1996] 1 AC 487 at p.507), English courts have treated legal professional privilege itself, and hence also the qualifications and exceptions to it, as mere rules of evidence. In Australian authorities decided since 1983, I have found no statement to similar effect as that made by Hobhouse J. 37. Consistently with Baker v Campbell, the rules with respect to legal professional privilege, and the qualifications and exceptions to its application, must apply in extra-curial settings, unless some of the exceptions or qualifications remain merely rules of evidence, and only capable of applying as such. It appears to have been definitively established that the principle precluding legal professional privilege from attaching to communications made in furtherance of a crime, fraud, illegal purpose or abuse of statutory power applies in the context of extra-curial disputes (see Baker & Ors v Evans & Ors (1987) 77 ALR 565, and Propend Finance) and hence is a substantive principle of law rather than merely a rule of evidence. Express or general waiver of privilege seems, of its very nature, to be a principle which can operate outside of the context of litigation, and is more than a mere rule of evidence. It could arguably be the case that imputed waiver remains merely a rule of evidence, especially since there may be difficulties in applying it in a context other than litigation between parties.However, (apart from the comments of Kirby P referred to in the following paragraph, which cannot, for reasons there explained, be treated as authoritative) I have found no analysis of that issue, and certainly no clear statement to that effect, in Australian authorities. I note that in South Australia v Peat Marwick Mitchell [1995] SASC 5261; (1995) 65 SASR 72, Olssen J said (at p.81): "As Deane J emphasised in Maurice (at 490) the rules relating to privilege (and its qualifications such as waiver) are substantive general principles of the common law and not mere rules of evidence."38. In a dissenting judgment in Goldberg v Ng (1994) 33 NSWLR 639, Kirby P (then of the New South Wales Court of Appeal) said (at p.657):Imputed or implied waiver, as enunciated in [Maurice], does not apply to conduct outside the court or quasi-judicial tribunal ultimately determining the contested issue. The reasons of the High Court in [Maurice] do not support such an application of imputed or implied waiver to such a case.Nor does there appear to be any case in which imputed or implied waiver has been so applied. The doctrine should not be extended to erode the valuable facility of legal professional privilege where what is involved is not conduct before the court or tribunal hearing the contest.39. However, on the appeal to the High Court in Goldberg v Ng, all five judges accepted that, in a legal proceeding, a court could find that conduct of the privilege-holder outside of that legal proceeding, was capable of effecting a waiver of privilege by imputation (see per Deane, Dawson and Gaudron JJ at p.98, per Toohey J at p.110, per Gummow J at p.121), and the majority judges held that that had in fact occurred having regard to the circumstances attending Mr Goldberg's conduct in disclosing privileged material to the New South Wales Law Society in answer to a complaint lodged by Mr Ng. (See also Argyle Brewery Pty Ltd (t/a Craig Brewery Bar and Grill) v Darling Harbourside (Sydney) Pty Ltd [1993] FCA 648; (1993) 120 ALR 537 at p.543; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (1996) 69 FCR 149 at p.162; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] NSWSC 7; (1996) 40 NSWLR 12 at pp.14-15 and p.18, and, on appeal[1996] HCA 15; , (1996) 137 ALR 28; BT Australasia Pty Ltd v State of New South Wales & Anor (No. 7) [1998] FCA 294; (1998) 153 ALR 722 at pp.743-744.)40. Cases decided on the application of principles of imputed waiver have assessed the requirements of fairness by reference to the issues for determination by the court in the proceeding in which the court was required to rule on imputed waiver. Thus, for example, the courts have had regard to issues of the kind indicated in the following passages - The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. ... In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter: see Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529; [1981] 2 All ER 485 (per Mason and Brennan JJ in Maurice at p.488) ... where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood (per Mustill J in Nea Karteria Maritime Co Ltd v Atlantic & Grant Lakes Steamship Corp (No. 2) [1981] Comm LR 138 at p.139).41. Issues such as the importance of having all relevant evidence, and being able to test the proper weight and credibility of certain evidence (or the credibility of certain witnesses), bearing on the issues for determination by a court in the proceeding before it, loom large in the assessments made in decided cases as to whether fairness requires a finding of imputed waiver of privileged material. Similar considerations may be diminished, or even absent, from some extra-curial disputes in which imputed waiver of privileged material could be asserted. In Baker v Evans (see paragraph 45 below), Pincus J expressed doubt as to whether the criterion of fairness could be sensibly applied in such circumstances.42. My research has disclosed only three instances in which judges in Australian superior courts have considered the application of imputed waiver in an extra-curial setting (see paragraphs 45-53 below). The dearth of authority is not surprising. "[Legal professional] privilege is to be characterised as a bar to compulsory process for the obtaining of evidence ...": per Gummow J in Propend Finance at p.366. Unless a person alleging imputed waiver of privileged material has the legal authority (or is in the position of being able to invoke the legal authority of a court or tribunal) to compel the production of documents from a person or organisation asserting privilege, the latter can treat the allegation with impunity, knowing it cannot be compelled to part with documents that it owns, irrespective of whether it has made an actual or purported limited disclosure of privileged material. Suppose, for example, an insurance company wrote to a claimant for damages denying liability and disclosing part of the legal advice said to support its position. The claimant might reply, demanding that he/she be provided with a complete copy of the relevant legal advice on the basis that there had been an imputed waiver of the insurance company's privilege. Since the claimant has no legal authority to compel production, the insurance company could choose to ignore the demand, with impunity. However, once the claimant commenced a legal action for damages, the claimant/plaintiff could enlist the coercive powers available to a court to compel production of the legal advice for inspection, if the court were satisfied that fairness in the resolution of the issues for determination by the court required that course of action.43. The right of access conferred by s.21 of the FOI Act affords a potential source of legal authority by which a citizen or corporation could compel the production of "a document of an agency" (as defined in s.7 of the FOI Act), without needing to commence a legal proceeding and invoke the coercive powers of a court or tribunal. As in the present case, disputes have arisen under FOI legislation in other jurisdictions as to whether imputed waiver can apply where a partial disclosure of privileged material has been made in an extra-curial setting. The relevant tribunal decisions are noted at paragraphs 55-60 below, but the issue which concerns me has not arisen for consideration by an Australian superior court in an FOI context. Nevertheless, the same issue could arise in other contexts.44. Situations may arise where a law enforcement/regulatory agency, possessed of coercive powers to compel the production of information, employed those powers to demand access, from a company under investigation, of a complete copy of a legal opinion from which a limited actual or purported disclosure of part of the contents had been made. Suppose the company refused to produce the legal opinion on the ground that it was subject to legal professional privilege, and the agency commenced an action for a declaration that the company was obliged to produce the opinion, because the privilege attaching to the document had, in the circumstances, been waived by imputation of law. Would an Australian court determine that issue by reference to what ordinary notions of fairness require, having regard to all relevant circumstances attending the extra-curial dispute, or would it decline to grant the declaration sought by the regulatory authority on the ground that it had no manageable standards for determining what fairness required in the context of the extra-curial dispute (or alternatively on the ground that imputed waiver is merely a rule of evidence)?45. A case of the kind described arose in Baker & Ors v Evans & Ors, in which the Australian Federal Police (AFP) had sought to execute (at the office of a firm of solicitors) a search warrant for documents relating to an alleged sales tax evasion scheme, and Pincus J of the Federal Court of Australia was required to rule on whether certain documents were privileged from production (in response to the search warrant) on the ground of legal professional privilege. The AFP argued 1) that the sole purpose test was not satisfied, 2) that the documents were not subject to legal professional privilege because they came into existence in the course of devising andimplementing a fraudulent scheme to evade sales tax, and 3) that if the privilege ever existed, it had been waived. The third argument relied on imputed waiver, and was put on the basis that an earlier disclosure of certain legal opinions made it unfair to the investigators to withhold the documents and instructions upon which the legal opinions had been obtained. Pincus J found in favour of the AFP on the second argument above, but considered it appropriate to make some obiter comments on the third argument as well (at p.576):The use of the criterion of fairness in determining questions of waiver is easily comprehensible where, for example, a party to litigation tenders part of a connected series of privileged documents and seeks to withhold the rest. The part produced may create a misleading impression. But it is not easy sensibly to apply that doctrine to disclosure by persons suspected of crime.... It was argued by counsel for the respondents that it would be unfair in an "abstract" sense (to use counsel's word) to withhold from the investigators the instructions upon which the opinions in question were obtained, those opinions having been disclosed to the investigators and others. I cannot see what is unfair about it. The police, having seen the opinions, are no worse off than if they had not seen them.Until the decision in Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52; 49 ALR 385 it was not clear that legal professional privilege was a ground of resistance to search warrants and the like. ... The consequences of the new view established in the Baker case have yet to be worked out. I do not regard the decision in Attorney-General (NT) v Maurice as necessarily providing guidance as to the test of waiver of privilege in respect of extra-curial documents, as opposed to cases in which privilege is claimed for documents discovered in the course of litigation.I would therefore have held against the respondents on the question of waiver ... .46. Thus, while finding no unfairness that might have been sufficient to warrant imputed waiver of privilege (if it had attached to the documents in issue), Pincus J expressed doubts about the suitability of applying fairness as a criterion for assessing imputed waiver in an extra-curial setting.Pincus J did not suggest any preferable alternative approach. 47. On the other hand, in dealing with a similar factual situation in Propend Finance, Brennan CJ of the High Court of Australia appears to have accepted that imputed waiver could apply by reference to the requirements of fairness in the relevant circumstances. Propend Finance was another case in which legal professional privilege was invoked as a ground for resisting production of documents in response to a search warrant. The privilege was asserted to attach to copies of non-privileged documents held at the premises of a solicitor, the copies having been brought into existence solely for the purpose of obtaining legal advice or solely for use in legal proceedings. 48. A problem addressed by several of the majority judges in Propend Finance (who held that the copies were privileged) was whether a wrongdoer might be enabled to escape justice by making a privileged copy, for submission to legal advisers, of documents evidencing an incriminating transaction, before destroying the non-privileged originals. Several judges saw the answer to that problem as being that a copy made for those reasons would have been brought into existence for a non-privileged purpose as well as a privileged purpose, and hence could not satisfy the 'sole purpose' test to attract legal professional privilege: see per McHugh J at p.358, per Gummow J at p.367, per Kirby J at p.377. Brennan CJ, however, was concerned at the prospect of frustration of the proper administration of criminal justice if, for whatever reason, the unprivileged originals, or other unprivileged copies, of documents covered by a valid search warrant were not in existence or not accessible, and only copies brought into existence solely for a privileged purpose were located on the execution of the search warrant. Brennan CJ expressed the view that imputed waiver could apply. After quoting briefly from the judgment in which he had joined with Mason J in Maurice, and quoting the same passage from the judgment of Deane J in Maurice as is set out at paragraph 34 above, Brennan CJ observed (at pp.332-333):Unfairness in the context of the execution of a search warrant might be found in maintaining the confidentiality of a privileged copy of an unprivileged original when neither the original nor its whereabouts is disclosed or any secondary evidence of its contents is made available. In such a situation, privilege becomes a cloak thrown over evidence which the execution of the search warrant is intended to reveal.... I would state the qualification in this way: if an original unprivileged document is not in existence or its location is not disclosed or is not accessible to the person seeking to execute the warrant and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the privileged copy loses the privilege. ...49. I consider it clear enough, from his observations in Propend Finance at pp.332-333, that Brennan CJ considered that the doctrine of imputed waiver of privilege could be applied by reference to the requirements of fairness in the relevant circumstances attending an extra-curial dispute over access to documents which otherwise attracted legal professional privilege.50. Independent Commission Against Corruption v Cripps & Anor (Supreme Court of New South Wales, ALD No. 30082/96, Sully J, 9 August 1996, unreported) affords another example of a case arising from circumstances of the kind described in paragraph 44 above. The Independent Commission Against Corruption (ICAC) sought declarations to the effect that, by the conduct of himself and his counsel during the course of an investigative hearing before an Assistant Commissioner of ICAC, the respondent, Mr Cripps, had waived legal professional privilege in certain documents, and in certain oral advice given by his solicitor, such that Mr Cripps was obliged to produce the documents, and his solicitor was obliged to answer questions concerning the oral advice, in response to formal demands made by ICAC pursuant to its statutory coercive powers. Section 37(2) of the Independent Commission Against Corruption Act 1988 NSW (the ICAC Act) appears to have been framed in terms broad enough to exclude legal professional privilege as a ground for refusing to answer any question, or refusing to produce any document, on the part of a witness summoned to attend or appear at an investigative hearing convened by ICAC. However, s.37(5) of the ICAC Act permitted an exception for privileged communications between a legal practitioner and client made for the purpose of providing or receiving legal professional services in relation to the appearance, or reasonably anticipated appearance, of the client at a hearing before the ICAC, unless the privilege was waived by a person having authority to do so. Sully J held that the expressions and concepts in s.37(5) ought to be understood according to the settled general law with respect to legal professional privilege. Sully J also held that, apart from the question of waiver, the documents and oral advice in question would be entitled to legal professional privilege in accordance with s.37(5) of the ICAC Act. 51. From a line of questioning addressed to Mr Cripps by the ICAC Assistant Commissioner, Mr Cripps' counsel had perceived that an adverse inference might be drawn from Mr Cripps' failure to include certain information in a statement he had provided to ICAC (Mr Cripps havingstated in evidence that he had disclosed that information to his solicitor). His counsel sought to elicit evidence from Mr Cripps to the effect that he had received advice from his solicitor not to include the information in his statement provided to ICAC. Sully J accepted that Mr Cripps did not intend to waive privilege, but held:I am wholly unable to see how a sensible reading of the questions asked of [Mr Cripps] by his own senior counsel, coupled with the answers given to those questions by [Mr Cripps], can be regarded on a reasonable view of what is fair in the [Goldberg v Ng] sense, as anything other than conduct giving rise to an imputed waiver pro tanto of legal professional privilege.52. The significance of this case for present purposes is that, although the hearing in which imputed waiver of privilege was found to have occurred had some of the trappings of a hearing before a quasi-judicial tribunal, it was in truth no more than a formal process for obtaining and testing evidence in the course of an investigation of an allegation or complaint of corrupt conduct. (The ICAC was empowered to make findings and form opinions, on the basis of the results of its investigations, but for the purpose of making recommendations for formal action to be taken by others, e.g., the laying of disciplinary or criminal charges.) Nevertheless, Sully J considered it proper to apply the principles with respect to imputed waiver stated in Goldberg v Ng (specifically in the passage quoted at paragraph 21 above), which he saw as requiring modification (for application in the particular context in which the question of imputed waiver had arisen) only to the extent stated in this passage:... it needs to be borne in mind that the concept of imputed waiver, in a context such as that of the present case, cannot involve, as it does in ordinary civil litigation, a balance between what is fair from the point of view of the person claiming privilege and resisting a suggestion of waiver; and what is fair to the party to that civil litigation should the claim of privilege be held not to have been waived.What has to be balanced for present purposes is fairness to [Mr Cripps]; and fairness to the public interest and the public trust, the proper protection of which is, by the express terms of section 12 of the [ICAC Act], the "paramount" concern of ICAC.53. The ICAC case therefore involved a conscious application of the Goldberg v Ng principles with respect to imputed waiver of privilege, in the context of an extra-curial dispute, by reference to the requirements of fairness in the particular case. 54. I should also mention a number of tribunal decisions where imputed waiver has been considered in the context of applying legal professional privilege exemptions in the FOI statutes of other Australian jurisdictions.55. In the Colonial Mutual case, after expressing the views quoted at paragraph 27 above, Jenkinson J went on to consider what the position would be in the case before him if, contrary to his opinion, questions of waiver of legal professional privilege were relevant to the application of s.42(1) of the Commonwealth FOI Act. Jenkinson J said (at p.84):... the development of the doctrine of waiver of legal professional privilege has been evolved in resolution of competition between the interests of opposed litigants. In determining what conduct shall be held to have constituted waiver of his privilege by a party to litigation the influence of the other party's claim to protection of that other party's interests in the litigation has been very substantial: see Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529, especially at p.537-539. [Jenkinson J then quoted the passage from Wigmore which is set out in paragraph 20 above].In the administration of the Freedom of Information Act 1982 no interest of a litigant claims attention, as such. The disclosures [of aspects of a legal opinion given by the Commonwealth Solicitor-General] in the eight documents [disclosed to the applicant in response to its FOI access application] state merely a few general conclusions which are to be found in the written opinion, but not any of the reasons stated for those conclusions. Nothing appears to suggest that the person who made the decision to grant access to the documents might have supposed it possible that thereby the privilege in respect of the written opinion would be waived. No consideration of fairness to the applicant or to any other person moves to a conclusion that the privilege has been waived.56. The consideration stated in the second last sentence of the above-quoted passage appears to be inconsistent with the position stated in the later High Court decision of Goldberg v Ng, to the effect that imputed waiver is to be judged objectively by reference to the requirements of fairness, irrespective of the subjective intention of the privilege-holder (at p.96): When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is 'whether fairness requires that his privilege shall cease whether he intended that result or not'. Nevertheless, while noting that considerations of fairness in the context of litigation did not apply, Jenkinson J went on to consider whether any general consideration of fairness told in favour of imputed waiver (finding that none did).57. In Re Spier and ACT Electoral Commissioner (1995) 41 ALD 374, Mr Spier had made a formal complaint to the ACT Electoral Commissioner about intimidation of persons handing out how-to-vote cards outside a polling place on an election day. The Electoral Commissioner sought advice as to whether a prosecution should be instituted. The ACT Administrative Appeals Tribunal recorded the outcome of that process, and its findings on the question of waiver of legal professional privilege, at p.379 (paragraphs 20 and 21):(20) In a letter to Mr Spier dated 14 March 1995, the Electoral Commissioner said:Both the Government Solicitor's Office and the Director of Public Prosecutions are of the opinion that the available evidence does not disclose a breach of s.228 of the Electoral Act 1922 or s.28 of the Commonwealth Crimes Act 1914, both of which deal with intimidation in the political context, and that a prosecution is not warranted in the circumstances of this case.On that basis I do not intend to pursue this matter further.(21) This disclosure in the letter to Mr Spier of the conclusions reached by the ACT Government Solicitor and the Director of Public Prosecutions does not, in my view, amount to a waiver of the privilege in the communications by which that advice was conveyed to the Electoral Commissioner. It does not amount to a use of the advice in a way which would make it unfair for the Electoral Commissioner not to disclose the documents by which the advice was communicated - Attorney-General for the Northern Territory v Maurice [1986] HCA 80; (1986) 69 ALR 31; 161 CLR 475.58. I take it from the references to both Maurice and unfairness, that the Tribunal was considering the application of imputed waiver. It also seems that the Tribunal approached its task on the basis that it was able to assess what fairness did or did not require, in an extra-curial setting.59. In Re Sullivan and Department of Industry Science and Technology, the applicant argued imputed waiver in respect of a draft statement claimed to be subject to legal professional privilege, on the basis that the substance of the draft statement had been incorporated in either or both of the pleadings in, and an affidavit admitted into evidence in, an arbitration proceeding in which the applicant had been a party. The Tribunal was prepared to entertain the issue of imputed waiver, but found as a fact (at p.30, paragraph 77) that there had been no partial disclosure of the draft statement and "no basis upon which any other conduct of [the third party] would make it unfair that [the third party] be able to maintain a claim of privilege against any person in some legal proceeding". Again, the quoted statement appears to reflect an understanding on the part of the Tribunal that it was able to assess what fairness did or did not require by reference to conduct in an extra-curial setting. 60. In Re Weeks and Shire of Swan, an officer of the respondent Council had read aloud to the applicant "selected but relevant parts" of a four page legal advice (amounting to approximately 7% thereof) obtained by the Council, which advice related to an application for a land use approval that had been made by the applicant to the Council. In what was clearly an extra-curial dispute over access to otherwise privileged documents, the Western Australian Information Commissioner held that there had been an intentional waiver of privilege in the parts of the legal advice that were read out to the applicant, and that the act of reading out parts of the legal advice to the applicant amounted to a waiver, by imputation, of privilege concerning the whole document.61. It must be acknowledged that most of the cases referred to above deal only briefly with the issue which concerns me (although that issue was the central issue in the ICAC case and in Re Weeks).Nevertheless (apart from the position advocated by Kirby P in Goldberg v Ng, but not accepted by the High Court in the ensuing appeal: see paragraphs 38-39 above), there is no clear statement in Australian authorities decided since Baker v Campbell in 1983, to the effect that the principles of imputed waiver of privilege cannot apply in the context of extra-curial disputes, or that imputed waiver remains merely a rule of evidence only capable of application in legal proceedings. Pincus J expressed reservations in Baker & Ors v Evans & Ors as to whether the criterion of fairness in determining questions of imputed waiver could be sensibly applied in some extra-curial disputes.However, in the ICAC case, Sully J demonstrated that the criterion of fairness endorsed by the High Court in Goldberg v Ng required only some minor re-orientation for its application in the context of the extra-curial dispute which came before him. And in Propend Finance, Brennan CJ (who, jointly with Mason J, had authored one of the influential judgments in Maurice) considered that the requirements of fairness in the relevant circumstances could be applied to determine an issue of imputed waiver of legal professional privilege in the context of an extra-curial dispute.The quoted statements by Deane J from Maurice (see paragraph 34 above) and by Olsson J (see paragraph 37 above) also lend support to that view (as do the Tribunal decisions referred to in paragraphs 55-60 above). Therefore, I have reached the view that Australian law with respect to legal professional privilege allows for the application of principles of imputed waiver of privilege in the context of an extra-curial dispute, by reference to some act or omission of the privilege holder which, though falling short of intentional waiver, is inconsistent with maintenance of the privilege, and by reference to what ordinary notions of fairness require having regard to all relevant circumstances attending the extra-curial dispute.Application of the principles of imputed waiver of privilege in the circumstances of this case62. The text of the letter dated 22 August 1996 from the QLS to Sir Lenox Hewitt's solicitors is set out at paragraph 17 above. The conduct of the QLS which, in my view, gives rise to a question of imputed waiver of privilege consists of the disclosure by the QLS of a summary of the conclusions reached in the legal advice it had obtained from Mr Bartley, together with the statement that the PSC had "adopted the advice of Mr Bartley" in resolving that no disciplinary action would be taken against Sir Lenox Hewitt's former solicitor in respect of any of Sir Lenox Hewitt's formal complaints of unprofessional conduct.63. In its written submission dated 7 November 1997, the QLS referred to the passage from Goldberg v Ng quoted at paragraph 21 above, but sought to distinguish this case from other cases in which imputed waiver had been found, on the following basis:... The letter of 22 August [from the QLS to the solicitors acting for Sir Lenox Hewitt - see paragraph 17 above] does not disclose any part of the opinion from Mr Bartley and in particular, it does not quote from any portion of the written advice obtained. It merely states the gravamen of Mr Bartley's opinion, namely, "the conduct of [the solicitor complained against] did not amount to unprofessional conduct and did not warrant disciplinary action being taken to safeguard the public interest"....It is clear that in both Weeks [see paragraph 60 above] and [Great Atlantic Co v Home Insurance Co & Ors [1981] 2 All ER 485], the document in respect of which legal professional privilege was claimed was partly disclosed. This is not the case in the present case where no part of the Bartley advice has been provided to the applicant but simply a summary of the effect of the advice by an officer of the Law Society....... It is a common enough event for parties to disclose publicly that they have received legal advice supporting the taking of a certain course of action. ...It is submitted that there could be no suggestion that the mere disclosure that a party has taken advice to support a course of action would constitute a waiver of legal professional privilege.If such were the case, then no person who had obtained advice would ever mention to another that they had in fact obtained advice or that the course of action they were taking was supported by legal advice. ...64. I am not satisfied that the QLS can succeed on the point relied on its written submission.Although it may seem a fine distinction in practical terms, the difference between stating "I have received legal advice and I deny liability", and stating "I have received legal advice that I am not liable to compensate you", is nevertheless a real and material one, in that the former involves no conduct inconsistent with maintaining privilege in the legal advice, but the latter does. At least in extra-curial contexts, I tend to agree with the contention put by the QLS that a mere reference to the existence of legal advice, or a statement that a person orcompany was adopting a certain course of action (e.g., denying liability to compensate a claimant for damages) based on legal advice, should not ordinarily, of itself, involve an imputed waiver of privilege in the content of the legal advice. (In the context of litigation, even an implicit assertion, in pleadings or evidence, about the content of privileged material, may involve an imputed waiver of privilege if fairness requires it: see Bayliss v Cassidy & Ors (Supreme Court of Queensland - Court of Appeal, No. 1225 of 1998, Williams J, Davies and McPherson JJA, 11 March 1998, unreported) at p.3.) However, the reference in the passage from Goldberg v Ng quoted at paragraph 21 above to "a limited actual or purported disclosure of the contents of the privileged material" extends, in my opinion, to disclosure of a summary of the conclusions reached in legal advice. I consider that support for that view can be found in the following statement by Deane J in Maurice (at p.493): Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege. (my underlining). (See also Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] NSWSC 7; (1996) 40 NSWLR 12 at pp.14-15, and p.18. In that case, Ampolex sought declarations that the proper conversion ratio of certain convertible notes issued by it was one share for one note. In a report prepared by an independent valuer, which report had entered the public domain, it was stated that "Ampolex maintains that the correct ratio is 1:1 and has legal advice supporting this position." Rolfe J found that this statement had voluntarily disclosed the substance of the legal advice, and held that privilege in that legal advice had been waived. That issue was, however, decided under s.122 of the Evidence Act 1995 NSW, rather than under common law principles. See also the decision of Kirby J of the High Court of Australia dismissing an application for a stay of the decision that privilege in the relevant legal advice had been waived: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd & Ors [1996] HCA 15; (1996) 137 ALR 28.A similar conclusion was reached, in similar circumstances, applying s.122 of the Evidence Act 1995 Cth, in BT Australasia Pty Ltd v State of New South Wales & Anor (No 7) [1998] FCA 294; (1998) 153 ALR 722 at pp.743-744.)65. The disclosure in the QLS's letter dated 22 August 1996 of the conclusions reached in the legal advice it had obtained was not made in the course of proceedings before a court or quasi-judicial tribunal. If it had been, it appears that the considerations of fairness that would be relevant in that context would ordinarily require disclosure of the whole of the legal advice (consistently with the above-quoted statement by Deane J, and the statements by Mason and Brennan JJ quoted at paragraph 40 above). Since the application of principles of imputed waiver is being considered in the context of an extra-curial dispute, it must still be assessed whether the extent of the disclosure of privileged material made by the QLS reached a point where, having regard to all the relevant circumstances, fairness requires a finding of waiver, by imputation, of privilege in the whole of the legal advice (cf. the findings of the respective Tribunals in the Colonial Mutual case and in Re Spier, which are reproduced above at paragraphs 55 and 57). However, I am not satisfied of the correctness of the contention by the QLS that the fact that it did not quote from the letter of advice, but merely gave a summary of the conclusions reached in the legal advice, is sufficient in itself to preclude the application of the principles of imputed waiver of privilege.66. I note that the QLS did not take the opportunity, in its written submission dated 7 November 1997, to address any considerations bearing on the application of the criterion of fairness, in the circumstances of this case. Sir Lenox Hewitt's case for unfairness is conveyed by the following extracts from his submission dated 8 September 1997, and from his submission in reply dated 5 December 1997:... The Society purported to dispose of the Charge [of unprofessional conduct] of 19 October 1993 by advising that they had "adopted the advice of Mr Bartley".In the normal course of administrative procedures the reasoning leading to a decision would be contained in a report submitted, in this case, to the Law Society or to any other body charged with a similar quasi-judicial responsibility....... if the Law Society chooses to seek and to adopt the advice of another for the purposes of discharging its statutory responsibilities then that "advice" ceases to be exempt under s.43(1) of the FOI Act. Upon its adoption by the Law Society, the reasoning therein contained becomes the reasoning of the Law Society itself and the grounds upon which, pursuant to its statutory responsibilities, the Law Society reaches its decision. It thereupon becomes information properly to be made available pursuant to the FOI Act.To conclude otherwise, I submit, would be to frustrate the Parliamentary intent expressed in the Queensland Law Society Act and the FOI Act. The Law Society, by the simple expedient of referring to a solicitor a matter brought to it pursuant to the Queensland Law Society Act, and adopting the advice of the solicitor would not, and could not, be required to give any explanation of the decision it reached. Just as it has, so far, in relation to the Charge of 19 October 1993....If Mr Bartley's letter is to be withheld from me it will constitute a ready means by which the Legislature's intentions can be frustrated. By delegating the processes of enquiry and investigation to a retained legal practitioner and adopting the conclusion, the Law Society's reasoning, the basis for its decision to reject a Charge can never be scrutinised by the dis-satisfied complainant. Surely a denial of natural justice.67. I note that in other submissions, Sir Lenox Hewitt has asserted that his sole purpose in this matter lies in ensuring that the QLS discharges its statutory responsibilities in respect of his formal charge of unprofessional conduct (against his former solicitor), and has expressed concern that the material withheld from him by the QLS may be flawed or incomplete, and not properly represent his charge against his former solicitor.68. Against considerations of the kind raised by Sir Lenox Hewitt, one of the factors to be weighed is that which was emphasised in the ICAC case, where Sully J said that, in assessing the requirements of fairness, proper regard should be had to the fundamental importance which legal professional privilege has under the general law, its rationale being fundamental to the proper administration of justice. The rationale of the law with respect to legal professional privilege has received attention in nearly all of the major cases in which the High Court of Australia has considered aspects of legal professional privilege since Grant v Downs in 1976. In the particular context in which legal professional privilege has been invoked in the present case, the following judicial statements are most apposite: An important part of the rationale of the principle of legal professional privilege is the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law... . Another aspect of the rationale ... is ... that the ready availability of confidential legal advice and of skilled and adequate legal representation is in the public interest in that it promotes both the observance of the law generally and the administration of justice in particular. That aspect of the rationale of the principle applies with as much force to a public official as it does to a private individual ... (per Deane J in Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 at p.82). To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. ... The growing complexity of the legal framework in which government must be carried on renders the rationale of the privilege ... increasingly compelling when applied to decision-makers in the public sector.The wisdom of the centuries is that the existence of the privilege encourages resort to those skilled in the law and that this makes for a better legal system.Government officers need that encouragement, albeit, perhaps, for reasons different to those which might be expected to motivate the citizen (per Mason and Wilson JJ in Waterford at p.62, p.64).69. With due regard to those considerations, there is nevertheless, in my view, considerable merit in the case made by Sir Lenox Hewitt that the QLS has made use of the letter of advice dated 9 August 1996 in such a manner that, in all the relevant circumstances, it would be unfair not to impute a waiver of privilege in the letter of advice. The question arises in the context of an extra-curial dispute as to whether the QLS had properly discharged its functions as a regulatory authority in dealing with complaints of unprofessional conduct made by Sir Lenox Hewitt against his former solicitor. The complaint by Sir Lenox Hewitt was subject to extensive investigation and consideration by the PSC and staff of the Professional Standards Department of the QLS. As the body charged by the Queensland Parliament with responsibility for regulating compliance by solicitors with proper standards of professional conduct, it was incumbent on the relevant delegate of the powers of the QLS (in this instance, the PSC) to reach its own conclusions on whether the conduct complained of by Sir Lenox Hewitt was conduct in respect of which the QLS had power to take action (i.e., whether it constituted malpractice, professional misconduct, or unprofessional conduct or practice). 70. If the relevant delegate determined that issue in favour of the subject of the complaint, I consider that the delegate was at least morally obliged, as a matter of sound administrative practice on the part of a body discharging a regulatory function for the benefit and protection of members of the public who deal with Queensland solicitors, and arguably obliged by the requirements of procedural fairness, to provide an explanation to the complainant as to why the conduct complained of did not constitute malpractice, professional misconduct, or unprofessional conduct or practice (cf. the comments of Brennan J in Esso Australia Resources Limited & Ors v Plowman & Ors (1995) 183 CLR 10 at pp.37-38; and my observations in Re Godwin and Queensland Police Service (Information Commissioner Qld, Decision No. 97011, 11 July 1997, unreported) at paragraphs 51-52). The delegate was certainly entitled to obtain independent legal advice to assist the delegate in reaching conclusions on the relevant issues. But, in my view, it was then incumbent on the delegate to provide the complainant with an explanation of the reasons for the delegate's conclusion that the conduct complained of did not constitute malpractice, professional misconduct, or unprofessional conduct or practice. 71. The decision by the delegate was probably a decision to which Part 4 of the Judicial Review Act 1991 Qld applied (see s.31, s.4 and s.5 of the Judicial Review Act, and s.6(2) and s.6(2B) of the Queensland Law Society Act as in force in August 1996), in which case a written statement of reasons for that decision could have been requested. However, the FOI Act was also intended as a means for keeping the community informed of the operations of government agencies, enhancing the accountability of government agencies, and enabling members of the community to have access to information held by government agencies relating to their personal affairs (see s.5(1) of the FOI Act). Indeed, in a situation where the decision-maker for the QLS had adopted, as the basis for its decision, reasons which were set out in an existing document, use of the FOI Act was arguably the preferable means for Sir Lenox Hewitt to seek to hold the QLS to account for its decision.72. The conduct of the delegate in purporting to "adopt" privileged legal advice (while disclosing only a summary of its conclusions) as the basis for its decision that Sir Lenox Hewitt's complaints did not disclose a case of unprofessional conduct against his former solicitor (an issue which, given the extent of investigation undertaken, and the fact that additional legal advice was sought from Mr Bartley, could not have involved an entirely straightforward and uncomplicated judgment) should not in fairness be allowed to make the delegate's adopted reasons for decision effectively unexaminable. In my opinion, the law should impute a waiver of the privilege otherwise attaching to the letter of advice dated 9 August 1996, because having regard to the conduct referred to above, considered in light of all the circumstances attending the extra-curial dispute, it would be unfair not to do so.73. The QLS and its delegate were not acting in this matter in their own interests. They were discharging a public regulatory function committed to the QLS by the Queensland Parliament, to be undertaken for the benefit and protection of persons who deal with solicitors licensed by the QLS to practise in Queensland. The QLS was undertaking statutory responsibilities and was bound to perform them according to law. The question of whether a written charge lodged under s.6(2) of Queensland Law Society Act (as in force in August 1996) was sufficient (in light of any additional relevant material obtained on investigation by the QLS) to raise a case against a solicitor of malpractice, professional misconduct, or unprofessional conduct or practice, was a threshold question (akin to a jurisdictional fact) involving issues of fact and law, of which the QLS had to be satisfied as a basis for exercising its statutory jurisdiction to take formal disciplinary action against a solicitor. If Sir Lenox Hewitt considered that that threshold question had been wrongly determined by the QLS, avenues existed (and, subject to questions of delay, may still exist) for challenging that finding, e.g., by commencing an action for a declaration that the matters he complained of did disclose a case of unprofessional conduct or practice against his former solicitor, together with an injunction, or perhaps an order in the nature of mandamus, compelling the QLS to deal with his written charge on that basis. 74. In my opinion, fairness requires that Sir Lenox Hewitt should have the opportunity to assess whether he is satisfied with the reasons for deciding the threshold question in favour of the solicitor against whom Sir Lenox Hewitt had complained. The reasons which the QLS adopted as the basis for its decision on that threshold question should not, in fairness, be unexaminable because they are contained in a document that prima facie attracts legal professional privilege.(In that regard, this case bears some similarities to Goldberg v Ng, in which (at p.102) the High Court considered it relevant, to the application of the criterion of fairness, that a solicitor called upon to explain his conduct to the NSW Law Society would normally do so in a letter not subject to the protection of legal professional privilege. Similarly, a complainant to the Queensland Law Society could normally expect an explanation of reasons for a decision to take no disciplinaryaction against a solicitor, to be explained in a document not subject to legal professional privilege.)Those considerations, together with the more general consideration of fairness that the QLS should be properly accountable to an individual complainant for the exercise of its public regulatory function in a particular case, supports my view that it would be unfair not to impute a waiver of the privilege which prima facie attaches to the letter of advice dated 9 August 1996.75. I should also note, since the requirements of fairness ought to be assessed having regard to all relevant circumstances, that the letter of advice makes observations on the issue of whether the conduct of the solicitor complained against was merely negligent, as distinct from unprofessional.In some circumstances, it could be argued that disclosure of legal advice concerning such issues would be unfair to the solicitor complained against, e.g., where an action in negligence against the solicitor is pending. I would have reservations about the merits of such arguments, since the issue of whether conduct by a solicitor was unprofessional or merely negligent must be one of the most frequent issues which the PSC, and the Professional Standards Department of the QLS, have to assess in determining whether to take action on complaints against solicitors, and, in my view, that issue would have to be regularly addressed when accounting to a complainant for the outcome of a complaint. In any event, it is clear on the material before me in the present case that Sir Lenox Hewitt commenced an action in negligence against his former solicitor and that that action had been settled, with compensation to Sir Lenox Hewitt, prior to the creation of the letter of advice dated 9 August 1996. In those circumstances, I do not consider that any considerations of fairness to the solicitor complained against, tell against a finding of imputed waiver.76. The statement in the letter from the QLS dated 22 August 1996 was not misleading as a bare summary of the conclusions reached in the advice obtained from Mr Bartley. (It is interesting to speculate how the criterion of fairness should operate in the context of an extra-curial dispute, where a tribunal able to examine the material which prima facie attracts privilege ascertains that a limited actual or purported disclosure by the privilege-holder of the contents of the privileged material was deliberately or inadvertently misleading. But that is not the case here.) I am able to say that because I have had the opportunity of comparing the two, but I consider that ordinary notions of fairness require that Sir Lenox Hewitt should have the opportunity to satisfy himself that the QLS's summary of the conclusions reached in the advice which it "adopted" was not misleading, and that the reasoning which supported those conclusions was not affected by error (eg, a misapprehension of the correct factual position: cf. the concerns expressed by Sir Lenox Hewitt as noted at paragraph 67 above).77. It seems that the QLS need only make a slight adjustment to its procedures to avoid an issue of this kind arising again. If the letter dated 22 August 1996 from the QLS had not referred to Mr Bartley's opinion at all, but merely stated that it was the opinion of the PSC that the conduct of the solicitor complained against did not amount to unprofessional conduct and did not warrant disciplinary action being taken to safeguard the public interest, then the letter would not, in my opinion, have afforded a satisfactory explanation to the complainant for the PSC's conclusions, but no question of imputed waiver of the privilege attaching to the letter of advice from Mr Bartley could have arisen. Nevertheless, it was the conduct of the QLS in disclosing the conclusions reached in Mr Bartley's advice, and in stating that Mr Bartley's advice had been "adopted" by the PSC in resolving to take no formal action against the solicitor for the conduct complained of by Sir Lenox Hewitt, which opened the door to the application of principles of imputed waiver.78. Applying the principles stated in Goldberg v Ng (see paragraph 21 above) according to the standard of what ordinary notions of fairness require, having regard to the relevant circumstances attending the particular case, I find that the QLS has used privileged material in such a way (i.e., by adopting the privileged advice as the basis for a decision made in the exercise of its statutoryresponsibilities, in lieu of explaining to Sir Lenox Hewitt why his formal complaints did not disclose a case of unprofessional conduct) that fairness requires a finding that the privilege which would otherwise attach to Mr Bartley's letter of advice dated 9 August 1996 has been waived, by imputation of law, as against Sir Lenox Hewitt, whether the QLS intended that result or not.79. Accordingly, I find that the letter of advice dated 9 August 1996 to the QLS from Mr Bartley of Corrs Chambers Westgarth is not exempt from disclosure to Sir Lenox Hewitt under s.43(1) of the FOI Act.The matter in issue in Ms Dreghorn's memoranda to the Professional Standards Committee - communications made in a professional capacity as a lawyer, or made merely in the capacity of an employee?80. The Australian authorities which I examined in Re Potter and Brisbane City Council [1994] QICmr 18; (1994) 2 QAR 37 at pp.45-47, establish that legal professional privilege may apply with respect to qualified legal practitioners employed by a statutory authority which performs public functions (as is the case with the QLS when regulating compliance by solicitors with proper standards of professional conduct), in respect of professional legal work undertaken for their employer as client, provided there is a professional relationship which secures to the legal work an independent character notwithstanding the employment (see per Mason and Wilson JJ in Waterford's case at p.62). Important indicia are whether the legal adviser has been admitted to practice as a barrister or solicitor, and remains subject to the duty to observe professional standards and the liability to professional discipline. Possession of a current practising certificate is not necessary for establishing the requisite degree of independence, but will carry some weight in assisting to establish that requirement.81. The QLS has provided me with a copy of the job description applicable to Ms Dreghorn's position as "Solicitor, Professional Standards" in the Professional Standards Department of the QLS. I am satisfied that, while the primary duties of the position appear to consist of investigating complaints and assisting in disciplinary proceedings against solicitors, the duties of the position also include the provision of legal advice. The QLS has submitted (at p.3 of its written submission dated 25 October 1996):... at the time that the memoranda were written, Linda Dreghorn was:-(a) admitted as a solicitor of the Supreme Court;(b) the holder of a current Practising Certificate; and(c) subject to professional disciplinary action.In relation to the requirements of a solicitor in corporate practice in Queensland, it is instructive to consider Chapter 15 of the Queensland Solicitors' Handbook (copy enclosed). The Professional Standards department in employing in-house lawyers to investigate and, where required, provide advice to the Professional Standards Committee in relation to complaints, has regard to Chapter 15 and is careful not to compromise the independence of its employed lawyers. The lawyers within the Professional Standards department are expected to operate independently and to provide candid advice having regard to the fact that their first duty is to the law.82. I accept that the circumstances of Ms Dreghorn's employment guaranteed her the requisite independence when called upon to provide professional legal advice to her employer, as client. In Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 (at pp.530-531), Dawson J saw no reason for denying privilege to communications passing between salaried lawyers and their employers "provided that they are consulted in a professional capacity in relation to a professional matter and the communications are made in confidence and arise from the relationship of lawyer and client". (Dawson J's statement was cited with apparent approval by Mason and Wilson JJ in Waterford's case at p.61, and re-stated by Dawson J in the same case at pp.95-96.) The difficult issue in the present case lies in deciding whether all of the matter from Ms Dreghorn's memoranda that has been claimed to comprise privileged legal advice, satisfies the requirements of the proviso expressed in Dawson J's statement of principle.83. In Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners (No. 2) [1972] 2 QB 102, an English case endorsed by judges of the High Court of Australia in Kearney and in Waterford, Lord Denning MR, in holding that the work of salaried employee legal advisers could attract legal professional privilege, also observed (at p.129):I speak, of course, of their communications in the capacity of legal advisers. It does sometimes happen that such a legal adviser does work for his employer in another capacity, perhaps of an executive nature. Their communications in that capacity would not be the subject of legal professional privilege.84. Thus, in Re Munday and ACT Attorney-General's Department (Australian Capital Territory Administrative Appeals Tribunal, Professor L J Curtis (President), No. C95/85, 29 August 1996, unreported), one of the documents in issue was a letter from a solicitor in the ACT Attorney-General's Department to the ACT Commissioner for Housing, concerning an FOI request made by Mr Munday to the Attorney-General's Department for documents concerning the ACT Housing Trust. The Tribunal observed (at p.3, paragraph 8):The mere fact that the author of the letter is a solicitor with the GSO [the ACT Government Solicitor's Office] and that the recipient of the letter is a client of the GSO does not afford protection: see Minter v Priest [1930] AC 558. It is only if the letter was written by Mr Killalea in his professional capacity as a lawyer providing advice to the client that it is privileged. If it was written in his capacity as an officer of the Department dealing with the request under the FOI Act and for the purpose of finding out whether another agency having an interest in the documents falling within the request would wish exemptions to be claimed for those documents, then it is not privileged.85. Similarly, in Re Gunawan and Directorate of School Education (1994) 6 VAR 418, the Victorian Administrative Appeals Tribunal decided (at p.428 and p.430) that some documents (and segments of documents) in issue in that case were created by a salaried legal officer of the respondent agency while performing an administrative function, and hence did not attract legal professional privilege (see also Re Price and the Director of Public Prosecutions (Information Commissioner, Decision No. 97016, 24 October 1997, unreported) at paragraph 38).86. By letter to the QLS dated 19 December 1995, the Lay Observer explained his finding that the matter in issue described in subparagraph 8(a) above was not exempt under s.43(1) of the FOI Act, as follows:Whilst Ms Dreghorn is a legal practitioner and is employed as an Investigating Officer by the Queensland Law Society, I do not believe that the section of the report would be covered by legal professional privilege as it was not in the nature of legal advice prepared for the Law Society butsimply an analysis of the investigation undertaken by Ms Dreghorn into the substance of the complaint. On this basis, I do not believe that this ground is sufficient to justify the withholding of the report from the applicant.Having regard to the content of the material to which the applicant seeks access, I do not believe there is any reason why he should not be given access to it. There is nothing of a confidential, contentious or controversial nature disclosed, it is simply a short statement prepared by the investigating officer for the benefit of the Committee.87. The Lay Observer's decision of 4 April 1996, rejecting the claim by the QLS that the matter described in subparagraphs 8(b), (c) and (d) above is exempt matter under s.43(1) of the FOI Act, appeared to incorporate by reference his above-quoted reasons for decision. In his submission dated 31 January 1997, Sir Lenox Hewitt argued:Without seeing the documents, I cannot make a judgment as the Lay Observer was able to do. However, I do not think it can be a difficult matter to establish whether the reports I wish to see were the results of, and reports upon, investigations, or were prepared for the sole purpose of responding to a direction to provide legal advice. Or, alternatively stated, was the author of the document instructed, as a solicitor, to provide legal advice upon the matter and do the documents constitute legal advice.To my lay mind, they are probably nothing more than investigation reports, as such documents are commonly known throughout government departments.88. The QLS did not contest the disclosure, under the FOI Act, of the bulk of Ms Dreghorn's reports to the PSC. The QLS has conceded (in its written submissions dated 25 October 1996) that memoranda by Ms Dreghorn for the assistance of the PSC (reciting the history and factual basis of the relevant complaints) would have been created in any event. That is the basis on which it has not contested disclosure of the memoranda, other than the segments claimed to comprise legal advice by Ms Dreghorn to the PSC. That concession by the QLS has implications for the application of the 'sole purpose' test, and I have addressed those implications in detail below. However, I am now considering whether the segments of the memoranda for which the QLS has claimed exemption under s.43(1) can be properly characterised as professional legal advice referable to a professional relationship of lawyer and client between Ms Dreghorn and the QLS. 89. Difficult questions of characterisation are liable to arise when a salaried legal practitioner performs duties for his or her employer as an investigator. Assessing what factual material should relevantly be obtained to enable legal advice to be given on the application of a statutory provision or common law principle, in the context of a situation or dispute affecting a client, is clearly a professional matter on which a legal practitioner may advise or assist a client. So too is the analysis of relevant factual material as an incident to, and for the purpose of, giving legal advice. At an early stage of this review, the QLS explained its position, in respect of one of Ms Dreghorn's earlier memoranda, as follows:In respect of the observations made by the Lay Observer in his letter [to the Deputy Information Commissioner] of 23 January 1996, the Society rejects the contention that the release of a major part of the report to the applicant "clearly detracts from their submission that the analysis is in a special category and should be withheld". With respect, the material contained in the analysis is of a distinctly different nature to the rest of the material contained in the report, much of which is merely a re-stating of events that have taken place. The analysis is essentially a distilling of the facts by the creator of the memorandum and the provision of advice to the Professional Standards Committee based upon the author's assessment of those facts. It is this analysis, advice and recommendation, as opposed to mere re-statement of facts and events, which the Society submits is distinctly different in quality to the remainder of the report and should be exempt for the reasons outlined in its previous submissions.90. In a later submission dated 25 October 1996, the QLS contended:The portions of the memoranda which recite the history and factual basis of the complaint, would, as a matter of administrative necessity, have had to be supplied to the Committee to enable the Committee to consider and make decisions in respect of complaints. The administration of the complaints system would have required the provision of this information in any case.This is not the case with the analysis/recommendation sections of the memoranda. These sections would not have been brought into existence in any event. The Committee could have elected to rely on its own lawyer members for legal advice or, alternatively, obtained such advice from external lawyers. It chose to do otherwise, namely to obtain advice from the Society's internal lawyers. This course is hardly exceptional. Lawyers in the Professional Standards department deal with issues of the conduct of the profession on a regular basis and could be expected to have a particular expertise in the area, which expertise would obviously be of great use to the Committee in its deliberations.A close analysis of the advice given in the exempt portions of the memoranda shows that the advice was of a legal nature. In view of your intention to provide a copy of this letter to the applicant, I will not provide any detailed analysis in respect of the portions of the memoranda for which exemption is claimed as to do so would obviously reveal the contents.Suffice to say that the memoranda deal with such issues as what constitutes misconduct or unprofessional conduct and the proper legal categorisation of the facts allegedly grounding the complaint. These types of issues are clearly of a legal nature.91. The QLS also forwarded to me, as a confidential attachment to its submission dated 7 November 1997, a document headed "Nature of Advice Given" which was intended as: "a summary which details in a more particular manner the Society's submissions as to why the advice provided by [Ms Dreghorn to the PSC] is best characterised as legal advice rather than advice of an administrative nature". The attachment was submitted on a confidential basis because it discussed the matter in issue "in sufficient detail as to disclose the contents of the exempt matter to the applicant if the document was provided to him" (see, in this regard, s.87 of the FOI Act). I accepted the attachment on the basis that it remain confidential from Sir Lenox Hewitt, and I have had regard to the attachment when examining the matter in issue to arrive at the conclusions stated below.92. I consider that some parts of the matter claimed by the QLS to be exempt matter under s.43(1) of the FOI Act cannot be properly characterised as legal advice, or professional legal assistance, on a professional matter referable to a relationship of lawyer and client between Ms Dreghorn and the QLS; rather, it must be properly characterised as material for the information and assistance of the PSC, prepared by Ms Dreghorn in an administrative capacity as an employee of the QLS. In two instances (the matter identified in subparagraphs 93(a)(i) and (b)(i) below), the essential character of the matter is, in my opinion, no different to that of material already disclosed under the FOI Act, i.e., it is merely a re-stating of events that have already taken place (for the purpose of informing the PSC) without any discernible element of analysis of factual material as an incident to the provision of legal advice for consideration by the PSC. In other instances, it consists of matter that, in my view, is properly referable to the relationship of employer and employee, rather than to a professional relationship of solicitor and client. The matter identified in subparagraph 93(c) below is perhaps close to the borderline. In it, Ms Dreghorn identified four issues for consideration by the PSC, without offering any legal advice, opinion or recommendation as to their proper resolution. It could be argued that identification of the four issues involved an exercise in legal analysis by Ms Dreghorn. However, I consider that identification of those issues would properly be expected of an investigator or administrative officer, without legal qualifications, whose duties of employment required the preparation of a similar memorandum for the information and assistance of the PSC.93. I find that the following segments of the matter in issue cannot be properly characterised as communications comprising, or made for the purpose of giving, legal advice or professional legal assistance on a professional matter referable to a relationship of lawyer and client between Ms Dreghorn and the QLS:(a) in the memorandum dated 18 January 1994 from Ms Dreghorn to the PSC - (i) the first paragraph, and the first sentence of the second paragraph, below the heading "Conclusion:" on p.3; and (ii) the last sentence on p.4;(b) in the memorandum dated 13 April 1995 from Ms Dreghorn to the PSC - (i) the last paragraph on p.3; and (ii) the last sentence on p.4;(c) in the memorandum dated 8 July 1996 from Ms Dreghorn to the PSC, the sentence which appears under the heading "Analysis of Investigation" on p.3.94. I am satisfied from my examination of them that the following segments of the matter in issue consist of legal opinion or advice (including analysis of factual material, or selection or highlighting of particular factual material, as an incident to the giving of legal advice), communicated by Ms Dreghorn for consideration by the PSC, on professional matters referable to a relationship of lawyer and client between Ms Dreghorn and the QLS:(a) in the memorandum dated 18 January 1994 from Ms Dreghorn to the PSC - (i) the last two sentences of the last paragraph on p.3; and (ii) the first paragraph on p.4;(b) in the memorandum dated 13 April 1995 from Ms Dreghorn to the PSC - (i) the first two paragraphs below the heading "Analysis of Investigation" on p.3; and (ii) the first paragraph on p.4;(c) in the memorandum dated 22 January 1996 from Ms Dreghorn to the PSC, the paragraphs numbered 20-27 (inclusive);(d) in the memorandum dated 27 February 1996 from Ms Dreghorn to the PSC - (i) the four paragraphs which appear under the heading "Analysis of Investigation" on p.2 and p.3; and (ii) the paragraph which appears below the heading "Recommendation" on p.3.95. Whether the matter identified in the preceding paragraph qualifies for exemption under s.43(1) as matter that would be privileged from production in a legal proceeding on the ground of legal professional privilege depends on the application of the 'sole purpose' test.Application of the 'sole purpose' test to matter in issue in Ms Dreghorn's memoranda to the Professional Standards Committee96. As appears from the first paragraph of the extract from its submission quoted at paragraph 90 above, the QLS has conceded that the memoranda from Ms Dreghorn to the PSC would have come into existence in any event, "as a matter of administrative necessity", in order to supply the PSC with the history and factual basis of the relevant complaints so that the PSC could consider and make decisions in respect of those complaints (though the QLS does not concede that the segments comprising legal advice would have been brought into existence in any event). This means that each document containing matter in issue, that is referred to in paragraphs 93 or 94 above, was brought into existence for at least one purpose which does not attract legal professional privilege.97. For its entitlement to sever, and claim legal professional privilege/s.43(1) exemption for, the segments of Ms Dreghorn's memoranda to the PSC which comprise legal opinion or advice, the QLS has asserted reliance (at p.4 of its submission dated 25 October 1996) on the following statement of the 'sole purpose' test by Deane J in Waterford's case (at p.85):... a document (or a severable part of a document) will not be protected by legal professional privilege if it "would have been brought into existence ... in any event" for purposes other than that which attracts legal professional privilege ...".98. However, Deane J was in the dissenting minority on the issue of the application of the 'sole purpose' test to one group of documents in issue in Waterford's case. Since Waterford's case was a decision of the High Court of Australia on the application of a statutory provision (s.42(1) of the Commonwealth FOI Act - the legal professional privilege exemption) very similar in its terms, and its intended operation, to s.43(1) of the Queensland FOI Act, I consider that I am bound to apply any ruling statements of principle on which the majority judges decided the issue which concerned the application of the 'sole purpose' test.Waterford's case therefore warrants closer analysis. The relevant issue for present purposes is that concerning alleged error in the application of the 'sole purpose' test to certain documents, which was dealt with in the joint judgment of Mason and Wilson JJ at pp.65-66, by Brennan J at pp.75-78, by Deane J at pp.83-93, and by Dawson J at pp.101-105.99. The appeal stemmed from a decision of the Commonwealth AAT which found certain documents (including a related group of documents numbered for identification as documents 28, 29, 33, 35 and 38) to be exempt under s.42(1) of the Commonwealth FOI Act.Documents 28, 29, 33, 35 and 38 comprised correspondence (or drafts thereof) between the Attorney-General and the Treasurer, prior to the hearing of a previous application to the AAT in which Mr Waterford had sought review of a decision by the Treasurer under the Commonwealth FOI Act.100. Mr Waterford argued that the advice proffered by the Attorney-General was properly characterised as policy advice rather than legal advice, and was not subject to legal professional privilege. The AAT accepted the evidence of a witness that "the Attorney-General's legal opinion had been furnished in relation to the then pending application by Mr Waterford before the Tribunal". The AAT held that legal professional privilege attached to all letters to and from the Attorney-General (including drafts) "whether or not the legal advice also included advice as to the policy of the FOI Act".101. Prior to the hearing of an appeal by Mr Waterford to the Federal Court of Australia, challenging the decision of the AAT, the Commonwealth disclosed document 29 (subject to the deletion of nine lines said to relate to Cabinet discussions) to Mr Waterford's legal advisers, and that version of document 29 was apparently tendered to the Federal Court (it was certainly available to, and referred to by, the judges in the High Court). The judges of the High Court differed markedly in their treatment of the significance of the contents of document 29, which were revealed to have been different, in at least some material respects, to what had been described in evidence given by Treasury officers to the AAT.102. Deane J (at p.91) and Dawson J (at pp.103-104) expressed the view that document 29 contained no professional legal advice, but merely policy advice on the administration of the Commonwealth FOI Act, and that document 29 illustrated the error in the AAT's approach to the application of the 'sole purpose' test. Deane J and Dawson J would have upheld Mr Waterford's appeal on the ground of legal error in the AAT's application of the 'sole purpose' test. Brennan J also expressed the view that "document 29 did contain advice as to executive policy" (at p.77), but decided to dismiss the appeal on the ground that any error in the application of the 'sole purpose' test would merely have involved the making of a wrong finding of fact, not an error of law, and Mr Waterford's right of appeal from the decision of the AAT was limited to errors of law. Mason and Wilson JJ (who, with Brennan J, formed a majority in dismissing Mr Waterford's appeal on this issue) expressed the view (at pp.66-67) that document 29 contained policy advice intermingled with legal advice, but held that the AAT was nevertheless entitled to make a finding of fact that the sole purpose for bringing document 29, and related documents, into existence was to seek or give legal advice, and that there was no error of law in the AAT's approach to the making of that finding of fact.103. In my opinion, the approach adopted by Deane and Dawson J on the application of the 'sole purpose' test to a document which (like those identified in paragraph 94 above) contains legal advice and other "extraneous matter", conflicts with the test applied by the majority judges, in which case the latter should prevail. However, since at least one superior court judge has applied Deane J's approach in Waterford, declaring that it was not in conflict with the majority judges (see paragraph 115 below), it is necessary to examine those judgments in greater detail.Approach of the dissenting judges in Waterford104. Deane J's views on the application of the 'sole purpose' test are encapsulated in the following extracts from his judgment (at pp.84-87):... at least some of the disputed documents contained or recorded both legal professional advice given by the Crown Solicitor's Office and general policy advice given by the "freedom of information" section of the Attorney-General's Department. The circumstance that advice of different categories was contained in some of the disputed documents did not, of itself, give rise to any insurmountable problem. If privileged material was contained in one distinct part of a document and non-privileged material was contained in another, protection of the confidentiality of the privileged part of the document would not, as the Act itself recognizes (see, e.g., ss. 22, 33(3), 33A(3), 34(3), 35(3), 36(4), 58(2), 64(2) and (4)), ordinarily require that that part which was not covered by privilege should also be immune from production: see, e.g., Ainsworth v Wilding [1900] 2 CL 315 at p.325; Great Atlantic Insurance Co v Home Insurance Co [1981] 2 All ER 485 at pp.488-489; Brambles Holdings Ltd v Trade Practices Commission [No. 3] [1981] FCA 83; (1981) 58 FLR 452 at pp.459, 462. If it were not possible to classify the contents of the document into distinct parts, it would be necessary to determine whether the contents as a whole were outside the protection of legal professional privilege for the reason that notwithstanding the professional legal advice, they did not satisfy what has conveniently, if somewhat loosely, been referred to as "the sole purpose" test: see Grant v. Downs [1976] HCA 63; (1976) 135 CLR 674 at p.688. That test looks to the purpose for which the contents of a document were brought into existence.To adapt the words of Stephen, Mason and Murphy JJ. in Grant v. Downs, a document (or a severable part of a document) will not be protected by legal professional privilege if it "would have been brought into existence ... in any event" for purposes other than that which attracts legal professional privilege ... Applying that test to the circumstances of the present case, a document containing general policy advice from the "freedom of information" section of the Attorney-General's Department would not prima facie enjoy the protection of legal professional privilege if the moving purpose underlying its preparation had been to convey advice about the observance and application of general government policy proffered by the section of the Department responsible for the general administration of the Act. For the document to be protected, the cause of its existence, in the sense of both causans and sine qua non, must be the seeking or provision of professional legal advice. That is not, of course, to say that every statement in a letter from a professional legal adviser must be scrutinized to see whether it contains other than legal advice. Ordinarily, a letter from a professional legal adviser will be written only in his character as such and only for the purpose of furnishing professional legal advice. The cases where such scrutiny will ordinarily be necessary are cases like the present where a letter is or may be written in one or both of two capacities: e.g., a letter written to the secretary of a company by a person who is both a director of the company and the company's solicitor.The material before the Tribunal indicated that the Department of the Treasury had made no effective attempt, at least in the case of some of the disputed documents, to sever privileged legal professional advice from any non-privileged advice about government policy in relation to the administration of the Act. It also indicated that the Department had made no attempt to determine whether a particular document satisfied the requirements of the "sole purpose" test. ......... Since the material before the Tribunal indicated that some of the disputed documents contained or recorded policy advice not proffered in the capacity of the Treasury's professional legal adviser at all, it was incumbent upon the Department to satisfy the Tribunal that legal professional privilege somehow extended to protect the confidentiality of that part of the contents. The Department might have discharged that onus by satisfying the Tribunal that it was not practicable to sever and disclose what constituted advice or directions about general government policy without disclosing the content of professional legal advice contained in the document and that the purpose, in the sense discussed above, for which the document had been brought into existence was to be found in the provision of the legal professional advice. ...105. Dawson J adopted a similar approach, and reached the same conclusions, as Deane J on the application of the 'sole purpose' test, but with a noteworthy qualification on the issue of severance (at p.103):It was submitted that if a document containing or recording legal advice also included policy advice it could not survive the sole purpose test laid down in Grant v. Downs and should have been produced. But Grant v. Downs was a decision in which this Court refused to extend legal professional privilege to material obtained by a corporation from its agents for more than one purpose, only one of which was the purpose of submission to its legal advisers in order to obtain legal advice. Documents of that kind are not privileged because the communications or intended communications which they contain belong in a category which does not attract privilege, albeit they also belong in a category which does. Legal advice given by a qualified legal adviser in his professional capacity to his client falls only within the category of a communication which is privileged. Legal advice serves no other function than legal advice. No doubt if the legal advice is accompanied by advice of another kind which can be separated from it, e.g., by blanking out parts in a document, then only the legal advice will be privileged. But if the legal advice contains extraneous matter which cannot be separated from it, the legal advice will not lose its privilege for that reason. There is only one purpose in legal advice and the privilege which it attracts cannot be lost by the application of the principle which applies when a document containing information of a factual nature is brought into existence for more than one purpose.The Tribunal was of the view that the advice of the Attorney-General or his Department may have contained advice other than legal advice but it failed to consider whether the legal advice could be separated from the other advice. In so doing it fell, in my view, into error.106. I consider Dawson J's observation distinguishing legal advice from other kinds of matter which might, subject to the application of the 'sole purpose' test, attract legal professional privilege, to be significant on the issue of severance. Dawson J accepted that severance is appropriate for matter contained in a document that was created for dual or multiple purposes (at least one of which was not a privileged purpose) if the matter can be properly characterised as legal advice given by a qualified legal adviser in his/her professional capacity to his/her client. However, the passage above suggests that Dawson J would deny severance, and hence privilege, to other kinds of matter that might attract legal professional privilege if it were contained in a document the sole purpose for the creation of which was a privileged purpose (eg, obtaining information for use in anticipated litigation), whenever it is the case that the matter is in fact contained in a document that was created for dual or multiple purposes (at least one of which was not a privileged purpose). I think it is clear enough from the opening segments of the extract from Deane J's judgment which is reproduced at paragraph 104 above, that Deane J was confining his remarks about severance of distinct parts of a document, to distinct parts comprised of professional legal advice. However, to the extent that Deane J's references to severability of distinct parts of privileged material might be taken to incorporate reference to privileged material other than professional legal advice (eg, instructions for the purpose of seeking legal advice, communications for the purpose of obtaining information for use in litigation), it appears that Dawson J would not endorse such an extension.107. In any event, according to the test which formed part of the ratio decidendi of the judgments pursuant to which both Deane J and Dawson J would have upheld Mr Waterford's appeal, the matter in issue identified in paragraph 94 above would be properly characterised as distinct segments of legal advice given to her client by a qualified legal adviser acting in her professional capacity, which advice should appropriately be severed from non-privileged material in the documents in which it appears, and should, in its severed form, retain the protection of legal professional privilege. Hence, it would qualify for exemption under s.43(1) of the FOI Act.Approach of the majority judges in Waterford108. Two of the majority judges, Mason and Wilson JJ, stated (at pp.66-67) a different test on their way to reaching the opposite conclusion to Deane J and Dawson J on the application of the 'sole purpose' test:The questions raised under this head of the argument are not without difficulty. The fact that the Attorney-General was also the Minister administering the Act might create difficulty in a particular case in determining the purpose or purposes attaching to a document. Matters of policy and legal advice may be intermingled in the one document as appears to be the case with document numbered 29, which was made available to the appellant prior to the hearing of his appeal to the Federal Court. However, we do not think that the allegation of error of law by the Tribunal can be sustained. The appellant's submission fails to appreciate that the sole purpose test is a test that looks to the reason why the document was brought into existence. If its sole purpose was to seek or to give legal advice in relation to a matter, then the fact that it contains extraneous matter will not deny to it the protection of the privilege. The presence of matter other than legal advice may raise a question as to the purpose for which it was brought into existence but that is simply a question of fact to be determined by the Tribunal and its decision on such a question is final.109. The test stated by Mason and Wilson JJ in the above passage, when applied to the matter in issue identified in paragraph 94 above, produces the opposite result to that which would be obtained under the principles stated by Deane J and Dawson J. It is clear from the admission made by the QLS (see paragraph 90 above), and from my own examination of the documents in issue, that none of the memoranda prepared by Ms Dreghorn for the assistance of the PSC (which are identified in paragraph 8 above) was brought into existence for the sole purpose of seeking or giving legal advice, nor for the sole purpose of use in connection with pending or anticipated legal proceedings. Mason and Wilson JJ treated the 'sole purpose' test as stated in Grant v Downs (a case in which the documents in issue did not include professional legal advice given by a lawyer to a client) as the proper test to apply to a document which contained professional legal advice intermingled with other matter. The consequences of focussing on whether the sole purpose for the creation of such a document was a privileged purpose are -(a) if the 'sole purpose' test is satisfied, the other matter in the document, as well as the professional legal advice, attracts legal professional privilege (though Mason and Wilson JJ clearly acknowledged that, at least in the context of an FOI statute containing specific provisions for severance, the other matter could then be severed and disclosed: see paragraph 113 below); or(b) if the 'sole purpose' test is not satisfied, neither the professional legal advice, nor the other matter contained in the document, attracts legal professional privilege.110. By way of contrast, according to the approach favoured by Dawson J and Deane J, one looks first to whether a distinct segment of professional legal advice can be severed, and accorded privilege, while the balance of the document is disclosed. (According to Deane J at p.85, if it were not possible to classify the contents of the document into distinct parts, it would then be necessary to apply the 'sole purpose' test by reference to the purposes for the creation of the document as a whole.)111. The third judge comprising the majority, Brennan J, saw the resolution of Mr Waterford's contentions on the application of the 'sole purpose' test as turning on the fact that the right of appeal from a decision of the AAT lay only on a question of law. In this, Brennan J can be seen as supporting the statement by Mason and Wilson JJ that "The presence of matter other than legal advice may raise a question as to the purpose [a document] was brought into existence but that is simply a question of fact to be determined by the Tribunal and its decision on such a question is final ...", and thereby providing a ratio decidendi for the decision of the majority to dismiss the ground of Mr Waterford's appeal which alleged an error of law in the application of the 'sole purpose' test. Brennan J said (at pp.77-78):The error of law which an appellant must rely on to succeed must arise on the facts as the AAT found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law in simply making a wrong finding of fact.Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact. As the purpose for which a document is brought into existence is a question of fact (per Jacobs J in Grant v Downs), the contents of document 29 are immaterial to the question whether the AAT has made an error of law on the material before it.112. Brief as it is, Brennan J's reference to the purpose for which a document is brought into existence being a question of fact (citing Grant v Downs), must, in my view, be read as support for the test adopted by Mason and Wilson JJ which focuses on whether a document was created solely for a purpose which attracts legal professional privilege. Any doubt in that regard would, in my opinion, be dispelled by reference to Brennan CJ's judgment in the Propend Finance case, where his Honour made clear his understanding of the 'sole purpose' test (at p.330): ... since Grant v Downs, the protection of legal professional privilege has been confined to documents that have been brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings. ... The test is anchored to the purpose for which the document was brought into existence ... .Can the approach of the dissenting judges in Waterford on the issue of severance of legal advice be reconciled with the majority judgments in Waterford?113. Immediately following the passage quoted at paragraph 108 above, Mason and Wilson JJ added some comments which have been regarded in some quarters as adding a significant qualification to the test stated in the passage quoted at paragraph 108 above (which test necessarily has the consequence that, if a document containing matter other than legal advice was not brought into existence solely for a privileged purpose, the document does not attract legal professional privilege):It may also be appropriate in a particular case for the Tribunal to require those parts of the document which do not bear the necessary relation to legal advice to be disclosed. The doctrine of legal professional privilege allows room for questions of fact and degree such as these to fall for decision.Moreover, the [Commonwealth FOI Act] contemplates that where an exempt document contains material which, standing alone, would not render the document exempt, the agency or Minister should, if it is reasonably practicable to do so, delete the privileged material and grant access to the remainder: s.22.114. It is necessary for me to consider whether this passage assists the case made by the QLS that severable parts of Ms Dreghorn's memoranda are entitled to legal professional privilege. In Hongkong Bank of Australia Ltd v Murphy [1993] VicRp 83; [1993] 2 VR 419, Smith J made it clear that he saw the passage quoted immediately above as containing no significant general qualification to the test stated in the passage quoted at paragraph 108 above. Smith J said (p.430):High Court authority does not in my view support the proposition relied on by Hongkong Bank that privilege can attach to part of a document. The propositions advanced by the High Court advert to the whole document in question and the purpose of its creation. Severance was considered in Waterford's case by Mason and Wilson JJ at p.66 and Dawson J at p.103 but this occurred in the context of the Freedom of Information Act 1982 Cth which expressly provided for severance of passages that gave rise to claims of privilege for a document. Deane J asserted that the common law permitted severance of a distinct part of a document that contained otherwise privileged material (at p.85) but this was not consistent, in my view, with the views expressed by other members of the court or earlier High Court decisions.115. However, in Grofam Pty Ltd v Australian and New Zealand Banking Group Ltd (1993) 116 ALR 535, Heerey J of the Federal Court of Australia expressly disagreed with Smith J's reading of Waterford's case on this issue, and found support in the passage quoted at paragraph 113 above for his view that Australian law with respect to legal professional privilege permits severance, and the application of legal professional privilege to part of a document. (I note that Heerey J's decision in Grofam was cited and applied, on an issue of severance of privileged material, by Moore J in Alphapharm v Eli Lilly Australia, at p.159, but with no analysis of supporting principles.) Heerey J quoted the passage set out at paragraph 114 above, and observed that Smith J had not been referred to the decision of the Full Court of the Supreme Court of Queensland in Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335, which came to the conclusion that there is no rule of law that objection cannot be taken to production of part of a document on the ground of legal professional privilege. In respect of the passage from the judgment of Mason and Wilson JJ in Waterford's case that is quoted at paragraph 113 above, Heerey J said:... The [first] sentence makes it clear that their Honours are contemplating production of part only of a document and withholding another part which is subject to legal professional privilege. It is true that the FOI Act contains a number of specific provisions for exemption from disclosure of parts of documents ... . However, in using "Moreover" to commence the last sentence of the passage, their Honours show they are treating those statutory provisions as something additional to the common law to which they have been referring in the previous two sentences. They are saying that severance is permitted by "the doctrine of legal professional privilege" and also that the [Commonwealth FOI Act] itself makes similar provisions. But in the view they took it was not necessary to consider severance. ("Severance" is a convenient description of the concept of withholding part of a document from production. However, physical separation or mutilation of the document are not comprehended: see Curlex at 338.) The other member of the majority, Brennan J, did not advert to the issue.The matter is more explicitly dealt with in the dissenting judgment of Deane J... [Heerey J then quoted the first two sentences of the second paragraph of the passage from Deane J's judgment which is reproduced at paragraph 104 above.] ... Again, when his Honour speaks of "the Act itself recognising" the concept of severance it is plain that there must be something in the common law already existing for the Act to recognise. None of the authorities cited by his Honour were concerned with FOI. To my mind, neither this passage nor that from the judgment of Mason and Wilson JJ already referred to provide any support for the proposition that the FOI Act made a provision for severance which the common law did not.116. I am attracted to Heerey J's conclusion, since I consider that the principle stated by Dawson J in the passage quoted at paragraph 105 adds a sensible qualification to the 'sole purpose' test stated in Grant v Downs (see paragraphs 127-128 below). However, I find myself unable to accept that Heerey J's reading of the passages from the judgment of Mason and Wilson JJ in Waterford's case that are quoted at paragraphs 108 and 113 above, is a logical and correct reading of those passages. In my view, those passages are logically to be read as meaning that once the application of the 'sole purpose' test, as stated by Mason and Wilson JJ, has produced the result that a document containing legal advice, as well as other matter, attracts legal professional privilege, the Tribunal could, if appropriate in a particular case, require disclosure of the parts of the document which do not bear the necessary relation to legal advice. However, once the application of the 'sole purpose' test stated by Mason and Wilson JJ has produced the result that such a document does not attract legal professional privilege, there is no privileged material that might be severed. I do not think that the second sentence of the passage quoted at paragraph 113 above can be taken as some general indication that the doctrine of legal professional privilege is flexible enough to support the materially different approach adopted by Deane J and Dawson J.117. Heerey J placed considerable reliance on the Curlex case. I do not think I am entitled to prefer a decision of the Full Court of the Supreme Court of Queensland to a majority decision of the High Court of Australia (especially where the former was decided earlier than the latter), but in any event it is possible to read the former in a way that is not inconsistent with the latter. The document in issue in Curlex was a draft report prepared by accountants for an insurer's solicitors, assessing the value of a plaintiff's insurance claim for loss of income and profits from the plaintiff's business after a fire. That is a document of a kind that would ordinarily attract legal professional privilege, being prepared for the sole purpose of submission to legal advisers for use in pending litigation. Parts of the draft report (pages 1 to 5 and a draft schedule) were disclosed in Part 1, Schedule 1, to the defendant's affidavit of documents for discovery, while in Part 2 of the same Schedule, objection to production was taken in respect of another part of the draft report (pages 6-11). It is clear from p.336 of the judgment that the plaintiff conceded that the accountant's report, or pages 6-11 of it, was entitled to the benefit of legal professional privilege, subject to the issue of whether, by disclosing the report in Part 1 of Schedule 1, the defendant had waived its right to claim privilege in respect of the whole of the document. Thus, the Full Court was not called upon to determine the anterior question, which the Court was addressing in Waterford's case, of whether the document in issue attracted legal professional privilege, according to the application of the 'sole purpose' test. Once it is established that a document attracts privilege, the privilege holder may waive privilege, and indeed must do so, sooner or later, if it is desired to make use of the privileged material in a court hearing. There is clear authority that a waiver of privilege may be confined to all parts of a privileged communication on a particular subject matter, while privilege is maintained for communications on separate and distinct subject matters appearing in the same document: see the Great Atlantic Insurance case, which was cited with approval in Maurice by Gibbs CJ at p.482, by Mason and Brennan JJ at p.488, and by Dawson J at p.497. I regard Curlex as a case dealing with issues as to waiver of privilege, against a background of practices and procedures then applicable to the process of discovery of documents in litigation in Queensland courts. It has no necessary inconsistency with the approach of the majority of the High Court in Waterford's case to the determination of whether a document attracts legal professional privilege in the first place.118. Heerey J referred to certain cases cited by Deane J in Waterford's case as affording support for the proposition that the common law with respect to legal professional privilege recognises a concept of severance. Those cases did recognise or employ severance, but not in the context of applying the 'sole purpose' test to determine whether a document attracts legal professional privilege in the first place. Of the two more recent cases referred to by Deane J, Great Atlantic Insurance was a case dealing with waiver by imputation, where counsel read part of a privileged document to the court at the outset of a hearing. The Court held that the disclosure warranted a finding of waiver by imputation of the privilege attaching to the whole document, which dealt with a single subject, but indicated that if the documenthad dealt with separate and distinct subject matters, it would have found that privilege had been waived only in respect of the entire contents of the particular subject matter from which part of the privileged communication had been disclosed.119. The other comparatively recent case referred to by Deane J in Waterford's case was Brambles Holdings Ltd v Trade Practices Commission (No. 3) [1981] FCA 83; (1981) 58 FLR 452, in which Franki J of the Federal Court of Australia said (at pp.458-459 and p.462):[The disputed claim of legal professional privilege] is not limited to an internal memorandum merely setting out legal advice which has been obtained and which would be the subject of legal professional privilege if it was a record of a communication of advice from a legal adviser in the litigation. [The disputed claim of legal professional privilege] in its terms is applicable to an internal memorandum setting out legal advice together with comment on that advice by other persons in the Commission. In such a case that part of the memorandum which set out the legal advice would be privileged but not that part which set out the comment on the advice. I agree with the unreported views in this regard of Rath J in Komacha v Orange City Council [Supreme Court of New South Wales, Rath J, 30 August 1979, unreported]:The privilege attaching to a document will be accorded to copies made of it, provided confidentiality is maintained. If for example counsel's advice is circulated among officers of a corporation obtaining the advice, then privilege is preserved, whether the circulation is of the original or of copies. If in such a case an officer of the corporation were to report to another officer setting out portions of the advice, privilege would attach to the report in respect of those portions. The problem arises where the reporting officer makes recommendations that relate to the advice received.The recommendations seem to me to be an activity of the corporation, and not a transmission of the advice from one officer of the corporation to another. This will be especially so where the recommendations are not simply based on the advice received, but are made upon a critical appreciation of the advice received and the situation in which the client finds itself.I think that a distinction should be drawn between the circulation in a corporation of advice received from legal advisers, and recommendations made by officers of the corporation as to the action to be taken, having regard to that advice. The recommendations are corporate action, and are not privileged, whether they follow the advice or disregard it. If the recommendations are found in a report which sets out the advice (or part of it) verbatim or in substance then I think that the privilege remains attached to that part of the report so setting out the advice. But if the officer making the recommendations is in substance tendering his own advice, then (if at all events he is not himself a professional legal adviser) his advice is not privileged....My decision in relation to any document which I have held not to be privileged is subject to the qualification that any part of any such document which does no more than reproduce legal advice obtained in relation to the proceedings need not be made available for inspection.120. The decisions of both Franki J and Rath J proceeded on the basis that a corporation had obtained legal advice which attracted legal professional privilege. I have always regarded their decisions as establishing a separate principle (or at least a necessary exception for preserving the efficacy of the doctrine of legal professional privilege) to the effect that a body corporate must be permitted to inform its servants or agents (who are responsible for taking some action in connection with, or to comply with, privileged legal advice which the body corporate has obtained) of the contents, or the substance, of privileged legal advice which the body corporate has obtained, without losing the benefit of the privilege. (In my view, that principle would have afforded a proper basis for finding, in Grofam, that privilege attached to the AFP "running sheets" which recorded privileged legal advice, obtained in relation to an ongoing investigation, for reference and use by officers engaged in the investigation.) Such communications would frequently not even fall within the realm of communications that might attract legal professional privilege, even if the 'sole purpose' test were satisfied - they are not communications between a client and its legal adviser (though, in some circumstances, communications between servants or agents of the client made for the sole purpose of obtaining material for submission to the client's legal advisers may attract privilege). The principle might well be better characterised as an illustration of the principles of limited waiver of legal professional privilege (see paragraph 19 above), but it is clear that both Franki J and Rath J were prepared to allow severance of privileged legal advice from other communications contained in a document circulated by a corporation to its servants or agents. Arguably, the decisions of Franki J and Rath J are distinguishable from the majority decision in Waterford's case, because the former permitted severance of legal advice which had already satisfied the 'sole purpose' test to attract legal professional privilege, whereas the latter was concerned with whether a document containing legal advice attracted legal professional privilege in the first place. (However, the justification for maintaining privilege in respect of a severable segment of privileged legal advice in a document created after the legal advice was obtained, is difficult to reconcile with the justification for denying privilege to a severable segment of legal advice contained in a document created to communicate that legal advice to a client, but for other purposes as well. To my mind, that difficulty underscores the logic of the qualification to the 'sole purpose' test which Dawson J considered necessary, in the passage from his dissenting judgment in Waterford's case which is quoted at paragraph 105 above.)121. The point of the foregoing discussion is that I am unable to find support in the passage quoted at paragraph 113 above, nor elsewhere in the judgment of Mason and Wilson JJ in Waterford's case, for the approach of Deane J and Dawson J which would have permitted severance of professional legal advice from a document which, considered as a whole, did not satisfy the 'sole purpose' test to attract legal professional privilege.122. At paragraph 102 above, I indicated that Mason and Wilson JJ disagreed with Deane J and Dawson J on the proper characterisation of document 29 and other disputed documents.Mason and Wilson JJ considered (at pp.67-68) that those documents would satisfy the test of having been brought into existence for the sole purpose of enabling a confidential professional communication between a client and his legal adviser in connection with pending legal proceedings, and observed that in such a case it is not to the point that the document may contain advice which relates to matters of policy as well as of law. On the other hand,Deane J (at p.84 and p.91) and Dawson J (at pp.103-104) considered and rejected the proposition that the disputed documents qualified for 'litigation privilege' as distinct from 'advice privilege'. (Brennan J expressed no view on that issue.)123. It is arguable that by using the words "the point of overriding importance to the appellant's argument focuses on the second category of documents to which the privilege attaches, that is to say, professional communications between a client and his legal adviser in connexion with legal proceedings" (my underlining), Mason and Wilson JJ intended to indicate that the real basis of their decision on the application of the 'sole purpose' test was that the disputed documents qualified for 'litigation privilege'. The argument could then be made that the observations by Mason and Wilson JJ on the application of 'advice privilege' to documents in which legal advice is intermingled with policy advice (or other "extraneous matter") were merely obiter dicta, and that courts and tribunals are entitled to assess whether the principles stated by Deane J and Dawson J, in judgments which rested on the application of 'advice privilege' to documents in which legal advice is intermingled with policy advice or other matter, are logically preferable to the obiter dicta of Mason and Wilson JJ.124. However, I do not consider that the statements made by Mason and Wilson JJ on the application of 'advice privilege' to documents in which legal advice is intermingled with policy advice (or other "extraneous matter") can be properly construed as obiter dicta. Mason and Wilson JJ proceeded on the basis that they were applying a statement of principle established by Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at p.688. Both Deane J (at p.85) and Dawson J (at p.103) were conscious of the fact that they were stating an adaptation or qualification of the statement of principle in Grant v Downs. I consider that Mason and Wilson JJ proceeded on the basis that the statement of principle from Grant v Downs did not require any adaptation or qualification to meet the case of a document in which legal advice was intermingled with policy advice or other "extraneous matter". Brennan J's reasoning (at p.78) also makes clear that he regarded the applicable test as that stated in Grant v Downs.I consider that at least part of the ratio decidendi of the majority judges is embodied in these sentences (from Mason and Wilson JJ at p.66): The appellant's submission fails to appreciate that the sole purpose test is a test that looks to the reason why the document was brought into existence. If its sole purpose was to seek or to give legal advice in relation to a matter, then the fact that it contains extraneous matter will not deny to it the protection of privilege. The presence of matter other than legal advice may raise a question as to the purpose for which it was brought into existence but that is simply a question of fact to be determined by the Tribunal and its decision on such a question is final.125. In several judgments in the High Court's most recent consideration of aspects of legal professional privilege, the Propend Finance case, there is a renewed emphasis on the fact that legal professional privilege attaches to communications, as distinct from documents. For example, Gummow J said (at pp.365-366): "... the subject of the privilege is communications made solely for a particular purpose. ... These communications may be oral, written or a combination thereof. ... In a number of the authorities, the reasoning proceeds from the false premise that what is involved is privilege for particular documents rather than for communications." I have considered whether this development lends sufficient support for preferring the views of Deane J and Dawson J on severance of legal advice from a document which, considered as a whole, would not satisfy the 'sole purpose' test; however, I do not think it does, since none of the judges in Propend Finance specifically adverted to issues concerning severance.Conclusion on the application of the 'sole purpose' test126. I therefore consider that the ruling statement of principle from Waterford's case is that which is set out at paragraph 108 above, and which has the consequences I have stated at paragraph 109 above. I consider that I am bound, in the case before me, to apply the 'sole purpose' test as stated by Mason and Wilson JJ in Waterford's case, i.e., by reference to whether the memoranda by Ms Dreghorn to the PSC were created solely for a purpose which attracts legal professional privilege, rather than by reference to whether the parts of those memoranda identified in paragraph 94 above were created solely for a purpose which attracts legal professional privilege. (That was also the conclusion reached, correctly in my view, by Mr P Bayne (Senior Member) of the AAT in Re Sullivan (cited above at paragraph 28) at pp.26-27 (paragraphs 65-68). Similarly, in Clements v Grayland Hospital and Anor (Sup Ct of WA, No. SJA 1198 of 1996, Owen J, 4 April 1996, unreported), a case on the application of the exemption provision in the Freedom of Information Act 1992 WA which corresponds to s.43(1) of the Queensland FOI Act, Owen J applied the test stated by Mason and Wilson JJ in finding that a letter containing legal advice was created solely for a purpose which attracted legal professional privilege, notwithstanding that it also included reference to policy matters.)127. If I considered that it was open to me to prefer the approach taken by Dawson J in Waterford's case at p.103 (quoted at paragraph 105 above), I would do so. In general, I consider that the public policy considerations which support the existence of legal professional privilege as a substantive principle of Australian common law would be better served if a discrete portion of confidential professional legal advice was able to be severed from a document that was not brought into existence solely for a purpose which attracts legal professional privilege, with the severed portion retaining the protection of privilege. The semantics of the test adopted in Grant v Downs, and by Mason and Wilson JJ in Waterford, seem, in my opinion, to put undue emphasis on the sole purpose of creation of a document, rather than the sole purpose for the making of a particular communication. Legal professional privilege may attach to oral communications as well as communications embodied in documents. If a solicitor were to telephone a client, and in the course of the conversation were to gently prod the client about non-payment of an outstanding bill for a completed matter, and then go on to provide professional legal advice in respect of a current matter, I do not think it could be seriously suggested that the conveying of legal advice did not qualify for legal professional privilege because it occurred as part of a communication that was not made for the sole purpose of giving legal advice. If the conversation conveying legal advice should properly be treated as a separate communication capable of satisfying the sole purpose test to attract legal professional privilege, it is difficult to see any reason, in principle, why a discrete communication of legal advice, contained in a document, could not be severed and attract the protection of legal professional privilege, as Dawson J opined in Waterford at p.103.128. Moreover, the approach of Dawson J and Deane J sits more easily with the scheme of the Queensland FOI Act. The exemption provisions in the Commonwealth FOI Act require consideration of the whole document in issue to determine whether it is an exempt document, with s.22 then requiring that attention be given to the possibility of severance. The term "exempt matter" is defined in s.4 of the Commonwealth FOI Act to mean "matter the inclusion of which in a document causes the document to be an exempt document". In contrast, the Queensland FOI Act contemplates that documents may be comprised either totally or partly of exempt matter, and the exemption provisions of the Queensland FOI Act require an evaluation of the "matter in issue", rather than of a document in issue, so that attention is directed from the outset to the possibility of severance in accordance with s.32 of the Queensland FOI Act.129. However, under the test applied by the majority judges in Waterford's case, the question of whether the matter in issue identified in paragraph 94 attracts legal professional privilege depends on whether the documents in which the matter in issue is contained, were brought into existence solely for a purpose which attracts legal professional privilege. As I have explained at paragraph 109 above, they were not, and hence I find that the matter in issue identified in paragraph 94 above does not qualify for exemption under s.43(1) of the FOI Act.Application of s.41(1) of the FOI Act130. Both the matter listed at paragraph 93 above, and the matter listed at paragraph 94 above, have been claimed by the QLS to be exempt matter under s.41(1) of the FOI Act. Section 41(1) and s.41(2) of the FOI Act provide: 41.(1) Matter is exempt matter if its disclosure--(a) would disclose--(i) an opinion, advice or recommendation that has been obtained, prepared or recorded; or(ii) a consultation or deliberation that has taken place;in the course of, or for the purposes of, the deliberative processes involved in the functions of government; and(b) would, on balance, be contrary to the public interest.(2) Matter is not exempt under subsection (1) if it merely consists of--(a) matter that appears in an agency's policy document; or(b) factual or statistical matter; or(c) expert opinion or analysis by a person recognised as an expert in the field of knowledge to which the opinion or analysis relates.131. A detailed analysis of s.41 of the FOI Act can be found in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at pp.66-72, where, at p.68 (paragraphs 21-22), I said:21. Thus, for matter in a document to fall within s.41(1), there must be a positive answer to two questions:(a) would disclosure of the matter disclose any opinion, advice, or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, (in either case) in the course of, or for the purposes of, the deliberative processes involved in the functions of government? and(b) would disclosure, on balance, be contrary to the public interest?22. The fact that a document falls within s.41(1)(a) (i.e., that it is a deliberative process document) carries no presumption that its disclosure would be contrary to the public interest. ...132. An applicant for access is not required to demonstrate that disclosure of deliberative process matter would be in the public interest; an applicant is entitled to access unless an agency can establish that disclosure of the relevant deliberative process matter would be contrary to the public interest. In Re Trustees of the De La Salle Brothers and Queensland Corrective Services Commission [1996] QICmr 4; (1996) 3 QAR 206, I said (at p.218, paragraph 34):The correct approach to the application of s.41(1)(b) of the FOI Act was analysed at length in my reasons for decision in Re Eccleston, where I indicated (see p.110; paragraph 140) that an agency or Minister seeking to rely on s.41(1) needs to establish that specific and tangible harm to an identifiable public interest (or interests) would result from disclosure of the particular deliberative process matter in issue. It must further be established that the harm is of sufficient gravity when weighed against competing public interest considerations which favour disclosure of the matter in issue, that it would nevertheless be proper to find that disclosure of the matter in issue would, on balance, be contrary to the public interest.133. Under s.41(2)(b) of the FOI Act, matter is not exempt under s.41(1) if it merely consists of factual or statistical matter: see Re Eccleston at p.71, paragraphs 31-32. Applying the principles referred to there, and explained more fully in Re Hudson as agent for Fencray Pty Ltd and Department of the Premier, Economic and Trade Development [1993] QICmr 4; (1993) 1 QAR 123 at pp.144-147 (paragraphs 49-58), I find that the following segments of the matter claimed to be exempt under s.41(1) comprise merely factual matter which is not eligible for exemption under s.41(1) of the FOI Act, by virtue of s.41(2)(b):(a) in the memorandum dated 18 January 1994 by Ms Dreghorn to the PSC - the first sixteen words in the first paragraph, and the first sentence of the second paragraph, below the heading "Conclusion:" on p.3; and(b) in the memorandum dated 13 April 1995 by Ms Dreghorn to the PSC - the last paragraph on p.3.134. I am satisfied that the balance of the matter claimed to be exempt under s.41(1) is deliberative process matter falling within the terms of s.41(1)(a) of the FOI Act (as to the meaning of the term "deliberative processes", see Re Eccleston at pp.70-71, paragraphs 27-30). The relevant deliberative process is that undertaken by the PSC for the purpose of deciding what action, if any, to take in respect of the complaints lodged with the QLS by Sir Lenox Hewitt. Whether the balance of the matter claimed to be exempt under s.41(1) does qualify for exemption depends on whether its disclosure would be contrary to the public interest, in terms of s.41(1)(b).135. The QLS briefly addressed that issue in its submissions dated 11 January 1996, 6 March 1996, and 7 November 1997, respectively, as follows: ... in the Society's view, release [of the deliberative process matter] would be contrary to the public interest, insofar as it would tend to prejudice theeffectiveness of the Society's regulatory function in protecting the public from unprofessional conduct and professional misconduct. The Society ... remains firmly of the belief that as a matter of general principle it is fundamental to its investigative, disciplinary and prosecution functions that it be able to rely upon opinions and advice that have been prepared in the course of the deliberative process by its legal officers, without such advice or opinion being capable of release beyond those persons authorised access pursuant to the Queensland Law Society Act.It is essential in considering this claim for exemption to consider the seriousness of the work carried out by the Society in investigating the conduct of its members and pursuing prosecutions. The Society must be able to rely upon complete and candid advice from its in-house lawyers and it is a common sense conclusion that should such advice be susceptible to access under FOI then the quality and candour of such advice could very well be affected. ... the Society notes and relies on the comment of the New South Wales Law Reform Commission in its report on the scrutiny of the legal profession - Complaints Against Lawyers (Report 70, page 232) as follows:-There is a strong public interest in ensuring that the investigation of complaints against lawyers is conducted in a thorough and active manner, and that lawyers are under an obligation to be candid with disciplinary authorities. Confidentiality is an essential part of any investigative procedure, whilst subsequent proceedings should, to the greatest extent possible, be subject to the principles of open justice.The New South Wales Law Reform Commission recommended that the investigation of complaints against legal practitioners be excluded from the Freedom of Information Act. Of course, whilst that is not the case here, the comments made by the Commission above are relevant to the public interest arguments against disclosure of the memoranda.136. The contentions put by the QLS are similar, in essence, to those which it put, and which I rejected, in Re Myles Thompson and Queensland Law Society Inc (Information Commissioner Qld, Decision No. 97003, 28 February 1997, unreported) at paragraphs 13-14. At paragraph 14, I said:14. The above submission by the Law Society appears to be putting a very broad claim, tantamount to a 'class claim', for exemption on public interest grounds of any material arising out of investigations conducted by the Law Society into allegations of malpractice, professional misconduct or unprofessional conduct, because of the inherent sensitivity of the material. That is not an acceptable approach to the application of s.41(1) of the FOI Act (see Re Eccleston at p.97, paragraph 192, and at p.111, paragraph 149): a 'class claim' will not be accepted, rather the apprehended consequences of disclosure of the particular matter in issue must be evaluated in each case.137. The QLS has submitted no material which specifically addresses the apprehended adverse consequences of disclosure of the particular matter in issue. The QLS has emphasised the seriousness of the work which it carries out in investigating the conduct of its members and pursuing prosecutions. However, I do not consider the work of the QLS in that regard to be any more significant than the work undertaken by other law enforcement/regulatory agencies for the benefit and protection of the public, and I have adopted a consistent approach to the application of s.41(1) to deliberative process documents of such agencies: see, for example, Re Criminal Justice Commission and Director of Public Prosecutions (Information Commissioner Qld, Decision No. 96012, 28 June 1996, unreported) at paragraphs 24-44, and Re McCann and Queensland Police Service (Information Commissioner Qld, Decision No. 97010, 10 July 1997, unreported) at paragraph 103.138. The QLS has also attempted to rely upon a 'candour and frankness' argument of the kind in respect of which I made the following comments in Re Eccleston at pp.106-107 (paragraphs 132-134):132 I consider that the approach which should be adopted in Queensland to claims for exemption under s.41 based on the third Howard criterion (i.e. that the public interest would be injured by the disclosure of particular documents because candour and frankness would be inhibited in future communications of a similar kind) should accord with that stated by Deputy President Todd of the Commonwealth AAT in the second Fewster case (see paragraph 129 above): they should be disregarded unless a very particular factual basis is laid for the claim that disclosure will inhibit frankness and candour in future deliberative process communications of a like kind, and that tangible harm to the public interest will result from that inhibition.133 I respectfully agree with the opinion expressed by Mason J in Sankey v Whitlam that the possibility of future publicity would act as a deterrent against advice which is specious or expedient or otherwise inappropriate. It could be argued in fact that the possibility of disclosure under the FOI Act is, in that respect, just as likely to favour the public interest. 134 Even if some diminution in candour and frankness caused by the prospect of disclosure is conceded, the real issue is whether the efficiency and quality of a deliberative process is thereby likely to suffer to an extent which is contrary to the public interest. If the diminution in previous candour and frankness merely means that unnecessarily brusque, colourful or even defamatory remarks are removed from the expression of deliberative process advice, the public interest will not suffer. Advice which is written in temperate and reasoned language and provides justification and substantiation for the points it seeks to make is more likely to benefit the deliberative processes of government. In the absence of clear, specific and credible evidence, I would not be prepared to accept that the substance or quality of advice prepared by professional public servants could be materially altered for the worse, by the threat of disclosure under the FOI Act. 139. Similarly, in the present case, I am not satisfied on the material before me that the substance or quality of advice prepared by staff employed in the Professional Standards Department of the QLS, for the assistance of the PSC, would be materially altered for the worse, by the threat of disclosure under the FOI Act (in that regard, see my comments at paragraph 152 below).140. Although not specifically raised by the QLS, it is arguable that, since the matter identified in paragraph 94 above would attract legal professional privilege if contained in a document created solely for the purpose of giving legal advice, I should have regard to the public interest considerations which underlie the doctrine of legal professional privilege, in finding that disclosure of that matter would, on balance, be contrary to the public interest. I referred at paragraph 68 above to those public interest considerations underpinning the doctrine of legal professional privilege which seem most apposite for present purposes.141. When a valid claim of legal professional privilege is made in legal proceedings, no balancing exercise with respect to competing public interest considerations can defeat it. It is a rule of law which is itself the product of a balancing exercise between competing public interests: per Mason and Wilson JJ in Waterford at pp.64-65. However, in the context of legal proceedings, the only competing public interest consideration weighing against the paramountcy of legal professional privilege is the "public interest that requires, in the interests of a fair trial, the admission in evidence of all relevant documentary evidence" (per Mason and Wilson JJ in Waterford at p.65).If, in the very different context of the application of the FOI Act, reliance is sought to be placed on the public interest considerations which underpin legal professional privilege (because for technical reasons, the privilege itself cannot be made out), then, as I explained in Re Eccleston at p.101 (paragraphs 116-117), a much wider array of competing public interest considerations telling in favour of disclosure are liable to become relevant (including those related to open and accountable government, which are given recognition in s.5 of the FOI Act).142. Moreover, several judgments of the High Court have warned of the importance of confining legal professional privilege within its proper limits, including the limits imposed by the 'sole purpose' test (which, as I have already found, the matter in issue does not satisfy): see Grant v Downs at p.685, Carter v Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121 at p.147, pp.150-154, and the Propend Finance case at p.563 where Toohey J quoted Wigmore's statement that:[Legal professional privilege] is worth preserving for the sake of a general policy, but it is nonetheless an obstacle to the investigation of the truth. It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle.143. While I am mindful of the considerations referred to in paragraph 68 above, I am not satisfied that disclosure of the particular matter in issue identified in paragraph 94 above, or indeed the matter in issue identified in paragraph 93 above, would be contrary to the public interest in the efficient and effective performance of the QLS's regulatory functions. The disclosure of that matter to Sir Lenox Hewitt (who, as I explained at paragraphs 69-74 above, has a proper interest in obtaining a satisfactory explanation of the reasons for the PSC's decision to take no formal action in respect of his complaints) would disclose the legal and factual issues that the QLS's investigator considered relevant to the distinction (which must be perplexing to non-lawyers) between unprofessional conduct and mere negligence, and the considerations which bear on the issue of whether disciplinary action against a solicitor is necessary to protect the public interest. The matter in issue from Ms Dreghorn's memorandum dated 8 July 1996 would disclose her assessment of the issues and options for consideration by the PSC prior to the meeting which finally disposed of thecomplaints lodged by Sir Lenox Hewitt. The disclosure to a complainant, after the completion of investigations into the complaint, of material that would assist the complainant to understand the nature of the issues involved in, and the reasons for, a decision to take no formal action on the complaint, would not, in my opinion, prejudice the public interest in the efficient and effective performance of the relevant regulatory functions of the QLS.144. The public interest in the accountability of the QLS for the discharge of its regulatory functions for the benefit and protection of the public, in my view, carries considerable weight in favour of disclosure of the matter in issue that has been claimed to be exempt under s.41(1) of the FOI Act.The need for accountability is more acute in the case of a complainant dissatisfied with a decision to take no formal action in respect of his complaint, and who has not been given a satisfactory explanation of the reasons for that decision. Sir Lenox Hewitt's involvement in, and concern with, the particular matter in issue is, in my opinion, of such a nature that it is capable of being taken into account as a public interest consideration favouring disclosure of the matter in issue, when applying the public interest balancing test in s.41(1)(b), according to the principles which I examined in Re Pemberton and The University of Queensland (1994) 2 QAR 293 at pp.368-377 (paragraphs 164-193). If there were a different applicant for access to the matter in issue, other exemption provisions might come into play and it might, for instance, be considered necessary to delete identifying references to the solicitor complained against (though that would clearly be a futile exercise where disclosure to the complainant himself is contemplated), or indeed to delete identifying references to the complainant. But disclosure in such an anonymised form would nevertheless, in my view, serve the public interest in scrutiny and accountability for the performance by the QLS of its regulatory functions with respect to proper standards of professional conduct. There is a natural tendency for the public to be suspicious of professional bodies which are accorded the privilege of self-regulation, the suspicion being that there will be a tendency to favour the interests of, or show leniency to, a fellow member of the profession, as against the interests of the complainant. I find myself in agreement with the submissions of the Lay Observer who (in his submission dated 23 January 1996) said:There is nothing in the withheld section which would prejudice the investigative process or which is in any way controversial ... .In my opinion, the complainant is entitled to know how the Society's investigators analysed his complaint and, rather than being against the public interest, providing full particulars to the complainant is more likely to enhance public confidence in the system. The complainant can then see and appreciate the comprehensive work performed by the Law Society in analysing complaints of this kind and presenting them to the Professional Standards Committee for consideration.145. I am not satisfied that disclosure of the matter in issue identified in paragraphs 93 and 94 above would cause any harm to the public interest in the efficient and effective performance of the QLS's regulatory functions. Having regard to the public interest considerations which favour disclosure, I am not satisfied that disclosure would, on balance, be contrary to the public interest. I find that the matter identified in paragraphs 93 and 94 above does not qualify for exemption from disclosure to Sir Lenox Hewitt, under s.41(1) of the FOI Act.Application of s.42(1) of the FOI Act146. The QLS claimed the matter in issue identified in paragraphs 93 and 94 above to be exempt matter under s.42(1)(a), s.42(1)(e), and s.42(1)(h) of the FOI Act, which provide: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to--(a) prejudice the investigation of a contravention or possible contravention of the law (including revenue law) in a particular case; or ...(e) prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law); or...(h) prejudice a system or procedure for the protection of persons, property or environment; ... .147. The test imposed by the phrase "could reasonably be expected to" governs each paragraph of s.42(1), and also affects the test for exemption under s.40(a) of the FOI Act, which is considered below. I analysed the meaning of the phrase "could reasonably be expected to", by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Commonwealth FOI Act, in my reasons for decision in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, at pp.339-341, paragraphs 154-160. Those observations are also relevant here. In particular, I said in Re "B" (at pp.340-341, paragraph 160):The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Dictionary, 2nd ed); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993). 148. In its submission dated 11 January 1996, the QLS argued as follows:The effectiveness of the Society's investigative and disciplinary procedures is central to ensuring that a proper system exists for the detection, investigation and punishment of behaviour prejudicial to clients' interests and to the broader public interest. It should be noted that as a result of matters uncovered in the course of the Society's investigative process, situations arise from time to time where criminal prosecutions are pursued by the relevant authorities.If the Society's investigative and disciplinary system is to be in any way prejudiced by the release of information that would undermine its effectiveness then clearly it is not in the public interest for such information to be disclosed. The disclosure to the complainant or the solicitor underinvestigation of internal memoranda directed to the Professional Standards Committee would clearly prejudicially affect the flow and/or candour of such advice.In the Society's submission, the material subject to the current application is capable of exemption under a number of heads - Section 42(1)(a), (e) and (h).149. The essence of the QLS's above submission is virtually identical to its submissions on the application of the public interest balancing test in s.41(1)(b) of the FOI Act.Application of s.42(1)(a)150. During the course of the external review, the investigation of Sir Lenox Hewitt's complaint against his former solicitor was finalised: see paragraph 17 above. Section 42(1)(a) focuses on prejudice to the investigation in a particular case. Since the only case, investigation of which could arguably have been prejudiced, has been finalised, I find that disclosure of the matter in issue could not reasonably be expected to prejudice the investigation of a contravention or possible contravention of the law in a particular case. Hence, the matter in issue does not qualify for exemption under s.42(1)(a) of the FOI Act.Application of s.42(1)(e)151. I have previously set out my views on the correct approach to the interpretation and application of s.42(1)(e) of the FOI Act in Re "T" and Queensland Health [1994] QICmr 4; (1994) 1 QAR 386. The focus of s.42(1)(e) is on prejudice to the effectiveness of a lawful method or procedure for preventing, detecting, investigating, or dealing with, a contravention or possible contravention of the law.The QLS has not identified a lawful method or procedure, and explained how it would be prejudiced by disclosure of the matter in issue, apart from its contention that "disclosure to the complainant or the solicitor under investigation of internal memoranda directed to the Professional Standards Committee would clearly prejudicially affect the flow and/or candour of such advice."This really amounts, in a slightly different guise, to the same class claim, based on the 'candour and frankness' argument, that I referred to in paragraph 138 above.152. Even if it be assumed that the task of analysing information obtained on the investigation of a complaint against a solicitor, and providing advice and recommendations thereon for the benefit of the PSC, is a lawful method or procedure for dealing with a possible contravention of the law, within the terms of s.42(1)(e), I am not satisfied that prejudice to the effectiveness of that method or procedure could reasonably be expected to follow from disclosure of the particular matter in issue (the general nature of which is indicated at paragraph 143 above). Investigators employed in the Professional Standards Department of the QLS must appreciate that their analysis, opinion and recommendations will be carefully scrutinised by the senior practitioners and lay members of the PSC. If the PSC considers that charges should be laid against a solicitor, both the legal analysis, and the sufficiency and reliability of the evidence, which support the charges, will be carefully scrutinised by the relevant disciplinary tribunal. I do not regard this as a situation where any prejudicial effects could reasonably be expected, through a diminution in candour and frankness in the expression of future documents of a similar kind, if the matter in issue were to be disclosed.Given the seriousness of the potential consequences for solicitors complained against, and the extent of the scrutiny liable to be applied to analysis, opinion and recommendations of the kind in issue, I am not satisfied that the quality and thoroughness of similar assessments and recommendations could be materially altered for the worse, by the threat of disclosure under the FOI Act.153. I do not mean to foreclose the possibility that the QLS could, in a future case, having regard to the nature of the particular information in issue in that future case, persuade me of the existence of a reasonable basis for expecting that disclosure could cause prejudice of the kind contemplated by s.42(1)(e). However, I am not satisfied that disclosure of the matter in issue in this case could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a possible contravention of the law, and I find that the matter in issue does not qualify for exemption under s.42(1)(e) of the FOI Act.Application of s.42(1)(h)154. I have some reservations as to whether the statutory responsibilities of the QLS with respect to the regulation of compliance by solicitors with proper standards of professional conduct, can be properly described as "a system or procedure for the protection of persons, property or environment", within the terms of s.42(1)(h). (For examples of systems or procedures which, I have held, do satisfy the description in s.42(1)(h), see Re Ferrier and Queensland Police Service (Information Commissioner Qld, Decision No. 96016, 19 August 1996, unreported) at paragraphs 28-33, and Re "ROSK" and Brisbane North Regional Health Authority and Ors (Information Commissioner Qld, Decision No. 96019, 18 November 1996, unreported) at paragraphs 13-15.)Many clients do entrust money or property to their solicitors, or seek the assistance of solicitors to safeguard or further their property or financial interests. It may well be the case that most disputes that come to the QLS by way of a complaint of unprofessional conduct against a solicitor are, at base, disputes in which the complainant is seeking to protect property or financial interests.In any event, it is unnecessary in this case for me to resolve the aforementioned reservations, since the only apprehended prejudice which the QLS has raised for the purposes of s.42(1)(h) is the same as that which I have considered (and rejected) above in respect of s.42(1)(e) and s.41(1).For the same reasons given at paragraphs 138-139, 143-145 and 152 above, I am not satisfied that disclosure of the matter in issue could reasonably be expected to prejudice the systems and procedures established by the QLS for dealing with complaints against solicitors (assuming, for the moment, that they constitute a system or procedure for the protection of persons or property), and I find that the matter in issue does not qualify for exemption under s.42(1)(h) of the FOI Act.Application of s.40(a) of the FOI Act155. In its written submission dated 7 November 1997, the QLS expressly abandoned any claim for exemption under s.40(a) of the FOI Act in respect of the matter in issue from Ms Dreghorn's memorandum to the PSC dated 8 July 1996. It may well have been the intention of the QLS to abandon reliance on s.40(a) in respect of the matter in issue from Ms Dreghorn's earlier memoranda to the PSC, but that has not been clearly communicated to me, so I will briefly deal with the s.40(a) exemption.156. Section 40(a) of the FOI Act provides: 40. Matter is exempt matter if its disclosure could reasonably be expected to--(a) prejudice the effectiveness of a method or procedure for the conduct of tests, examinations or audits by an agency; ...unless its disclosure would, on balance, be in the public interest.157. In its submission dated 11 January 1996, the Law Society contended that to have internal memoranda pertaining to the investigative process released to one or other of the parties involved in a complaint would clearly prejudice the effectiveness of the investigative process and that, far from the disclosure of this class of material being in the public interest, its deleterious effect on the investigative process of complaints would be quite adverse to the public interest.158. I consider that the Law Society's claim for exemption under s.40(a) must fail. I consider that the matter in issue cannot be properly characterised as bearing any relationship to the conduct of a "test, examination or audit", giving those words their ordinary and natural meaning. There will be occasions when the QLS conducts audits of solicitors' trust accounts, a process which I consider would fall within the terms of s.40(a) of the FOI Act, but the matter now in issue does not fall within the ambit of the s.40(a) exemption. Even if it did, the basis advanced by the QLS for apprehended prejudice appears to be no different to that which I have considered, and rejected, in dealing with s.41(1) and s.42(1)(e) above.159. I find that the matter in issue does not qualify for exemption under s.40(a) of the FOI Act.Conclusion160. The formal decisions set out below give effect to the findings I have stated above:(a) in application for review no. S 10/96, I affirm the decision under review (i.e., the decision of the Lay Observer dated 19 December 1995 that the matter in issue identified in subparagraph 8(a) above is not exempt from disclosure to Sir Lenox Hewitt under the FOI Act);(b) in application for review no. S 74/96, I affirm the decision under review (i.e., the decision of the Lay Observer dated 4 April 1996 that the matter in issue identified in subparagraphs 8(b), (c) and (d) above is not exempt from disclosure to Sir Lenox Hewitt under the FOI Act); and(c) in application for review no. S 103/97, I set aside the decision under review (being the decision made on behalf of the QLS by Mr Scott Carter on 18 June 1997), and, in substitution for it, I decide that the matter in issue (which is identified in subparagraphs 8(e) and (f) above) is not exempt from disclosure to Sir Lenox Hewitt under the FOI Act.............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Halcyon Waters Community Pty Ltd and Gold Coast City Council [2009] QICmr 45 (14 September 2009)

Halcyon Waters Community Pty Ltd and Gold Coast City Council [2009] QICmr 45 (14 September 2009) Office of the Information Commissioner Decision and Reasons for Decision Application Number: 210822 Applicant: Halcyon Waters Community Pty Ltd Respondent: Gold Coast City Council Decision Date: 14 September 2009 Catchwords: FREEDOM OF INFORMATION – section 49 of the Freedom of Information Act 1992 (Qld) – matter affecting financial or property interests – whether disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency – whether disclosure would, on balance, be in the public interest Contents REASONS FOR DECISION Summary 1. For the reasons set out below, I am not satisfied that the matter in issue is exempt from disclosure under section 49 of the Freedom of Information Act 1992 (Qld) (FOI Act). Background 2. By letter dated 19 September 2008 (FOI Application), Anderssen Lawyers, on behalf of their client Halcyon Waters Community Pty Ltd, requested a range of information from Gold Coast City Council (Council) relating to Council’s taking of land in its capacity of constructing authority. 3. By letter dated 9 February 2009, Council issued a considered decision[1] and advised the applicant that it: • had located 492 documents relevant to the FOI Application • had decided to grant access to all except four of those documents • three of the four documents were exempt from disclosure under section 43(1) of the FOI Act • one of the four documents was exempt from disclosure under section 49 of the FOI Act. 4. By letters dated 12 February 2009 and 18 February 2009, the applicant applied for internal review of the considered decision in relation to the one document to which Council had refused access under section 49 of the FOI Act. 5. By letter dated 9 March 2009, Council advised the applicant that it had decided to affirm the considered decision. 6. By letter dated 3 April 2009, the applicant applied for external review of the internal review decision. Decision under review 7. The decision under review is Council’s internal review decision dated 9 March 2009. Steps taken in the external review process 8. By letter dated 8 April, this Office advised the applicant that its application for external review had been accepted. 9. By letter dated 8 April 2009, this Office advised Council that the application for external review had been accepted and asked Council to provide a copy of the matter claimed to be exempt. Council was also invited to provide any further submissions by 17 April 2009. 10. By letter dated 16 April 2009, Council provided the requested information to this Office and background information relevant to the review. 11. On 15 June 2009, a staff member of this Office contacted Council and discussed matters relevant to the review. 12. By letter dated 15 June 2009, Acting Assistant Commissioner Jefferies advised Council that it was the preliminary view of this Office that Council had not discharged its onus in accordance with section 81(1) of the FOI Act and therefore the matter in issue was not exempt from disclosure under section 49 of the FOI Act. Council was invited to provide submissions in support of its case by 29 June 2009 if it did not accept the preliminary view. 13. By letter dated 8 July 2009, Council indicated that it did not accept the preliminary view and provided submissions in support of its case. 14. I have taken the following into account in making my decision in this review: • the FOI Application • Council’s considered decision dated 9 February 2009 and internal review decision dated 9 March 2009 • the applicant’s internal review application dated 12 February 2009 and 18 February 2009 and external review application dated 3 April 2009 • Council’s submissions to this Office dated 16 April 2009 and 8 July 2009 • the matter in issue • relevant provisions of the FOI Act[2] and previous decision of the Information Commissioner as referred to in this decision. Matter in issue 15. The matter in issue in this review (Matter in Issue) is contained in one page of the minutes from a meeting of Council’s Health and Community Services Committee on 27 January 2007 and is marked ‘Confidential’. The Matter in Issue can be described as: • a figure relating to a per hectare valuation amount for the purchase of land for sporting purposes on Hope Island • the figure that Council has identified for the acquisition of land as part of its Land Acquisition Program • figures showing the funding available to Council to secure the proposed sites. 16. The remainder of the page has been released to the applicant. Council’s submissions 17. Council provided the following reasons in its considered decision for finding that the Matter in Issue is exempt from disclosure under section 49 of the FOI Act: The matter in issue is contained within a confidential agenda item presented to Council on 29 January 2007. The agenda item discusses the acquisition of land for the proposed Hope Island Sports Park. As indicated above, the information I consider is exempt from release relates to the charge per hectare for financial contributions for the purchase of land as well as the dollar amount identified within the 4 – year Land Acquisition Program, along with a breakdown as to the funding available to secure the sites for the sports park. It is my understanding the matter of compensation in respect to the acquisition of Lot 101 on SP 214275, previously owned by your client, has yet to be resolved. As it is revenue from the ratepayers and developers of the Gold Coast City that finance the compensation paid for an acquisition, it is my opinion that it is not in the interests of the people of the city, for this information to be disclosed at this time. I have concerns that to release this information could provide your client with the ability to obtain financial advantage in respect to their negotiations for compensation, which I believe could reasonably be expected to have a substantial effect on the financial interests of the Council. I am aware that valuations have been obtained by both the Council and your client, and I understand an advance in anticipation of the resolution of the matter of compensation, has been paid. Whilst your client would expect to be paid a fair and equitable price for their land, this is a matter to be resolved through amicable negotiation and not through the release of information which could affect Council’s ability to resolve the matter to the financial benefit of the community. Therefore, again, based on this information, I do not believe it to be in the public interest for this information to be released. 18. Council provided the following reasons in its internal review decision for affirming the considered decision: Resumption of property is, in effect, a core business for the Council in achieving to the overall public interest for the City. In carrying on that business in a businesslike and financially sustainable way to protect the property interests of the Council, it chooses to not release whether to a court or otherwise some commercially confidential information including in some cases valuation advice that could strengthen or weaken its position in negotiations to achieve the overall public interest. In this case, Council has a valuation for land in the area and also has a budget for what is purported to be an unprecedented community project. The report as a whole makes clear that the success of the community project could be threatened by failure to secure certain properties. Premature release of certain financial information including property valuations and budgets could provide sufficient leverage for certain property owners such as your clients to threaten the viability of the project. Considering the report as a whole, there could be a substantial adverse effect on the financial and property interests of the community and the Council. Whilst release of a valuation report may be in the interests of your client, that can in no way be construed as the interests of the City as a whole or the public interest. I am of the opinion that release of this information could prevent Council negotiating to obtain land or obtain the land at a viable price considering the project as a whole. 19. In its letter to this Office dated 8 July 2009, Council also submitted that: As you would be aware, during the course of a compulsory acquisition, the Council is obliged to provide certain documentation to the owner of the property, or his representatives, in respect to the decision-making processes surrounding that compulsory acquisition. One of the documents that Council must provide, is the Council’s valuation report. This report is compiled in order to assist the Council in assessing a fair and reasonable amount of compensation to be paid. This valuation report, dated 24 April 2008, has been provided to the applicant. However, this valuation report does not contain like information, to that in issue. The amounts quoted in the Council’s confidential agenda are figures provided by the Council’s Principal Coordinator Recreation Planning & Services, Richard Pascoe, in January 2007. Mr Pascoe has advised that the costs quoted in the agenda report are based on an englobo assessment of the cost of open space at Hope Island, at that time. This is not information contained within the valuation report. As such, it is considered that the rate quoted is not specific to the site in question, rather, it is a generic amount for all open space at Hope Island, at that time. Consequently, it is the opinion of the writer that it is not information of a similar kind to that argued in Little. Whilst it is recorded in Little “The great public interest lies in preserving the principle of public acquisition of private property on just terms ...”, Council has fulfilled it’s obligation of being fair and just, by providing it’s valuation report, as required under Little. ... ... in providing Anderssen Lawyers with the information in issue, the financial interests of the City and its constituents, will be substantially affected as Anderssens Lawyers will be privy to information that they would not ordinarily be privy to, or entitled to, when negotiating the compensation for their client’s land, subsequently raising the possibility that the city will pay more for the land than they would have been able to negotiate, had Anderssen Lawyers, not been privy to this information. I’m sure you would agree, that when purchasing a property, you generally pay what is agreed upon between yourself and the vendor, as being a fair and equitable price. Certainly the City believes in paying what is fair and equitable. It has been said that the owner of land that he has lost by compulsory acquisition has: “The right to put, so far as money can do it, in the same position as if his land had not been taken from him. In other words, he gains the right to receive a money payment not less than the loss proposed on him in the public interest, but, on the other hand, no greater.” See Harvey v Crawley Development Corporation (1957) The Council believes that through negotiation, Halcyon Waters Community, will be paid a payment not less than the proposed, but no greater than that to which they are entitled and maintain their opinion that the release of the information in issue, would not be in the public interest. The applicant’s submissions 20. The applicant’s solicitor has provided the following information: In the present situation my client has made a claim for compensation. Council has rejected that claim. There are currently no negotiations on foot (amicable or otherwise). If my client wishes to pursue its claim it must do so by referring the claim to the Land Court. There is no basis to assert that the document will result in the Land Court, with all its expertise in valuation matters, awarding more than fair compensation. Relevant law Onus on the agency 21. Section 81(1) of the FOI Act provides that on a review by the Information Commissioner, the agency which made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner, or delegate, should give a decision adverse to the applicant. Section 49 of the FOI Act 22. Section 49 of the FOI Act provides: 49 Matter affecting financial or property interests Matter is exempt matter if its disclosure could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency unless its disclosure would, on balance, be in the public interest. 23. Section 49 of the FOI Act therefore requires me to consider the following questions in relation to the Matter in Issue: a) Could disclosure of the Matter in Issue reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency? (If so, the Matter in Issue will be prima facie exempt from disclosure, subject to the public interest balancing test.) b) Are there public interest considerations favouring disclosure of the Matter in Issue which outweigh all public interest considerations favouring non-disclosure of the Matter in Issue? ‘Could reasonably be expected to’ 24. In Attorney-General v Cockcroft,[3] (Cockcroft) which dealt with the interpretation of the phrase ‘could reasonably be expected to prejudice the future supply of information’ in the context of the section 43(1)(c)(ii) (business affairs) exemption contained in the Commonwealth FOI Act, Bowen CJ and Beaumont J said:[4] In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s.43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Jason Kioa v. The Honourable Stewart John West, High Court, unreported, 18 December 1985 per Mason, J. at p 36; see also per Gibbs, C.J. at p 12). 25. The Justices’ interpretation of the phrase ‘could reasonably be expected to’ and the proposed line of inquiry, while made in the context of the business affairs exemption contained in Commonwealth FOI legislation, is relevant in the context of the exemption contained in section 49 of the FOI Act. 26. Accordingly, the phrase ‘could reasonably be expected to’ in this context requires a consideration of whether the expectation that disclosure of the Matter in Issue could have a substantial adverse effect on the financial or property interests of the State or an agency is reasonably based. 27. Shepherd J also noted in Cockcroft that it is not necessary for a decision-maker ‘to be satisfied upon a balance of probabilities’ that disclosing the document will produce the anticipated prejudice.[5] ‘Substantial adverse effect’ 28. In Cairns Port Authority and Department of Lands; Cairns Shelf Co No.16 Pty Ltd (Third Party)[6] the Information Commissioner considered the meaning of the phrase ‘substantial adverse effect’ as it appears in section 49 of the FOI Act and said:[7] In my opinion, no such doubt attends the correct interpretation of the phrase "substantial adverse effect" where it appears in the Queensland FOI Act (notably in s.49, s.40(c), s.40(d) and s.47(1)(a)). Its meaning is made clear by its contrast with the phrase "adverse effect" in s.45(1)(c), where the adjective "substantial" does not appear. The legislature must have intended an adverse effect under s.45(1)(c) to be one that is "real" or "actual" or "having substance, not illusory". Thus, where the legislature has employed the phrase "substantial adverse effect", it must in my opinion have intended the adjective "substantial" to be used in the sense of grave, weighty, significant or serious. Public interest balancing test 29. The ‘public interest’ refers to considerations affecting the good order and functioning of community and governmental affairs, for the well-being of citizens. In general, a public interest consideration is one which is common to all members of the community, or a substantial segment of them, and for their benefit. The public interest is usually treated as distinct from matters of purely private or personal interest. However, some recognised public interest considerations may apply for the benefit of individuals in a particular case. 30. If it can be established that disclosure of the Matter in Issue could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency: • the Matter in Issue will be prima facie exempt from disclosure • there is an inherent public interest consideration favouring non-disclosure of that information. 31. However, the public interest inherent in the satisfaction of section 49 of the FOI Act will not necessarily always be such a strong and compelling one that it should automatically be entitled to prevail over competing public interest considerations which favour the disclosure of the information in issue. Therefore if the prima facie ground is outweighed by other public interest considerations favouring disclosure, then disclosure of the Matter in Issue will, on balance, be in the public interest. Findings 32. In Little; Cantoni and Department of Natural Resources (Little)[8] the Information Commissioner considered whether certain parts of a valuation report which was prepared for the purposes of a proposed acquisition of the applicant’s land could be disclosed under the FOI Act. In that matter, the agency was in the process of negotiating with the applicant for the sale of the land. The relevant parts of the valuation report which were considered in that review included:[9] • the valuation figure for the subject land (and other valuation figures for portions of the subject land, and for other items addressed in the valuation process) • segments of the report which recorded the methodology and reasoning on which the valuer's approach and the various valuation figures were based • a one page Executive Summary which briefly canvassed issues relevant to proposals for acquisition of the whole, or portions only, of the subject land. 33. In this matter, the proposed acquisition of land is for the construction of a sports park on Hope Island. Although there has been some negotiation between the parties in relation to the amount of compensation to be paid, the applicant’s solicitor advises that there are currently no negotiations on foot and if the applicant wishes to pursue its claim, it must refer the matter to the Land Court. Relevance of the Matter in Issue to the applicant’s land 34. Council submits that the Matter in Issue in this review is not the same as the information considered in Little for the following reasons: • the information quoted in the Matter in Issue is based on an englobo assessment of the cost of open space at Hope Island at that time • the information is not contained within the valuation report for the applicant’s land • the rate quoted in the Matter in Issue is not specific to the site in question, rather it is a generic amount for all open space at Hope Island at that time. 35. I accept Council’s submission that the Matter in Issue in this review is not specific to the applicant’s land although I note that the Matter in Issue does include some valuation information which relates to the per hectare valuation amount for the purchase of land for sporting purposes at Hope Island. 36. Council submits that release of the Matter in Issue could provide the applicant with a financial advantage in its negotiations for compensation and could result in Council paying more for the land than the applicant would have been able to negotiate, had the applicant not been privy to the information. In other words, Council claims that the Matter in Issue, while not specific to the applicant’s land, is relevant to the position of both the applicant and Council in the negotiation process. 37. I accept that the Matter in Issue in this review can be distinguished from the matter in issue in Little as it is not information contained in a valuation report specific to the applicant’s land. However, I am of the view that the general principles from Little are relevant in this review because Council’s submissions indicate that the Matter in Issue could reasonably be expected to impact on the applicant’s position in its negotiations. Council’s obligation to provide certain information 38. Council also submits that: • it ‘has fulfilled its obligation of being fair and just, by providing its valuation report as required under Little’ • the matter of compensation is to be resolved through negotiation and not through the release of information under the FOI Act. 39. The purpose of the FOI Act is to extend as far as possible the right of the community to access information held by the Queensland government.[10] The right of access to documents under the FOI Act furthers the ideals of accountable and transparent government. 40. The FOI Act imposes a statutory obligation on an agency to: • search for and identify all documents in its possession or under its control that are relevant to a valid application under the FOI Act • decide whether access to those documents should be granted in accordance with the provisions of the FOI Act. 41. Generally, documents of an agency are to be released under the FOI Act unless they are exempt under one of the provisions in Part 3 Division 2 of the FOI Act or they are excluded from the operation of the FOI Act. In that regard, the right to access documents under the FOI Act is subject to certain limitations. 42. Although Council submits that the issue of compensation is to be resolved by negotiation, I do not consider that that is a reason to find the Matter in Issue is exempt from disclosure under the FOI Act. The release of information under the FOI Act is a separate process to the negotiation process with the applicant. Documents requested under the FOI Act must be identified and a decision made as to whether access can be granted in accordance with the provisions of the FOI Act. 43. I am not suggesting that the Matter in Issue is information which must be provided to the applicant as part of the acquisition of land process, or that the Information Commissioner’s decision in Little sets out the type of information an agency is required to disclose as part of that process. This decision deals only with the question of whether the Matter in Issue qualifies for exemption under the FOI Act. Could disclosure of the Matter in Issue reasonably be expected to have a substantial adverse effect on the financial or property interests of Council? 44. In considering the first question as set out in paragraph 23 above, it will be necessary to specifically identify the nature of the substantial adverse effect that disclosure of the Matter in Issue could reasonably be expected to have on Council’s financial interests. 45. I have summarised Council’s submissions as they relate to this question as follows: • Release of the Matter in Issue in this review could reasonably be expected to provide the applicant with a financial advantage in its negotiations for compensation and strengthen or weaken Council’s position in its negotiations. • The applicant would not ordinarily be privy to information such as the Matter in Issue when negotiating the compensation for the land. Release of the Matter in Issue to the applicant could result in Council paying more for the land than Council would ordinarily have been able to negotiate if the applicant was not privy to the Matter in Issue. • Release of the Matter in Issue could prevent Council negotiating to obtain land or obtain the land at a viable price considering the project as a whole. • Premature release of certain financial information including property valuations and budgets could provide sufficient leverage for certain property owners such as the applicants to threaten the viability of the project and that the success of the community project could be threatened by failure to secure certain properties. 46. In relation to Council’s first submission that release of the Matter in Issue in this review could reasonably be expected to strengthen or weaken Council’s position in its negotiations, I note that if disclosure of the Matter in Issue could reasonably be expected to strengthen Council’s position in its negotiations with the applicant, there would be no substantial adverse effect on Council’s financial interests. On this basis, I will not consider this aspect of Council’s submissions further in this decision. 47. In respect of the Council’s further submissions (set out in paragraph 45 above), I note that in Little, the Information Commissioner stated that:[11] ... it is a fundamental principle of Australia’s system of law and government that, in the absence of exceptional circumstances, the State ought not compulsorily acquire the property of a citizen on other than just terms. 48. In Little, the Information Commissioner also explained that: • The process of acquisition of property must be as transparent as possible and an affected citizen must be permitted access to information that would assist in the assessment of whether fair compensation is paid for the property acquired.[12] • It would be short sighted to suggest that the public interest in saving public money would justify a government agency in seeking to negotiate the acquisition of a citizen’s property on less than just terms.[13] • As any citizen may be affected by a government proposal to acquire private property for public purposes, the interest in fair treatment of citizens by the government in the course of the acquisition processes is an interest common to all citizens and for their benefit.[14] • The acquiring body (Council) will ordinarily be in the superior bargaining position by virtue of its ability to resort to compulsory acquisition if a sale cannot be achieved by negotiation as it may invoke the machinery for acquisition under the Acquisition of Land Act 1967 (Qld). The dispute as to a figure representing fair compensation would then be resolved by the Land Court under a procedure in which both parties would be forced to disclose the basis of, and justify, the valuations which they place on the relevant property.[15] 49. On the information available to me, it is somewhat difficult to see how disclosure of the Matter in Issue could reasonably be expected to have a substantial adverse effect on the financial or property interests of Council. However, I acknowledge the possibility that Council may not be able to acquire the relevant land if the parties cannot agree on an amount of compensation and the Land Court determines fair compensation to be more than Council is willing or able to pay. On this basis, it is necessary for me to consider relevant public interest considerations. Are there public interest considerations favouring disclosure of the Matter in Issue which outweigh all public interest considerations favouring non-disclosure of the Matter in Issue? 50. Even if Council is able to establish that disclosure of the Matter in Issue could reasonably be expected to have a substantial adverse effect on its financial or property interests, I consider that the public interest considerations favouring its disclosure (which were identified by the Information Commissioner in Little and are set out in paragraph 48 above) should be afforded significant weight in the circumstances. 51. Against these significant public interest considerations favouring disclosure, I must weigh those favouring non-disclosure. In this respect, I am mindful of Council’s submissions that: • As it is revenue from the ratepayers and developers of the City that finance the compensation paid for an acquisition, it is not in the interests of the people of the City, for this information to be disclosed at this time. • Whilst release of a valuation report may be in the interests of the applicant, that can in no way be construed as the interests of the City as a whole or the public interest. Conclusion 52. I have carefully considered all of the information available to me and am satisfied that: • The amount of compensation to be paid by a local government authority acquiring land for public purposes should be determined objectively by reference to what is fair compensation. • If the Matter in Issue has no relevance to what is fair compensation, then its disclosure will not provide the applicant with a financial advantage and weaken Council’s position in negotiations. • If a relevant substantial adverse affect is able to be established (because the Matter in Issue is relevant to compensation) then the public interest will strongly favour its disclosure as: o any citizen may be affected by a government proposal to acquire private property for public purposes and the interest in fair treatment of citizens by the government in the course of the acquisition processes is therefore an interest common to all citizens and for their benefit o it would be short sighted to suggest that the public interest in saving public money would justify a government agency in seeking to negotiate the acquisition of a citizen’s property on less than just terms.[16] • On balance, the public interest considerations favouring disclosure of the Matter in Issue are significant and outweigh all public interest considerations favouring non-disclosure of the Matter in Issue. • The Matter in Issue is not exempt from disclosure under section 49 of the FOI Act. DECISION 53. For the reasons set out above, I set aside the decision under review and find that the Matter in Issue is not exempt from disclosure under section 49 of the FOI Act. 54. I have made this decision as a delegate of the Information Commissioner, under section 90 of the FOI Act. ________________________ Assistant Commissioner Henry Date: 14 September 2009 [1] In accordance with section 27B(4) of the FOI Act. [2] The FOI Act is now repealed. However, section 199(1) of the Right to Information Act 2009 (Qld) (RTI Act) provides that freedom of information applications that commenced under the FOI Act will continue to be reviewed under the FOI Act, as if the RTI Act was not enacted. Accordingly, this review considers the application of the FOI Act to the issues in the review.[3] [1986] FCA 35; (1986) 64 ALR 97. [4] Cockcroft, at 106. [5] Cockcroft, at 106.[6] [1994] QICmr 17; (1994) 1 QAR 663.[7] At paragraph 150. [8] [1996] QICmr 2; (1996) 3 QAR 170. [9] At paragraph 5. [10] Section 4(1) of the FOI Act. [11] At paragraph 47.[12] At paragraph 47. [13] At paragraph 48.[14] At paragraph 48.[15] At paragraph 50.[16] See Little at paragraph 48.

queensland

court_judgement

Queensland Information Commissioner 1993-

Campbell and Department of Education [1995] QICmr 36; (1995) 2 QAR 605 (26 May 1995)

Campbell and Department of Education [1995] QICmr 36; (1995) 2 QAR 605 (26 May 1995) OFFICE OF THE INFORMATION ) S 209 of 1993COMMISSIONER (QLD) ) S 210 of 1993 (Decision No. 95016) Participants: S 209 of 1993 WILLIAM D CAMPBELL Applicant - and - UNIVERSITY OF SOUTHERN QUEENSLAND Respondent S 210 of 1993 WILLIAM D CAMPBELL Applicant - and - DEPARTMENT OF EDUCATION Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - applicant challenging sufficiency of search by respondents for documents falling within the terms of his FOI access applications - whether reasonable grounds exist for believing that either respondent has possession or control of other documents not dealt with in their responses to the applicant's FOI access applications - whether search efforts by the respondents have been reasonable in all the circumstances. Freedom of Information Act 1992 Qld s.7 Cannon and Australian Quality Egg Farms Limited, Re (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported)Shepherd and Department of Housing, Local Government & Planning, Re (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported)Smith and Administrative Services Department , Re [1993] QICmr 3; (1993) 1 QAR 22 DECISION 1. In respect of application for review No. S 209 of 1993, I am satisfied that the respondent has located and dealt with the documents in its possession or control which fall within the terms of the applicant's FOI access application, and I affirm the decision under review. 2. In respect of application for review No. S 210 of 1993, I am satisfied that the respondent has located and dealt with the documents in its possession or control which fall within the terms of the applicant's FOI access application, and I affirm the decision under review. Date of Decision: 26 May 1995. ........................................................... F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background ..................................................................................................................... 1 The applicant's FOI access application to the University ................................... 2 The applicant's FOI access application to the Department ................................ 2 "Sufficiency of search" issues ....................................................................................... 3 The external review process .......................................................................................... 4 Application to review the University's decision ................................................... 4 Application to review the Department's decision ................................................ 4 Applicant's Submissions ................................................................................................. 5 Agency responses ........................................................................................................... 6 University's response ........................................................................................... 6 Department's response ......................................................................................... 7 Findings on sufficiency of search issues ........................................................................ 8 General observations on agency responses to applicants in potential "sufficiency of search' cases ................................................................................................................. 10 Conclusion ....................................................................................................................... 11 OFFICE OF THE INFORMATION ) S 209 of 1993COMMISSIONER (QLD) ) S 210 of 1993 (Decision No. 95016) Participants: S 209 of 1993 WILLIAM D CAMPBELL Applicant - and - UNIVERSITY OF SOUTHERN QUEENSLAND Respondent S 210 of 1993 WILLIAM D CAMPBELL Applicant - and - DEPARTMENT OF EDUCATION Respondent REASONS FOR DECISION Background 1. The applicant complains that each respondent has failed to locate and deal with all documents falling within the terms of his respective FOI access applications, in which the applicant sought access to documents held by the University of Southern Queensland (the University) and the Department of Education (the Department) in relation to a course of study he undertook at the former Darling Downs Institute of Advanced Education (the DDIAE) in the early 1980's. A number of documents were supplied to the applicant by each agency, but the applicant claims that each agency holds further documents to which it is required to grant access under the Freedom of Information Act 1992 Qld (the FOI Act). Each agency claims that it holds no further documents which fall within the scope of the respective FOI access applications. The issues which remain to be determined in these external reviews, therefore, relate solely to the sufficiency of search conducted by the two agencies in relation to Mr Campbell's FOI access applications. 2. At the time Mr Campbell undertook the Associate Diploma of Mathematics and Computing course (the ADMC course), the DDIAE was one of a number of institutes providing tertiary education in Queensland under the auspices of the Board of Advanced Education (the BAE), a body which was in turn subject to the supervision of the Department. More recently, these institutes have been transformed into universities (either directly or through an intermediate stage as university colleges) and the BAE, having lost its supervisory role, has been dissolved. The University has taken over the functions of the DDIAE and retains records which were once in the possession of the DDIAE. On dissolution of the BAE, its records became the responsibility of the Department. The applicant's FOI access application to the University 3. By a letter dated 10 July 1993, the applicant sought access to numerous documents from the University. In that part of his FOI access application which is still in issue, Mr Campbell sought access to documents as follows: (E) I understand that with the DDIAE's semesterisation for 1981, three committees, the School Course Planning and Review Committee, the Academic Board and the Board of Advanced Education agreed that: (1) It wasn't wise to have UG3 [i.e. Associate Diploma] students enrolled in UG1 [i.e. Bachelor degree] units, and (2) The goals and material of the ADMC course hadn't altered significantly. I would like a copy of the committees' reports. 4. The initial decision of the University was given by Ms A Winter, by letter dated 17 August 1993. In relation to part (E)(1) of Mr Campbell's FOI access application, Ms Winter stated that a search of various sections of the University had been conducted but that no documents responsive to that part of the FOI access application had been found. In relation to part (E)(2), Ms Winter stated that a search had located a document produced by the University's School of Applied Science and a document produced by the Academic Board, but that no document from the BAE had been located. 5. By letter dated 14 September 1993, the applicant sought internal review of Ms Winter's decision. In his internal review decision dated 23 September 1993, Mr A Finch, University Registrar, listed the sections of the University which had been searched, and affirmed the initial decision that no further documents responsive to the FOI access application were held by the University. On 19 November 1993, Mr Campbell applied to the Information Commissioner for external review under Part 5 of the FOI Act. The applicant's FOI access application to the Department 6. On the same day that he applied to the University, Mr Campbell made an application to the Department for access to a number of documents. In part (C) of that application, Mr Campbell sought access to documents in identical terms to those set out in paragraph 3 above. In the only other part of Mr Campbell's FOI access application to the Department which is still in issue, he sought documents as follows: (D) According to the BAE's "PROCEDURES FOR THE ACCREDITATION OF COURSES IN THE QUEENSLAND ADVANCED EDUCATION SYSTEM" the Board, as the accrediting authority for CAE courses in Queensland, is to determine when a major change takes place. I would like a copy of the BAE's report with respect to whether the changes to the ADMC course resulting from semesterisation were consistent with its criteria defining major changes. 7. By letter dated 25 August 1993, Mr E M Spring gave the Department's initial decision, stating that a search of records in relation to the matter had failed to locate any relevant documents. Mr Campbell applied for internal review and, in a decision dated 28 September 1993, Mr P M Parsons, on behalf of the Department, stated that no documents had been found which were within the scope of parts (C) and (D) of Mr Campbell's FOI access application, and explained why he considered that no such documents were held by the Department. By letter dated 18 November 1993, Mr Campbell applied to the Information Commissioner for external review under Part 5 of the FOI Act. "Sufficiency of search" issues 8. As I indicated in paragraphs 12-61 of my decision in Re Smith and Administrative Services Department (Information Commissioner Qld, Decision No. 93003, 30 June 1993; now reported at [1993] QICmr 3; (1993) 1 QAR 22) and in paragraphs 14-15 of my decision in Re Cannon and Australian Quality Egg Farms Limited (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported), I have jurisdiction to conduct a review under Part 5 of the FOI Act where an applicant, who has applied to an agency for access to a document, complains that access to the document has been denied because of the agency's failure to locate and deal with the document in its response to the relevant FOI access application. 9. As I explained in Re Shepherd and Department of Housing, Local Government & Planning (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported) it is my view that in an external review application involving "sufficiency of search" issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act), to which access has been requested. It is provided in s.7 of the FOI Act that: 7. In this Act - ... "document of an agency" or "document of the agency" means a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes - (a) a document to which the agency is entitled to access; and (b) a document in the possession or under the control of an officer of the agency in the officer's official capacity; 10. In dealing with the basic issue referred to in the above paragraph, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.The external review process Application to review the University's decision 11. In support of his external review application, Mr Campbell provided me with a number of documents which he considered were relevant to the issues raised. Of particular relevance to that part of the FOI access application still in issue was a letter dated 10 July 1981 from Mr E G Siebuhr, Head of Program, Mathematics, in the School of Applied Science of the DDIAE. 12. Mr Campbell had commenced the ADMC course at the DDIAE in 1980. In 1981, all courses at the DDIAE were changed from a term system to a semester system reflecting a change in the secondary school system and in other tertiary institutions throughout Queensland. In 1981, Mr Campbell wrote a letter to the Dean of the School expressing concern about a number of issues including the effect of semesterisation on his course. That letter was passed on to Mr Siebuhr for reply. In his letter dated 10 July 1981 in reply to the applicant, Mr Siebuhr made the following statement: When the changes were made to the ADMC as a result of the move to semesters, three successive committees - the School Course Planning and Review Committee, the Academic Board and the Board of Advanced Education - all saw the changes as minor modifications. They agreed that (a) the goals of the course and the material in it had not altered significantly, and (b) it is unwise to have UG3 students enrolled in UG1 units. 13. On 25 July 1994, a member of my staff held a conference with Mr Campbell to clarify the nature of his application for review, at which Mr Campbell asserted that Mr Siebuhr's letter suggested that there should be written documents recording the decisions of each of the committees referred to in Mr Siebuhr's letter. After that conference, a number of past and present University staff, including Mr Siebuhr, were interviewed. 14. Subsequent to those interviews, I communicated my preliminary views to Mr Campbell in relation to the sufficiency of search issues raised by his application for review, and provided him with the opportunity to make a submission to me in the event that he did not agree with my preliminary views. Mr Campbell accepted my preliminary views in relation to the greater part of his FOI access application, but stated that he could not accept my views in relation to that part of his FOI access application set out in paragraph 3 above, and provided a submission in that regard. Application to review the Department's decision 15. In like manner, a conference was held with Mr Campbell to clarify the nature of his application for review of the Department's decision, and his claims that further documents exist or should exist. Mr Campbell indicated that he only wished to pursue sufficiency of search issues with regard to parts (C) and (D) of his FOI access application (see paragraph 6 above). 16. At my request, the Department provided a written response dated 30 September 1994 in which it set out further information in relation to the searches it had carried out for all relevant documents, and the likelihood that it held any other relevant documents. 17. I then wrote to Mr Campbell providing him with a copy of the Department's response and informing him of my preliminary views. I invited him, should he not agree with my preliminary views, to provide a written submission. The applicant did so by letter dated 4 October 1994. Applicant's Submissions 18. It is clear from the applicant's submissions that his main concern is to obtain copies of any documents which show that the BAE considered the impact of semesterisation on the ADMC course, or to obtain confirmation that it did not. At the relevant time, institutes of advanced education were required to obtain approval from the BAE for new courses which they proposed to offer and also for "major" changes to courses. Mr Campbell clearly considers that semesterisation brought about a major change in his course, which should have been referred to the BAE. This is contradicted by the passage from Mr Siebuhr's letter (see paragraph 12 above) which indicates that the BAE saw the changes as minor modifications. 19. The bulk of Mr Campbell's submissions, in relation to his application for review of the University's decision, were aimed at establishing that documents should exist which show that the BAE had considered whether the changes to the ADMC course represented a major change. In summary, Mr Campbell's submissions on this point were as follows: BAE procedures required that all major changes to a course be considered by the BAE. The DDIAE was well aware of the requirements of the BAE because they had been drawn to its attention in a number of cases preceding the semesterisation of the course. The changes which were implemented at the time of semesterisation represented a major change to the ADMC course because: ○ electives were to be eliminated from the course which was restructured to provide compulsory units only ○ most unit number codes were changed, a step which DDIAE regulations only required to be undertaken if the objectives of a unit were significantly altered ○ a document relating to the changes consequent on semesterisation prepared by the School of Applied Science described the elimination of electives as a "major" change ○ there were a number of new units including units from the degree course which were incorporated into the ADMC for the first time ○ there was a shift in emphasis of the course to commercial computing by incorporation of subjects from the Bachelor of Business Studies degree and a resultant change in course objectives and content. A proposal for changes to the course put forward in 1986 showed that a reversion to inclusion of electives within the course structure was considered by the Academic Board as a "major" change worthy of referral to the BAE. 20. Mr Campbell's submissions were weakened to some extent by statements that he made in both his application for external review of the University's decision and his final submission to me. After setting out in his external review application the reasons why he believed documents within the scope of his initial application should exist, Mr Campbell went on to state: Even the BAE's comment that "The Board cannot be held responsible for opinions attributed to it and expressed in letters from staff of colleges of advanced education", and the OHE's [Office of Higher Education's] Policy Co-ordinator's belief that there was no BAE committee report of the kind requested by me, tends to suggest that no such documentation ever existed and hence no such evaluation occurred. 21. In his final submission, Mr Campbell stated: ... It's my further conclusion, based on the available documents, that the BAE never made the evaluations attributed to it by Mr Siebuhr and hence these opinions were the personal opinion of Mr Siebuhr which weren't consistent with DDIAE documents. With respect to your preliminary view regarding documents to this specific area of requested documents, I find it strange that there are no documents referring to the BAE's evaluation of the ADMC course given that the other documents exist. Whilst I don't dispute your preliminary view regarding the reasonable grounds for believing the documents don't exist, I find I cannot accept it because of the assortment of documents enclosed and the inconsistency between Mr Siebuhr's initial statement and the DDIAE's document. I conclude that if the BAE made the comments that were attributed to it by Mr Siebuhr, then it is reasonable for me to expect documents exist, hence I would like those documents. However, if the view expressed by Mr Siebuhr was his personal opinion and the BAE made no assessment of the ADMC course structure as suggested by Mr Siebuhr, then no documents ever existed. 22. In relation to his application for review of the Department's decision, Mr Campbell raised similar arguments as to the likely existence of documents falling within the scope of his FOI access application. Agency responses University's response 23. As noted above, a member of my staff interviewed Mr Siebuhr in relation to his letter of 10 July 1981 and the likelihood that documents that fall within the scope of Part (E) of Mr Campbell's FOI access application to the University were ever created or still exist. Mr Siebuhr noted that the letter referred to the committees agreeing to the matters identified in Part (E) of Mr Campbell's FOI access application, but that it did not indicate whether the agreement was recorded in minutes of various committee meetings or simply discussed at meetings. Mr Siebuhr advised that the School Course Planning and Review Committee discussed matters informally and did not keep any minutes of meetings, but that the Academic Board did keep minutes. Mr Siebuhr stated that he could not recall any written submission being forwarded to the BAE in relation to semesterisation. He said that the BAE's eventual acceptance of the changes is reflected in the fact that, to his knowledge, the course had been re-accredited subsequently by the BAE. Mr Siebuhr indicated that he has retired from the University and has not retained copies of submissions or correspondence from the BAE in relation to the ADMC course. Mr Siebuhr also indicated that he moved office on three occasions between 1981 and his retirement, and that each time he moved office he conducted a cull of documents which he considered were no longer required. 24. The position of the University is that no submission was made to the BAE for accreditation of changes to the ADMC course due to semesterisation. The School of Applied Science's submission in relation to the changes states that the course objectives had not changed and that the School had restructured its programs to account for semesterisation, and had taken advantage of the opportunity to incorporate minor changes to its programs in order to improve their effectiveness. The University has located and provided the applicant with a copy of the Academic Board minute which approved the proposed revision and semesterisation of the ADMC course. The University has indicated that semesterisation was an Institute-wide (and indeed a State-wide) move which involved all of its courses. In the special circumstances surrounding semesterisation of all courses, it did not consider it necessary to submit each course for re-accreditation to the BAE solely because of semesterisation. Department's response 25. The Department first sought to establish that it was not reasonable to believe that any document falling within the scope of Parts (C) and (D) of Mr Campbell's FOI access application to the Department had ever been held by it. It secondly argued that even if such a document had existed and been held by it, it would not now be a document of the agency in terms of s.7 of the FOI Act. 26. In his internal review decision, Mr Parsons stated: The Co-ordinator of Policy in the OHE believes that [there is] no "report with respect to whether changes to the ADMC course resulting from semesterisation were consistent with its criteria defining major changes". The Co-ordinator of Policy further advises that "as semesterisation was institute-wide, all courses would have been subject to that change. To require review of all courses on the grounds that this was a major change would have been an unreasonable demand on resources. In any case the Board would not have considered this to be a major change requiring re-accreditation because essentially it had to deal with timing and timetabling of the course, not the nature of the content, or expected student effort. It is more than likely that the institution would have been allowed extensions of time to complete accreditation documentation then such an arrangement may well have been arrived at by telephone." The Board expected institutions would make some changes to content and structure of courses to maintain relevance and did not consider these major. 27. In its response of 30 September 1994, the Department set out at some length the circumstances surrounding the dissolution of the BAE and the disposal of its records. The Department indicated that the BAE was dissolved on 31 December 1989 and that, in the main, its staff transferred to the Office of Higher Education. This involved, among other things, relocation to Education House and the making of decisions in relation to handling and storing of the BAE records, in consultation with officers of the State Archives. 28. The outcome of this process was that certain BAE records including office files, minutes of meetings and agenda papers for meetings (other than submissions for the accreditation of courses) have been retained by the Department. 29. A decision was taken that it was not necessary for the Department to retain copies of individual submissions for the accreditation of courses as it was believed that all institutions had, to that stage, kept copies of those submissions for their own purposes and the collection of submissions over two decades posed a huge storage problem. Institutions were given an opportunity to take back copies of submissions. Some institutions took this opportunity but others indicated that they already held a complete set for their own records (it is not clear whether the University took back copies of submissions in this manner). Documents which were not reclaimed by a particular institution were destroyed. 30. The Department also stated that its records showed that details of the ADMC course had been submitted for accreditation or re-accreditation on four occasions. The first submission was made in 1977 when the course was accredited for introduction in 1978. The second submission was made in 1979 when it was proposed that the course be offered by external studies. The course was then routinely re-accredited in 1983 and 1988. Findings on sufficiency of search issues 31. In accordance with my comments at paragraphs 9-10 above, I must consider whether there are reasonable grounds to believe that the requested documents exist, and are documents of the respective respondent agencies. It appears that the original basis for Mr Campbell's assertion that relevant documents must exist is the passage quoted above (see paragraph 12) from Mr Siebuhr's letter dated 10 July 1981. As Mr Siebuhr explained when interviewed by a member of my staff, the letter does not state that the attitude of the BAE is recorded in a document. It is possible that such information was communicated informally by an officer of the BAE, or that general discussions had been held on whether it was necessary to submit every course administered by the DDIAE to the BAE for re-accreditation due to semesterisation. It is even possible that Mr Siebuhr was wrong when he claimed that the changes had been considered by the BAE. Any of these explanations would accord with the proposition that no written record exists. 32. Mr Campbell has put forward substantial arguments as to why changes like those made to the ADMC course should have been regarded as "major" changes and therefore referable to the BAE. My reading of the documents created by the BAE in relation to its procedures suggests that it would have been relatively easy for reasonable minds to differ as to what constituted a "major" change. At the relevant time, the BAE Procedures for Submitting a Proposal for the Review of a Course provided: Major changes include adding any new strand to a course or offering it in a different mode such as by external study. Any large-scale restructuring of a course or any significant shift in or addition to its emphasis would also be considered as a major change. Should there be doubt whether any change may be considered as major, college authorities should seek advice from the Board before detailed plans for proposed modifications are prepared. 33. Mr Campbell clearly believes that the changes proposed were major. However, an examination of the School of Applied Science's submission to the Academic Board suggests that this was not the view of the Associate Dean who prepared the submission. It is worth setting out parts of the first page of that submission to give an indication of the School's approach to the changes: Following the decision in 1979 by the Queensland Education Department that state schools would operate on a semester system in 1981, the Darling Downs Institute decided to adopt a similar academic structure, also to take effect in 1981. The School of Applied Science has accordingly restructured its programmes, and has taken advantage of this opportunity to incorporate minor changes to the programmes in order to improve their effectiveness. Attached is the proposed new course structure for the Associate Diploma in Mathematics and Computing The course objectives have not changed, neither has the content of the core units. Apart from a restructuring of these core units into a semester format, the major change is the elimination of electives. In fact, many of the proposed electives were not being selected by students, so that the new course contains the units which most students would have chosen anyway. The elimination of electives enables the School to concentrate its resources in the areas of greatest student demand. ... Notwithstanding the above we submit that the Associate Diploma in Mathematics and Computing is substantially the same course, with minor improvements, and ask that its accreditation be continued. 34. Mr Campbell highlighted the use of the word "major" in the second last paragraph quoted above. However, my reading of that word in the context of the document suggests that it was not used in the sense that it necessitated reference to the BAE. It rather suggests that the most significant change is the elimination of electives. In that sense, the elimination of electives is drawn to the attention of Academic Board members as the most important of a number of minor changes. 35. Mr Campbell also drew attention to a proposal for change to the course put forward in 1986, involving introduction of electives, which the Academic Board considered should be presented to the BAE. The proposal, which was for the introduction of a new strand to the course, did not proceed to the stage of submission to the BAE. This proposal is in my view distinguishable from the 1981 changes as it involved a new strand, a change specifically noted in the BAE procedures as a "major" change. 36. However, even if this proposal could be equated to the changes proposed for semesterisation, the fact that it was considered "major" in 1986 does not mean that the University must have held the same view in 1981. The clear indication is that, at the time of semesterisation, the School of Applied Science did not consider the changes to be so major as to warrant reference to the BAE. 37. It serves little purpose to speculate further on whether or not the changes should have been regarded as major by the DDIAE. The submission to the Academic Board suggests clearly that the changes were regarded as minor, and the endorsement of the changes recorded in the Academic Board minute of 23 July 1980 does not suggest that the Academic Board considered the changes to be anything other than minor. A finding that the DDIAE was correct or incorrect in this view would do nothing to further my investigation of the questions I referred to in paragraph 10 above. 38. I should note that both the University and the Department have conducted extensive searches for any documents which might fall within the scope of Mr Campbell's respective FOI access applications. 39. In Mr Finch's internal review decision dated 23 September 1993, he indicated the following areas of the University had been searched in relation to Mr Campbell's FOI access application: • records held in what is now the Faculty of Sciences; • student administration data base; • student files; • central records holdings; • Council and Academic Board minutes and meeting papers, 1979-1983 inclusive; • Council correspondence for the period 1976 to 1987. 40. I am informed that, while the searches undertaken were not without difficulties because of past record keeping practices within the DDIAE, they were extensive. For example, the search of the Council correspondence for the period 1976 to 1987 took approximately 12 hours to complete. 41. The Department has indicated that it undertook searches both within the Office of Higher Education and the Minister's office. From my perusal of the Department's Freedom of Information file, it appears that searches undertaken in the Office of Higher Education were of approximately 12 hours duration, while searches in the Minister's office were undertaken for approximately 75 minutes. 42. Emphasis in the foregoing discussion has been placed on considering issues in relation to part (E)(2) of Mr Campbell's FOI access application to the University, its equivalent, part (C)(2), in the FOI access application to the Department, and part (D) of the FOI access application to the Department. This approach has been adopted because Mr Campbell's submissions have focussed on those parts of his FOI access applications. 43. Parts (E)(1) and (C)(1) of his respective FOI access applications, however, requested access to documents of a different, although related, nature. They sought access to reports from various committees showing that the committees agreed that it was not wise to have UG3 (associate diploma) students enrolled in UG1 (bachelor degree) units. Mr Campbell has already been granted access to a number of documents which deal generally with the differences between UG1 and UG3 courses. 44. Apart from relying on the terms of Mr Siebuhr's letter, Mr Campbell has put forward no further submission which would suggest that it is reasonable to believe that either agency holds undisclosed documents which fall within these parts of his respective FOI access applications. 45. I do not consider that Mr Siebuhr's letter affords reasonable grounds for belief that there exist further documents responsive to parts (E)(1) and (C)(1) of Mr Campbell's respective FOI access applications. I note that the searches referred to above included searches for any such documents. 46. In all the circumstances, I find that, in relation to each application, there are no reasonable grounds to believe that the requested documents ever existed. In addition, in relation to Mr Campbell's application for review of the Department's decision, I find that even if an accreditation submission had been provided to it in relation to semesterisation of the ADMC course, there are no reasonable grounds to believe that it would still hold a copy of such a document. I further find that the searches conducted by each agency have been reasonable in all the circumstances of the case. General observations on agency responses to applicants in potential "sufficiency of search" cases 47. I wish to address a general issue as to the way in which agencies report to applicants on the extent and outcome of their searches to locate documents requested in an FOI access application. The inclusion of these comments in this decision should not be taken as a reflection on the methods of the University or the Department. It is a reflection of the fact that "sufficiency of search" cases, involving several agencies, have been consuming a disproportionate amount of time for myself and my staff. 48. I have now considered numerous applications for external review in relation to "sufficiency of search" issues. In a number of cases, I have noted that reports of the searches undertaken by agencies, given in reasons statements accompanying initial and internal review decisions, are very brief, even where many hours of searching have been expended in an effort to find all documents falling within the terms of an FOI access application. In some cases, on being given a more detailed explanation of the amount of searching that has been undertaken and the effort to which the agency has gone to locate relevant documents, the applicant has been willing to reduce the number of issues involved in an external review application, or to withdraw the application completely. 49. Some applicants, understandably, become frustrated or disbelieving, when a response to an FOI access application merely states that documents which they believe to exist have not been found, or that an "extensive search" has been undertaken but that no documents have been found. I recommend that where agencies are aware that there is, or may be, a sufficiency of search issue in a particular case, they should give more detailed explanations of the method of search which has been adopted, and the amount of time which has been put into searching for the requested documents. If an agency has grounds for believing that a requested document does not exist, or is not in its possession or control, it should explain those grounds to the applicant. 50. Consistently with the obligations imposed on agencies by s.34(2) of the FOI Act, I consider such information to be essential for the purpose of giving an applicant a reasonable basis on which to decide whether to challenge the adequacy of the search conducted for a requested document which has not been located and dealt with by the agency. A written statement of searches conducted, time spent and methodology adopted, would prove a useful record, not only for applicants, but also agencies, and, if an external review does eventuate, the Information Commissioner. In many cases, it may well prove useful to supplement such an approach by a telephone call or meeting with the applicant during the initial processing of an FOI access application, or upon receipt of an application for internal review which raises a "sufficiency of search" issue. 51. The adoption of these recommendations may lead to a greater level of acceptance by applicants that an agency has acted reasonably despite the failure to locate requested documents. Moreover, if an applicant has evidence which objectively tends to show that an agency does, or should, have possession or control of a requested document, the applicant may be encouraged to offer that evidence during consultation in the course of processing an FOI access application, or in support of an application for internal review, rather than produce it for the first time when requested to do so by the Information Commissioner on external review. Conclusion 52. For the reasons given above, I am satisfied, in respect of each application for review, that each respondent has located and dealt with all documents in its possession or control which fall within the terms of the applicant's respective FOI access applications, and I affirm the decisions under review. F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

E33 and Metro South Hospital and Health Service [2021] QICmr 50 (12 October 2021)

E33 and Metro South Hospital and Health Service [2021] QICmr 50 (12 October 2021) E33 and Metro South Hospital and Health Service [2021] QICmr 50 (12 October 2021) Last Updated: 29 August 2022 Decision and Reasons for Decision Citation: E33 and Metro South Hospital and Health Service [2021] QICmr 50 (12 October 2021) Application Number: 315884 and 315885 Applicant: E33 Respondent: Metro South Hospital and Health Service Decision Date: 12 October 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LAW ENFORCEMENT OR PUBLIC SAFETY INFORMATION - information relating to Examination Authority and clinical records - whether disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment - documents relating to processes under Mental Health Act 2016 (Qld) - whether information exempt under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48, and schedule 3, section 10(1)(i) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - information provided by or about other individuals in clinical records - personal information and privacy - whether information would, on balance, be contrary to the public interest to disclose under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant made two applications to Metro South Hospital and Health Service (MSHHS) under the Information Privacy Act 2009 (Qld) (IP Act) on the same date. Both applications requested access to the applicant’s medical records with different date ranges.[1] Due to the similarities of the applications both are dealt with concurrently in this decision. In its decision dated 19 January 2021,[2] MSHHS located 340 pages and decided to refuse access to 11 full pages on the grounds that they contained information that was exempt,[3] and to refuse access in part to another 27 pages on the basis that some of the information was exempt[4] and that disclosure of the other refused information would, on balance, be contrary to the public interest.[5] In its decision dated 20 January 2021,[6] MSHHS located 279 pages and decided to refuse access in part to 13 pages on the basis that the information was with exempt[7] or disclosure would, on balance, be contrary to the public interest.[8] The applicant applied[9] to the Office of the Information Commissioner (OIC) for external review of both decisions. During these reviews, MSHHS agreed to release some additional information to the applicant.[10] These parts of the documents are no longer in issue. The information remaining in issue for these reviews comprises nine full pages[11] and 40 part pages.[12] For the reasons set out below, I affirm MSHHS’s decisions to refuse access to the information remaining in issue; however partly for different reasons to those set out in MSHHS’s decisions.[13] I have not considered these provisions in my decision as I am satisfied that access to all of the information in issue can be refused on the basis that it is exempt pursuant to section 47(3)(a) and schedule 3, section 10(1)(i) of the RTI Act or it would, on balance, be contrary to the public interest to disclose under section 47(3)(b) of the RTI Act. Background Some issues raised by the applicant are outside the scope of these external reviews[14], such as, concerns regarding the accuracy and confidentiality of the applicant’s medical records, and alleged breaches of other parties’ personal information. To the extent they relate to the issues for consideration in this review, I have addressed these submissions below. The powers of the Information Commissioner on external review are set out in the IP Act,[15] and jurisdiction on external review is limited to review of an access or amendment decision.[16] In this current matter the applicant has made access applications[17] as opposed to amendment applications[18] so I am only able to consider the reviewable decisions made regarding access to the information in issue.[19] Reviewable decisions The decisions under review are MSHHS’s decisions dated 19 and 20 January 2021 refusing access to information under section 67(1) of the IP Act and sections 47(3)(a) and (b) of the RTI Act. Evidence considered The applicant provided OIC with extensive submissions[20] in support of her case. While I have considered the applicant’s submissions, [21] not all matters raised are relevant to the issues for determination in these reviews. In this decision, I have addressed the applicant’s submissions to the extent they are relevant to the issues for determination. Significant procedural steps taken during these external reviews are set out in the Appendix to this decision. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). 13. I have had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[22] A decision-maker will be ‘respecting, and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the IP Act.[23] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[24] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[25] Information in issue The information in issue in these reviews is comprised of parts of the applicant’s mental health records. The IP Act prohibits me from disclosing the information in issue in these reasons.[26] Broadly, the information in issue can be categorised as: Examination Authority information (EA Information);[27] and information about or provided by third parties (Third Party Information). [28] Issues for determination The issues for determination are whether: disclosure of the EA Information could reasonably be expected to prejudice a system or procedure for the protection of persons;[29] and disclosure of the Third Party Information would, on balance, be contrary to the public interest.[30] Relevant law Under section 40 of the IP Act, an individual has a right to be given access to documents to the extent they contain the individual’s personal information. This right is subject to provisions of the IP Act, including the grounds on which an agency may refuse access to documents.[31] Access may be refused to a document to the extent that it comprises ‘exempt information’[32] or would, on balance, be contrary to the public interest to disclose.[33] Where information satisfies the criteria for any of the categories of exempt information set out in schedule 3 of the RTI Act, Parliament has determined that the disclosure of this information is contrary to the public interest, and access may therefore be refused.[34] Relevantly, information is exempt under schedule 3, section 10(1)(i) if its disclosure could reasonably be expected[35] to prejudice a system or procedure for the protection of persons. To determine whether information is exempt under schedule 3, section 10(1)(i) of the RTI Act, I must consider[36] whether: a) there exists an identifiable system or procedure b) it is a system or procedure for the protection of persons; and c) disclosure of the information in issue could reasonably be expected to prejudice that system or procedure. Relevantly, information is not exempt under schedule 3, section 10(1)(i) of the RTI Act if it consists of any of the types of specific information referred to in schedule 3, section 10(2) of the RTI Act. FindingsEA Information: prejudice a system or procedure for the protection of persons Requirement a) – is there an identifiable system or procedure? While I am limited in the amount of detail I can provide[37], I am satisfied that the EA Information comprises information gathered under a system established by the Mental Health Act 2016 (Qld) (MH Act). The MH Act establishes a process for applying for mandatory mental health assessments, or Examination Authorities, in Queensland.[38] I am satisfied the first requirement is met as there is an identifiable system or procedure, namely, the Examination Authority procedure under the MH Act. Requirement b) – is the system or procedure for the protection of persons, property or environment? I am satisfied that the process of applying for and implementing an Examination Authority under the MH Act[39] is an identifiable system that exists for the protection of persons who may be suffering mental illness, and the community more broadly. Requirement c) – could disclosure of the information in issue reasonably be expected to prejudice that system or procedure? The Information Commissioner has previously found that granting an individual access to information provided in the context of a mental health assessment, could reasonably be expected to prejudice the system by impeding the flow of information to relevant agencies or the willingness of parties to engage with those agencies.[40] The Examination Authority process operates by relying on the information provided by third parties to initiate an assessment process under the MH Act. Individuals involved in this type of process provide information on the understanding that it is confidential and will only be used for the limited purpose of ensuring the proper administration of the MH Act and the appropriate care and treatment of the subject individual.[41] I consider that ensuring the confidentiality and careful handling of the information provided by third parties is essential to the effectiveness of the Examination Authority process. Disclosing information that identifies, either directly or indirectly, an individual who has requested an Examination Authority could reasonably be expected to impact on the likelihood that individuals seeking to utilise this system will raise concerns in the future. Particularly, given the highly sensitive and personal nature of mental health concerns, it is reasonable to expect some level of apprehension from individuals who provide information to mental health authorities.[42] I also consider that the quality of the information provided by individuals may be impacted if they are not able to provide full and frank information to mental health services without concern as to the negative consequences resulting from the subject of their concern receiving the information, particularly where that person may be a family member, friend or close associate.[43] The EA Information identifies third parties and the information supplied by those third parties in support of the application for an Examination Authority. I am satisfied that the disclosure of this information could reasonably be expected to prejudice the effectiveness of the system for obtaining an Examination Authority established by the MH Act for the protection of individuals and the community. Exceptions In evaluating whether the EA Information is subject to the exemption outlined above, I have considered the exceptions outlined in schedule 3, section 10(2) of the RTI Act, in line with Commissioner of the Police Service v Shelton & Anor.[44] Her Honour Chief Justice Holmes held that:[45] ...an agency cannot reach the view necessary...in relation to information which may be exempt under sch 3 s 10 without a consideration of the documents the subject of the application to ascertain whether they fall within s 10(2). I have closely reviewed the EA Information and the applicant’s submissions to determine this question of fact and am satisfied that the information does not consist of any of the types of specific information referred to in schedule 3, section 10(2) of the RTI Act. Applicant’s submissions The applicant has made the following relevant submissions in support of disclosure of the EA Information:[46] The decision made by healthcare practitioners at MSHHS for her to be assessed was not impartial, objective or transparent. The applicant believes there is a high probability MSHHS misdiagnosed her. Any information provided to MSHHS by certain individuals with whom she has a ‘toxic’ relationship may have been ‘false, misleading, fabricated, defamatory and unsubstantiated’, and any decision made by MSHHS in relation to the applicant based on any such information would be in violation of section 10(2)(j) of the MH Act[47] and could constitute malpractice. The applicant was not given the opportunity to substantiate the veracity of the information provided to MSHHS about her by third parties which caused an Examination Authority to be made in relation to the applicant. It is in the public interest to disclose that the Mental Health Review Tribunal and MSHHS ‘have failed miserably in their interpretation of The Mental Health Act 2016, in particular, Section 10, paragraph (2)...’. Release of the Examination Authority will show the applicant some of the reasons why she was hospitalised. Having considered the applicant’s submissions, while I accept the applicant holds concerns about the accuracy of information provided to MSHHS for the purposes of an Examination Authority, and the conduct of MSHHS in acting on this information, I do not consider the applicant’s submissions have any impact on the reasonable expectation that disclosure could prejudice a system or procedure as outlined in ‘Requirement c)’ above. The prejudice described above relates to the system as a whole and not to an individual case.[48] I am satisfied that the applicant’s contentions regarding the accuracy of the information in the Examination Authority do not negate the prejudice to the system or procedure I have explained above that is reasonably expected to result from disclosure of the EA Information. While the applicant’s reasons for seeking the EA Information are understandable and raise public interest considerations, I cannot take these submissions into account for the purposes of the EA Information. There is no scope for me to consider public interest arguments once I am satisfied that the information qualifies as exempt information.[49] While I acknowledge that the applicant is significantly concerned by the circumstances and events relating to the Examination Authority, I do not have the power to direct that access be given to this information[50] where I am satisfied that it comprises exempt information. Conclusion – EA Information I am satisfied that the EA Information comprises exempt information as it meets each of the requirements of schedule 3, section 10(1)(i) of the RTI Act and the exceptions referred to in schedule 3, section 10(2) of the RTI Act do not apply. Third Party Information – Public interest balancing test The Third Party Information comprises information in 27 part pages. In assessing whether disclosure of this information would, on balance, be contrary to the public interest, a decision maker must:[51] identify factors irrelevant to the public interest and disregard them identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Schedule 4 of the RTI Act contains non-exhaustive lists of factors that may be relevant in determining where the balance of public interest lies in a particular case. I have considered these lists,[52] together with all other relevant information, in reaching my decision. I have kept in mind the IP Act’s pro-disclosure bias[53] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly.[54] Irrelevant factors No irrelevant factors arise in the circumstances of this case and I have not taken any into account in reaching my decision. Factors favouring disclosure Personal information The Third Party Information comprises the applicant’s personal information.[55] This raises a factor favouring disclosure which is routinely afforded significant weight due to the fundamental importance of individuals having access to their personal information, such as their own medical records, held by a government agency.[56] In considering this factor, I note MSHHS have provided the applicant with 570 pages in full and 40 pages in part. Generally, the weight attributed to this factor in the context of an individual’s own medical records is significant. In this case however, I have only attributed moderate weight to this factor given the volume of information that was released to the applicant, and the particular nature of the Third Party Information. I am also satisfied that the applicant’s personal information is inextricably intertwined with the personal information of others such that it cannot be separated and disclosed. I consider that this raises factors in favour of nondisclosure[57] in relation to safeguarding the personal information and privacy of other individuals, discussed below at paragraphs [51] to [54]. Accountability and transparency I have considered whether disclosing the Third Party Information could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability;[58] and reveal the reason for a government decision and any background or contextual information that informed the decision.[59] I accept that disclosing parts of the Third Party Information would provide the applicant with a more comprehensive understanding of information that may have been considered by doctors when making decisions about her healthcare. However, the applicant has been granted access to a vast majority of documents in the medical records. I am satisfied the information already released largely satisfied the public interest factors identified above. Given the relatively small number of pages which make up the Third Party Information, I do not consider its disclosure would further advance these public interest factors to any significant degree.[60] I also note that the Third Party Information reveals little about the actions taken by MSHHS staff. Accordingly, I afford the above factors only low weight. Whether disclosure would reveal information that is incorrect or misleading The applicant submits that access to the Third Party Information will enable her to identify ‘erroneous, malicious, false, fabricated, misleading, defamatory and unsubstantiated information’, and provide her with an opportunity to verify the veracity of this information.[61] The applicant submits some of the Third Party Information should be released because it records potentially incorrect information about her. The applicant refers to numerous instances in the medical records released to her where she says information recorded by MSHHS is incorrect, and that this indicates ‘a great potential for the Redacted information to also reveal seriously incorrect documentation, particularly where the Redacted information has been provided by [specific individuals]’.[62] The RTI Act recognises that where disclosure of information could reasonably be expected to reveal that the information was incorrect or misleading, this will establish a public interest factor favouring disclosure.[63] I have reviewed the Third Party Information and am satisfied there is nothing on its face to indicate it is inaccurate or misleading. [64] Some of the Third Party Information is, by its very nature, the particular opinions and versions of events expressed by individuals other than the applicant. This inherent subjectivity does not mean that the Third Party Information is necessarily incorrect or misleading,[65] however, I acknowledge that its disclosure may allow further enquiry into the veracity of information provided to the health service by third parties. On this basis, I have attributed low weight to this factor favouring disclosure. Contribute to administration of justice generally or for a person I have considered whether the disclosure of the Third Party Information could reasonably be expected to contribute to the administration of justice, procedural fairness and/or advance the applicant’s fair treatment.[66] I accept that disclosure of the Third Party Information may permit the applicant to better understand the decisions made in relation to her mental health care.[67] The Information Commissioner has previously recognised that in an appropriate case there may be a public interest in a person who has suffered, or may have suffered, an actionable wrong, being permitted to obtain access to information which would assist the person to pursue any remedy which the law affords in those circumstances.[68] To establish this pro-disclosure consideration, an applicant must, at the least, demonstrate that they have suffered some kind of wrong in respect of which a remedy is, or may be, available under the law, that there is a reasonable basis for seeking to pursue any such remedy and that disclosure of the information held by the agency would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available or worth pursuing. [69] The applicant submits that certain statements in her medical records are ‘erroneous, malicious, false, fabricated, misleading, defamatory and unsubstantiated’,[70] that healthcare practitioners at MSHHS misdiagnosed her mental health status, didn’t check the accuracy of information provided to them before subjecting the applicant to an Involuntary Treatment Order, and violated the applicant’s human rights and the MH Act. However, the applicant does not specify the particular legal remedy she seeks to pursue. For this reason, I am not satisfied that the first limb of the test[71] is satisfied. Further, I do not consider access to the Third Party Information is necessary to enable the applicant to pursue any course of action she may have against MSHHS. The applicant also submits that the above matters warrant ‘... a thorough investigation by other government departments if not an inquiry’. To the extent the applicant seeks to make a complaint about medical professionals, OIC has informed the applicant that OHO is the statutory body empowered to assess and investigate complaints regarding healthcare providers.[72] OHO has wide ranging powers under the Health Ombudsman Act 2013 (Qld), including the power to require a person to give the OHO any document relevant to an investigation.[73] I do not consider access to the Third Party Information is required for the applicant to pursue this course of action. Taking into account the information which has already been released to the applicant and the nature of the Third Party Information, I consider the public interest factors favouring disclosure have been sufficiently discharged and the disclosure of the Third Party Information is unlikely to advance these public interest factors in any significant way. Accordingly, I afford low weight to the above factors favouring disclosure. Reveal misconduct, improper conduct or deficiencies in conduct The public interest will favour disclosure of information where it could reasonably be expected to: allow or assist inquiry into possible deficiencies of conduct or administration by an agency or official; [74] or reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[75] Aside from the applicant’s assertions,[76] there is no other evidence before me to suggest possible misconduct, improper conduct or deficiencies in the conduct of MSHHS. The applicant has submitted that:[77] The decision made by healthcare practitioners at MSHHS for her to be assessed was not impartial, objective or transparent. The applicant believes there is a high probability MSHHS misdiagnosed her mental health status. Any information provided to MSHHS by certain individuals with whom she has a ‘toxic’ relationship may have been ‘false, misleading, fabricated, defamatory and unsubstantiated’, and any decision made by MSHHS in relation to the applicant based on any such information would be in violation of section 10(2)(j) of the MH Act[78] and could constitute malpractice. I have considered these submissions alongside the Third Party Information and the other released information. Aside from the applicant’s contentions, there is no evidence to indicate that the above concerns are substantiated. Accordingly, I do not consider that these factors favouring disclosure apply. Factors favouring nondisclosure Personal information and privacy The Third Party Information comprises the intertwined personal information of the applicant and other individuals. This gives rise to two factors favouring nondisclosure relating to protecting the personal information[79] and safeguarding the right to privacy of those individuals.[80] The Third Party Information comprises: the opinions, thoughts, feelings and concerns of individuals other than the applicant; contact details of persons other than the applicant; and other personal information about individuals other than the applicant. While the Third Party Information appears within the applicant’s medical records, it also comprises the personal information of third parties who are readily identifiable. I am satisfied that disclosure of the Third Party Information would disclose personal information of the third parties and prejudice their privacy.[81] Given the nature of the Third Party Information, I afford significant weight to each of these nondisclosure factors. The applicant submits that she is aware of the some of the content of the Third Party Information. I have considered this submission and note that in some cases the weight to be attributed to these factors can be reduced where the applicant may be a close family member and the relevant information is known to the applicant.[82] However, I do not consider that, in the circumstances of this case, the personal information or privacy factors are in any way reduced for the Third Party Information. Ability to obtain confidential information A further factor favouring nondisclosure arises where disclosure of the Third Party Information could reasonably be expected to prejudice an agency’s ability to obtain confidential information.[83] I am satisfied that people who provide information to healthcare professionals in this context do so with an expectation of confidentiality. Previous decisions of the Information Commissioner have found that disclosure of this type of information could prejudice the ability of healthcare providers to effectively treat patients and have afforded significant weight to this factor in favour of nondisclosure.[84] I acknowledge that the applicant has concerns that the Third Party Information may be inaccurate. However, even where the content of the information is disputed, disclosure of that information could reasonably be expected to discourage other individuals from coming forward with confidential information to healthcare providers in the future, and this could be particularly detrimental to patient care in the mental health context.[85] I have considered the Third Party Information and the specific context in which it appears and am satisfied it was provided in circumstances where the individual would reasonably expect that the information would be treated confidentially. Disclosure of this type of information could reasonably be expected to prejudice the supply of full and frank information to healthcare professionals. As such, I afford this factor significant weight. Balancing the public interest factors In determining the balance of public interest in this case, I have firstly applied the pro-disclosure bias contained in section 64 of the IP Act. I have attributed moderate weight in favour of the public interest in the applicant accessing her own personal information. I have also attributed some, albeit low, weight to the public interest factors relevant to the accountability and transparency of MSHHS, and the applicant accessing information that may reveal inaccurate or misleading information or potentially assist her to evaluate or pursue a legal remedy. I have turned my mind to the other public interest factors favouring disclosure set out in schedule 4 of the RTI Act and I consider that no further factors apply in this case. On the other hand, in considering the factors favouring nondisclosure of the Third Party Information, I have attributed significant weight to the factors favouring nondisclosure that seek to protect the personal information and privacy of third parties as well as the nondisclosure factor seeking to protect MSHHS’s ability to obtain confidential information particularly in the context of mental health care. On balance, the significant weight I have attributed to the factors favouring nondisclosure outweigh the weight attributed to the factors in favour of disclosure. Accordingly, I am satisfied that disclosure of the Third Party Information would, on balance, be contrary to the public interest and access may be refused on this basis. [86]DECISION I affirm[87] MSHHS’s decisions to refuse access to the information in issue, and I find that access can be refused to: the EA Information under section 67(1) of the IP Act and sections 47(3)(a) and 48 of the RTI Act; and the Third Party Information under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.S MartinAssistant Information CommissionerDate: 12 October 2021 APPENDIX Significant procedural steps Date Event 11 February 2021 OIC received two external review applications from the applicant. 16 February 2021 OIC contacted the applicant and acknowledged receipt of the external review applications. OIC requested procedural documents from MSHHS. 17 February 2021 MSHHS provided procedural documents. 3 March 2021 OIC advised the applicant and MSHHS that the external review applications had been accepted. OIC requested MSHHS provide the information in issue. 4 March 2021 MSHHS provided the information in issue to OIC. 17 March 2021 OIC provided a preliminary view to the applicant. 18 March 2021 Applicant provided authority for an agent to act on her behalf. 23 March 2021 OIC contacted the applicant’s agent to confirm the authority to act had been received and granted. 6 April 2021 Agent requested an extension of time for the applicant to provide submissions. OIC granted extension of time. 9 May and 11 May 2021 Submissions received from the applicant. 25 May 2021 OIC provided marked-up information in issue to MSHHS with the view some additional information was suitable for release to the applicant. 1 June 2021 MSHHS advised it agreed with OIC that some additional information was suitable for release to the applicant. 8 June 2021 OIC requested MSHHS provide the additional information agreed for release to the applicant. OIC provided update to the applicant’s agent regarding the additional information which would be released and reiterated the preliminary view on the remaining information in issue. 14 June 2021 MSHHS provided the applicant with the additional information. 22 June 2021 Applicant’s agent advised that the applicant requested to have the external reviews finalised by way of formal decision. [1] One application for the date range of 9 January 2018 - 31 January 2018 (external review 315884) and the other application for the date range of 19 July 2020 – 4 August 2020 (external review 315885).[2] This decision is subject to external review 315884.[3] Section 47(3)(a) and schedule 3, section 10(1)(i) of the Right to Information Act 2009 (Qld) (RTI Act).[4] Section 47(3)(a) and schedule 3, section 10(1)(b) and 8(1) of the RTI Act.[5] Section 47(3)(b) and schedule 4, part 3, item 3 of the RTI Act.[6] This decision is subject to external review 315885.[7] Section 47(3)(a) and schedule 3, section 8(1) of the RTI Act.[8] Section 47(3)(b) and schedule 4, part 3, item 3 of the RTI Act.[9] On 11 February 2021.[10] On 14 June 2021, MSHHS released two pages that had previously been fully refused and six part refused pages showing additional information that was previously refused. [11] External review 315884.[12] 27 part refused pages from external review 315884 and 13 part refused pages from external review 315885.[13] While the reviewable decisions made by MSHHS contemplated the two grounds of refusal that are addressed in this decision, MSHHS also refused access to some information on the basis that disclosure would found an action for breach of confidence or reveal the existence or identity of a confidential source of information and would therefore comprise exempt information. As identified in schedule 3, sections 8 and 10(1)(b) of the RTI Act.[14] Section 99 and schedule 5 of the IP Act sets out the ‘reviewable decisions’ that I can consider.[15] Sections 111 to 122 of the IP Act.[16] Section 99 of the IP Act.[17] Under section 43 of the IP Act.[18] Under section 44 of the IP Act. [19] The applicant was provided with information on the OIC’s jurisdiction and powers in relation to the external reviews. The applicant was referred to the Office of the Health Ombudsman (OHO) as an avenue to raise concerns about a health professional’s conduct. The applicant was also given information regarding how to make an amendment application under the IP Act in relation to the personal information she considers is incorrect and misleading in the released documents and, also, the right to make a privacy complaint under the IP Act if she or her family members were concerned about the handling of their personal information (by letters dated 17 March 2021 and 8 June 2021).[20] Dated 9 May 2021 and 22 June 2021.[21] Including the external review application received 11 February 2021, and submissions received on 9 May 2021 and 22 June 2021.[22] Section 21 of the HR Act. [23] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[24] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [25] XYZ at [573].[26] Section 121(3) of the IP Act.[27] In external review 315884, nine full pages to which MSHHS refused access pursuant to section 67(1) of the IP Act and section 48 and schedule 3, section 10(1)(i) of the RTI Act on the basis that it’s disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons property or the environment. Whilst the Examination Authority document is 11 pages long, MSHHS released two of these pages in full to the applicant during the external review.[28] 27 pages in external review 315884 and 13 pages in external review 315885.[29] And consequently, is comprised of exempt information under schedule 3, section 10(1)(i) of the RTI Act.[30] As per section 47(3)(b) of the RTI Act.[31] Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent it could refuse access to the document under section 47 of the RTI Act.[32] Sections 47(3)(a) and 48 of the RTI Act.[33] Section 67(1) of the IP Act and section 47(3)(b) and 49 of the RTI Act. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[34] Section 48(2) of the RTI Act.[35] The term ‘could reasonably be expected to’ requires that the expectation be reasonably based, that it is neither irrational, absurd or ridiculous, nor merely a possibility. The expectation must arise as a result of disclosure, rather than from other circumstances. Whether the expected consequence is reasonable requires an objective examination of the relevant evidence. It is not necessary for a decision-maker to be satisfied upon a balance of probabilities that disclosing the document will produce the anticipated prejudice. See Nine Network Australia Pty Ltd and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 14 February 2012) at [31].[36] As outlined in Ferrier and Queensland Police Service [1996] QICmr 16; (1996) 3 QAR 350 at [27]- [36] and SQD and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 2 September 2010). [37] Under section 121(3) of the IP Act, the Information Commissioner must not disclose information claimed to be exempt information or contrary to the public interest information. [38] As also identified in D77 and Gold Coast Hospital and Health Service [2020] QICmr 28 (22 May 2020) (D77) at [15].[39] See section 3(1)(a) and chapter 12, part 8 of the MH Act. This system requires an application of a specific form to the Mental Health Review Tribunal. In practice, such an application may be made following concerns raised by a member of the public to a doctor or mental health practitioner.[40] See, for example: D77; VA6Q6J and Sunshine Coast Hospital and Health Service [2015] QICmr 18 (14 August 2015) (VA6Q6J); E9IH9N and Metro South Hospital and Health Service [2016] QICmr 18 (27 May 2016) and B7TG4G and Gold Coast Hospital and Health Service [2015] QICmr 11 (1 May 2015) (B7TG4G). Some of these decisions were made with respect to the similar provisions of the now repealed Mental Health Act 2000 (Qld) and what was previously known as a Justices Examination Order, which also served to allow the assessment of individuals suspected of having a mental illness.[41] SQD and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 2 September 2010) at [17]; see also ROSK and Brisbane North Regional Health Authority; Others (Third Parties) [1996] QICmr 19; (1996) 3 QAR 393 at [21]. As above, these decisions were made with respect to the similar provisions of the now repealed Mental Health Act 2000 (Qld).[42] D77 at [18].[43] D77 at [18].[44] [2020] QCA 96 (Shelton).[45] Shelton at [47] per Holmes CJ.[46] Submissions dated 9 May 2021.[47] Section 10(2)(j) of the MH Act provides that a person must not be considered to have a mental illness merely because the person is or has been involved in a family conflict.[48] D77 at [23].[49] Section 48(2) of the RTI Act. As mentioned in paragraph [17] of these reasons, schedule 3 of the RTI Act sets out the types of information the disclosure of which Parliament has considered would, on balance, be contrary to the public interest.[50] Section 118(2) of the IP Act.[51] Section 49(3) of the RTI Act.[52] I have considered each of the public interest factors outlined in schedule 4 of the RTI Act, and any relevant factors are discussed below (in relation to each category of documents). Some factors have no relevance, for example, the factor concerning innovation and the facilitation of research.[53] Section 64 of the IP Act.[54] Section 67(2)(a) of the IP Act and section 47(2)(a) of the RTI Act. [55] ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[56] Schedule 4, part 2, item 7 of the RTI Act.[57] Schedule 4, part 3, item 3 and schedule 4, part 4, section 6(1) of the RTI Act.[58] Schedule 4, part 2, item 1 of the RTI Act.[59] Schedule 4, part 2, item 11 of the RTI Act.[60] As also found in B7TG4G at [34].[61] Submissions dated 9 May 2021. [62] Submissions dated 9 May 2021.[63] Schedule 4, part 2, item 12 of the RTI Act. [64] The IP Act prohibits me from releasing information that is claimed to be contrary to public interest in a decision on an external review; section 121(3) of the IP Act. [65] Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [15]-[20] and this view is confirmed in more recent decisions such as H89 and Metro North Hospital and Health Service [2020] QICmr 18 (27 March 2020) at [22].[66] Schedule 4, part 2, items 10, 16 and 17 of the RTI Act.[67] Giving rise to the disclosure factor at schedule 4, part 2, item 11 of the RTI Act.[68] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 (Willsford) at [16].[69] Willsford at [17]. [70] Submissions dated 9 May 2021.[71] As set out in Willsford.[72] Letter to the applicant dated 17 March 2021.[73] Section 228 of the Health Ombudsman Act 2013 (Qld).[74] Schedule 4, part 2, item 5 of the RTI Act.[75] Schedule 4, part 2, item 6 of the RTI Act.[76] External review application dated 11 February 2021 and submissions dated 9 May 2021.[77] Submissions dated 9 May 2021.[78] Section 10(2)(j) of the MH Act provides that a person must not be considered to have a mental illness merely because the person is or has been involved in a family conflict.[79] Schedule 4, part 4, section 6(1) of the RTI Act. [80] Schedule 4, part 3, item 3 of the RTI Act. [81] Paraphrasing the Australian Law Reform Commission’s definition of the concept of privacy in ‘For your information: Australian Privacy Law and Practice’, Australian Law Reform Commission Report No. 108 (Volume 1), released 30 May 2008.[82] This has been previously found to be the case in matters relating to the medical records of deceased family members: see Summers and Cairns District Health Service; Hintz (Third Party) [1997] QICmr 5; (1997) 3 QAR 479; Keogh and Department of Health (Unreported, Queensland Information Commissioner, 31 August 2010). It was also on this basis that MSHHS agreed to disclose some limited further information to the applicant on 14 June 2021.[83] Schedule 4, part 3, item 16 and schedule 4, part 4, section 8(1) of the RTI Act. [84] B7TG4G at [35]-[37]; VA6Q6J at [39]-[40].[85] B7TG4G at [36]; VA6Q6J at [39].[86] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. [87] As a delegate of the Information Commissioner, under section 139 of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Campbell and University of Southern Queensland [1995] QICmr 16; (1995) 2 QAR 605 (26 May 1995)

Campbell and University of Southern Queensland [1995] QICmr 16; (1995) 2 QAR 605 (26 May 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 209 of 1993COMMISSIONER (QLD) ) S 210 of 1993 (Decision No. 95016) Participants: S 209 of 1993 WILLIAM D CAMPBELL Applicant - and - UNIVERSITY OF SOUTHERN QUEENSLAND Respondent S 210 of 1993 WILLIAM D CAMPBELL Applicant - and - DEPARTMENT OF EDUCATION Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - applicant challenging sufficiency of search by respondents for documents falling within the terms of his FOI access applications - whether reasonable grounds exist for believing that either respondent has possession or control of other documents not dealt with in their responses to the applicant's FOI access applications - whether search efforts by the respondents have been reasonable in all the circumstances.Freedom of Information Act 1992 Qld s.7Cannon and Australian Quality Egg Farms Limited, Re (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported)Shepherd and Department of Housing, Local Government & Planning, Re (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported)Smith and Administrative Services Department , Re [1993] QICmr 3; (1993) 1 QAR 22 DECISION1. In respect of application for review No. S 209 of 1993, I am satisfied that the respondent has located and dealt with the documents in its possession or control which fall within the terms of the applicant's FOI access application, and I affirm the decision under review.2. In respect of application for review No. S 210 of 1993, I am satisfied that the respondent has located and dealt with the documents in its possession or control which fall within the terms of the applicant's FOI access application, and I affirm the decision under review.Date of Decision: 26 May 1995............................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS PageBackground 1 The applicant's FOI access application to the University 2 The applicant's FOI access application to the Department 2"Sufficiency of search" issues 3The external review process 4 Application to review the University's decision 4 Application to review the Department's decision 4Applicant's Submissions 5Agency responses 6 University's response 6 Department's response 7Findings on sufficiency of search issues 8General observations on agency responses to applicants 10 in potential "sufficiency of search' casesConclusion 11OFFICE OF THE INFORMATION ) S 209 of 1993COMMISSIONER (QLD) ) S 210 of 1993 (Decision No. 95016) Participants: S 209 of 1993 WILLIAM D CAMPBELL Applicant - and - UNIVERSITY OF SOUTHERN QUEENSLAND Respondent S 210 of 1993 WILLIAM D CAMPBELL Applicant - and - DEPARTMENT OF EDUCATION Respondent REASONS FOR DECISIONBackground1. The applicant complains that each respondent has failed to locate and deal with all documents falling within the terms of his respective FOI access applications, in which the applicant sought access to documents held by the University of Southern Queensland (the University) and the Department of Education (the Department) in relation to a course of study he undertook at the former Darling Downs Institute of Advanced Education (the DDIAE) in the early 1980's. A number of documents were supplied to the applicant by each agency, but the applicant claims that each agency holds further documents to which it is required to grant access under the Freedom of Information Act 1992 Qld (the FOI Act). Each agency claims that it holds no further documents which fall within the scope of the respective FOI access applications. The issues which remain to be determined in these external reviews, therefore, relate solely to the sufficiency of search conducted by the two agencies in relation to Mr Campbell's FOI access applications.2. At the time Mr Campbell undertook the Associate Diploma of Mathematics and Computing course (the ADMC course), the DDIAE was one of a number of institutes providing tertiary education in Queensland under the auspices of the Board of Advanced Education (the BAE), a body which was in turn subject to the supervision of the Department. More recently, these institutes have been transformed into universities (either directly or through an intermediate stage as university colleges) and the BAE, having lost its supervisory role, has been dissolved. The University has taken over the functions of the DDIAE and retains records which were once in the possession of the DDIAE. On dissolution of the BAE, its records became the responsibility of the Department. The applicant's FOI access application to the University3. By a letter dated 10 July 1993, the applicant sought access to numerous documents from the University. In that part of his FOI access application which is still in issue, Mr Campbell sought access to documents as follows: (E) I understand that with the DDIAE's semesterisation for 1981, three committees, the School Course Planning and Review Committee, the Academic Board and the Board of Advanced Education agreed that: (1) It wasn't wise to have UG3 [i.e. Associate Diploma] students enrolled in UG1 [i.e. Bachelor degree] units, and (2) The goals and material of the ADMC course hadn't altered significantly. I would like a copy of the committees' reports.4. The initial decision of the University was given by Ms A Winter, by letter dated 17 August 1993. In relation to part (E)(1) of Mr Campbell's FOI access application, Ms Winter stated that a search of various sections of the University had been conducted but that no documents responsive to that part of the FOI access application had been found. In relation to part (E)(2), Ms Winter stated that a search had located a document produced by the University's School of Applied Science and a document produced by the Academic Board, but that no document from the BAE had been located.5. By letter dated 14 September 1993, the applicant sought internal review of Ms Winter's decision. In his internal review decision dated 23 September 1993, Mr A Finch, University Registrar, listed the sections of the University which had been searched, and affirmed the initial decision that no further documents responsive to the FOI access application were held by the University. On 19 November 1993, Mr Campbell applied to the Information Commissioner for external review under Part 5 of the FOI Act.The applicant's FOI access application to the Department6. On the same day that he applied to the University, Mr Campbell made an application to the Department for access to a number of documents. In part (C) of that application, Mr Campbell sought access to documents in identical terms to those set out in paragraph 3 above. In the only other part of Mr Campbell's FOI access application to the Department which is still in issue, he sought documents as follows: (D) According to the BAE's "PROCEDURES FOR THE ACCREDITATION OF COURSES IN THE QUEENSLAND ADVANCED EDUCATION SYSTEM" the Board, as the accrediting authority for CAE courses in Queensland, is to determine when a major change takes place. I would like a copy of the BAE's report with respect to whether the changes to the ADMC course resulting from semesterisation were consistent with its criteria defining major changes.7. By letter dated 25 August 1993, Mr E M Spring gave the Department's initial decision, stating that a search of records in relation to the matter had failed to locate any relevant documents. Mr Campbell applied for internal review and, in a decision dated 28 September 1993, Mr P M Parsons, on behalf of the Department, stated that no documents had been found which were within the scope of parts (C) and (D) of Mr Campbell's FOI access application, and explained why he considered that no such documents were held by the Department. By letter dated 18 November 1993, Mr Campbell applied to the Information Commissioner for external review under Part 5 of the FOI Act."Sufficiency of search" issues8. As I indicated in paragraphs 12-61 of my decision in Re Smith and Administrative Services Department (Information Commissioner Qld, Decision No. 93003, 30 June 1993; now reported at [1993] QICmr 3; (1993) 1 QAR 22) and in paragraphs 14-15 of my decision in Re Cannon and Australian Quality Egg Farms Limited (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported), I have jurisdiction to conduct a review under Part 5 of the FOI Act where an applicant, who has applied to an agency for access to a document, complains that access to the document has been denied because of the agency's failure to locate and deal with the document in its response to the relevant FOI access application.9. As I explained in Re Shepherd and Department of Housing, Local Government & Planning (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported) it is my view that in an external review application involving "sufficiency of search" issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act), to which access has been requested. It is provided in s.7 of the FOI Act that: 7. In this Act - ... "document of an agency" or "document of the agency" means a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes - (a) a document to which the agency is entitled to access; and (b) a document in the possession or under the control of an officer of the agency in the officer's official capacity;10. In dealing with the basic issue referred to in the above paragraph, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.The external review processApplication to review the University's decision11. In support of his external review application, Mr Campbell provided me with a number of documents which he considered were relevant to the issues raised. Of particular relevance to that part of the FOI access application still in issue was a letter dated 10 July 1981 from Mr E G Siebuhr, Head of Program, Mathematics, in the School of Applied Science of the DDIAE.12. Mr Campbell had commenced the ADMC course at the DDIAE in 1980. In 1981, all courses at the DDIAE were changed from a term system to a semester system reflecting a change in the secondary school system and in other tertiary institutions throughout Queensland. In 1981, Mr Campbell wrote a letter to the Dean of the School expressing concern about a number of issues including the effect of semesterisation on his course. That letter was passed on to Mr Siebuhr for reply. In his letter dated 10 July 1981 in reply to the applicant, Mr Siebuhr made the following statement: When the changes were made to the ADMC as a result of the move to semesters, three successive committees - the School Course Planning and Review Committee, the Academic Board and the Board of Advanced Education - all saw the changes as minor modifications. They agreed that (a) the goals of the course and the material in it had not altered significantly, and (b) it is unwise to have UG3 students enrolled in UG1 units.13. On 25 July 1994, a member of my staff held a conference with Mr Campbell to clarify the nature of his application for review, at which Mr Campbell asserted that Mr Siebuhr's letter suggested that there should be written documents recording the decisions of each of the committees referred to in Mr Siebuhr's letter. After that conference, a number of past and present University staff, including Mr Siebuhr, were interviewed.14. Subsequent to those interviews, I communicated my preliminary views to Mr Campbell in relation to the sufficiency of search issues raised by his application for review, and provided him with the opportunity to make a submission to me in the event that he did not agree with my preliminary views. Mr Campbell accepted my preliminary views in relation to the greater part of his FOI access application, but stated that he could not accept my views in relation to that part of his FOI access application set out in paragraph 3 above, and provided a submission in that regard.Application to review the Department's decision15. In like manner, a conference was held with Mr Campbell to clarify the nature of his application for review of the Department's decision, and his claims that further documents exist or should exist. Mr Campbell indicated that he only wished to pursue sufficiency of search issues with regard to parts (C) and (D) of his FOI access application (see paragraph 6 above).16. At my request, the Department provided a written response dated 30 September 1994 in which it set out further information in relation to the searches it had carried out for all relevant documents, and the likelihood that it held any other relevant documents.17. I then wrote to Mr Campbell providing him with a copy of the Department's response and informing him of my preliminary views. I invited him, should he not agree with my preliminary views, to provide a written submission. The applicant did so by letter dated 4 October 1994.Applicant's Submissions18. It is clear from the applicant's submissions that his main concern is to obtain copies of any documents which show that the BAE considered the impact of semesterisation on the ADMC course, or to obtain confirmation that it did not. At the relevant time, institutes of advanced education were required to obtain approval from the BAE for new courses which they proposed to offer and also for "major" changes to courses. Mr Campbell clearly considers that semesterisation brought about a major change in his course, which should have been referred to the BAE. This is contradicted by the passage from Mr Siebuhr's letter (see paragraph 12 above) which indicates that the BAE saw the changes as minor modifications.19. The bulk of Mr Campbell's submissions, in relation to his application for review of the University's decision, were aimed at establishing that documents should exist which show that the BAE had considered whether the changes to the ADMC course represented a major change. In summary, Mr Campbell's submissions on this point were as follows: ? BAE procedures required that all major changes to a course be considered by the BAE. ? The DDIAE was well aware of the requirements of the BAE because they had been drawn to its attention in a number of cases preceding the semesterisation of the course. ? The changes which were implemented at the time of semesterisation represented a major change to the ADMC course because: . electives were to be eliminated from the course which was restructured to provide compulsory units only . most unit number codes were changed, a step which DDIAE regulations only required to be undertaken if the objectives of a unit were significantly altered . a document relating to the changes consequent on semesterisation prepared by the School of Applied Science described the elimination of electives as a "major" change . there were a number of new units including units from the degree course which were incorporated into the ADMC for the first time . there was a shift in emphasis of the course to commercial computing by incorporation of subjects from the Bachelor of Business Studies degree and a resultant change in course objectives and content. ? A proposal for changes to the course put forward in 1986 showed that a reversion to inclusion of electives within the course structure was considered by the Academic Board as a "major" change worthy of referral to the BAE.20. Mr Campbell's submissions were weakened to some extent by statements that he made in both his application for external review of the University's decision and his final submission to me. After setting out in his external review application the reasons why he believed documents within the scope of his initial application should exist, Mr Campbell went on to state: Even the BAE's comment that "The Board cannot be held responsible for opinions attributed to it and expressed in letters from staff of colleges of advanced education", and the OHE's [Office of Higher Education's] Policy Co-ordinator's belief that there was no BAE committee report of the kind requested by me, tends to suggest that no such documentation ever existed and hence no such evaluation occurred.21. In his final submission, Mr Campbell stated: ... It's my further conclusion, based on the available documents, that the BAE never made the evaluations attributed to it by Mr Siebuhr and hence these opinions were the personal opinion of Mr Siebuhr which weren't consistent with DDIAE documents. With respect to your preliminary view regarding documents to this specific area of requested documents, I find it strange that there are no documents referring to the BAE's evaluation of the ADMC course given that the other documents exist. Whilst I don't dispute your preliminary view regarding the reasonable grounds for believing the documents don't exist, I find I cannot accept it because of the assortment of documents enclosed and the inconsistency between Mr Siebuhr's initial statement and the DDIAE's document. I conclude that if the BAE made the comments that were attributed to it by Mr Siebuhr, then it is reasonable for me to expect documents exist, hence I would like those documents. However, if the view expressed by Mr Siebuhr was his personal opinion and the BAE made no assessment of the ADMC course structure as suggested by Mr Siebuhr, then no documents ever existed.22. In relation to his application for review of the Department's decision, Mr Campbell raised similar arguments as to the likely existence of documents falling within the scope of his FOI access application.Agency responsesUniversity's response23. As noted above, a member of my staff interviewed Mr Siebuhr in relation to his letter of 10 July 1981 and the likelihood that documents that fall within the scope of Part (E) of Mr Campbell's FOI access application to the University were ever created or still exist. Mr Siebuhr noted that the letter referred to the committees agreeing to the matters identified in Part (E) of Mr Campbell's FOI access application, but that it did not indicate whether the agreement was recorded in minutes of various committee meetings or simply discussed at meetings. Mr Siebuhr advised that the School Course Planning and Review Committee discussed matters informally and did not keep any minutes of meetings, but that the Academic Board did keep minutes. Mr Siebuhr stated that he could not recall any written submission being forwarded to the BAE in relation to semesterisation. He said that the BAE's eventual acceptance of the changes is reflected in the fact that, to his knowledge, the course had been re-accredited subsequently by the BAE. Mr Siebuhr indicated that he has retired from the University and has not retained copies of submissions or correspondence from the BAE in relation to the ADMC course. Mr Siebuhr also indicated that he moved office on three occasions between 1981 and his retirement, and that each time he moved office he conducted a cull of documents which he considered were no longer required.24. The position of the University is that no submission was made to the BAE for accreditation of changes to the ADMC course due to semesterisation. The School of Applied Science's submission in relation to the changes states that the course objectives had not changed and that the School had restructured its programs to account for semesterisation, and had taken advantage of the opportunity to incorporate minor changes to its programs in order to improve their effectiveness. The University has located and provided the applicant with a copy of the Academic Board minute which approved the proposed revision and semesterisation of the ADMC course. The University has indicated that semesterisation was an Institute-wide (and indeed a State-wide) move which involved all of its courses. In the special circumstances surrounding semesterisation of all courses, it did not consider it necessary to submit each course for re-accreditation to the BAE solely because of semesterisation.Department's response25. The Department first sought to establish that it was not reasonable to believe that any document falling within the scope of Parts (C) and (D) of Mr Campbell's FOI access application to the Department had ever been held by it. It secondly argued that even if such a document had existed and been held by it, it would not now be a document of the agency in terms of s.7 of the FOI Act. 26. In his internal review decision, Mr Parsons stated: The Co-ordinator of Policy in the OHE believes that [there is] no "report with respect to whether changes to the ADMC course resulting from semesterisation were consistent with its criteria defining major changes". The Co-ordinator of Policy further advises that "as semesterisation was institute-wide, all courses would have been subject to that change. To require review of all courses on the grounds that this was a major change would have been an unreasonable demand on resources. In any case the Board would not have considered this to be a major change requiring re-accreditation because essentially it had to deal with timing and timetabling of the course, not the nature of the content, or expected student effort. It is more than likely that the institution would have been allowed extensions of time to complete accreditation documentation then such an arrangement may well have been arrived at by telephone." The Board expected institutions would make some changes to content and structure of courses to maintain relevance and did not consider these major.27. In its response of 30 September 1994, the Department set out at some length the circumstances surrounding the dissolution of the BAE and the disposal of its records. The Department indicated that the BAE was dissolved on 31 December 1989 and that, in the main, its staff transferred to the Office of Higher Education. This involved, among other things, relocation to Education House and the making of decisions in relation to handling and storing of the BAE records, in consultation with officers of the State Archives.28. The outcome of this process was that certain BAE records including office files, minutes of meetings and agenda papers for meetings (other than submissions for the accreditation of courses) have been retained by the Department.29. A decision was taken that it was not necessary for the Department to retain copies of individual submissions for the accreditation of courses as it was believed that all institutions had, to that stage, kept copies of those submissions for their own purposes and the collection of submissions over two decades posed a huge storage problem. Institutions were given an opportunity to take back copies of submissions. Some institutions took this opportunity but others indicated that they already held a complete set for their own records (it is not clear whether the University took back copies of submissions in this manner). Documents which were not reclaimed by a particular institution were destroyed.30. The Department also stated that its records showed that details of the ADMC course had been submitted for accreditation or re-accreditation on four occasions. The first submission was made in 1977 when the course was accredited for introduction in 1978. The second submission was made in 1979 when it was proposed that the course be offered by external studies. The course was then routinely re-accredited in 1983 and 1988.Findings on sufficiency of search issues31. In accordance with my comments at paragraphs 9-10 above, I must consider whether there are reasonable grounds to believe that the requested documents exist, and are documents of the respective respondent agencies. It appears that the original basis for Mr Campbell's assertion that relevant documents must exist is the passage quoted above (see paragraph 12) from Mr Siebuhr's letter dated 10 July 1981. As Mr Siebuhr explained when interviewed by a member of my staff, the letter does not state that the attitude of the BAE is recorded in a document. It is possible that such information was communicated informally by an officer of the BAE, or that general discussions had been held on whether it was necessary to submit every course administered by the DDIAE to the BAE for re-accreditation due to semesterisation. It is even possible that Mr Siebuhr was wrong when he claimed that the changes had been considered by the BAE. Any of these explanations would accord with the proposition that no written record exists.32. Mr Campbell has put forward substantial arguments as to why changes like those made to the ADMC course should have been regarded as "major" changes and therefore referable to the BAE. My reading of the documents created by the BAE in relation to its procedures suggests that it would have been relatively easy for reasonable minds to differ as to what constituted a "major" change. At the relevant time, the BAE Procedures for Submitting a Proposal for the Review of a Course provided: Major changes include adding any new strand to a course or offering it in a different mode such as by external study. Any large-scale restructuring of a course or any significant shift in or addition to its emphasis would also be considered as a major change. Should there be doubt whether any change may be considered as major, college authorities should seek advice from the Board before detailed plans for proposed modifications are prepared.33. Mr Campbell clearly believes that the changes proposed were major. However, an examination of the School of Applied Science's submission to the Academic Board suggests that this was not the view of the Associate Dean who prepared the submission. It is worth setting out parts of the first page of that submission to give an indication of the School's approach to the changes: Following the decision in 1979 by the Queensland Education Department that state schools would operate on a semester system in 1981, the Darling Downs Institute decided to adopt a similar academic structure, also to take effect in 1981. The School of Applied Science has accordingly restructured its programmes, and has taken advantage of this opportunity to incorporate minor changes to the programmes in order to improve their effectiveness. Attached is the proposed new course structure for the Associate Diploma in Mathematics and Computing The course objectives have not changed, neither has the content of the core units. Apart from a restructuring of these core units into a semester format, the major change is the elimination of electives. In fact, many of the proposed electives were not being selected by students, so that the new course contains the units which most students would have chosen anyway. The elimination of electives enables the School to concentrate its resources in the areas of greatest student demand. ... Notwithstanding the above we submit that the Associate Diploma in Mathematics and Computing is substantially the same course, with minor improvements, and ask that its accreditation be continued.34. Mr Campbell highlighted the use of the word "major" in the second last paragraph quoted above. However, my reading of that word in the context of the document suggests that it was not used in the sense that it necessitated reference to the BAE. It rather suggests that the most significant change is the elimination of electives. In that sense, the elimination of electives is drawn to the attention of Academic Board members as the most important of a number of minor changes.35. Mr Campbell also drew attention to a proposal for change to the course put forward in 1986, involving introduction of electives, which the Academic Board considered should be presented to the BAE. The proposal, which was for the introduction of a new strand to the course, did not proceed to the stage of submission to the BAE. This proposal is in my view distinguishable from the 1981 changes as it involved a new strand, a change specifically noted in the BAE procedures as a "major" change.36. However, even if this proposal could be equated to the changes proposed for semesterisation, the fact that it was considered "major" in 1986 does not mean that the University must have held the same view in 1981. The clear indication is that, at the time of semesterisation, the School of Applied Science did not consider the changes to be so major as to warrant reference to the BAE.37. It serves little purpose to speculate further on whether or not the changes should have been regarded as major by the DDIAE. The submission to the Academic Board suggests clearly that the changes were regarded as minor, and the endorsement of the changes recorded in the Academic Board minute of 23 July 1980 does not suggest that the Academic Board considered the changes to be anything other than minor. A finding that the DDIAE was correct or incorrect in this view would do nothing to further my investigation of the questions I referred to in paragraph 10 above.38. I should note that both the University and the Department have conducted extensive searches for any documents which might fall within the scope of Mr Campbell's respective FOI access applications. 39. In Mr Finch's internal review decision dated 23 September 1993, he indicated the following areas of the University had been searched in relation to Mr Campbell's FOI access application:? records held in what is now the Faculty of Sciences;? student administration data base;? student files;? central records holdings;? Council and Academic Board minutes and meeting papers, 1979-1983 inclusive;? Council correspondence for the period 1976 to 1987.40. I am informed that, while the searches undertaken were not without difficulties because of past record keeping practices within the DDIAE, they were extensive. For example, the search of the Council correspondence for the period 1976 to 1987 took approximately 12 hours to complete. 41. The Department has indicated that it undertook searches both within the Office of Higher Education and the Minister's office. From my perusal of the Department's Freedom of Information file, it appears that searches undertaken in the Office of Higher Education were of approximately 12 hours duration, while searches in the Minister's office were undertaken for approximately 75 minutes.42. Emphasis in the foregoing discussion has been placed on considering issues in relation to part (E)(2) of Mr Campbell's FOI access application to the University, its equivalent, part (C)(2), in the FOI access application to the Department, and part (D) of the FOI access application to the Department. This approach has been adopted because Mr Campbell's submissions have focussed on those parts of his FOI access applications.43. Parts (E)(1) and (C)(1) of his respective FOI access applications, however, requested access to documents of a different, although related, nature. They sought access to reports from various committees showing that the committees agreed that it was not wise to have UG3 (associate diploma) students enrolled in UG1 (bachelor degree) units. Mr Campbell has already been granted access to a number of documents which deal generally with the differences between UG1 and UG3 courses.44. Apart from relying on the terms of Mr Siebuhr's letter, Mr Campbell has put forward no further submission which would suggest that it is reasonable to believe that either agency holds undisclosed documents which fall within these parts of his respective FOI access applications. 45. I do not consider that Mr Siebuhr's letter affords reasonable grounds for belief that there exist further documents responsive to parts (E)(1) and (C)(1) of Mr Campbell's respective FOI access applications. I note that the searches referred to above included searches for any such documents.46. In all the circumstances, I find that, in relation to each application, there are no reasonable grounds to believe that the requested documents ever existed. In addition, in relation to Mr Campbell's application for review of the Department's decision, I find that even if an accreditation submission had been provided to it in relation to semesterisation of the ADMC course, there are no reasonable grounds to believe that it would still hold a copy of such a document. I further find that the searches conducted by each agency have been reasonable in all the circumstances of the case.General observations on agency responses to applicants in potential "sufficiency of search" cases47. I wish to address a general issue as to the way in which agencies report to applicants on the extent and outcome of their searches to locate documents requested in an FOI access application. The inclusion of these comments in this decision should not be taken as a reflection on the methods of the University or the Department. It is a reflection of the fact that "sufficiency of search" cases, involving several agencies, have been consuming a disproportionate amount of time for myself and my staff.48. I have now considered numerous applications for external review in relation to "sufficiency of search" issues. In a number of cases, I have noted that reports of the searches undertaken by agencies, given in reasons statements accompanying initial and internal review decisions, are very brief, even where many hours of searching have been expended in an effort to find all documents falling within the terms of an FOI access application. In some cases, on being given a more detailed explanation of the amount of searching that has been undertaken and the effort to which the agency has gone to locate relevant documents, the applicant has been willing to reduce the number of issues involved in an external review application, or to withdraw the application completely.49. Some applicants, understandably, become frustrated or disbelieving, when a response to an FOI access application merely states that documents which they believe to exist have not been found, or that an "extensive search" has been undertaken but that no documents have been found. I recommend that where agencies are aware that there is, or may be, a sufficiency of search issue in a particular case, they should give more detailed explanations of the method of search which has been adopted, and the amount of time which has been put into searching for the requested documents. If an agency has grounds for believing that a requested document does not exist, or is not in its possession or control, it should explain those grounds to the applicant.50. Consistently with the obligations imposed on agencies by s.34(2) of the FOI Act, I consider such information to be essential for the purpose of giving an applicant a reasonable basis on which to decide whether to challenge the adequacy of the search conducted for a requested document which has not been located and dealt with by the agency. A written statement of searches conducted, time spent and methodology adopted, would prove a useful record, not only for applicants, but also agencies, and, if an external review does eventuate, the Information Commissioner. In many cases, it may well prove useful to supplement such an approach by a telephone call or meeting with the applicant during the initial processing of an FOI access application, or upon receipt of an application for internal review which raises a "sufficiency of search" issue. 51. The adoption of these recommendations may lead to a greater level of acceptance by applicants that an agency has acted reasonably despite the failure to locate requested documents. Moreover, if an applicant has evidence which objectively tends to show that an agency does, or should, have possession or control of a requested document, the applicant may be encouraged to offer that evidence during consultation in the course of processing an FOI access application, or in support of an application for internal review, rather than produce it for the first time when requested to do so by the Information Commissioner on external review.Conclusion52. For the reasons given above, I am satisfied, in respect of each application for review, that each respondent has located and dealt with all documents in its possession or control which fall within the terms of the applicant's respective FOI access applications, and I affirm the decisions under review.F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

McEniery and Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349 (28 February 1994)

McEniery and Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349 (28 February 1994) Last Updated: 26 February 2001 OFFICE OF THE INFORMATION ) S 82 of 1993COMMISSIONER (QLD) ) (Decision No. 94002) Participants: DR P T McENIERY Applicant - and - THE MEDICAL BOARD OF QUEENSLAND Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - matter that would identify the author of a letter of complaint forwarded to the respondent concerning certain activities of the applicant - whether exempt matter under s.42(1)(b) of the Freedom of Information Act 1992 Qld - explanation of the requirements of s.42(1)(b) of the Freedom of Information Act 1992 Qld - explanation of the meaning of the phrase "confidential source of information, in relation to the enforcement or administration of the law".Freedom of Information Act 1992 Qld s.42(1)(a), s.42(1)(b), s.42(5), s.44(1), s.46(1)(a), s.46(1)(b), s.52, s.81Medical Act 1939 Qld s.35(vii), s.37, s.37AMedical Board of Queensland Advertising By-laws 1990Freedom of Information Act 1982 Cth s.37(1)(b)Freedom of Information Act 1982 Vic s.31(1)(a), s.31(1)(c)Criminal Justice Act 1989 Qld s.137National Health Act 1953 CthCriminal Code QldPolice Service Administration Act 1990 Qld s.10.21 Accident Compensation Commission v Croom [1991] VicRp 72; [1991] 2 VR 322Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 66 ALJR 271Anderson and Department of Special Minister of State (No. 2), Re [1986] AATA 79; (1986) 11 ALN N239Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596"B" and Brisbane North Regional Health Authority, Re (Information Commissioner Qld, Decision No. 94001, 31 January 1994, unreported)Barnes and the Commissioner for Corporate Affairs, Re (1985) 1 VAR 16Cain & Ors v Glass & Ors (No. 2) [1985] 3 NSWLR 230Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111Coleman and Director-General, Local Government Department, Pentland, Re (1985) 1 VAR 9 - ii -Croom and Accident Compensation Commission, Re (1989) 3 VAR 441D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171Department of Health v Jephcott [1985] FCA 370; (1985) 62 ALR 421Edelsten and Australian Federal Police, Re [1985] AATA 350; (1985) 9 ALN N65G v Day [1982] 1 NSWLR 24Kioa v West [1985] HCA 81; (1985) 60 ALJR 113Lander and Australian Taxation Office, Re (1985) 17 ATR 173Letts and Director-General of Social Security, Re (1984) 6 ALN N176Liddell and Department of Social Security, Re (1989) 20 ALD 259McKenzie v Secretary to Department of Social Security (1986) 65 ALR 645Mr & Mrs AD and Department of Territories (Cth AAT, Deputy President A N Hall, No. A85/75, 6 December 1985, unreported)R v Lewes Justices; ex parte Secretary of State for the Home Department [1973] AC 388Richardson and Commissioner for Corporate Affairs, Re (1987) 2 VAR 51Signorotto v Nicholson [1982] VicRp 40; [1982] VR 413Simons and Victorian Egg Marketing Board (No. 1), Re (1985) 1 VAR 54Sinclair and Secretary, Department of Social Security, Re (1985) 9 ALN N127Sobh v Police Force of Victoria [1994] VicRp 2; (1993) 65 A Crim R 466Stewart and Department of Transport, Re (Information Commissioner Qld, Decision No. 93006, 9 December 1993, unreported)Sullivan and Department of Social Security, Re (1989) 20 ALD 251Sutcliffe and Victoria Police (No. 1), Re (1989) 3 VAR 306 DECISIONThe matter in issue is exempt matter under s.42(1)(b) of the Freedom of Information Act 1992 Qld, and accordingly the decision under review is affirmed.Date of Decision: 28 February 1994...........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS PageBackground 1The Review Process 2Exempting a person's identity from disclosure under the FOI Act 5Analysis of s.42(1)(b) 5 What constitutes a confidential source of information? 7 Examining the relevant circumstances to find an implied understanding that the identity of a source of information is to remain confidential 10 Express agreement that the identity of a source of information is to remain confidential 13 The requirement that information relate to the enforcement or administration of the law 13 The meaning of "could reasonably be expected to" 18Application of s.42(1)(b) to the present case 18Sources who supply false information 21Other possible bases for exemption 23Conclusion 24OFFICE OF THE INFORMATION ) S 82 of 1993COMMISSIONER (QLD) ) (Decision No. 94002) Participants: DR P T McENIERY Applicant - and - THE MEDICAL BOARD OF QUEENSLAND Respondent REASONS FOR DECISIONBackground1. The applicant is a staff cardiologist employed in a Queensland public hospital. The applicant seeks review of the respondent's decision to deny him access to information which would identify the person who in 1992 asked the respondent to investigate whether the applicant was guilty of "misconduct in a professional respect" under s.35(vii) of the Medical Act 1939 Qld on the basis that certain newspaper articles (concerning a treatment called coronary angioplasty performed by the applicant) constituted advertising by the applicant, with a view to the applicant's own gain, otherwise than in accordance with the Medical Board of Queensland Advertising By-laws 1990.2. The applicant provided the Medical Board with a satisfactory explanation as to the circumstances surrounding the publication of the newspaper articles, and no further action was taken by the Medical Board.3. Although cleared of the allegations that he may be guilty of "misconduct in a professional respect" in the manner contemplated by s.35(vii) of the Medical Act, the applicant remained aggrieved that the allegations had been made at all. By letter dated 27 February 1993, the applicant sought access under the Freedom of Information Act 1992 Qld (hereinafter referred to as the FOI Act or the Queensland FOI Act ) to copies of: "1. The original letter of complaint concerning the subject of coronary angioplasty; 2. The name of the person or persons making the complaint; and 3. The minutes and other records of the Board's discussions concerning this matter."4. The Medical Board's initial response was to give the applicant access to all documents responsive to the terms of his FOI access request, except the original letter of complaint which was claimed to be exempt under s.46(1)(b) of the FOI Act. The applicant applied under s.52 of the FOI Act for internal review, which was undertaken by Dr Diana Lange, the President of the Medical Board of Queensland (the Board). Dr Lange decided on 28 April 1993 to refuse access to the original handwritten letter of complaint (again relying on s.46(1)(b) of the FOI Act), but to give the applicant access to a typed transcript of the contents of the letter of complaint, subject to the omission of any matter that might identify the author of the letter of complaint (e.g. name, address).5. By letter dated 4 May 1993, Dr McEniery applied for review by the Information Commissioner of Dr Lange's decision, making it clear that he wished to press for disclosure of the identity of the complainant.The Review Process6. Dr Lange's internal review decision letter had suggested that there was a possibility that a meeting between the complainant and Dr McEniery could be convened by a representative of the Australian Medical Association. Presumably this proposal would not have been raised if the complainant had not at one stage been prepared to consider shedding the cloak of confidentiality, and the review process was delayed in case this meeting should eventuate. I was subsequently informed by the respondent, however, that the complainant did not wish to participate in such a meeting, and did not otherwise wish to make her or his identity known to the applicant.7. During initial discussions with the respondent's legal officer concerning the review process, it was urged on behalf of the respondent that, although the respondent had to that date only invoked s.46(1)(b) of the FOI Act, it was open to me to find, and I should properly find, that the information withheld from the applicant was exempt matter under s.42(1)(b) of the FOI Act. Section 42(1)(b) provides as follows: "42.(1) Matter is exempt matter if its disclosure could reasonably be expected to - ... (b) enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained;"8. I wrote to the applicant on 8 June 1993 alerting him to the fact that, in addition to s.46, I would consider the applicability of s.42(1)(b) of the FOI Act. I also informed him in that regard that the relevant law in respect of the enforcement or administration of which the alleged confidential source supplied information, appeared to be the Medical Act 1939 (in particular s.35(vii) thereof) read in conjunction with the Medical Board of Queensland Advertising By-laws 1990. I also forwarded for the applicant's assistance a number of reported cases involving the interpretation and application of s.37(1)(b) of the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act) and of s.31(1)(c)the Freedom of Information Act 1982 Vic (the Victorian FOI Act) which correspond to s.42(1)(b) of the Queensland FOI Act. The applicant was invited to lodge a written submission in support of his case, which he did by letter dated 23 June 1993.9. While the applicant's written submission provided valuable material concerning the Board's investigation and the facts and circumstances which gave rise to the letter of complaint, it was to a large extent directed to showing that there was no reasonable basis for the lodging of the complaint, and that (as the applicant's submission said of the letter of complaint): "This vexatious letter was sent for no other reason but misdirected anger."It is no function of mine to make a judgment on that issue, though I have had regard to the applicant's submission to the extent that it is relevant to the issues I have to determine. The applicant's submission stated that "I have no 'legal arguments' to bring to this debate". His position can be summarised by quoting one sentence from the submission: "I therefore persist in my request to obtain the name of my complainant, as I believe it is the right of an accused to know who the accuser is."10. The respondent has the onus under s.81 of the FOI Act of establishing that its decision was justified, and in support of its case the respondent lodged an affidavit of Dr Diana Lange sworn on 23 November 1993. Dr Lange deposed to the following: "1. I am the President of the Medical Board of Queensland ("the Board") and have held this position since 31 October 1991. I am a member of the Board's Complaints Committee. 2. I am familiar with the Board's policies and procedures in relation to complaints made to the Board concerning medical practitioners. 3. The practice of the Board is to treat all complaints received concerning medical practitioners as confidential whether or not the complainant has specified that the information contained in the complaint has been given on a confidential basis. Whilst the Board does not generally give explicit guarantees of confidentiality to complainants, the Board considers that the obligation of confidence may be implied from the relationship that exists between the Board and the complainant and from the inherently confidential nature of the information contained in complaints. 4. Upon receipt of a letter of complaint concerning a medical practitioner, the Board's usual practice is to seek the complainant's consent to the Board forwarding a copy of the letter of complaint to the practitioner concerned. If such consent is given, the Board sends the complaint to the practitioner and requests that the practitioner provide a response concerning the matters complained of. If, following the receipt of the practitioner's response, the Board considers that further investigation is necessary, such investigation would normally involve one or more of the following steps: - interviewing the complainant and any relevant witnesses; - obtaining independent expert reports; - inspecting any relevant medical records; - referral of the complaint to a complaints investigation committee pursuant to section 37(3) of the Medical Act 1939 ("the Act") for investigation by way of an inquiry. 5. In respect of complaints dealing with matters other than advertising, the results of the investigation are referred to the Board's Complaints Committee which subsequently makes recommendations to the Board as to what action should be taken in respect of the complaint. Complaints dealing with matters concerning advertising are dealt with by the Board's Advertising Committee in like manner. 6. Where the complainant does not consent to the complaint being sent to the practitioner concerned, the Board may elect to inform the practitioner of the substance of the complaint if it considers that the practitioner can be given sufficient information to enable the practitioner to respond to the matters complained of. 7. Whilst the Board would not usually disclose the identity of a complainant without the complainant's consent, exceptional circumstances may arise where the subject matter of a complaint is such that the Board considers it necessary, in the interests of public health and safety, to summons the complainant (who may have requested that the complaint be dealt with confidentially) to give evidence in disciplinary proceedings taken by the Board against the practitioner concerned. This would inevitably result in the practitioner becoming aware of the complainant's identity. In such cases the Board would need to weigh the risk to public health and safety against its obligation to preserve confidentiality. 8. In relation to the complaint which is the subject of this external review, no explicit guarantees of confidentiality were sought by or given to the complainant. As Dr McEniery provided the Board with a satisfactory explanation as to the circumstances surrounding the publication of the newspaper articles which were the subject of the complaint, the Board took no further action. 9. The Board's primary function is to protect the public through the administration and enforcement of the provisions of the Act and its subordinate legislation. In order to perform this function, the Board relies on the receipt of information from the public concerning the unprofessional, improper, incompetent or unlawful practice of medicine. If such information was not treated confidentially by the Board but disclosed to third parties under the Freedom of Information Act 1992 ("the FOI Act"), members of the public would be deterred from giving information to the Board because of the risk of disclosure of their identity. This would prejudice the ability of the Board to effectively administer or enforce the provisions of the Act. 10. The complainant in this case provided information to the Board which required the Board to determine whether the relevant newspaper articles constitute 'misconduct in a professional respect' under section 35(vii) of the Act on the part of Dr McEniery or were in breach of the Medical Board of Queensland Advertising By-laws 1990. 11. If the identity of the complainant in this case is disclosed, the Board's ability to give guarantees of confidentiality to future complainants would be undermined. It is reasonable to expect that the complainant in this case would be unwilling to provide information to the Board in the future if such information is able to be disclosed to third parties under the FOI Act without the complainant's consent. Similarly, other persons who may in the future be in a position to supply information to the Board, may withhold that information if they become aware that the Board cannot give any guarantees of confidentiality."11. Dr Lange's affidavit was forwarded to the applicant, who was extended (by letter dated 25 November 1993) the opportunity to submit evidence or put a further submission in reply, but the offer was not taken up.Exempting a person's identity from disclosure under the FOI Act12. There are at least three possible bases on which a person's identity, or information which would enable a person to be identified, may be exempt from disclosure under the FOI Act. The first was adverted to in paragraph 81 of my reasons for decision in Re R K & C D Stewart and Department of Transport (Information Commissioner Qld, Decision No. 93006, 9 December 1993, unreported); i.e. the ground of exemption in s.44(1) of the FOI Act may permit deletion of names and other identifying particulars or references so as to render a document no longer invasive of personal privacy, thereby removing the basis for claiming exemption under s.44(1) over a wider field of the information contained in the document.13. The second was explained and applied in my reasons for decision in Re "B" and Brisbane North Regional Health Authority (Information Commissioner Qld, Decision No. 94001, 31 January 1994, unreported) at paragraph 137. The decision of Yeldham J in G v Day [1982] 1 NSWLR 24 was cited as authority for the proposition that although a person's identity is ordinarily not information which is confidential in quality, the connection of a person's identity with the imparting of confidential information can itself be secret information capable of protection in equity in an action for breach of confidence. Matter of that kind is therefore capable of being exempt matter under s.46(1) of the FOI Act, provided other relevant requirements for exemption are satisfied. In G v Day itself, the plaintiff imparted certain confidential information to a proper authority in circumstances where it must have been understood that the information imparted was likely to become public in the course of a public inquiry, but the court ordered that the plaintiff's identity as the provider of the information be protected from disclosure, even though the information itself had since entered the public domain.14. The third basis is s.42(1)(b), the terms of which are set out at paragraph 7 above. Section 42(1)(b) refers to a "confidential source of information" rather than a source of confidential information. Thus, while a confidential source can frequently be expected to supply confidential information (in the sense explained in Re "B" and Brisbane North Regional Health Authority at paragraph 71) it appears that it is not a necessary requirement to attract the application of s.42(1)(b) that the confidential source has supplied confidential information. This point is of consequence in the present case where the information supplied by the allegedly confidential source (hereinafter referred to as "the informant") was information in the public domain, namely newspaper articles which were forwarded to the respondent with a request that they be assessed by the respondent on the basis that they "could be construed as advertising on [the applicant's] behalf and to [the applicant's] benefit".15. If the information supplied by the confidential source need not be confidential information in order to satisfy s.42(1)(b), it must certainly be information which relates to the enforcement or administration of the law. This requirement is explained further below. The only law which could be relevant in the circumstances of this case comprises the provisions of the Medical Act (and the Medical Board of Queensland Advertising By-laws 1990 made thereunder) which are referred to above. Analysis of s.42(1)(b)16. Matter will be eligible for exemption under s.42(1)(b) of the FOI Act if the following requirements are satisfied:(a) there exists a confidential source of information;(b) the information which the confidential source has supplied (or is intended to supply) is in relation to the enforcement or administration of the law; and(c) disclosure of the matter in issue could reasonably be expected to - (i) enable the existence of the confidential source of information to be ascertained; or (ii) enable the identity of the confidential source of information to be ascertained.17. In relation to (c), some obvious points are worth making at the outset. In Re Croom and Accident Compensation Commission (1989) 3 VAR 441 at p.459, Jones J (President) of the Victorian Administrative Appeals Tribunal (the Victorian AAT) said of s.31(1)(c) of the Victorian FOI Act (which corresponds, though not precisely, to s.42(1)(b) of the Queensland FOI Act): "It is designed to protect the identity of the informer and has no application where that identity is known or can easily be ascertained independently of the document in question. ..." (See also Re Coleman and Director-General, Local Government Department, Pentland (1985) 1 VAR 9 at 13; Re Simons and Victorian Egg Marketing Board (No. 1) (1985) 1 VAR 54 at 58-59; Re Barnes and the Commissioner for Corporate Affairs (1985) 1 VAR 16 at 19-20.) Thus in Re Lander and Australian Taxation Office (1985) 17 ATR 173 the Commonwealth AAT held that in the circumstances of the case before it, information disclosed by the taxpayer's broker to the Australian Taxation Office in confidential discussions was not exempt pursuant to s.37(1)(b) of the Commonwealth FOI Act. The Tribunal said (at p.177): "The applicant clearly knows that there had been confidential discussions between the ATO and his own brokers (see para 11 of the document). It is not in our view possible to characterise a person employed by the applicant to conduct as his agent an aspect of his financial affairs, and who is interviewed by the ATO in relation to the applicant's affairs, as a 'confidential source' of the information in question. Nor for that matter would disclosure in the circumstances disclose, or enable the applicant to ascertain, the 'existence or identity' of B, his own broker and agent. Exemption is thus not conferred by s.37(1)(b)."18. The question of whether the identity of a source of information is confidential is to be judged as at the time the application of s.42(1)(b) is considered. Thus if the identity of a source of information was confidential when the information was first communicated to a government agency, but the confidentiality has since been lost or abandoned, the test for exemption under s.42(1)(b) will not be satisfied. (See Re Anderson and Department of Special Minister for State (No. 2), Commonwealth AAT, Deputy President Hall, No. N83/817, 21 March 1986, at p.36, paragraph 77; Re Chandra and Department of Immigration and Ethnic Affairs, Commonwealth AAT, Deputy President Hall, No V84/39, 5 October 1984, at p.21, paragraph 47).19. In the present case, the applicant does not know the identity of the person who forwarded the letter of complaint to the respondent, nor can the identity easily be ascertained independently of the identifying material which is the matter in issue in this case. Of course, it has already been disclosed to the applicant that a person forwarded a letter of complaint to the Board concerning the applicant, so that (c)(i) (from paragraph 16 above) is not applicable in the circumstances of this case. There will be situations, however, particularly in respect of police investigations, where (c)(i) is of particular significance, as remarked by Deputy President Hall of the Commonwealth AAT in Re Anderson and Department of Special Minister of State (No. 2) [1986] AATA 79; (1986) 11 ALN N239 at N247: "It is important to emphasise that the ground of exemption established by s.37(1)(b) [of the Commonwealth FOI Act] extends not only to documents that would disclose the identity of a confidential source of information, but also to documents that would disclose the existence of such a source. That aspect of s.37(1)(b) has particular relevance in the present case, where the revelation of the nature and extent of the intelligence gathered by the police and others may reveal the fact not otherwise known, that a confidential source has been providing information to government on a particular matter."What constitutes a "confidential source of information"?20. This issue was considered briefly by two judges of a Full Court of the Federal Court of Australia in Department of Health v Jephcott [1985] FCA 370; (1985) 62 ALR 421. Forster J said (at p.425): "All information given to the Department cannot be 'confidential information' or 'given in confidence' or come from a 'confidential source' so that the mere giving of information without more cannot make the giver a confidential source. What then is a 'confidential source'? I am content to accept the interpretation in Luzaich v United States (1977) 435 F Supp 31 at 35, 'a source is confidential if the information is provided under an express or implied pledge of confidentiality'. ... No doubt the main reason for protecting the identity of informants is to encourage them and others like them to give information, or at least not to discourage them from doing so, in order to assist the enforcement or the administration of the law."21. Keely J said (at p.426): "I ... accept ... that 'a confidential source of information' in s.37(1)(b) means a person who has supplied information on the understanding, express or implied, that his or her identity will remain confidential."22. I doubt that any essential difference was intended between the statements of Forster J and Keely J, but I consider that Keely J's statement is to be preferred as the more precise statement of the guiding principle. Keely J makes it clear that the relevant understanding relates to the informant's identity remaining confidential, whereas the wording of Forster J's preferred statement of principle leaves it unclear whether the "express or implied pledge of confidentiality" relates only to the information provided by the source, or to both the information provided and the identity of the source. Moreover, to the extent that Forster J's terminology might convey a suggestion that a unilateral pledge of confidentiality by the recipient of the information will satisfy the test for constituting a confidential source, such a suggestion would be wrong in principle (as explained below) and is inconsistent with Keely J's statement of principle which would require a common understanding, either express or implicit, on the part of both the provider of the information and the recipient, that the source was to be treated as confidential. Keely J's statement accords better with common sense, as there is no point in treating as a confidential source, a provider of information who has no wish to be treated as a confidential source. Thus, in Re Liddell and Department of Social Security (1989) 20 ALD 259 Deputy President Forgie of the Commonwealth AAT observed (at p.260): "The first issue is whether the information has come from a confidential source. There is nothing on the face of the document to indicate the name of the informer and there is no section or box to be completed with his or her name or to mark if he or she does not wish to give it or wish it to be recorded or revealed by the respondent. In this case, there is no evidence presented as to whether this particular informer wished to have his identity kept confidential. He may or may not have. There is Mr Harvey's affidavit evidence of the practice of the respondent that 'all information supplied by the public relating to alleged breaches of the Social Security Act be kept confidential'. Taking into account the nature of the information disclosed and all the matters referred to above, I am not satisfied that the information was given to the Department on a confidential basis. The policy of the respondent is one aspect of the factors to be taken into account and cannot in this case determine the issue by itself."23. Likewise, in Accident Compensation Commission v Croom [1991] VicRp 72; [1991] 2 VR 322, at p.329 (the passage is set out below at paragraph 25) a Full Court of the Supreme Court of Victoria held that witnesses to a workplace injury could not be regarded as confidential sources of information under s.31(1)(c) of the Victorian FOI Act, notwithstanding that they gave the information contained in their statements after being given a promise of confidentiality.24. In Re Croom and Accident Compensation Commission (1989) 3 VAR 441, the documents in issue were a medical report on the applicant who had been examined by a doctor on behalf of a workers' compensation insurer following an industrial injury, and an investigator's report concerning the industrial injury compiled from statements taken from three witnesses. The then President of the Victorian AAT, Jones J, said (at p.459): "What is at the heart of the exemption is the protection of the informer not the subject matter of the communication. The provision clearly does not apply to the medical report. The identity of the medical practitioner is known. What is sought is the subject matter of the communication from him to the Commission. The doctor is not a confidential source of information within the meaning of the provision. Nor do I think that the provision applies to the investigator's report. The witnesses who provided information to the investigator are not confidential sources of information in the relevant sense. As appears from the evidence, they were also employed by [the applicant's employer] in varying capacities -management, leading hand and fellow worker. In my view, it is likely that their identities, if not well known, could easily be ascertained independently of the investigator's report. Further, the statements did not result from an undertaking that they would be kept confidential and only provided on that basis. [The investigator] agreed that he did not assert that the witnesses would not have spoken to him unless they received an undertaking as to confidentiality. He could not guarantee the confidentiality of statements but would do his best to keep them confidential and told worker witnesses that whatever they said to him was confidential for the insurance company. The reality is that the people interviewed by [the investigator] were potential witnesses in a hearing in a court or before the Tribunal or body dealing with workers' compensation. In my view they would be likely to realise this and that notwithstanding the statements by [the investigator] about confidentiality, the information they provided might ultimately become public through some formal process. Indeed, that could easily occur through the tender of the report and proceedings before the [Accident Compensation Tribunal], which is a relatively common occurrence. In these circumstances I do not consider that the witnesses who provided information to the investigator are confidential sources of information within the meaning of s.31(1)(c)."25. On appeal to a Full Court of the Supreme Court of Victoria, the Tribunal's decision was upheld, O'Bryan J (with whom Vincent J agreed) observing (at p.329): "In relation to [s.31(1)(c) of the Victorian FOI Act] the critical words are 'confidential source of information'. Clearly, this paragraph has no application to the medical report because the author of the report is known to the respondent and Mr Uren conceded that his submission was confined to three witnesses' statements taken by [the investigator] in the course of his investigation. I am of the opinion that it was clearly open to the Tribunal to arrive at the finding that the evidence did not disclose that any witness provided information in confidence to [the investigator]. [The investigator] offered to maintain confidence in respect of information provided to him but was never informed by a person from whom he took a statement that the person wished his identity to be protected from disclosure. ... The plain meaning that one might ascribe to this paragraph is that it is concerned with protection of the 'informer' and not with the protection of a potential witness who would prefer not to be identified. Public interest has dictated for a long time the need to protect the true 'informer' but a reluctant witness has never attracted immunity at common law. For instance, the 'newspaper rule' which protects confidential sources of information must yield whenever the interests of justice override the public interest: cf. Herald and Weekly Times Ltd v Guide Dog Owners and Friends Association [1990] VicRp 40; [1990] VR 451 and British Steel Corporation v Granada Television Ltd [1981] AC 1096. Mr Uren submitted that to release the report would disclose the identities of 'confidential' sources of information. The sources were confidential because they gave the information contained in their statements after being given (or offered) a promise of confidentiality. In my opinion, the words 'confidential source of information' do not apply to a potential witness in a civil proceeding who would prefer to remain anonymous for the time being. A potential witness cannot clothe himself with secrecy in relation to the administration of the law unless he is able to invoke 'informer' immunity. Nor may an investigator confer upon a potential witness 'confidential' status until it is convenient to his principal to reveal the name of the witness."Examining the relevant circumstances to find an implied understanding that the identity of a source of information is to remain confidential26. I am conscious that premature disclosure under the FOI Act of the existence or identity of a source of information, whether confidential or not, could in some circumstances prejudice an investigation into a contravention or possible contravention of the law, but s.42(1)(a) of the FOI Act is available to meet such a situation. Section 42(1)(b) is confined to the protection from disclosure of the existence or identity of a confidential source of information, and I am here concerned with what circumstances, in the absence of express agreement, will justify a finding of an implied understanding that a particular source of information is a confidential source. Specific attention should be drawn to Jones J's observations in Re Croom to the effect that the three witnesses were likely to realise that the information they provided might ultimately become public through some formal process, that they were potential witnesses in a hearing and hence were not confidential sources of information in the relevant sense. If one is assessing the circumstances surrounding the imparting of information in order to determine whether there was an implicit mutual understanding that the identity of the person who supplied the information would remain confidential, a relevant (and frequently crucial) issue will be whether the provider and recipient of the information could reasonably have expected that the provider's identity would remain confidential given the procedures that must be undertaken if appropriate action is to be taken by the recipient, in respect of the information, for the purposes of the enforcement and administration of the law.27. The possible scenarios that can arise in the enforcement or administration of the law are many and varied, but some examples of common scenarios can be given. The most common situation in which a source of information and the agency receiving the information could reasonably expect that confidentiality could be preserved in respect of the identity of the source, is where the information provided can be independently verified by the agency's own investigators, or the source draws the agency's attention to the existence of physical or documentary evidence which speaks for itself (i.e. which does not require any direct evidence from the source to support it). Thus a person may inform the proper authority that a neighbour is illegally carrying on an unlicensed business from the neighbour's premises, and that investigators can observe this for themselves if they visit the premises at certain hours; or a source may alert the revenue authorities to precisely where they may discover the second set of accounting records which will establish that a business has been fraudulently understating its income. On the other hand a victim of wrongdoing who seeks redress from a proper authority cannot reasonably expect that action could be taken without the alleged wrongdoer being informed of the charge that a wrong has been committed against a particular victim. Likewise, if the prosecuting authorities are dependent on the eyewitness evidence of an informer to secure a conviction, then the informer must be produced to give evidence at the committal and trial, if the accused puts the prosecuting authority to proof of its case. By contrast, sources who assist police with intelligence gathering that ultimately bears the fruit of an arrest or conviction may never need to have their identity or existence revealed during the course of the investigative and prosecutorial process.28. The legal requirement that government agencies observe the rules of natural justice (now also commonly referred to as the requirements of procedural fairness, or the duty to act fairly) whenever they apply to an agency's activities, will also affect the question of whether the supplier of information to a government agency, and the agency itself, could reasonably expect the confidentiality of the supplier's identity to be preserved while taking appropriate action in respect of the information conveyed. In Kioa v West [1985] HCA 81; (1985) 60 ALJR 113 at 127, Mason J said: "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."Mason J had earlier explained (at p.126) that his reference to rights or interests "must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests". His Honour continued (at p.127): "... the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations ... ."His Honour referred to the need for a strong manifestation of contrary statutory intention to be apparent in order for the duty to act fairly to be excluded, and observed: "The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?"29. The breadth of application of these principles is illustrated by Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 66 ALJR 271 where the High Court held that the nature of the Criminal Justice Commission (established under the Criminal Justice Act 1989 Qld) and its powers, functions and responsibilities are such that, to the extent that the Criminal Justice Act does not itself provide, a duty of fairness is necessarily to be implied in all areas involving its functions and responsibilities. The High Court restated that a duty to observe procedural fairness arises (if at all) because the power being exercised by a government agency or official is one which may destroy, defeat or prejudice a person's rights, interests or legitimate expectations (see also Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598) and reaffirmed that the relevant interests which, when threatened with prejudice, will attract the duty of procedural fairness (in the absence of clear statutory indications to the contrary) include personal reputation and business or commercial reputation. The High Court held that these principles apply to the exercise of powers of inquiry and investigation.30. The duty to act fairly necessarily involves a flexible approach requiring a common sense judgment according to the circumstances of each particular case. When powers of inquiry and investigation are being exercised the duty to act fairly to the subject(s) of inquiry and investigation will not require the adoption of procedures that frustrate or unduly inhibit the attainment of the objects of the inquiry or investigation. In Ainsworth's case, the High Court said (at p.275): "Obviously, not every inquiry or investigation has to be conducted in a manner that ensures procedural fairness. On the other hand it does not follow that there was no duty of that kind simply because the Commission was engaged in an exercise of that kind."The High Court also affirmed (at p.276) that: "It is not in doubt that where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if 'the decision-making process, viewed in its entirety, entails procedural fairness'. (South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, per Mason CJ, at 389.)"Thus the stage at which the duty to act fairly requires that a person subject to inquiry or investigation be given the opportunity to know and to answer a case prejudicial to that person's rights, interests or legitimate expectations, may involve a question of appropriate timing. If the investigation process is a preliminary stage which will culminate in a formal opportunity for the subject of investigation to know and to answer any prejudicial case that is found to exist, then it is possible (always according to the circumstances of the particular case) that the duty to act fairly will not require that anything be disclosed to the subject of investigation, during the investigative stage. In an earlier High Court decision, National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 58 ALJR 308, three justices (Mason, Wilson and Dawson JJ) observed (at p.320) that: "It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry. Of course, there comes a time in the usual run of cases when the investigator will seek explanations from the suspect himself and for that purpose will disclose the information that appears to require some comment."31. What constitutes the observance of fair procedures will vary according to the exigencies of particular cases, but ordinarily the duty to act fairly requires that a person be given an effective opportunity to know the substance of the case against the person, including in particular the critical issues or factors on which the case is likely to turn (cf. Kioa per Mason J at p.128-9) so that the person is given an effective opportunity of dealing with the case against him or her.32. If a person can be given an effective opportunity to know the substance of the case against him or her, including the critical issues or factors, without revealing the identity of a source of information, then the source and the relevant government agency may reasonably expect that the confidentiality of the identity of the source is capable of being preserved. Where the substance of the case against a person is dependent on the direct observation and testimony of a source of information, or on the disclosure of the identity of a source of information as the person against whom a wrong is alleged to have been committed, then the source and the government agency could not reasonably expect that the source's identity could remain confidential, if appropriate action is to be taken on the information conveyed by the source, and it would be difficult to find (for the purposes of s.42(1)(b) of the FOI Act) an implicit common understanding that the source's identity would remain confidential.33. In appropriate circumstances, however, (e.g. in the case of an informer who may be exposed to a real threat of detriment) an implied understanding may be found to the effect that the identity of a source of information will be kept confidential unless and until it must be disclosed in accordance with the legal requirement to observe fair procedures. If, after investigation, the authorities decide not to pursue formal action on the information, or for some other reason it becomes unnecessary to disclose the source's identity (e.g. the alleged wrongdoer confesses to the authorities), then the source may be able to remain a "confidential source of information".34. The identity of a confidential source of information may pass through a chain of persons (for example, within different investigative agencies who exchange intelligence information) without losing its confidential status, provided the persons who receive it are obliged to respect the understanding of confidentiality. However, once the identity of a source of information is disclosed to a person who is not obliged to respect the understanding of confidentiality, in particular to the person informed against, then ordinarily, in my opinion, the source can no longer be described as a confidential source of information. On the other hand, if the source's identity has not actually passed into the public domain (e.g. through disclosure in open court) and has not been widely circulated by those who have obtained knowledge of it, it is arguable (by analogy with the principles discussed in Re "B" and Brisbane North Regional Health Authority at paragraph 71) that the source's identity could remain sufficiently secret or inaccessible for it still to qualify as a confidential source of information vis-à-vis an applicant for access under the FOI Act who does not know, and cannot without great difficulty ascertain, the identity of the source of information.Express agreement that the identity of a source of information is to remain confidential35. Where an express assurance has been sought by a source of information that his or her identity will remain confidential, and has been given, perhaps inappropriately, by or on behalf of a government agency, the agency would ordinarily be obliged to honour the express assurance given, even though it may mean that no effective action can be taken in respect of the information conveyed. If the agency wishes to take action on the information conveyed, it may have to negotiate with the source as to a more appropriate understanding, i.e. that the source's identity will be kept confidential unless and until it must be disclosed in accordance with the legal requirement to observe fair procedures. Sometimes an assurance of confidentiality will be given to a source in the hope that investigation of the information conveyed will allow the information to be verified by other means, thereby allowing appropriate action to be taken on the information. For the purposes of s.42(1)(b) the seeking by a source of information, and the giving by the relevant government agency, of an express assurance that the source's identity will remain secret, will ordinarily suffice to qualify the source as a "confidential source of information", at least until such time as the confidentiality of the source's identity is effectively lost or abandoned.The requirement that information relate to the enforcement or administration of the law36. This issue has received little attention in cases decided under s.37(1)(b) of the Commonwealth FOI Act. Many of the cases have involved information obtained by the Australian Federal Police for law enforcement purposes, which clearly falls squarely within the concept of information relating to the enforcement of the law. In Department of Health v Jephcott [1985] FCA 370; (1985) 62 ALR 421, it was accepted without comment that information questioning a person's entitlement to receipt of a domiciliary nursing care benefit under Part VB of the National Health Act 1953 Cth was information in relation to the enforcement or administration of the law. In a series of cases in the Commonwealth AAT, it has been accepted that information suggesting or alleging that a recipient of social security benefits did not satisfy the eligibility requirements to receive the benefit, was information relating to the enforcement or administration of the law (see for example Re Letts and Director-General of Social Security (1984) 6 ALN N176; Re Sinclair and Secretary, Department of Social Security (1985) 9 ALN N127; McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645; Re Sullivan and Department of Social Security (1989) 20 ALD 251; Re Liddell and Department of Social Security (1989) 20 ALD 259). In Re Mr & Mrs AD and Department of Territories (Commonwealth AAT, Deputy President Hall, No. A85/75, 6 December 1985, unreported) it was accepted that information in relation to the administration of the law of the Australian Capital Territory with respect to child welfare met the relevant part of the requirements of s.37(1)(b) of the Commonwealth FOI Act. And in Re Chandra and Minister for Immigration and Ethnic Affairs (Commonwealth AAT, Deputy President Hall, No. V84/39, 5 October 1984) it was held, for the purposes of applying s.37(1)(b) of the Commonwealth FOI Act, that investigations as to the whereabouts of a person believed to be a prohibited immigrant under the Migration Act 1958 Cth were related to the enforcement or administration of the law (at p.22, paragraph 41), as was the enforcement of a deportation order made under the Migration Act 1958 Cth (at p.39-40, paragraph 83).37. Some guidance can be obtained from Victorian decisions interpreting s.31(1)(a) of the Victorian FOI Act, which corresponds roughly with s.42(1)(a) of the Queensland FOI Act. Whereas s.42(1)(a) of the Queensland FOI Act refers to disclosure prejudicing "the investigation of a contravention or possible contravention of the law (including revenue law) in a particular case", s.31(1)(a) of the Victorian FOI Act refers to a disclosure prejudicing "the investigation of a breach or possible breach of the law or [prejudicing] the enforcement or proper administration of the law in a particular instance". The closing words of s.31(1)(a) of the Victorian FOI Act convey a similar concept, in a generally similar context, to the words "enforcement or administration of the law" where they appear in s.42(1)(b) of the Queensland FOI Act. In Re Croom and Accident Compensation Commission (1989) 3 VAR 441 Jones J (President) of the Victorian AAT made the following remarks as to the meaning of the words "the enforcement or proper administration of the law" in s.31(1)(a) of the Victorian FOI Act (at p.453-7): "It is helpful to briefly examine the legislative history. The FOI Act follows legislative initiatives elsewhere to change the common law and administrative tradition by providing for the disclosure of government information. In 1966 the Congress of the United States of America enacted a Freedom of Information Act. Following extensive investigations the Commonwealth Parliament enacted a Federal Freedom of Information Act in early 1982. The Victorian Act followed shortly thereafter and substantially mirrors the Federal FOI Act. The equivalent provision in the Federal FOI Act is s.37. Sections 31(1)(a) and (c) of the Victorian FOI Act closely resemble s.37(1)(a) and (b) of the Federal Act. Section 37 is based on the law enforcement provision in the United States Freedom of Information Act: Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978 para 20.2. Because of the similarity between the US provision and the Federal and Victorian provisions useful guidance is obtained from a consideration of the United States experience. This is summed up as follows by the Senate Standing Committee (para 20.2 and 20.3): 'Because of the similarity between the two provisions United States experience provides some guide as to the likely effectiveness of clause 27 (s.37 of the Federal FOI Act) in permitting maximum public access to requested records, consistent with the legitimate interests of law enforcement agencies. These agencies include not only those responsible for the detection and punishment of law violation through criminal prosecutions but also, as mentioned above, the prevention of law violation, and in addition, the enforcement of law through civil and regulatory proceedings. On the face of it, clause 27 would have application to the operations of the federal and territory law enforcement authorities (including the ACT police force and licensing, health standards and building safety inspectorates), security intelligence operations, personnel investigations within the public service, and the enforcement of legislation on a range of issues embracing trade practices, the environment, broadcasting, securities, customs, export and import controls, immigration, discrimination, labour relations, taxation and social security. United States experience of the operation of its law enforcement clause reflects the scope of the activities protected by the exemption as well as the public's interest in the conduct of those activities.' It needs to be borne in mind that the United States provision is confined to documents described as 'investigatory records compiled for law enforcement purposes'. The Federal and Victorian provisions are obviously broader. It is apparent that the Senate Committee envisaged a wide range of areas of the law being encompassed by the provision extending beyond the traditional areas of law enforcement. They contain an element of regulation of activities which has to be enforced and administered. ... A helpful commentary on the meaning of 'the administration of the law ... in a particular instance' as used in s.37(1)(a) of the Federal FOI Act is provided by Peter Bayne in his book Freedom of Information at 151 and 152: 'The concept of the "administration of the law ... in a particular instance" is more extensive than the concepts of "investigation" and "enforcement" and is not limited to activity which contemplates a particular proceeding concerning a (possible) past or (possible) future breach of the law. "Administration" would clearly embrace preventive activity ... but more generally could embrace activity which collects information in documentary form in order to monitor whether a particular person is complying with the law.' ... As the Senate Committee points out, s.31 embraces not only agencies involved in the detection, punishment and prevention of criminal law violations but also the enforcement of law through civil and regulatory action by agencies entrusted with that task. It is not confined to the criminal law but encompasses a broad range of areas of the law. The concept of administration of the law is a broad one. It is wider than the concepts of 'investigation' and 'enforcement' but its breadth is limited by the context. What is being addressed by the legislature is administration of the law as a further process to investigation of breaches of the law or the enforcement of the law. As Peter Bayne points out, administration in this context can embrace such functions as the collection of information to monitor compliance. I return to the position of the Commission and the Accident Compensation Act. I do not find the application of s.31(1)(a) and (c) to this situation an easy matter. The Act creates a wide range of rights and obligations. The Commission has the responsibility to determine whether claims for compensation should be paid or disputed. It has the responsibility to ensure that compensation is only paid to those who are entitled to it and to terminate payments when entitlement ceases. The Commission has a responsibility to ensure compliance with the Act and to take action where it is not being complied with. I do not think it can be said, as submitted by Mr Cavanough, that s.31(1)(a) and (c) cannot apply to the Accident Compensation Act. In my view 'investigation', 'enforcement' and 'administration' of the law in the relevant sense can, depending on the circumstances, encompass provisions of the Accident Compensation Act. The position, in my view, can be likened to the position under the Social Security Act. Rights to benefits are created by both Acts. In that sense they are beneficial legislation. They also impose obligations and penalties. A person is charged with the responsibility of ensuring that the rights and obligations are enforced and administered in accordance with the legislation. In the case of the Social Security Act the person responsible is the Director-General of Social Security. In the case of the Accident Compensation Act it is the Commission. In this case the information in dispute was obtained by the Commission for the purpose of determining the entitlement of the applicant to compensation under the Accident Compensation Act. As such, it related, in my view, to the proper administration of the law, namely the Accident Compensation Act." (Jones J went on to hold, at p.457-9, that no relevant prejudice to the proper administration of the law could be established in terms of s.31(1)(a) of the Victorian FOI Act.)38. In my opinion, this passage, although dealing with the words in a slightly different statutory context, correctly captures the sense of the words "enforcement or administration of the law" as used in s.42(1)(b) of the Queensland FOI Act, and in a way that accords with the decided cases in the Commonwealth AAT and the Federal Court of Australia under s.37(1)(b) of the Commonwealth FOI Act. 39. The waters were muddied, however, by some comments in the judgments of Young CJ and O'Bryan J, when the case went on appeal to a Full Court of the Supreme Court of Victoria: Accident Compensation Commission v Croom [1991] VicRp 72; [1991] 2 VR 322. O'Bryan J (with whom Vincent J agreed) expressed the view (at p.328) that: "A careful examination of all the paragraphs in s.31 indicates to me that for a document to fall within one of the exemptions it should have a connection with the criminal law or with the legal process of upholding or enforcing civil law."His Honour went on to say, however, that he was content to decide the question of law upon the more narrow basis that if s.37(1)(a) of the Victorian FOI Act is concerned with the proper administration of the Accident Compensation Act by the Accident Compensation Commission, the appellant had failed to show that disclosure of the relevant documents would prejudice the appellant in a relevant sense (thereby placing in doubt the status of the proposition quoted in the preceding passage). 40. Young CJ said (at p.324): "Exemption was claimed under the 'administration of the law' but in my opinion that phrase in the context is quite inapt to protect what the appellant here seeks to protect. Disclosure of the documents could not prejudice the proper administration of the law for they are in no way concerned with that administration. ... The administration of the law indicates something concerned with the process of the enforcement of legal rights or duties. I agree, with respect, in O'Bryan J's observation that to fall within s.31 a document should have a connection with the criminal law or with the process of upholding or enforcing civil law."41. The reference in these two passages to the requirement that documents have a connection with the criminal law leaves open a potentially wide sphere of operation when it is understood that the criminal law is not confined to breaches of the provisions of Queensland's Criminal Code but extends to any statutory provision which prescribes a penalty (i.e. a fine or term of imprisonment or both) for its contravention, of which there are literally thousands on the Queensland statute books. Indeed given the terms of s.42(5), which was obviously inserted with the object of protecting co-operative arrangements (including exchange of information) with law enforcement authorities of other jurisdictions, the relevant law is not confined to Queensland law. 42. These two passages from Croom's case are somewhat unhelpful, however, in that they fail to explore what is encompassed within the "process of upholding or enforcing civil law". O'Bryan J referred to the "legal process of upholding or enforcing civil law", but Young CJ dropped the reference to the word "legal". It is not at all clear whether their Honours were intending to confine the process of upholding or enforcing civil law to something that is done through the established courts. If so, it would represent a significant and, in my opinion, an unwarranted narrowing of the scope of the words "enforcement or administration of the law" as they have been understood and applied in the Commonwealth AAT and the Federal Court of Australia. Jones J was clearly cognisant of this line of authority in his decision at first instance. Despite Jones J's careful explanation of why the terms "investigation", "enforcement" and "administration" of the law in s.31(1)(a) of the Victorian FOI Act encompassed the Accident Compensation Commission's responsibility for ensuring that the rights and obligations conferred and imposed by the Accident Compensation Act 1985 Vic were enforced and administered in accordance with the legislation, Young CJ summarily asserted that disclosure of the documents in issue "could not prejudice the proper administration of the law for they are in no way concerned with the proper administration of the law". Similarly, O'Bryan J doubted (at p.328) that s.31 of the Victorian FOI Act was really concerned with documents of the type for which exemption was claimed. Neither Young CJ nor O'Bryan J referred to the cases mentioned in paragraph 36 above where it has been clearly accepted, not only in the Commonwealth AAT but in the Federal Court of Australia, that the interpretation of the words "enforcement or administration of the law" in s.37(1)(b) of the Commonwealth FOI Act extend to the responsibility of a government agency for ensuring that entitlements to statutory benefits are correctly enforced and administered in accordance with the relevant legislation. In McKenzie v Secretary to Department of Social Security (1986) 65 ALR 645, Muirhead J of the Federal Court of Australia dealt with an appeal from a decision of the Commonwealth AAT which held that details which would identify the author of a letter to the respondent which alleged that the applicant was ineligible for social security benefits she had been receiving, were exempt from disclosure under s.37(1)(b) of the Commonwealth FOI Act. Muirhead J said (at p.649) that three essential questions faced the Tribunal, the second of which was whether the letter was properly classified as relating to the enforcement or administration of the law. His Honour said: "As to (2) I can see no error in the Tribunal's approach. It stressed the duties and functions of the respondent under the Social Security Act ... There was adequate evidence to support the Tribunal's finding that 'the letter clearly relates to the administration of the law within the meaning of s.37(1)(b)'."I see no reason to doubt the correctness of McKenzie's case (or the other cases referred to in paragraph 36 above) on this particular issue.43. In Sobh v Police Force of Victoria [1994] VicRp 2; (1933) 65 A Crim R 466 at p.481, Nathan J sitting as a member of a Full Court of the Supreme Court of Victoria said of the words "the law" in s.31(1)(a) of the Victorian FOI Act: "As to what the law may be, there is no doubt it includes both the civil and criminal law of the State of Victoria, that law is expressed by statute, regulation and the case and common law."Statute law in particular is capable of being enforced and administered within government agencies, by means other than resort to the legal processes of the courts of law. To take a simple example, if an agency responsible for administering a scheme for the payment of statutory benefits receives information from a confidential source which indicates that a person is receiving benefits to which that person is not entitled under the relevant legislation, and the agency is satisfied following investigation that the person is not entitled to benefits, it may simply cease payment of the benefits to the person concerned. I could accept at face value Young CJ's statement to the effect that words like "enforcement or administration of the law" require a connection with the criminal law or with the process of upholding or enforcing civil law, with the proviso that the process of upholding or enforcing civil law can, in appropriate cases, (and the process of upholding or enforcing criminal law will almost invariably) commence with and involve action taken within government agencies. In the context of a provision like s.42(1)(b) of the Queensland FOI Act, the object of which is to protect from disclosure information in the possession of government agencies or Ministers which would disclose the existence or identity of a confidential source of information, this seems to me to be a logical interpretation.The meaning of "could reasonably be expected to"44. The phrase "could reasonably be expected to" in s.42(1) of the FOI Act bears the same meaning as it does in s.46(1)(b) of the FOI Act, and which was explained in Re "B" and Brisbane North Regional Health Authority at paragraphs 154-160. In the context of s.42(1)(b) of the FOI Act, it requires a judgment to be made by the decision-maker as to whether it is reasonable to expect that disclosure of particular matter in a document would enable the existence or identity of a confidential source of information to be ascertained. A mere risk that disclosure would enable existence or identity to be ascertained is not sufficient to satisfy the test imposed by these words. The words call for the decision-maker applying s.42(1) to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.45. In the present case, there is no doubt that disclosure of the matter in issue will enable the identity of the informant to be ascertained - the matter comprises such clearly identifying details as name and address. In other cases, the judgment required may be a more subtle and demanding one, such as whether the applicant for access under the FOI Act could deduce that only a certain person could have known and passed on to a government agency a particular item of information contained in a requested document.Application of s.42(1)(b) in the present case46. I consider that the information supplied to the respondent by the informant in this case was information relating to the enforcement or administration of the law. The Queensland Parliament has seen fit to pass legislation (the Medical Act 1939) to provide for the regulation in the public interest of the practice of medicine, including, inter alia, prescribing requirements for registration (and continued registration) as a medical practitioner, and prescribing examples of conduct on the part of a medical practitioner that will amount to "misconduct in a professional respect". In particular s.35(vii) of the Medical Act provides that a medical practitioner shall be guilty of "misconduct in a professional respect" if he or she, with a view to his or her own gain, advertises either directly or indirectly, or sanctions advertisements, otherwise than in accordance with the Medical Board of Queensland Advertising By-laws 1990.47. The relevant information provided to the respondent by the informant comprised the two newspaper articles briefly described in paragraph 1 above, together with the comment: "I understand Dr McEniery has the right to private practice at the Prince Charles Hospital". (If not for the fact that the applicant's contract of employment with the relevant government authority permitted him a limited right of private practice, it would not have been possible to suggest that the newspaper stories could have been given with a view to the applicant's own gain).48. Section 37 of the Medical Act provides that where the Board is of opinion that any medical practitioner is guilty of misconduct in a professional respect, it may proceed to have the medical practitioner charged accordingly before the Medical Assessment Tribunal (which by s.33 is to be constituted by a Supreme Court judge, and have the status of a superior court of record) in which case the Board shall have the conduct of the charge as prosecutor. Alternatively, where the misconduct is of a less serious nature, the Board may deal with the matter itself in accordance with s.37A of the Medical Act. In these circumstances, the information supplied by the informant clearly satisfies the requirement in s.42(1)(b) that it relate to "the enforcement or administration of the law". 49. Is the informant a person who has supplied information on the understanding, express or implied, that his or her identity will remain confidential? Paragraph 8 of Dr Lange's affidavit sworn on 23 November 1993 deposes to the fact that: "In relation to the complaint which is the subject of this external review, no explicit guarantees of confidentiality were sought by or given to the complainant." For reasons discussed below, this case is an example of one where an explicit guarantee of confidentiality could reasonably have been given, and was capable of being honoured. In its absence, however, the question becomes whether a mutual understanding that the informant's identity would remain confidential is implicit, having regard to all the relevant circumstances. Dr Lange has deposed (in paragraph 2 of her affidavit) that it is the practice of the Board to treat all complaints received concerning medical practitioners as confidential whether or not the complainant has specified that the information contained in a complaint has been given on a confidential basis. I suspect (for reasons explained in para 52 below) that this overstates the position, and that the very nature of the statutory functions which the Board is required to discharge makes it unlikely that all complaints concerning medical practitioners are capable of being treated as confidential. I am prepared to accept, however, that it is the practice of the Board, wherever it is practicable and consistent with the proper discharge of its functions, to treat complaints received concerning medical practitioners as confidential. Consistently with principles applied in Re Liddell and in Accident Compensation Commission v Croom (see paragraphs 22 and 23 above), this should be treated as a relevant factor, but not one that is necessarily conclusive of the issue.50. The determination of whether the relevant information was supplied by the informant and received by the respondent on the implicit understanding that the informant's identity would remain confidential (and hence whether the informant qualifies as a confidential source of information for the purposes of s.42(1)(b)) requires a careful evaluation of all the relevant circumstances including, inter alia, the nature of the information conveyed, the relationship of the informant to the person informed upon, whether the informant stands in a position analogous to that of an informer (cf. paragraph 25 above), whether it could reasonably have been understood by the informant and recipient that appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source, whether there is any real (as opposed to fanciful) risk that the informant may be subjected to harassment or other retributive action or could otherwise suffer detriment if the informant's identity were to be disclosed, and any indications of a desire on the part of the informant to keep his or her identity confidential (e.g. a failure or refusal to supply a name and/or address, cf. Re Sinclair, McKenzie's case, cited in paragraph 36 above).51. I consider that there is sufficient indication in the circumstances surrounding the imparting of information by the informant to the respondent to warrant the conclusion that the informant intended and expected that his or her identity would remain confidential, that the expectation was a reasonable one having regard to the procedures that the respondent would need to follow in order to take appropriate action in respect of the information supplied, and that the respondent was prepared to accept and act in accordance with the informant's expectation, so as to give rise to a common understanding that the informant's identity would remain confidential. The position of the informant in this case is analogous to that of an informer (cf. paragraph 25 above). That both the informant and the respondent expected and understood that the informant's identity was to remain confidential is confirmed by subsequent events, wherein it was discussed between the respondent and the informant whether the informant would be prepared to shed the cloak of confidentiality to participate in a chaperoned meeting with the applicant, and the informant considered but ultimately rejected that possibility. Of particular significance is the fact that the information supplied did not depend on the informant being willing and able to give testimony as to events which happened to the informant or were directly observed by the informant, in order for appropriate action to be taken in respect of the information supplied. The content of the newspaper articles spoke for itself, and the question of whether or not the applicant had a right to private practice (and therefore the potential, in theory at least, to gain from the publicity) was a factual matter which the respondent could easily verify upon inquiry of the applicant or the applicant's employer. No further involvement was required of the informant, even if the matter had proved serious enough to warrant prosecution through to a formal hearing before the Medical Assessment Tribunal. (If an express assurance had been sought by the informant to the effect that the informant's identity would remain strictly confidential, the Board would have been able to give such an assurance, and honour it, in these circumstances. I mention this by way of observation only, and not as a reason for the finding I have made).52. I should have thought that it would more frequently be the case that complaints to the Board would relate to the conduct of a medical practitioner towards a particular patient or patients, and would be based (at least in part) on evidence that was dependent on direct observations made by particular patients, or perhaps by their relatives or friends, or by other medical staff. If the medical practitioner is to be given a fair opportunity to answer the complaint, sufficient particulars of the substance of the complaint must be provided, and this would ordinarily necessitate the disclosure of the identity of the patient(s) concerned, or of other sources who directly observed the conduct complained of. In such cases, it may not be possible to say that a complainant could have a reasonable expectation that his or her identity would remain confidential, if appropriate action is to be taken by the Board on the information conveyed.53. If the complainant insists upon confidentiality, the Board may be left in the position of not being able to act upon the complaint, unless it can obtain evidence from other sources upon which to proceed. Such situations are adverted to in the affidavit of Dr Lange at paragraphs 6 and 7. In paragraph 7, Dr Lange states that in exceptional circumstances, where the Board considers it necessary in the interests of public health and safety, the Board would be prepared to summons a complainant to give evidence on oath in proceedings against a medical practitioner, notwithstanding the complainant's expressed desire to have his or her identity kept secret. This may constitute an example of a compelling public interest warranting the overriding of a private interest in the maintenance of confidentiality.54. Whenever the application of s.42(1) is being considered, regard must also be paid to s.42(2) which provides that matter is not exempt under s.42(1) if certain criteria are met. None of the criteria in s.42(2) are applicable to the matter in issue in the present case. 55. For the reasons given above, I am satisfied that the matter in issue in this case is exempt matter under s.42(1)(b) of the FOI Act because its disclosure could reasonably be expected to enable the identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained. Sources who supply false information56. In his written submission, the applicant stated that he believed it is the right of an accused to know who the accuser is. While the application of the rules of natural justice (see paragraphs 28 to 31 above) will frequently produce this result, the common law of England and Australia does not recognise any unqualified principle to the effect of the broadly stated one invoked by the applicant.57. In particular, in R v Lewes Justices; ex parte Secretary of State for the Home Department [1973] AC 388, Lord Simon said (at p.407-8): "Sources of police information are a judicially recognised class of evidence excluded on the ground of public policy unless their production is required to establish innocence in a criminal trial."58.. In that case, that principle was extended to persons from whom the Gaming Board received information for the purposes of the exercise of its statutory functions under the Gaming Act 1968 UK. In D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, the same principle was extended to the relationship between the respondent Society and ordinary persons volunteering information and voluntarily lodging complaints with the Society. The House of Lords held that the principle applied to prevent the plaintiff obtaining the identity of a person who had lodged with the Society a wholly false report concerning the plaintiff's alleged cruelty to her baby daughter. Lord Diplock said (at p.218-9): "The public interest which the NSPCC relies on as obliging it to withhold from the respondent and from the court itself material that could disclose the identity of the Society's informant is analogous to the public interest that is protected by the well-established rule of law that the identity of police informers may not be disclosed in a civil action, whether by the process of discovery or by oral evidence at the trial. The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should not be withheld from that tribunal. By the uniform practice of the Judges, which by the time of Marks v Beyfus [1890] 25 QBD 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where, upon the trial of a defendant for a criminal offence, disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case and in that case only the balance falls upon the side of disclosure."59. These principles have been accepted and applied in Australia: see Cain & Ors v Glass & Ors (No. 2) [1985] 3 NSWLR 230, especially per McHugh JA at p.347. In Signorotto v Nicholson [1982] VicRp 40; [1982] VR 413, Fullagar J of the Supreme Court of Victoria said (at p.422): "The fact that the House of Lords did not hesitate to extend the police informer rule to Gaming Board informants and NSPCC informants shows that it applies to all analogous situations ... ."60. The courts have recognised that the application of this principle can lead to a perceived sense of injustice, of the kind expressed by the applicant in this case, or indeed can lead to an actual injustice. In D v National Society for the Prevention of Cruelty to Children, Lord Edmund-Davies at p.242 quoted an article by Professor Hanbury ('Equality and Privilege in English Law' (1952) 68 LQR 173, 181) as follows: "Few situations in life are more calculated to arouse resentment in a person than to be told that he has been traduced but cannot be confronted with his traducer."61. In the same case, Lord Simon said (at p.233): "I cannot leave this particular class of relevant evidence withheld from the court without noting, in view of an argument for the respondent, that the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested, or even demented police informant, as much as one who brings information from a high-minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused, the balance of public advantage lies in generally respecting it."62. Arguably, the public policy considerations underlying this rule of law are insufficiently sensitive to the plight of a person who is falsely accused by a person able to hide behind a shield of anonymity, and the rule of law is insufficiently flexible to provide a more sensitive balance to the competing public interests that need to be adjusted in such situations. To be falsely accused can occasion very real trauma for the accused person and his or her family, financial loss (through unnecessary expenditure on legal representation, or time lost from a business or employment) plus general stress, anxiety and inconvenience. The public interest in ensuring the free flow of information to investigative and regulatory authorities may well require that this unfortunate consequence must be tolerated where an informer honestly but mistakenly believes that information concerning a person requires investigation by the relevant authorities. Does the appropriate balance of public interest, however, really require that the informer who knowingly supplies false information should be permitted to hide behind the shield of anonymity? Not only does such conduct have severe and unwarranted consequences for the person improperly informed against, but it occasions a waste of scarce public resources when they are devoted by the police or the relevant regulatory authority to an unnecessary investigation. There is a trend in recent legislation to make provision for such a situation, see for example s.10.21 of the Police Service Administration Act 1990 Qld concerning false complaints made to the police, and s.137 of the Criminal Justice Act 1989 Qld concerning false complaints made to the Criminal Justice Commission. Both provisions make it an offence to knowingly make a false complaint or supply false information. Likewise, the Electoral and Administrative Review Commission's 1991 Report on Protection for Whistleblowers (Serial No. 91/R4) recommended that it should be a criminal offence to make a disclosure to a proper authority, knowing it to be false or misleading (see paragraph 9.103 to 9.109 of the EARC Report and clause 65 of its recommended Whistleblowers Protection Bill). I consider this trend to be more in conformity with current community standards. While in respect of complaints made to the Queensland Police Service and the Criminal Justice Commission, the aforementioned statutory provisions afford a deterrent, and a means of seeking some redress for a person who has been subjected to a false complaint known by the informer to be false, there remain many areas of enforcement or administration of the law where an informer may make a false complaint almost with impunity, and a person falsely and unjustly accused has little choice but to accept the situation and the lack of redress. 63. I should add that there can be no suggestion in the present case that the informant has knowingly supplied false information concerning the applicant nor indeed that the informant has mistakenly supplied incorrect information. The informant merely supplied the two newspaper articles as published, and drew attention to the likelihood that the applicant had a limited right of private practice, which was correct. The informant then merely asked the Board to assess this information against the relevant provisions of the Medical Act. The informant would doubtless argue that she or he was doing no more than s.37(2) of the Medical Act expressly permits: "(2) Any person aggrieved by any alleged misconduct in a professional respect of a medical practitioner (including a specialist) may make a complaint to the Board with respect thereto."The applicant would put a different complexion on the informant's conduct, as indicated in paragraph 9 above. 64. It is clear, however, that s.42(1)(b) and s.42(2) presently admit of no exceptions for situations of the kind just discussed. There is no countervailing public interest test incorporated within s.42(1), of the kind which is incorporated within s.44(1), s.46(1)(b) and several other exemption provisions in the FOI Act. It has been accepted by Muirhead J of the Federal Court of Australia in McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645 and by the Victorian AAT in Re Richardson and Commissioner for Corporate Affairs (1987) 2 VAR 51 at p.52-53 that the Commonwealth and Victorian equivalents of s.42(1)(b) of the Queensland FOI Act are not concerned with whether the confidential source of information supplies information which is false or erroneous. In Re Sutcliffe and Victoria Police (No. 1) (1989) 3 VAR 306, the Victorian AAT recognised that in some instances, a malicious person who gave false information to an agency could be protected at the expense of an innocent person. Other possible bases for exemption65. In paragraphs 12 and 13 above, I indicated that there are at least two other possible bases on which a person's identity, or information which would enable a person to be identified, may be exempt from disclosure under the FOI Act. Having found that s.42(1)(b) applies, I do not propose to consider whether the matter in issue is also exempt under other exemption provisions. On the facts of this case, the application of those other exemption provisions would raise some difficulties in any event. It is noted in paragraph 13 above that a person's identity is ordinarily not information which is confidential in quality, but the connection of a person's identity with the imparting of confidential information can itself be secret information capable of protection in equity in an action for breach of confidence (and presumably can also be "information of a confidential nature" for the purposes of s.46(1)(b) of the FOI Act). In the present case, the information imparted by the informant was not information of a confidential nature, but information in the public domain. Whether the connection of a person's identity with the imparting of non-confidential information is capable of being categorised as confidential information for the purposes of the application of s.46(1)(a) and (b) is a difficult issue, best left for consideration in a case where its resolution is essential.66. In respect of s.44(1), the argument would be that the fact that the informant made the complaint to the Board is a personal affair of the informant (cf. the passage from Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111 at p.123 per Heerey J, which is set out in my decision in Re Stewart at paragraph 39). Although the material conveyed in the letter of complaint could not be characterised as information concerning the informant's, or indeed any person's, personal affairs (it is properly to be characterised as information concerning the applicant's professional affairs, and has in fact been released to the applicant) the deletion of material which would identify the informant could be argued to be justified in order to prevent the disclosure of matter that is prima facie exempt, i.e. the personal affair of the informant comprising the fact that it was the informant who made the complaint to the Board. If this argument succeeded in establishing a prima facie case for exemption, it would be necessary to consider the application of the countervailing public interest test incorporated within s.44(1).67. I do not propose to consider the application of s.44(1), which was not relied on by the respondent, and not addressed in evidence or submissions from either participant, but my foregoing comments illustrate its potential application in a comparable situation.Conclusion68. For the reasons given at paragraphs 46 to 55 above, the matter in issue is exempt matter under s.42(1)(b) of the FOI Act, and I affirm the decision under review...........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

O46 and Queensland Police Service [2019] QICmr 60 (18 December 2019)

O46 and Queensland Police Service [2019] QICmr 60 (18 December 2019) Last Updated: 6 February 2020 Decision and Reasons for Decision Citation: O46 and Queensland Police Service [2019] QICmr 60 (18 December 2019) Application Number: 314646 Applicant: O46 Respondent: Queensland Police Service Decision Date: 18 December 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - UNLOCATABLE OR NONEXISTENT DOCUMENTS - applicant contends that CCTV footage and audio recordings should exist - whether agency has taken all reasonable steps to locate the relevant recordings - whether access may be refused on the basis the documents do not exist - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) to access CCTV footage, audio recordings and other information about their attendance at two police stations on 18 August 2018. QPS refused access[2] to the requested information on the basis that it had been disposed of in accordance with the Queensland Police Service Retention and Disposal Policy (Policy). The applicant applied[3] to the Office of the Information Commissioner (OIC) for external review. During the review, QPS conducted further searches and enquiries, which located some of the requested information.[4] However, these further searches and enquiries did not locate the requested CCTV footage and audio recordings (Missing Documents). The applicant continues to seeks access to the Missing Documents. For the reasons set out below, I affirm QPS’s decision and refuse access to any further information on the basis it does not exist or cannot be located. Background Significant procedural steps relating to the external review are set out in the Appendix. Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). The decision under review is QPS’s decision dated 22 May 2019. Issues for determination The issue for determination is whether access to the Missing Documents may be refused on the basis they are nonexistent or unlocatable. The applicant provided a number of submissions to OIC.[5] I have carefully reviewed those submissions and taken into account the parts of those submissions which are relevant to the issues for determination. The applicant also asked the Information Commissioner to investigate why the Missing Documents no longer exist or cannot be located by QPS[6] and raised concerns which fall outside the scope of this review (for example, relating to other external reviews involving the applicant).[7] Although the functions of the Information Commissioner on external review include investigating and reviewing whether an agency has taken reasonable steps to identify and locate documents,[8] the Information Commissioner has no jurisdiction to undertake the type of investigations requested by the applicant.[9] I have therefore addressed the applicant’s submissions to the extent they are relevant to the issue under consideration, which is whether access may be refused to the Missing Documents on the basis that they do not exist or cannot be located. Relevant law The IP Act provides individuals with a right to be given access to documents of a Queensland government agency, to the extent they contain the individual’s personal information.[10] This right is, however, subject to some limitations, including the grounds on which access to information may be refused.[11] One such ground of refusal is where a document is nonexistent or unlocatable.[12] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[13] To be satisfied of this, an agency must rely on their particular knowledge and experience and have regard to key factors, including: the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities the agency’s practices and procedures; and other factors reasonably inferred from information supplied by the applicant, including the nature and age of the requested documents, and the nature of the government activity to which the request relates.[14] If searches are relied on to justify a finding that documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case, depending on which of the key factors are most relevant in the particular circumstances. A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but it cannot be found.[15] Determining whether a document exists, but is unlocatable, requires consideration of whether there are reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency’s possession; and whether the agency has taken all reasonable steps to find the document. In answering these questions, regard should be had to the circumstances of the case and the relevant key factors.[16] Findings The applicant contends that that the Missing Documents exist because they were required to be preserved under the Public Records Act 2002 (Qld) and the Policy. More specifically, the applicant submits that: ‘the charge relating to that cctv footage has yet to go before the court and as there is a statement that relates DIRECTLY TO THAT FOOTAGE, again it is required to exist’[17] a request for the Missing Documents was made by the applicant’s representative within the retention period set out in the Policy[18] a statement provided by a particular police officer references a notation of the applicant’s actions in a custody report;[19] and although CCTV footage may only be stored at a particular police station for a short period of time ‘it is then required BY LAW to be migrated top [sic] another server where it is to be retained for the remainder of the 6 months’.[20] On external review, QPS relied on searches conducted by its officers to justify its position that reasonable steps have been taken to locate documents responsive to the application and provided information about its recordkeeping system and searches. QPS submitted[21] that the record keeping systems at each identified police station were searched by its officers and enquiries were made of the Officer in Charge at each police station about the Missing Documents. In respect of the requested CCTV footage, QPS has explained that: one police station has the capacity to retain CCTV footage for a period of 50 days and when the request from the applicant’s lawyer was made for that footage, the requested CCTV footage had already been deleted or taped over; and CCTV footage at the other police station is stored for a six-month period and, notwithstanding the request from the applicant’s representative was sent to Police Prosecutions within the six month period, by the time the request was forwarded internally to the Officer in Charge of the relevant police station, the requested CCTV footage had been deleted or taped over. Given the nature of the Missing Documents and the steps taken by QPS to identify them, I consider that QPS officers have conducted comprehensive searches of locations where it would be reasonable to expect the Missing Documents to be stored. Having reviewed the search records provided by QPS, I am also satisfied that enquiries have been made of staff with working knowledge of each station’s record keeping systems. I understand the applicant is disappointed that the CCTV footage was not retained, despite a request having been made to Police Prosecutions within what he understood to be the applicable document retention periods. However, there is no evidence before me to suggest that any further searches or steps can be taken by QPS to locate the Missing Documents. Although the statement and custody report notation referred to by the applicant (which are not before me) may relate to the applicant’s actions on the relevant date, I do not consider that this reasonably leads to a conclusion that the requested CCTV footage still exists. I also acknowledge the applicant’s contention that the CCTV footage should have been retained, given ongoing legal proceedings. However, this submission does not impact upon my finding that the Missing Documents are, on the evidence before me, nonexistent or unlocatable. In view of the above, I am satisfied that: QPS has taken reasonable steps to locate documents relevant to the access application; and access to the Missing Documents may be refused on the basis they do not exist, or cannot be located.[22] DECISION I affirm QPS’s decision to refuse access to the Missing Documents on the basis that they no longer exist or cannot be located. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. S MartinAssistant Information Commissioner Date: 18 December 2019 APPENDIX Significant procedural steps Date Event 4 June 2019 OIC received the application for external review. 26 June 2019 OIC received submissions from the applicant. 8 July 2019 OIC notified the applicant and QPS that the application for external review had been accepted and requested further information from the applicant and QPS. 9 July 2019 OIC received further submissions from the applicant. 10 July 2019 OIC received further submissions from the applicant. 25 July 2019 OIC received the requested information from QPS. 16 August 2019 OIC requested further information from QPS. 20 August 2019 OIC received the requested information from QPS. 29 August 2019 OIC requested further information from QPS. 25 September 2019 OIC received the requested information from QPS. 14 October 2019 OIC conveyed a preliminary view to the applicant. 14 and 15 October 2019 OIC received the applicant’s further submissions. 24 October 2019 OIC confirmed the preliminary view to the applicant and received further submissions from the applicant. [1] Access application dated 17 April 2019. [2] QPS decision dated 22 May 2019. [3] External review application dated 4 June 2019. [4] Being the names of QPS officers who would have interacted with the applicant on 18 August 2018. [5] As set out in the Appendix. [6] Submissions dated 24 October 2019. [7] Applicant’s submissions of 15 October 2019 suggest that QPS did not comply with its legal obligations in relation to information retention and migration between servers. This is not an issue that can be investigated within the Information Commissioner’s external review jurisdiction as explained to the applicant in OIC’s letter to him dated 14 October 2019.[8] Section 137(2) of the IP Act. [9] The applicant was advised of this on 14 and 24 October 2019. [10] Section 40 of the IP Act. [11] The grounds are set out in section 47 of the Right to Information Act 2009 (Qld) (RTI Act). Section 67(1) of the IP Act provides that access may be refused to information in the same way and to the same extent as information may be refused under the RTI Act. [12] Sections 47(3)(e) and 52(1) of the RTI Act. [13] Section 52(1)(a) of the RTI Act. [14] See Lester and Department of Justice and Attorney-General [2017] QICmr 17 (16 May 2017) at [11] and Van Veendendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) at [23], which adopt the Information Commissioner’s comments in PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) at [37]-[38]. PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld). Section 52 of the RTI Act is drafted in substantially the same terms as the provision considered in PDE and, therefore, the Information Commissioner’s findings in PDE are relevant. [15] Section 52(1)(b) of the RTI Act. [16] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [21]. See also, F60XCX and Office of the Queensland Parliamentary Counsel [2016] QICmr 42 (13 October 2016) at [84] and [87], and Underwood and Minister for Housing and Public Works [2015] QICmr 27 (29 September 2015) at [33]-[34] and [49].[17] Submissions dated 14 October 2019. [18] On 9 July 2019, the applicant provided a copy of an email dated 13 February 2019, from the applicant’s legal representative to ‘[email protected]’, requesting information which included the Missing Documents. [19] Submissions dated 9 and 10 July 2019. In submissions dated 9 July 2019, the applicant described the statement as being ‘dated in December’ and relating to the applicant’s actions on the relevant date. The applicant did not provide a copy of any officer statement or custody report notation to OIC during the review.[20] Submissions dated 15 October 2019. [21] Submissions dated 25 July 2019 and 25 September 2019. [22] Under 67(1) of the IP Act and section 47(3)(e) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

F96 and Queensland Health [2023] QICmr 36 (24 July 2023)

F96 and Queensland Health [2023] QICmr 36 (24 July 2023) Last Updated: 21 September 2023 Decision and Reasons for Decision Citation: F96 and Queensland Health [2023] QICmr 36 (24 July 2023) Application Number: 316903 Applicant: F96 Respondent: Queensland Health Decision Date: 24 July 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - NONEXISTENT OR UNLOCATABLE DOCUMENTS - request for access to documents relating to 13 HEALTH and 134 268 telephone calls - whether agency has conducted reasonable searches - whether access to documents may be refused on the basis documents are nonexistent or usnlocatable - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to ‘Queensland Health – 13 Health’ under the Information Privacy Act 2009 (Qld) (IP Act) for access to ‘my whole file’ and recordings of two telephone calls.[2] Queensland Health located three pages and one audio file (which was a recording of one of the telephone calls[3]) and decided[4] to release them in their entirety. Otherwise, Queensland Health advised the applicant that, while it had undertaken searches ‘for any and all calls made to 13 Health and 134 COVID (134 268) for the 11th of September 2021’, it had not located any further records associated with the applicant’s mobile telephone number.[5] The applicant then applied to the Office of the Information Commissioner (OIC) for external review of Queensland Health’s decision,[6] submitting that Queensland Health had not located certain documents, including recordings of her telephone call on 11 September 2021. For the reasons set out below, I affirm Queensland Health’s decision and find that documents relating to the applicant’s telephone call on 11 September 2021 are nonexistent or unlocatable within Queensland Health. Background During the external review, the information remaining in issue was narrowed to documents relating to the applicant’s telephone call on 11 September 2021.[7] The applicant provided OIC with an extract from her mobile telephone billing records showing a call to 134 268 on this date at the specified time. The applicant’s position is that:[8] I most certainly did make the call and here is the extract from my Vaccine Injury Timeline 11th September I called the Covid help line again at ... after more burning, pain in my kidney, pain in the lymph node under my arm and no sleep, I called to ask how much longer this would go on, hoping to at least get an end date if there was ever going to be one. She said Phenergan was wrong, it is a dirty antihistamine, and she did not know why Dr ... gave me that, she said to go to him and ask for a referral to see an immunologist. Reviewable decision The decision under review is the decision made by Queensland Heath dated 30 August 2022. Evidence considered Significant procedural steps in this external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching this decision are set out in these reasons (including the footnotes and the Appendix). During the external review the applicant made submissions to OIC which raise issues that are beyond OIC’s external review jurisdiction as they go to the applicant’s dissatisfaction with Queensland Health, including in relation to its record-keeping practices. The applicant has been advised of the limits of OIC’s jurisdiction, including that OIC cannot investigate complaints about the conduct of agencies. I have considered the applicant’s submissions to the extent they are relevant to the issue for determination in this review in the context of the information remaining in issue. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[9] I consider a decision-maker will be ‘respecting, and acting compatibly with’ that right, and others prescribed in the HR Act, when applying the law prescribed in the IP Act and the Right to Information Act 2009 (Qld) (RTI Act).[10] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between similar pieces of Victorian legislation[11] that ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[12] Information in issue The information remaining in issue is any documents, including any recordings, relating to the applicant’s telephone call on 11 September 2021 (Information in Issue). Issue for determination The issue for determination is whether Queensland Health may refuse access to the Information in Issue on the ground that it is nonexistent or unlocatable. Relevant law Under the IP Act, an individual has a right to be given access to documents[13] to the extent they contain the individual’s personal information.[14] When an applicant applies to an agency,[15] the right of access applies to documents of that agency. A document is a document of an agency if it is a document in the possession, or under the control, of the agency.[16] This right of access is subject to the provisions of the IP Act and the RTI Act.[17] Relevantly, an agency may refuse access to a document on the ground that it is nonexistent or unlocatable.[18] A document will be nonexistent if there are reasonable grounds to be satisfied that it does not exist.[19] To be satisfied that a document does not exist, the Information Commissioner has previously recognised that an agency must rely on its particular knowledge and experience and have regard to a number of key factors.[20] An agency may also rely on searches to satisfy itself that a document does not exist. In those cases, all reasonable steps must be taken to locate the document. A document will be unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find it, but it cannot be found.[21] Findings During the external review, the applicant made several submissions to OIC, and provided an extract from her mobile telephone billing records showing a call to 134 268 on 11 September 2021 at the specified time. The applicant stated that:[22] ... I was put through to a registered nurse at 13 Health. She confirmed my address and phone number before giving the advice ... I believe that because they automatically know who I am, from my phone number when I call, that it would all be on the same file. Both calls were to the same number and followed the same process. Queensland Health also made a number of submissions to OIC, which stated that:[23] all telephone calls of the nature described by the applicant were first received by Smart Service Queensland (SSQ), within the Department of Communities, Housing and Digital Economy (CHDE) given the apparent duration of the applicant’s telephone call,[24] it is unlikely that the call would have progressed beyond the initial discussion with SSQ to Queensland Health documents relating to telephone calls with SSQ only are held by CHDE and Queensland Health does not have possession or control of such documents in response to the access application, Queensland Health made some enquiries with CHDE about whether SSQ could locate the applicant’s telephone call on 11 September 2021, however, these enquiries relied on CHDE’s cooperation as Queensland Health’s memorandum of understanding with CHDE did not give Queensland Health any entitlement to or control over such documents calls which are transferred to Queensland Health were received by the Health Contact Centre (HCC), regardless of whether the caller initially dialled 134 COVID (134 268 43) or 134 268[25] Queensland Health conducted searches of the HCC’s Clinical Decision Support System, Lowcode Queensland Health also retrieved and reviewed data from an overarching demographic system, Centricity Queensland Health’s original searches of Lowcode used the applicant’s mobile telephone number to search calls on 11 September 2021,[26] while Queensland Health’s further searches[27] searched the broader date range of 10-12 September 2021 Queensland Health’s further searches also included searches of Centricity for the entire month of September 2021, using different search terms – specifically the applicant’s name including an alternative spelling of her first name, the applicant’s year of birth, and the ‘Reason of call’ field based on the applicant’s description of the call Queensland Health’s further searches also included searches of the HCC’s abandoned call logs during the relevant period – however, there were no calls abandoned on 11 September 2021 around the time specified in the applicant’s application;[28] and despite these searches, Queensland Health was unable to locate any documents relating to the applicant’s telephone call on 11 September 2021. Dealing with sufficiency of search cases of this kind generally requires OIC to consider whether there are reasonable grounds for suspecting that further documents exist in an agency’s possession or under its control, and whether the agency has taken all reasonable steps to identify the requested documents.[29] Here, however, I must first consider an alternative explanation. Queensland Health’s submissions suggest the possibility that the applicant’s telephone call was not transferred by SSQ to the HCC, in which case CHDE – not Queensland Health – would be the agency in possession or control of any recording of the call.[30] If I could be satisfied that the applicant’s call was not transferred, the review could be decided on the basis that the Information in Issue is not a document of Queensland Health for the purpose of the IP Act. This observation was conveyed to the applicant during the review.[31] In response,[32] the applicant maintained that she spoke with a registered nurse and provided OIC with an extract from her ‘Vaccine Injury Timeline’ in which she had recorded that, during the call, this nurse ‘said Phenergan was wrong, it is a dirty antihistamine, and she did not know why Dr ... gave me that, she said to go to him and ask for a referral to see an immunologist’. The applicant also stated that ‘[a]t no time when I have called [Queensland] Health, was I informed I was speaking to someone other than [Queensland] Health’. Given these submissions, it is my understanding that the applicant maintains that the recording should be held by Queensland Health. I have carefully considered both parties’ submissions. In my opinion, Queensland Health’s submissions which suggest that the call was not transferred are somewhat equivocal, while the applicant’s submissions also raise some ambiguity. In these circumstances, there is insufficient material before me to support a finding regarding whether or not the call was transferred. It is therefore appropriate that I revert to this key question: whether Queensland Health has taken all reasonable steps to locate the Information in Issue. If, as contended by the applicant, the call was transferred to the HCC, and Information in Issue is therefore a document of Queensland Health, this question is determinative – as it usually is in such circumstances. Alternatively, if the call was not transferred, and any recording of it remains with CHDE, this question will nonetheless arrive at an outcome that is, in practical terms, consistent with the recording being a document of CHDE – that is, an outcome where all reasonable steps fail to yield a copy of the recording within Queensland Health. Based on the information before me, I find that Queensland Health has undertaken searches of its systems where it would be reasonable to expect the Information in Issue to be found. I further find that these searches have been comprehensive. The searches were conducted across date ranges that, given the particular circumstances, provided reasonable margins around the specified date and time of the call, and also included searches of calls received around the relevant period that were abandoned by the HCC before patient files were created. Further, when conducting its searches, Queensland Health employed a variety of appropriate search terms which could reasonably be expected to identify and locate the Information in Issue, should it be held by Queensland Health. In these circumstances, I consider there are reasonable grounds for me to be satisfied that further relevant documents do not exist or cannot be located within Queensland Health.DECISION For the reasons set out above, I affirm Queensland Health’s decision and find that documents, including any recordings, relating to the applicant’s call on 11 September 2021 are nonexistent or unlocatable within Queensland Health.[33] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. A RickardAssistant Information CommissionerDate: 24 July 2023 APPENDIX Significant procedural steps Date Event 13 September 2022 OIC received the application for external review. 14 September 2022 OIC requested preliminary documents from Queensland Health. 16 September 2022 OIC received preliminary documents from Queensland Health. 10 October 2022 OIC advised the applicant and Queensland Health that the external review application had been accepted. OIC requested Queensland Health provide submissions setting out its position. 12 October 2022 Queensland Health made submissions to OIC. 28 October 2022 OIC conveyed a preliminary view to the applicant. 29 October 2022 The applicant made submissions to OIC. 9 November 2022 OIC requested Queensland Health provide further information. 23 and 30 November 2022 Queensland Health sought and received an extension of time to provide the further information. 13 December 2022 Queensland Health made submissions to OIC. 22 December 2022 OIC requested that Queensland Health undertake further searches. 18 January 2023 Queensland Health made submissions to OIC regarding its further searches. 14 February 2023 OIC conveyed a further preliminary view to the applicant. 26 February 2023 The applicant made submissions to OIC and requested that OIC issue a formal decision. 8 March 2023 OIC confirmed its preliminary view to the applicant. 14 March 2023 The applicant made submissions to OIC verbally. 19 March 2023 The applicant made submissions to OIC and confirmed that she wanted to proceed to a formal decision. 28 March 2023 OIC sought clarification from Queensland Health regarding an aspect of Queensland Health’s submissions and Queensland Health made submissions to OIC verbally. 21 April 2023 OIC sought confirmation from Queensland Health regarding OIC’s understanding of its submissions. 26 April 2023 Queensland Health made submissions to OIC. 28 April 2023 OIC conveyed Queensland Health’s submissions to the applicant and invited the applicant to provide further information. 25 May 2023 The applicant confirmed to OIC that she wanted a formal decision. [1] Access application dated 25 July 2022.[2] ‘Voice recordings of my call to 13 HEALTH and 134 268’ on 25 August 2021 and 11 September 2021 at specified times.[3] On 25 August 2021.[4] Decision dated 30 August 2022.[5] Decision dated 30 August 2022. By email dated 2 September 2022, the applicant advised Queensland Health that the mobile telephone number it had used to conduct its searches (as stated in its decision dated 30 August 2022) was incorrect. By email dated 9 September 2022, Queensland Health notified the applicant that it had undertaken further searches using the correct number and had still not located any recording of a telephone call on 11 September 2021.[6] External review application dated 13 September 2022.[7] OIC’s correspondence dated 28 October 2022 noted that, given the applicant had addressed her application to ‘Queensland Health – 13 Health’, it was reasonable for Queensland Health to interpret the request for her ‘whole file’ as a request for all documents about the two telephone calls. In response, by submissions received on 29 October 2022, the applicant observed that she could make a fresh access application for other information. OIC’s correspondence dated 14 February 2023 and 8 March 2023 then confirmed to the applicant that the only remaining issue for consideration related to documents about her telephone call on 11 September 2021.[8] Submissions received on 29 October 2022.[9] Section 21(2) of the HR Act. [10] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. I further note that OIC’s approach to the HR Act set out in this paragraph was considered and endorsed by the Queensland Civil and Administrative Tribunal in Lawrence v Queensland Police Service [2022] QCATA 134 at [23] (where Judicial Member McGill saw ‘no reason to differ’ from this position).[11] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [12] XYZ at [573].[13] Section 13 of the IP Act provides that a document of an agency means anything that is a document of an agency under the RTI Act. Section 12 of the RTI Act provides that a document of an agency means a document, other than a document to which the RTI Act does not apply, in the possession, or under the control, of the agency and includes a document to which the agency is entitled to access.[14] Section 40 of the IP Act.[15] Section 43 of the IP Act.[16] Section 13 of the IP Act and section 12 of the RTI Act.[17] Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent it could refuse access to the document under section 47 of the RTI Act were the document to be the subject of an access application under that Act.[18] Section 67(1) of the IP Act and section 47(3)(e) of the RTI Act.[19] Section 52(1)(a) of the RTI Act.[20] These factors are identified in Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [19] as including the administrative arrangements of government, the agency structure, the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it), the agency’s practices and procedures (including but not exclusive to its information management approach), and other factors reasonably inferred from information supplied by the applicant, including the nature and age of the requested document/s and the nature of the government activity to which the request relates. These factors were more recently considered in Van Veenendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) and Y20 and Department ofEducation [2021] QICmr 20 (11 May 2021) at [45].[21] Section 52(1)(b) of the RTI Act.[22] Email to OIC dated 19 March 2023.[23] Submissions dated 12 October and 13 December 2022, and 18 January, 28 March and 26 April 2023.[24] Three minutes, based on Queensland Health’s understanding of the mobile telephone billing records provided by the applicant.[25] OIC sought Queensland Health’s clarification on this point as the applicant had raised concerns in an email dated 19 March 2023 that the number searched by Queensland Health was 134 COVID (134 268 43) rather than 134 268. OIC advised the applicant of Queensland Health’s submissions on this point in an email dated 28 April 2023.[26] Which Queensland Health confirmed were conducted in its submissions dated 26 April 2023.[27] Requested by OIC on 22 December 2022 and conducted by Queensland Health on 11 January 2023.[28] Which Queensland Health advised captures all situations where a nurse abandons a telephone call before creating a patient file. [29] J6Q8CH and Office of the Health Ombudsman (No. 2) [2019] QICmr 27 (6 August 2019).[30] Here, I note that, at Queensland Health’s request, CHDE undertook some enquiries. The extent of these enquiries is not evident on the material before me – nor am I required to consider this question, given Queensland Health is the respondent agency in this review. There is nothing to suggest that Queensland Health proposed or CHDE consented to part transfer of the application to CHDE under section 57 of the IP Act. In any event, the definition of ‘reviewable decision’ for the purpose of the IP Act does not include a decision to propose or consent to such a transfer.[31] OIC’s correspondence dated 28 October 2022 and 14 February 2023.[32] Submissions received on 29 October 2022.[33] Section 67(1) of the IP Act, and sections 47(3)(e) and 52 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Grenning and Queensland Law Society Inc [2010] QICmr 34 (23 November 2010)

Grenning and Queensland Law Society Inc [2010] QICmr 34 (23 November 2010) Last Updated: 7 June 2011 Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 310078 Applicant: Grenning Respondent: Queensland Law Society Inc Decision Date: 23 November 2010 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION - REFUSAL OF ACCESS – NON-EXISTENT DOCUMENTS - applicant seeks access to documents concerning redundancy of his position – applicant contended additional information should exist – whether there are reasonable grounds for agency to be satisfied that documents exist to the extent they should be in the agency’s possession – whether agency has taken all reasonable steps to locate the documents - whether access to documents can be refused under sections 47(3)(e) and 52(1)(b) of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary The applicant seeks access to information relating to his former employment with the Queensland Law Society (QLS). While some documents were located, the applicant maintains that there should be more documents concerning his former position being made redundant. QLS accepts that there should be additional documentation relating to the redundancy process but submits that the relevant senior manager[1] did not create such documents. After carefully considering all the submissions and evidence before me, I am satisfied that: no additional documents exist, and access to additional documents can be refused under sections 47(3)(e) and 52(1)(b) of the Right to Information Act 2009 (Qld) (RTI Act). Reviewable Decision The decision under review is QLS’s internal review decision dated 14 December 2009. Issues in this review The only remaining issue for determination concerns the sufficiency of QLS’s searches in relation to the access application. More specifically, whether: there are reasonable grounds for QLS to be satisfied that no further responsive documents exist, and all reasonable steps have been taken by QLS to find the additional documents sought. Applicant’s submissions In summary, the applicant submits that: he was informed that his position was made redundant as a result of a decision made under the Organisational Alignment Project (OAP) QLS should have located more relevant documents, particularly in relation to the redundancy process and the OAP[2] it is absurd to believe there are no additional documents responsive to the application. QLS’s submissions In summary, QLS submits that: the OAP was a high level project focused on the re-alignment of QLS structure at a departmental, rather than positional level the OAP was separate from the redundancy process involving the applicant at the time of the applicant’s redundancy, the CEO understood that a senior manager (who no longer works with QLS) was documenting the redundancy process, including taking notes of meetings and creating relevant memoranda and file notes as a result of searches conducted, all documents responding to the access application were located and provided to the applicant, aside from those documents to which the applicant was refused access under the RTI Act QLS acknowledges that there are gaps in its documentation in relation to the redundancy process QLS expected there to be evidence and documents in relation to the redundancy process, however no further documents could be located given the lack of documents located as a result of the searches and other incidences of lack of documentation involving the same senior manager, QLS believes that documents relating to the redundancy process were never created by the senior manager.[3] Searches conducted by QLS QLS made a number of submissions regarding the searches conducted in relation to the access application. QLS relevantly indicated that: upon receipt of the access application, search requests were sent to: ○ the Director, Information Systems, as this area is responsible for QLS’s electronic databases and information systems ○ the Manager, Professional Standards, to ensure a complete search of QLS ○ the Director, Member Central, as the Director of this area acted as CEO from February to May 2009 and was involved in the OAP ○ the Secretariat, because this area was originally involved in the OAP and to ensure a complete search of QLS ○ the Office of the President, because the applicant provided advice to the President and staffing decisions were made in consultation with the President ○ the Office of the CEO, because the applicant provided advice to the CEO and the CEO was involved in staffing decisions ○ the Director, People and Organisational Performance, as this area manages QLS’s human resources functions ○ the Office of General Counsel, as this area provides in-house legal advice ○ the Group Chief Finance Officer, as this area maintains QLS’s payroll functions upon receipt of the internal review application, further searches were conducted with People and Organisational Performance and consultation occurred with the CEO electronic searches were conducted of QLS’s Contact Management System (Contact) using the search term ‘Grenning’ physical searches were conducted of files relating to the OAP the Office of the President searched the President’s emails, his Executive Assistant’s emails and the Contact system using the search terms ‘Russell’ and ‘Grenning’ the CEO’s office searched any incoming and outgoing emails of the applicant, the CEO and the CEO’s Executive Assistant a manual search was conducted of the applicant’s personnel file People and Organisational Performance searched using the terms ‘Russell’, ‘Grenning’, ‘Corporate Relations Adviser ’ and ‘redundancy’ including a search of any electronic folders relating to the applicant the Office of General Counsel located one file which was a legal file created following the applicant’s redundancy the Group Chief Finance Officer also held a personnel file for the applicant and also undertook searches using the terms ‘Russell’, ‘Grenning’ and ‘redundancy’ The CEO also made enquiries with the former senior manager, to see if she might have taken documents with her. The former senior manager confirmed that she did not take anything with her or have any documents in her possession. Relevant evidence In making this decision, I have taken the following into account: the applicant’s applications and supporting material QLS’s decisions records of telephone conversations between staff of the OIC and the applicant and QLS QLS’s correspondence to the OIC record of meeting between staff members of the OIC and QLS relevant provisions of the RTI Act previous decisions of the Information Commissioner of Queensland as identified in this decision. Relevant law Under section 23 of the RTI Act, a person has a right to be given access to documents of an agency. However, this right is subject to a number of exclusions and limitations, including grounds for refusal of access. These grounds are contained in section 47 of the RTI Act. Section 47(3)(e) of the RTI Act provides: 47 Grounds on which access may be refused ... ... (3) On an application, an agency may refuse access to a document of the agency and a Minister may refuse access to a document of the Minister–– ... ... (e) because the document is nonexistent or unlocatable as mentioned in section 52; or ... ... Section 52 of the RTI Act Section 52 of the RTI Act is also relevant and provides: 52 Document nonexistent or unlocatable (1) For section 47(3)(e), a document is nonexistent or unlocatable if— (a) the agency or Minister dealing with the application for access is satisfied the document does not exist; or Example— a document that has not been created (b) the agency or Minister dealing with the application for access is satisfied— (i) the document has been or should be in the agency’s or Minister’s possession; and (ii) all reasonable steps have been taken to find the document but the document can not be found. The Information Commissioner considered this ground for refusal of access in PDE and the University of Queensland[4](PDE). Although this decision concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are replicated in section 52 of the RTI Act and on this basis, the reasoning in PDE is relevant to this review. In PDE, the Information Commissioner said that:[5] Sections 28A(1) and (2) of the FOI Act address two different scenarios faced by agencies and Ministers from time to time in dealing with FOI applications: circumstances where the document sought does not exist and circumstances where a document sought exists (to the extent it has been or should be in the agency’s possession) but cannot be located. In the former circumstance, an agency or Minister is required to satisfy itself that the document does not exist. If so satisfied, the agency or Minister is not required by the FOI Act to carry out all reasonable steps to find the document. In the latter circumstance an agency or Minister is required to satisfy itself that the document sought exists (to the extent that it has been or should be in the agency’s possession) and carry out all reasonable steps to find the document before refusing access. The Information Commissioner also found that to be satisfied that a document does not exist, it is necessary for the agency to rely upon its particular knowledge and experience with respect to various key factors including: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach) other factors reasonably inferred from information supplied by the applicant including: ○ the nature and age of the requested document/s ○ the nature of the government activity the request relates to. Accordingly, for QLS to be entitled to refuse access to the additional documents sought under sections 47(3)(e) and 52(1)(b) of the RTI Act, it is necessary to ask the following questions: are there reasonable grounds for QLS to be satisfied that additional documents exist (to the extent that they have been or should be in the agency’s possession), and has QLS taken all reasonable steps to find the additional documents sought. Are there reasonable grounds for QLS to be satisfied that additional documents exist (to the extent that they have been or should be in the agency’s possession)? I have carefully considered all of the submissions and evidence before me and note that the parties agree that there should be additional documents in relation to the redundancy of the applicant’s position and the redundancy process. In respect of the QLS restructure, I accept that the OAP was not a position specific project and that the redundancy process was independent from that OAP. Further, on the information available to me, I accept QLS’s submission that at the relevant time the CEO believed the senior manager was documenting the redundancy process (and therefore, caused no other records to be created). On the basis of the matters set out above, I am satisfied that there are reasonable grounds for QLS to be satisfied that additional documents existed, to the extent that they should have been in the agency’s possession. Has QLS taken all reasonable steps to locate additional documents? I acknowledge the applicant’s frustration with the lengthy search process. However, I note that ultimately, QLS has conducted comprehensive searches using its knowledge of its organisational structure[6] to appropriately identify the relevant areas to search and persons with whom to make enquiries. On the basis of the matters set out above including details of QLS’s searches, I am satisfied that QLS has taken all reasonable steps to locate additional responsive documents and that these documents cannot be located because they do not exist. DECISION I vary the decision under review by finding that access can be refused to additional documents sought under sections 47(3)(e) and 52(1)(b) of the RTI Act on the basis that these documents do not exist. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Clare Smith Right to Information Commissioner Date: 23 November 2010 [1] Who is no longer employed by QLS.[2] For example, meeting notes, minutes and memoranda.[3] QLS also advises that there would not have been an opportunity for any relevant documents to have been disposed of by the senior manager.[4] (Unreported, Queensland Information Commissioner, 9 February 2009). [5] At paragraph 34.[6] And its internal practices and procedures.

queensland

court_judgement

Queensland Information Commissioner 1993-

H89 and Metro North Hospital and Health Service [2020] QICmr 18 (27 March 2020)

H89 and Metro North Hospital and Health Service [2020] QICmr 18 (27 March 2020) Last Updated: 17 June 2020 Decision and Reasons for Decision Citation: H89 and Metro North Hospital and Health Service [2020] QICmr 18 (27 March 2020) Application Number: 314266 Applicant: H89 Respondent: Metro North Hospital and Health Service Decision Date: 27 March 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION – REFUSAL OF ACCESS – CONTRARY TO PUBLIC INTEREST – access refused to information about other individuals – personal information and privacy – whether disclosure would, on balance, be contrary to public interest – whether access may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION – REFUSAL OF ACCESS – DOCUMENTS NONEXISTENT OR UNLOCATABLE – applicant contends further documents exist – whether agency has taken all reasonable steps to locate documents – whether access may be reused on the basis that the documents do not exist or are unlocatable – sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to Metro North Hospital and Health Service (MNHHS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to all of her ‘medical records including mental health’.[1] MNHHS located 503 pages and decided to give access to this information, except for certain information requested from and/or provided by third parties to health professionals (Third Party Information). The applicant applied[2] for external review of the decision. On external review, some further information (the substance of which was already known to the applicant) was released to the applicant by MNHHS. Following this further disclosure, access remains refused to Third Party Information appearing on 18 pages. The applicant is also dissatisfied with the sufficiency of the searches conducted by MNHHS. I affirm MNHHS’ decision and find that access to the Third Party Information may be refused under section 67(1) of the IP Act, and section 47(3)(b) of the Right to Information Act 2009 (Qld) (RTI Act). I also find that MNHHS has taken all reasonable steps to identify and locate the documents the applicant has applied for. Background The evidence, submissions, legislation and other material I have considered in reaching my decision are as disclosed in these reasons (including in footnotes and Appendix). I have also had regard to the Human Rights Act 2019 (Qld),[3] particularly the right to seek and receive information.[4] I consider a decision-maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the RTI Act.[5] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. Reviewable decision The decision under review is MNHHS’ decision dated 18 October 2018. The applicant has submitted to OIC that she has recently made a further access application to MNHHS, and has sought to have that access application ‘amalgamated’ with this external review.[6] This later application is not currently the subject of an external review, and the IP Act does not contemplate the amalgamation of applications on external review. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (particularly footnotes and Appendix). Information in issue As noted in paragraph 3 above, during the external review, certain information has been released to the applican[7] by MNHHS.7 The information remaining in issue is the Third Party Information appearing on 18 pages of medic[8]l records.8 Issues for determination The issues for determination are whether: access to the Third Party Information may be refused under the RTI Act on the basis that disclosure is, on balance, contrary to the public interest; and whether access to any further documents may be refused on the basis that they do not exist. The applicant has raised numerous concerns about OIC’s processes.On external review, the applicant has had several opportunities to make submissions.[9] A preliminary view was conveyed to the applicant early in the review process.[10] In the time since, the applicant has provided more than 400 pages of submissions and requested nine extensions of time to provide these submissions. In terms of identifying opportunities for early resolution and promoting settlement of the review,[11] from an early stage,[12] the applicant has indicated that she seeks a formal written decision in the matter, and that she intends to appeal this decision to QCAT. I have assessed each of the applicant’s submissions, and as a result of these submissions, additional information has been released to her.[13] I have also considered the applicant’s submissions in revising my preliminary assessment of the issues in this review.[14] In my reasons for decision, I have referred to the applicant’s submissions to the extent that they are relevant to the issues for my consideration. The applicant has also raised concerns about the inclusion of further documents on her medical records after the date of her access application, being 12 November 2018. In assessing the issues for determination, I have only considered the applicant’s entitlement to access documents in existence on the date of her access application, and have not considered records that were created following that date.[15] Third party information Relevant law Under the IP Act, access to documents may also be refused to the extent they comprise information the disclosure of which would, on balance, be contrary to the public interest.[16] The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests.[17] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[18] identify factors irrelevant to the public interest and disregard them identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Irrelevant factors No irrelevant factors arise in the circumstances of this case and I have not taken any into account in making my decision. Factors favouring disclosure There is a general public interest in advancing public access to government-held information, and the IP Act is administered with a ‘pro-disclosure bias’, meaning that an agency should decide to give access to information, unless giving access would, on balance, be contrary to the public interest.[19] The Third Party Information contains the applicant’s own personal information, albeit intertwined with personal information of third parties. This gives rise to a factor in favour of disclosure.[20] In terms of the weight to be attributed to this factor, a person’s healthcare information appearing in their medical records is a matter at the core of their personal sphere, and accordingly, I consider it carries significant weight. I also consider that disclosure of the Third Party Information could reasonably be expected to enhance MNHHS’ accountability and inform the community of its operations.[21] In considering the weight to be afforded to this factor, I note that the applicant has already been granted access to a significant amount of information by MNHHS,[22] and the nature of the Third Party Information is such that it provides limited information about the actions of MNHHS. This is reflected in the applicant’s lengthy submissions about the governance of an organisation that she believes is related to one of the third parties who provided information to MNHHS. However, the Third Party Information does provide some limited insight into the information available to MNHHS at particular times, and may provide some background to the applicant’s interactions with staff at the relevant hospital. For these reasons, I afford these factors low weight in favour of disclosure. The applicant has raised concerns that the Third Party Information has not been fact-checked/verified and is inaccurate, malicious and vindictive. Given these concerns, I have considered the factor that favours disclosure where disclosure could reasonably be expected to reveal that information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[23] However, the nature of the Third Party Information is that it records third parties’ concerns and opinions. Such information is, by its very nature, shaped by factors such as the individuals’ memories, impressions and points of view. This inherent subjectivity does not mean that it is necessarily incorrect or unfairly subjective, or that disclosure of the information could reasonably be expected to reveal this. For the factor to apply, it is not sufficient to show that the opinions/concerns are disputed. Accordingly, in my view, this factor does not carry any weight. I have also considered the applicant’s concerns about her treatment by the hospital, and her submission that she has not been given the opportunity to repudiate the views contained in the Third Party Information.[24] A factor favouring disclosure will arise if disclosure could reasonably be expected to: allow or assist inquiry into possible deficiencies in the conduct or administration of an official, or reveal or substantiate that an agency or official has engaged in misconduct, or negligent, improper or unlawful conduct[25] advance fair treatment in accordance with the law in dealings with agencies;[26] or contribute to the administration of justice generally (including procedural fairness) or for a person.[27] As noted above, the information is such that it is comprised of opinions/concerns of third party individuals, and does not provide any information of substance concerning the conduct of MNHHS or the hospital. Similarly, although the applicant understandably would like to know what has been said about her, I am not able to see how disclosure of this information would contribute to administration of justice for her (or more generally). Accordingly, in the circumstances of this matter, I have given minimal weight to these factors favouring disclosure. Factors favouring nondisclosure Personal information and Privacy The RTI Act recognises that disclosure would cause a public interest harm if it would disclose personal information of a person, whether living or dead.[28] The term ‘personal information’ is defined as follows in the RTI Act:[29] information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can r0easonably be ascertained, from the information or opinion. The Third Party Information is comprised of information requested from and/or provided by third parties to health professionals. For the most part, it is uncontroversial that the information and opinions appearing in the documents are the third party individuals’ personal information, as it is comprised of their actions, opinions and concerns, and their identities are apparent from the information. However, in relation to some of the information, the applicant contends that the third party has used a false name, or a pseudonym, and has provided extensive evidence to the Information Commissioner in support of her contention that the individual is ‘fictitious’. I am satisfied that even if the individual has used a false name, their identity can ‘reasonably be ascertained’ from the information. That is, using additional information, such as the surrounding information in the documents and contextual information concerning the individuals’ connection and contact with the applicant, the third party’s identity can reasonably be ascertained. Accordingly, I am satisfied that the personal information harm factor applies, including if an individual has used a false name. In terms of the weight of this factor, having considered the sensitive nature of the information, and the circumstances of its provision to MNHHS, I am satisfied that the harm would range from moderate to significant. A separate factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[30] The concept of ‘privacy’ is not defined in the RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others.[31] I am satisfied that disclosure of the Third Party Information would interfere with the personal sphere of the relevant third parties, as it would disclose communications involving sensitive opinions and concerns conveyed to (or sought by) a health care provider.[32] In terms of the weight to be attributed to this factor, I am satisfied that the prejudice would range from moderate to significant, depending on the nature and context of the information provided. Confidential information Finally, a factor favouring nondisclosure arises where disclosure of the information could reasonably be expected to prejudice an agency’s ability to obtain confidential information.[33] I am satisfied that people who provide information to healthcare professionals do so with an expectation of confidentiality. The very nature of the information in issue here is that it comprises information provided to healthcare practitioners for their assessment of the applicant. I acknowledge that the applicant has concerns about the accuracy of the information and the hospital’s response to it. However, even where the content of the information is disputed, disclosure of it could reasonably be expected to discourage other individuals from coming forward with confidential information to the hospital in the future. Given the importance of healthcare professionals obtaining information from the community in order to make informed assessments and provide appropriate care, I afford this factor significant weight. Balancing the public interest I acknowledge the prodisclosure bias of the IP Act, and I have attributed significant weight in favour of the applicant accessing her own medical record. I also acknowledge that there is a public interest in MNHHS being accountable and transparent, and the applicant understanding the background to its decisions. However, given the specific and limited nature of the Third Party Information, these factors are outweighed by the moderate to significant weight I have attributed to factors concerning personal information and privacy, and the significant weight attributed to the prejudice to MNHHS’ ability to obtain confidential information. Accordingly, I am satisfied that disclosure of the Third Party Information would, on balance, be contrary to the public interest. MNHHS’ searches The applicant has raised concerns about the sufficiency of MNHHS’ searches. She is concerned that the following documents have not been located:[34] referrals generated by information contained in Consumer Integrated Mental Health Application (CIMHA)[35] details of certain telephone calls and a letter complaints to ‘Patient Liaison Officers’ and outcomes of these complaints; and triage and assessment documents in relation to a particular admission. Overall, having considered the applicant’s voluminous submissions, it is my understanding that the applicant contends that she has not been provided with her complete medical records, including mental health records. I have considered the information released to the applicant, which is comprised of: a copy of her CIMHA electronic file comprising direct entry records and scanned records (including consumer assessments and progress notes); and two volumes of scanned paper files comprising hospital medical records within the date range of the access application.[36] Searches conducted by MNHHS included:[37] obtaining the relevant paper records from the medical records unit mental health records (electronically generated through CIMHA and scanned paper records) a search of the Auslab system to search for pathology records a search of an application called Intelle Connect to search for medical imaging records; and use of the ‘Viewer’ tool to search for discharge summaries.[38] MNHHS also submitted to OIC that incident forms and complaints[39] do not form part of a patient’s medical record, and that some of the concerns raised by her relate to information that has, in fact, been released.[40] MNHHS also provided responses to some of the questions raised by the applicant in external review submissions by explaining that: a patient’s medical records can be found on both their electronic and paper files; the lack of exact chronology can be accounted for by the adding of records from electronic applications to the paper files; and there have been various filing systems used at the hospital in recent years, eg. using different dividers and this affects how the paper file is set out in older records. I have considered the applicant’s concerns about documents that she considers may be missing, but having regard to MNHHS’ recordkeeping practices, the searches conducted, and the information located, I am satisfied MNHHS has taken all reasonable steps to locate the information sought by the applicant with clear reference to its current and historical record keeping practices and policies. Accordingly, I find that access to any further information may be refused on the basis that it does not exist.[41] DECISION I affirm MNHHS decision to refuse access to details on the Third Party Information under section 67(1) of the IP Act and sections 47(3)(b) of the RTI Act. I also refuse access to any further information under 47(3)(e) and 52(1)(a) of the RTI Act on the basis that it is nonexistent. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinAssistant Information Commissioner27 March 2020 APPENDIX Significant procedural steps Date Event 12 November 2018 OIC received the application for external review. 13 November 2018 OIC requested relevant procedural documents from MNHHS. 14 November 2018 OIC received the requested procedural documents. 26 November 2018 OIC notified the applicant and MNHHS that the external review application had been accepted. OIC requested additional information from MNHHS. 27 November 2018 OIC received the requested information from MNHHS. 22 January 2019 OIC provided the applicant with an update on the status of the review. 1 March 2019 OIC conveyed a preliminary view to the applicant and requested submissions in response. 18 March 2019 OIC received submissions from the applicant. The applicant requested additional time to provide further submissions. 19 March 2019 OIC granted the applicant’s extension request, and clarified procedural issues. 5 April 2019 OIC received a further extension request from the applicant. 8 April 2019 OIC granted the applicant’s extension request. 26 April 2019 OIC received (and granted) a further extension request from the applicant. 10 May 2019 OIC received a further extension request from the applicant. 14 May 2019 OIC granted the applicant’s extension request. 24 May 2019 OIC received a further extension request from the applicant. 27 May 2019 OIC granted the applicant’s extension request. 7 June 2019 OIC received submissions from the applicant. 12 June 2019 OIC received submissions from the applicant. 20 and 21 June 2019 The applicant advised that she was seeking to make further submissions, and OIC granted an extension to provide these submissions. 24 June 2019 The applicant called OIC to discuss her sufficiency of search concerns and procedural issues. OIC wrote to the applicant requesting further and final submissions, and advised that it was considering her sufficiency of search concerns. 5 July 2019 OIC received submissions from the applicant and a request for an extension to provide further submissions. 10 July 2019 OIC received submissions by telephone from MNHHS concerning the searches it had conducted. 11 July 2019 OIC conveyed a preliminary view to the applicant concerning her sufficiency of search concerns, and requested submissions in response. 2 August 2019 OIC received an extension request from the applicant. 6 August 2019 OIC granted the applicant’s extension request. 5 September 2019 OIC received submissions from the applicant. 17 October 2019 OIC wrote to MNHHS concerning the release of certain information to the applicant. 6 November 2019 OIC wrote to MNHHS to confirm it would release certain information to the applicant. 15 November 2019 MNHHS confirmed that it had released certain information to the applicant. 27 November 2019 OIC conveyed a revised preliminary view to the applicant and requested submissions in response. 12 and 13 December 2019 OIC received (and granted) an extension request from the applicant. 31 January 2020 OIC received submissions from the applicant and a request for an extension to provide further submissions. 4 February 2020 OIC granted the applicant’s extension request. 27 February 2020 OIC received (and granted) a further extension request from the applicant. 2 and 3 March 2020 OIC received further submissions from the applicant. [1] Access application received by MNHHS on 26 September 2018.[2] On 12 November 2018.[3] Referred to in these reasons as the HR Act, and which came into force on 1 January 2020.[4] Section 21 of the HR Act. [5] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [11].[6] The applicant’s submissions dated 31 January 2020 foreshadowed this, and further submissions on 3 March 2020 requested that the ‘granting/refusal of access be combined with this External Review Application’.[7] In her external review application, the applicant also advised that she did not seek access to a mobile telephone number appearing on page 147 of Volume 1 of the documents. Accordingly, I have not considered whether the applicant is entitled to this information. [8] Specifically, information on CIMHA page 14-15, 18 and 23, Volume 1 pages 129-131, 137, 141, 142, 148, 150-152, 154 and 162, and Volume 2 pages 64 and 79.[9] The Information Commissioner is required to adopt procedures that are fair, having regard to the obligations of the commissioner under the Act and to ensure each participant has an opportunity to present their views to the commissioner by making written or oral submissions: Section 110(2) of the IP Act[10] On 1 March 2019. Subsequent views were conveyed on 11 July 2019 and 27 November 2019. On each occasion, the applicant was invited to provide submissions in response.[11] Section 103(1) of the IP Act.[12] In her submission dated 18 March 2019, the applicant stated that she requires a formal decision so that an appeal can be made.[13] Following negotiation with MNHHS, as noted in paragraph 3 and 11 above.[14] This view was conveyed to the applicant by letter dated 27 November 2019. The applicant then provided further submissions in response on 31 January 2020 and 3 March 2020.[15] Section 47(1) of the IP Act provides that an access application is taken only to apply to documents that are, or may be, in existence on the day the application is received.[16] Section 67(1) of the IP Act and section 47(3)(b) of the RTI Act.[17] However, there are some recognised public interest considerations that may apply for the benefit of an individual. See Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12, 14.[18] Section 49(3) of the RTI Act. [19] Section 64(1) of the IP Act.[20] Schedule 4, part 2, item 7 of the RTI Act.[21] Schedule 4, part 2, item 1 and 3 of the RTI Act.[22] The applicant was granted full access to 476 pages, and partial access to 27 pages (the only redaction on one of these pages was a mobile telephone number, and a further eight full pages were released during the review).[23] Schedule 4, part 2, item 12 of the RTI Act.[24] External review application.[25] Schedule 4, part 2, item 6 of the RTI Act.[26] Schedule 4, part 2, item 10 of the RTI Act.[27] Schedule 4, part 2, item 16 and item 17 of the RTI Act.[28] Schedule 4, part 4, item 6(1) of the RTI Act. In Kelson v Queensland Police Service & Anor [2019] QCATA 67, Daubney J, President of the Queensland Civil and Administrative Tribunal explained that the Information Commissioner is ‘not required to reason how the disclosure of the personal information could amount to a public interest harm; that harm is caused by the very disclosure of the information itself’ at [94][29] See schedule 5 of the RTI Act which refers to section 12 of the IP Act.[30] Schedule, 4, part 3, item 3 of the RTI Act.[31] Paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 12 August 2008, at paragraph 1.56. Cited in Balzary and Redland City Council; Tidbold (Third Party) [2017] QICmr 41 (1 September 2017) at [28].[32] For the same reasons as set out above, I consider the prejudice applies even if an individual used a false name when communicating with MNHHS.[33] Schedule 4, part 3, item 16 of the RTI Act. I have also considered schedule 4, part 4, section 8, however I am not satisfied this factor applies to all of the Third Party Information in this review. [34] In submissions to OIC dated 7 June 2019, July 2019 and 31 January 2020.[35] CIMHA is a State-wide electronic mental health database that is the designated patient record for the purposes of the Mental Health Act 2016 (Qld).[36] This includes the paper medical file (including clinical information from various units within the relevant hospital, private practice clinic information, outpatient information and some records of the hospital’s acute care team, and pathology records, medical imaging records and discharge records).[37] Submissions provided by MNHHS on 10 July 2019.[38] MNHHS submitted that if there is an admission of more than one day with a discharge summary, they use the Viewer tool to search the discharge summary.[39] To the Consumer Liaison Office.[40] More specifically, MNHHS has confirmed that the triage and assessment documents sought by the applicant appear at page 26 onwards of volume 1 of the paper files released to her.[41] Section 47(3)(e) and 52(1)(a) of the RTI Act. Also, as noted above, I consider that complaint/incident records fall outside the scope of the access application dated 26 September 2018 which sought access to all of the applicant’s ‘medical records’ including ‘mental health’.

queensland

court_judgement

Queensland Information Commissioner 1993-

Ellis and Moreton Bay Regional Council [2013] QICmr 8 (27 March 2013)

Ellis and Moreton Bay Regional Council [2013] QICmr 8 (27 March 2013) Last Updated: 27 August 2013 Decision and Reasons for Decision Application Number: 310987 Applicant: Ellis Respondent: Moreton Bay Regional Council Third party: 46VHJW Decision Date: 27 March 2013 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION – application for legal fees paid by underwriter of Council’s insurance – whether disclosure of information would, on balance, be contrary to the public interest – sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to Moreton Bay Regional Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to 55 categories of information. Council refused to deal with the application on the ground[1] that a previous application made by the applicant sought the same documents.[2] The applicant applied to the Office of the Information Commissioner (OIC) for a review of Council’s decision. OIC considered that Council could not refuse to deal with the application on the ground claimed. Council accepted this view, located 66 pages of correspondence responsive to the applicant’s application and released them in full. Council and the applicant both made numerous submissions regarding the 55 categories of information sought by the applicant. By this process, the applicant reached a position where he accepted OIC’s view Council had taken all reasonable steps to locate documents responsive to particular categories, or Council located further information. In relation to this further information, generally Council provided access or the applicant accepted that disclosure was contrary to the public interest. This decision addresses the one remaining issue in this review—whether or not it would, on balance, be contrary to the public interest to disclose parts of a letter that was located during one of Council’s searches for responsive documents. For the reasons set out below, I am satisfied that: Council may refuse access to the legal fees set out in the letter on the ground that disclosure would, on balance, be contrary to the public interest; and no ground of refusal enables Council to refuse access to the remaining parts of the letter. Background Significant procedural steps relating to the applicant and external review are set out in the Appendix. Reviewable decision The decision under review is Council’s decision dated 7 March 2012. Issue for determination The issue for determination is whether the disclosure of parts of a letter setting out legal fees paid to a law firm by an underwriter would, on balance, be contrary to the public interest. Information in issue The information in issue is parts of a letter from a law firm to Council. The letter sets out the legal fees that were paid to the law firm by the underwriter of an insurance policy held by Council. It appears that the letter was provided to Council so that it could fulfil future insurance disclosure obligations. It should be noted that the parts of the letter that would reveal legal advice or representation provided by the law firm are not in issue, as the applicant has accepted that such information is subject to legal professional privilege. The parts of the letter that comprise the information in issue may be described as: legal fees—overall totals of legal fees (both excluding and including GST) legal firm information—law firm’s name (on letterhead and signed at end of letter), contact details, file reference number/s, and names of acting solicitor/s; and matter status information—a heading and final paragraph indicating the stage/s of progress for matter/s being dealt with by the law firm. Material considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and appendix). Findings Would disclosure of the relevant parts of the letter, on balance, be contrary to the public interest? Yes, in relation to legal fees. Otherwise, no. Relevant law The RTI Act identifies various factors that may be relevant to deciding the balance of the public interest. It also explains the steps that a decision-maker must take in deciding the public interest. To decide whether disclosing the information in issue would be contrary to the public interest, it is necessary to:22 identify any irrelevant factors and disregard them; identify relevant public interest factors favouring disclosure and nondisclosure; balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosing the information would, on balance, be contrary to the public interest. Irrelevant factors I have examined the irrelevant factors in schedule 4 of the RTI Act and am satisfied I have not taken into account any irrelevant factors in reaching my decision. Factors favouring disclosure Factors relevant to all information in issue It is my view that disclosure of the information in issue could reasonably be expected to inform the community of Council operations,[3] insofar as the information confirms that Council maintains insurance coverage in accordance with its policies[4] and that claims are made with respect to such coverage. Also, I am satisfied that disclosure of the information in issue could reasonably be expected to enhance Council accountability[5] by enabling some examination of the general circumstances in which insurance claims are made by Council. Factors relevant to the legal fees I do not consider that disclosure of the legal fees in particular could reasonably be expected to further enhance Council accountability. While I acknowledge that the magnitude of the legal fees could reasonably be expected to indicate in broad terms the amount of legal work that was required for a matter related to Council, I do not accept that the amount of legal work required necessarily correlates with the amount by which Council has fallen short of acting accountably. In my view, the amount of legal work may relate to factors other than Council’s accountability—for example, the complexity of the legal issues, the clarity with which they are presented, and the willingness of parties to resolve matters. The applicant submits that:[6] The Public Sector Ethics Act 1994 specifically mentions waste of public resources – so we need to place a figure to that waste in order to correctly address these situations. Ordinarily, it is OIC’s view that parts of a legal bill of costs that do not reveal legal advice or representation and indicate total legal fees: do not attract legal professional privilege;[7] and would not, on balance, be contrary to the public interest to disclose, given the strength of the public interest in ensuring effective oversight of expenditure of public funds.[8] However, this view relates to legal fees paid by an agency. In the circumstances of this review, I do not consider that disclosure of legal fees paid by Council’s insurer’s underwriter could reasonably be expected to ensure effective oversight of Council’s expenditure of public funds.[9] This is because the fees do not constitute expenditure of any public monies. Rather, the fees comprise amounts paid to a law firm by the insurer’s underwriter (possibly after negotiation between those two parties) under a commercial arrangement between the underwriter and the insurer regarding the risk that the underwriter would assume for the insurer. The law firm, the underwriter and the insurer are not public agencies. The applicant submits that:[10] Even if the Insurance firm/underwriter paid the fees, it is still public money that pays them and it is the public who will pay for the increase in premiums that could well follow. Insofar as the applicant submits that the legal fees paid by the insurer’s underwriter should be disclosed because the Council uses public monies to pay the insurer’s premium, I am satisfied that this connection is insufficient to raise ensuring effective oversight of expenditure of public funds as a public interest factor favouring disclosure. Insofar as the applicant’s submission argues that making a claim on a Council insurance policy could result in a future premium increase for Council, I acknowledge that this is possible. However, I do not consider that this future possibility supports disclosure of the legal fees. In my view, obtaining quotes from potential insurance providers— all of which would take into account the legal fees where relevant, given Council’s insurance disclosure obligations—provides an intervening step. I consider that it would be disclosure of the quotes on offer and Council’s consideration of them, rather than disclosure of legal fees that were possibly taken into account in the calculation of the quotes, that could reasonably be expected to ensure effective oversight of expenditure of public monies. The applicant also submits that:[11] It does not matter how much or how little legal work was involved, what matters is the un-necessary costs / fees that have been incurred as a result of negligence. The costs / fees is important because the Public/MBRC need to take history on board so as to create procedures to eliminate such un-necessary complaints in the future. If the cost/fee are swept under the carpet so to [sic] will the procedures and firewalls that should be instigated. On the information before me,[12] it is apparent that a number of complaints, investigations and proceedings have already led to examination of the circumstances that the applicant alleges constitute negligence. I am satisfied that these processes could reasonably be expected to raise and prompt adjustment of Council procedures if required. In this context, I do not accept that disclosure of the legal fees could reasonably be expected to be necessary to ensure that any required reform of procedures either commences or is maintained. Factors favouring nondisclosure Factors relevant to the legal fees The legal fees were paid pursuant to a type of insurance taken out by Council that covers legal work performed with respect to particular types of individuals regarding certain types of matters. Accordingly, the magnitude of the fees could reasonably be expected to indicate in broad terms the amount of legal work that was performed in relation to specific individual/s regarding matter/s involving the individual/s.[13] In the circumstances of this review, I am satisfied that the legal fees comprise personal information regarding the individual/s, and factors favouring nondisclosure regarding personal information and privacy[14] are relevant. Factors relevant to legal firm information and matter status information A third party submits that the legal firm information and the matter status information also comprise personal information, on the basis that these types of information could reasonably be expected to reveal whether or not legal work was performed regarding particular individual/s and – in relation to any legal advice that was provided – who gave it, how may files were opened to do so, and the stage/s of progress of the representation.[15] On careful consideration of the circumstances of this review, I am satisfied that the legal firm information and the matter status information comprise personal information regarding particular individual/s in this sense, and factors favouring nondisclosure regarding personal information and privacy[16] are therefore relevant. Balancing the factors On careful consideration of the information before me, I consider that limited weight should be afforded to the two factors favouring disclosure of the information in issue regarding informing the community of Council operations and Council accountability. On the other hand, I also consider that some weight should be attributed to the factors favouring nondisclosure regarding personal information and privacy. In this regard, taking into consideration the nature of information already in the public domain (as evident from the applicant’s access application and submissions made by the applicant and Council, including comments regarding each other’s submissions), I am satisfied that information regarding the amount of work involved in providing legal representation regarding certain individual/s is substantially more personally sensitive than whether or not representation was provided and, if it was, its current status. Accordingly, in terms of the legal fees, I consider that the weight of the factors favouring nondisclosure is significant, as the magnitude of the fees is broadly indicative of the amount of legal work involved in providing representation to certain individual/s. In contrast, in relation to the legal firm information and the matter status information, it is my view that very limited weight should be attached to the factors favouring nondisclosure. In conclusion, it is my view that, with respect to the legal fees, the factors favouring nondisclosure outweigh the factors favouring disclosure. Consequently, I am satisfied that Council may refuse access to the legal fees on the ground that disclosure would, on balance, be contrary to the public interest. In relation to the legal firm information and the matter status information, it is my view that the factors favouring disclosure outweigh those favouring nondisclosure. Given the relative closeness of the balancing process, I note that the starting point of prodisclosure[17] provides further support for my conclusion. In the circumstances, I am satisfied that Council cannot rely on the contrary to public interest ground for refusing access to the legal firm information and the matter status information. DECISION I vary the decision under review and find that: Council may refuse access to the legal fees in the letter on the ground that disclosure would, on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the RTI Act; and there is no ground on which Council may refuse access to the legal firm information and the matter status information. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Jenny Mead Right to Information Commissioner Date: 27 March 2013APPENDIX Significant procedural steps Date Event 5 March 2012 Council receives applicant’s application seeking 55 categories of information 7 March 2012 Council issues its decision to refuse to deal with the application on the ground that the applicant made a previous application for the same documents 12 March 2012 OIC receives applicant’s application for external review 21 May 2012 OIC conveys written view to Council that Council cannot refuse to deal with the application on the ground claimed. OIC requests that Council locate relevant documents and provide submissions regarding any that, in its view, should not be released 1 June 2012 Council advises OIC that it located 66 pages of correspondence created since the applicant’s previous application and that these pages could be released in full. Otherwise, Council provides submissions regarding why each category of information sought by the applicant does not exist 19 June 2012 OIC conveys to applicant Council’s explanation regarding why documents for each of the categories of information would not have been created 10 July 2012 Applicant provides a written submission regarding why he did not accept Council’s explanation with respect to 16 of the 55 categories of information. In relation to one of the categories of information, applicant confirms he is seeking information about who engaged the law firm and who paid for their services 9 August 2012 OIC requests further information from Council regarding each of the 16 categories of information raised by the applicant 17 August 2012 Council provides further information requested by OIC on 9 August 2012 22 August 2012 OIC requests further information Council regarding its response of 17 August 2012 28 August 2012 Applicant accepts OIC staff member’s oral view that access to most information regarding the law firm and its services may be refused on the ground that legal professional privilege attaches to the information. Applicant confirms he wishes to access information regarding legal fees 14 September 2012 Council provides the further information requested by OIC on 22 August 2012 22 October 2012 OIC requests further information from Council regarding the legal fees. Council advises that any payment would have been made by its insurer and it does not hold any documents regarding the fees 26 November 2012 OIC conveys written view to applicant that Council has taken all reasonable steps to locate documents responsive to the remaining 16 categories of information in issue, except in relation to the legal fees 3 December 2012 OIC requests further information from Council regarding its searches for documents regarding the legal fees 7 December 2012 Applicant provides a written submission to OIC, noting the ongoing issue regarding the legal fees, and advising that it accepts OIC’s written view dated 26 November 2012, except in relation to two categories of information 13 December 2012 Council advises OIC that it has located two documents regarding the legal fees and that it considers that they are subject to legal professional privilege 21 December 2012 Applicant accepts OIC’s staff member’s oral view that one of the two categories of information referred to in his written submission to OIC dated 7 December 2012 was publicly available 4 January 2013 OIC requests further information from Council regarding the remaining category of information referred to in the applicant’s written submission to OIC dated 7 December 2012 8 January 2013 Council advises that it has located a document relevant to the remaining category of information referred to in the applicant’s written submission to OIC dated 7 December 2012 and that it does not object to release of it 8 January 2013 OIC conveys written view to Council that while parts of a letter setting out the legal fees are subject to legal professional privilege, there are no grounds to refuse access to the remaining parts. OIC also conveys this view to a third party and asks if it wishes to respond and/or become a participant in the external review 18 January 2013 The third party provides written submissions regarding the remaining parts of the letter 21 January 2013 Council advises that it supports the third party’s submissions regarding the remaining parts of the letter 23 January 2013 Applicant requests reconsideration of documents previously that he accepted were subject to legal professional privilege 8 February 2013 OIC staff member confirms that legal professional privilege attaches relevant information 15 February 2013 Applicant raises a sufficiency of search issue. OIC confirms by telephone and in writing OIC’s written view of 26 November 2012 25 February 2013 OIC conveys a further written view to Council and the third party that while parts of the letter are subject to legal professional privilege, there are no grounds to refuse access to the remaining parts 1 March 2013 Council advises that it supports the third party’s submissions regarding the remaining parts of the letter 13 March 2013 The third party provides written submissions regarding the remaining parts of the letter 13 March 2013 OIC conveys a further written view to the third party and the applicant that access to the amount/s of the legal fees in the remaining parts of the letter may be refused on the ground that disclosure would, on balance, be contrary to the public interest 15 March 2013 Applicant provides a written submission to OIC regarding OIC’s view dated 13 March 2013 and raises sufficiency of search issues 17 March 2013 The third party provides written submissions regarding the remaining parts of the letter 18 March 2013 Applicant raises further sufficiency of search issues by email 19 March 2013 OIC confirms to applicant that it remains OIC’s view that Council has taken all reasonable steps to locate documents responsive to the application [1] Section 43 of the RTI Act.[2] Decision dated 7 March 2012.[3] Schedule 4, part 2, item 3 of the RTI Act.[4] See Policy 12-2150-060 (at <http://www.moretonbay.qld.gov.au/uploadedFiles/common/policies/MBRC%20Policy%20-%20Insurance(1).pdf> ).[5] Schedule 4, part 2, item 1 of the RTI Act.[6] By email sent on 15 March 2013.[7] Murphy and Treasury Department [1998] QICmr 9; (1998) 4 QAR 446 (Murphy) at [20], Ellis and Department of Environment (Unreported, Queensland Information Commissioner, 20 October 1998) (Ellis) at [20]-[32] and VSC and Public Trustee of Queensland (Unreported, Queensland Information Commissioner, 30 June 2008) (VSC) at [49]-[51]. These decisions were made under section 43(1) of the repealed Freedom of Information Act 1992 (Qld) (FOI Act) which is replicated by section 48 and schedule 3, section 7 of the RTI Act. Further, Murphy and Ellis were decided in the context of the sole (as opposed to dominant) purpose test – however OIC considers that their reasoning remains apposite.[8] Kelly and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 March 2002) at [46], Price and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 12 March 2002) at [44]-[46] and VSC at [63]-[66] consider legal fees. While these decisions were made regarding section 45(1) of the repealed FOI Act, they remain relevant in terms of the public interest test under section 49 and schedule 4 of the RTI Act.[9] Schedule 4, part 2, item 4 of the RTI Act.[10] By email sent on 15 March 2013.[11] By email sent on 15 March 2013.[12] Including information no longer in issue in this review.[13] Given that the third party claims that it is, on balance, contrary to the public interest to disclose the information in issue, section 108(3) of the RTI Act curtails my discussion of this aspect of the review. [14] Schedule 4, part 4, item 6 and schedule 4, part 3, item 3 of the RTI Act.[15] Again, given that the third party claims that it is, on balance, contrary to the public interest to disclose the information in issue, section 108(3) of the RTI Act curtails my discussion of this aspect of the review. [16] Schedule 4, part 4, item 6 and schedule 4, part 3, item 3 of the RTI Act.[17] Section 44 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Eddington and Department of National Parks, Recreation, Sport and Racing [2015] QICmr 2 (30 January 2015)

Eddington and Department of National Parks, Recreation, Sport and Racing [2015] QICmr 2 (30 January 2015) Last Updated: 26 May 2015 Decision and Reasons for Decision Citation: Eddington and Department of National Parks, Recreation, Sport and Racing [2015] QICmr 2 (30 January 2015) Application Number: 312097 Applicant: Eddington Respondent: Department of National Parks, Recreation, Sport and Racing Decision Date: 30 January 2015 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – CONTRARY TO PUBLIC INTEREST INFORMATION – names and identifying information of witnesses – personal information – whether disclosure would, on balance, be contrary to the public interest – sections 47(3)(b), 49 and schedule 4 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of National Parks, Recreation, Sport and Racing (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to documents about an incident involving the applicant and waste removal trucks. The Department located 142 pages and 1 video, and purported to make a decision in respect of these pages.[1] As the applicant did not receive written notice of the decision within the processing period, the Department was deemed to have made a decision refusing access to the located documents.[2] The applicant applied to OIC for external review of the Department’s decision. On external review, the applicant agreed[3] to limit the information in issue to certain witness details to which access had been refused on 6 pages.[4] For the reasons set out below, access to this information is refused under section 47(3)(b) of the RTI Act on the basis that it comprises the personal information of witnesses, the disclosure of which would, on balance, be contrary to the public interest. Background The incident referred to in paragraph 1 formed the basis of a Penalty Infringement Notice (PIN) which the Department issued to the applicant, but later withdrew. Significant procedural steps relating to the application and the external review process are set out in the Appendix. Reviewable decision The decision under review is the decision the Department is deemed to have made under section 46(1)(a) of the RTI Act refusing access to the requested information. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including the footnotes and Appendix). Information in issue The information in issue (Information in Issue) appears in witness statements prepared in relation to the relevant incident.[5] It comprises the names, signatures, date of birth/age, place of residence and work pattern/history of the persons who provided these witness statements. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[6] However, this right is subject to other provisions of the RTI Act, including the grounds on which an agency may refuse access to documents.[7] Access to a document may be refused if disclosing it would, on balance, be contrary to the public interest.[8] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[9] and explains the steps that a decision-maker must take[10] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest. Findings No irrelevant factors arise in the circumstances of this case and I have not taken any into account. I will now consider the relevant factors favouring disclosure and nondisclosure of the Information in Issue. Applicant’s submissions The applicant provided submissions to OIC about the circumstances in which the PIN was issued and the conduct of the Department and its officers.[11] Where the applicant’s concerns relate to public interest factors, they are dealt with below. Factors favouring disclosure Applicant’s personal information Although the witness statements in which the Information in Issue appears are broadly about the applicant, the particular information to which access remains refused clearly neither identifies the applicant, nor is about him. Therefore, the Information in Issue is not the applicant’s personal information[12] and this factor favouring disclosure[13] does not arise for consideration. Accountability and transparency of the Department The applicant submits that the Department has not been open and transparent in its actions, and is ‘protecting the truth behind the incident’ described in the witness statements.[14] This submission raises the issue of whether disclosing the Information in Issue could reasonably be expected to enhance government accountability[15] or reveal the reason for a government decision (or any background or contextual information informing the decision).[16] These are both factors which, if applicable, would favour disclosure of the information. The applicant has received all substantive information in both witness statements. I do not consider that disclosing the Information in Issue would enhance the Department’s accountability or provide background to any decision to investigate this incident or discontinue proceedings against the applicant. I am therefore satisfied that these factors are not relevant in the circumstances of this case. The public interest factors relating to accountability and transparency have already been significantly advanced by the release of the substance of the witness statements and of other information previously released by the Department to the applicant. Correctness of information The applicant submits that he has evidence that the witness statements are incorrect.[17] This raises the issue of whether disclosing the Information in Issue could reasonably be expected to reveal that the information was incorrect, which is a factor favouring disclosure.[18] This factor operates in relation to the specific information to which an applicant seeks access. In this case, the Information in Issue (ie, comprising the witnesses’ names, signatures, date of birth/age, place of residence and work pattern/history) is limited in nature, and there is nothing before me to indicate that it is incorrect. Accordingly, I find that disclosing the Information in Issue could not reasonably be expected to reveal that it is incorrect, and therefore, this factor does not apply. Procedural fairness The RTI Act provides that factors favouring disclosure arise where disclosing the information could reasonably be expected to contribute to the administration of justice generally (including procedural fairness) or for a person.[19] The witness statements relate to an incident in respect of which the applicant was issued with a PIN. The applicant submits that due process was not followed in relation to the issuing of this PIN.[20] He also contends that, without a full copy of the witness statements, he ‘cannot contest the allegation and submit [his] evidence that contradicts these statements’.[21] The released information includes a letter to the applicant from the Department dated 20 February 2014[22] stating that the Department had ‘conducted a review of the circumstances surrounding this matter and the decision has been made to withdraw the [PIN] and issue [the applicant] with a final formal warning for this alleged breach of the [Recreation Areas Management Act 2006 (Qld)]’. The applicant contends that because the 20 February 2014 letter alleges his actions to be in breach of the Recreation Areas Management Act 2006 (Qld), the Department still has obligations to disclose all the evidence it holds in full, or retract the 20 February 2014 letter.[23] There is a legitimate public interest in a person against whom allegations are made having access to sufficient information to accord that person procedural fairness, by allowing them to consider their position and respond, if necessary. In this instance, all substantive information within the witness statements has already been disclosed to the applicant. The Information in Issue comprises only the witnesses’ names, signatures, date of birth/age, place of residence and work pattern/history. The Department has withdrawn the PIN that had been issued against the applicant, and no action is being taken against the applicant regarding the incident described in the witness statements. Accordingly, I consider that these factors favouring disclosure do not apply here.[24] Legal action The applicant submits that he has the right to take legal action, by recovering the costs associated with the ‘false’ allegations made against him. He submits that by not having access to the Information in Issue, he is being denied the ‘right of recovery of costs’.[25] Accordingly, I have considered whether disclosing the Information in Issue could reasonably be expected to contribute to the administration of justice for the applicant.[26] The Information Commissioner has previously stated that an assertion by an applicant that information is required to enable pursuit of a legal remedy is not sufficient in itself to enliven this prodisclosure consideration.[27] Apart from the applicant’s contention that he requires the Information in Issue in order to take legal action to recover his costs, no information has been provided to support this claim. In the absence of evidence about how the Information in Issue would advance any opportunity to pursue a legal remedy, I do not consider that this public interest consideration is relevant. Therefore, I consider that this factor favouring disclosure does not arise in this instance. Factors favouring nondisclosure Other individuals’ personal information and privacy The RTI Act recognises that: disclosure of information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person other than the applicant;[28] and a factor favouring nondisclosure arises where disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy.[29] The Information in Issue comprises other individuals’ personal information.[30] Further, the fact that a person has raised concerns to an agency comprises an aspect of their ‘personal sphere’,[31] disclosure of which represents an intrusion to their privacy.[32] Given the sensitivity regarding the relevant incident and the small size of the community in which it is alleged to have occurred, I am satisfied that the release of the Information in Issue would be a substantial intrusion into the witnesses’ privacy. The applicant submits that the released information already identifies the witnesses by their first names.[33] I have carefully reviewed all of the released documents, and have been unable to identify any released information which identifies the witnesses by name. Therefore, I do not consider that the witnesses’ privacy interests are diminished in this regard. The applicant further submits that privacy and similar considerations are not relevant as the witness statements were provided for the purpose of prosecution.[34] He further contends that the witnesses voluntarily provided the information, knowing that it may be used for prosecution purposes and they would, in that event, be publicly identified; in doing so, they waived their right to withhold their identity from public release.[35] I do not agree with these submissions. A witness’ privacy interests may be diminished where their identity has been disclosed to the person against whom the witness made allegations, or where a witness statement has been publicly tendered as evidence. I do not consider that the witnesses’ privacy interests have been diminished in this way. The Department withdrew the PIN before it was necessary to provide the applicant with full copies of the witness statements in order to accord him procedural fairness in the face of an impending hearing. Therefore, I afford substantial weight to the factors favouring nondisclosure relating to other individuals’ personal information and privacy. Prejudice to flow of information A factor favouring nondisclosure arises where disclosing information could reasonably be expected to prejudice the flow of information to a law enforcement or regulatory agency.[36] Given the Department is responsible for enforcing the Recreation Areas Management Act 2006 (Qld), I am satisfied it is a law enforcement or regulatory agency for the purposes of this factor. Disclosing the Information in Issue could reasonably be expected to prejudice the flow of information to the Department, as individuals may be reluctant to provide statements to the Department in the future if they believe their personal information will be released.[37] This in turn would significantly prejudice the Department’s ability to effectively discharge its enforcement functions. The applicant submits that it is in the public interest to prevent false information being provided to authorities to investigate.[38] I make no finding about the truth or falsity of the information provided by the witnesses. However, it is generally recognised that there is a very strong public interest in protecting the free flow of information to law enforcement or regulatory agencies, even where this may result in an agency investigating false and/or unsubstantiated allegations.[39] Accordingly, I find that this factor favouring nondisclosure applies and I afford it substantial weight. Balancing the public interest I have not identified any factors favouring disclosure of the Information in Issue. However, I find there to be substantial public interest in protecting the personal information and privacy interests of the witnesses, as well as in ensuring the free flow of information to the Department from members of the community. Given the substantial weight afforded to these public interest factors, I consider that access may be refused to the Information in Issue, on the basis that disclosing it would, on balance, be contrary to the public interest. DECISION As the Department was deemed to have made a decision refusing access to the Information in Issue under section 46(1)(a) of the RTI Act, I vary the Department’s decision and find that access to the Information in Issue can be refused under section 47(3)(b) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ L Lynch Assistant Information Commissioner Date: 30 January 2015 APPENDIX Significant procedural steps Date Event 13 May 2014 The Department received the access application. 2 July 2014 The Department posted the decision to the applicant on the final day of the processing period. As the applicant did not receive written notice of the decision within the processing period, the Department was deemed to have made a decision refusing access to the requested documents. 10 July 2014 OIC received the application for external review of the Department’s decision. 11 July 2014 OIC notified the Department that the external review application had been received and requested relevant procedural documents. 15 July 2014 OIC received the requested procedural documents from the Department. 18 July 2014 OIC notified the applicant and the Department that it had accepted the external review application. OIC requested that the Department provide a copy of the located documents, as well as its search records. 4 August 2014 OIC received the requested information from the Department. 10 September 2014 In a telephone call with OIC, the Department advised that it had no concerns with OIC relying on the public interest test to refuse access to the Information in Issue (instead of the breach of confidence exemption relied on in the purported decision). 11 September 2014 In a telephone call with OIC, the applicant advised that he only sought access to the pages containing the Information in Issue, and OIC confirmed this in a subsequent email. 26 September 2014 OIC conveyed a preliminary view to the applicant by telephone in relation to the Information in Issue. The applicant did not accept the preliminary view, and requested it in writing. 30 September 2014 OIC issued a preliminary view in writing to the applicant. 16 October 2014 The applicant notified OIC that he did not accept the preliminary view and requested an extension until 22 October 2014 to provide submissions. OIC agreed to the extension in a subsequent email. 21 October 2014 OIC received a submission from the applicant. 21 November 2014 OIC issued a further preliminary view in writing to the applicant, and invited the applicant to provide further submissions by 5 December 2014. 12 December 2014 OIC notified the applicant and the Department that the external review had been finalised on the basis that OIC had not heard from the applicant by 5 December 2014. 18 December 2014 The applicant requested OIC to issue a formal decision. OIC reopened the matter and notified the applicant and the Department of the reopening. [1] The purported decision was to grant full access to 35 pages, part access to 63 pages and 1 video and refuse full access to 44 pages. Documents were released to the applicant in accordance with this purported decision. The Office of the Information Commissioner (OIC) treated the purported decision as the Department’s submission on external review.[2] Section 46(1)(a) of the RTI Act.[3] In a telephone discussion with OIC on 11 September 2014.[4] Namely, pages 128-133. Although the Department had also refused access to the signatures of the individuals who countersigned the witness statements on these pages, the applicant did not contest OIC’s preliminary view on these signatures, and they are therefore no longer in issue.[5] The witness statements appear at pages 128-129 and 130-133.[6] Section 23 of the RTI Act.[7] As set out in section 47 of the RTI Act.[8] Sections 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the wellbeing of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. [9] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive; in other words, factors that are not listed may also be relevant. [10] Section 49(3) of the RTI Act.[11] External review application dated 10 July 2014, telephone discussion with OIC on 26 September 2014, and submission dated 21 October 2014.[12] In accordance with the definition in section 12 of the Information Privacy Act 2009 (Qld) (IP Act). Personal information is defined as ‘information or an opinion ... whether true or not ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[13] Schedule 4, part 2, item 7 of the RTI Act.[14] Submission dated 21 October 2014.[15] Schedule 4, part 2, item 1 of the RTI Act.[16] Schedule 4, part 2, item 11 of the RTI Act.[17] External review application dated 10 July 2014.[18] Schedule 4, part 2, item 12(a) of the RTI Act.[19] Schedule 4, part 2, items 16 and 17 of the RTI Act.[20] External review application dated 10 July 2014.[21] Submission dated 21 October 2014.[22] Pages 102-103.[23] Submission dated 21 October 2014.[24] See, eg, Arnold and Redland City Council (Unreported, Queensland Information Commissioner, 17 October 2013) [41].[25] Submission dated 21 October 2014.[26] Schedule 4, part 2, item 17 of the RTI Act.[27] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 [17]. Although that decision was made under the now repealed Freedom of Information Act 1992 (Qld), the Right to Information Commissioner has decided that its reasoning is equally applicable in the context of the RTI Act: Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) [21].[28] Schedule 4, part 4, item 6 of the RTI Act.[29] Schedule 4, part 3, item 3 of the RTI Act.[30] In accordance with the definition in section 12 of the IP Act.[31] 0P5BNI and Department of National Parks, Recreation, Sports and Racing (Unreported, Queensland Information Commissioner, 12 September 2013) [45].[32] Arnold and Redland City Council (Unreported, Queensland Information Commissioner, 17 October 2013) [35], citing schedule 4, part 3, item 3 of the RTI Act.[33] Telephone discussion with OIC on 26 September 2014.[34] Telephone discussion with OIC on 26 September 2014.[35] Submission dated 21 October 2014.[36] Schedule 4, part 3, item 13 of the RTI Act.[37] Setschnjak and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 25 May 2012) [24].[38] Submission dated 21 October 2014.[39] P6Y4SX and Department of Police (Unreported, Queensland Information Commissioner, 31 January 2012) [35]-[40].

queensland

court_judgement

Queensland Information Commissioner 1993-

Thomas and Cook Shire Council [2012] QICmr 27 (25 May 2012)

Thomas and Cook Shire Council [2012] QICmr 27 (25 May 2012) Thomas and Cook Shire Council [2012] QICmr 27 (25 May 2012) Last Updated: 17 July 2012 Decision and Reasons for Decision Application Number: 310582 Applicant: Thomas Respondent: Cook Shire Council Decision Date: 25 May 2012 Catchwords: RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION – REFUSAL OF ACCESS – applicant seeking information regarding work undertaken on Marton Fire Trails – whether disclosure would, on balance, be contrary to public interest – section 47(3)(b) and section 49 of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary The Applicant seeks access[1] to all correspondence received by Cook Shire Council (Council) since 1 July 2010 regarding work undertaken on the Marton Fire Trails. Council identified information relevant to the application (Relevant Information)[2] and consulted with the provider/s of the Relevant Information who object to release. Council refused[3] access to the Relevant Information on the basis that disclosure could reasonably be expected to result in a serious act of harassment or intimidation.[4] The Applicant sought external review of Council’s decision. After carefully considering all of the information before me,[5] I am satisfied that Council is entitled to refuse access to the Relevant Information on the basis that its disclosure would, on balance, be contrary to public interest. Significant procedural steps Significant procedural steps relating to the application are set out in the Appendix. Reviewable decision The decision under review is Council’s Internal Review Decision dated 22 February 2011. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching my decision is disclosed in these reasons (including footnotes and Appendix). Relevant law Under section 23 of the Right to Information Act 2009 (RTI Act), a person has a right to be given access to documents of an agency. However, this right is subject to a number of exclusions and limitations, including grounds for refusal of access.[6] Contrary to public interest An agency may refuse access to information where disclosure of the information would, on balance, be contrary to public interest.[7] The term ‘public interest’ is not defined in the RTI Act. Instead the RTI Act recognises that many factors can be relevant to the concept of the public interest. The public interest refers to considerations affecting the good order and functioning of the community and governmental affairs for the well-being of citizens. The notion of the public interest is usually treated as separate from matters of purely private or personal interest. In determining whether disclosure of the Relevant Information would, on balance, be contrary to public interest, I must: identify and disregard irrelevant factors identify factors favouring disclosure of the information in the public interest identify factors favouring nondisclosure of the information in the public interest balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to public interest. Irrelevant factors I am satisfied that no irrelevant factors apply. Factors favouring disclosure and nondisclosure in the public interest After carefully considering all of the information before me, I am satisfied that the public interest factors favouring disclosure include that: disclosure of the Relevant Information could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability;[8] and some of the Relevant Information comprises the Applicant’s personal information.[9] After carefully considering all of the information before me, I am satisfied that the public interest factors favouring nondisclosure include that disclosure of the Relevant Information could reasonably be expected to: prejudice an agency’s ability to obtain confidential information;[10] and prejudice an individual’s right to privacy[11] and cause a public interest harm as it would disclose an individual’s personal information.[12] Balancing public interest factors favouring disclosure and nondisclosure The Applicant seeks correspondence received by Council relating to erosion controls (also known as ‘whoa boys’) constructed on the Marton Fire Trails.[13] I understand that Council maintains the fire trails (which are located on State land) to ensure[14] vehicular access to relevant areas in emergency situations. Council encourages individuals to: provide feedback, both positive and negative, about services provided by Council; and raise issues about decisions made or actions taken by Council. To facilitate this process, Council: relies on its ability to obtain confidential information from members of the public; and has implemented its General Complaints Policy[15] which provides that a complainant’s details will remain confidential, subject to any overriding statutory requirement. With respect to confidentiality, I note that: the information provider/s confirm that the Relevant Information was provided to Council on the basis that their identity would remain confidential in accordance with Council’s advice and policy;[16] and Council confirms that it received the Relevant Information on the understanding that the identity of the information provider/s would remain confidential in accordance with its policy. On the basis of the matters set out above, I am satisfied that: there is a strong public interest in: ○ Council being able to effectively monitor and maintain relevant fire trails to ensure, amongst other things, that vehicular access is available to relevant areas in emergency situations ○ protecting Council’s ability to obtain information of the type contained in the Relevant Information to assist it to provide appropriate services and effectively administer and enforce local laws for the benefit of the local community[17] ○ protecting an individual/s right to privacy by ensuring that their identity remains confidential in accordance with Council’s General Complaints Policy disclosure of any part of the Relevant Information could reasonably be expected to enable the identity of the information provider/s to be ascertained, particularly given the relatively small size of the community disclosure of the Relevant Information leading to identification of the information provider/s could reasonably be expected to prejudice Council’s ability to obtain confidential information of this type in the future; and these public interest factors favouring nondisclosure should be afforded significant weight in the circumstances of this external review. Against this, I must weigh the public interest factors favouring disclosure including that the Relevant Information contains some personal information of the Applicant which is ‘information or an opinion... whether true or not ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[18] After carefully considering the content of the Relevant Information, I am satisfied that it comprises both the personal information of the information provider/s and the Applicant.[19] I also note the Applicant’s submission that: ...[he] understand[s] that Council must keep the complainant’s identity confidential but there couldn’t possibly be a reference or identification marker to the complainant in every sentence of the letter. Therefore I fail to see why I cannot be given access to the parts of the letter that would not identify the writer. If allegations are being made about me personally I feel I have the right to know what is being said and what I am supposed to have done wrong. ...” I have carefully considered this submission and the Relevant Information. On the information before me, I am satisfied that: the Applicant’s personal information is interwoven with that of others in such a way that it cannot be separated[20] and therefore cannot be released without also releasing the personal information of others Council has taken no relevant action against the Applicant, rather the only action taken by Council in relation to the Relevant Information has been its ongoing monitoring and maintenance of the Marton Fire Trails for the benefit of the local community; and on the basis of the matters set out above, minimal weight should be afforded to this public interest factor favouring disclosure. While I acknowledge that disclosure of the Relevant Information could promote open discussion of public affairs and enhance Government accountability, I am satisfied that this factor favouring disclosure should be afforded minimal weight in the circumstances, given that the only relevant action taken by Council took place on State land and falls wholly within Council’s obligation to monitor and maintain the Marton Fire Trails.[21] In summary and on the basis of the matters set out above, I am satisfied that: the public interest factors favouring nondisclosure of the Relevant Information outweigh those favouring disclosure; and disclosure of the Relevant Information would, on balance, be contrary to public interest. DECISION I vary Council’s Internal Review Decision by finding that Council is entitled to refuse access to the Relevant Information on the basis that its disclosure would, on balance, be contrary to public interest under section 47(3)(b) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ___________________________ Assistant Commissioner Henry Date: 25 May 2012APPENDIX Significant procedural steps Date Event 24 November 2010 Council receives the Applicant’s RTI application (Access Application). 11 January 2011 Council locates the relevant information (Relevant Information) and decides (Decision) to refuse access in full. 4 February 2011 The Applicant applies to Council for internal review of the Decision. 22 February 2011 Council decides (Internal Review Decision) to affirm the Decision. 21 March 2011 The Applicant applies to OIC for external review and provides a submission dated 16 March 2011 in support of his application. 29 March 2011 OIC informs Council and the Applicant that the external review application has been accepted. 1 April 2011 Council provides OIC with copies of the Relevant Information. 1 June 2011 The Applicant provides a verbal submission in support of his case. 20 January 2012 OIC conveys a written preliminary view to Council and invites Council to provide submissions in support of its case by 6 February 2012 if the view is contested. 23 January 2012 Council accepts OIC’s preliminary view and provides an electronic copy of the photographs. 25 January 2012 OIC consults with the information provider/s. 25 January 2012 OIC conveys a written preliminary view to the Applicant and invites the Applicant to provide submissions in support of his case by 8 February 2012 if the view is contested. 31 January 2012 The information provider/s object/s to release of the Relevant Information, by way of verbal submission/s. 1 February 2012 OIC grants the information provider/s an extension to provide written submission/s by 15 February 2012. 6 February 2012 The Applicant accepts the preliminary view. 13 February 2012 OIC receives the information provider/s written submission. 15 February 2012 OIC clarifies information provider/s submissions by phone. 29 March 2012 OIC obtains a copy of Council’s General Complaints Policy and Council provides OIC with a verbal submission in support of the claim that disclosure of the Relevant Information would, on balance, be contrary to public interest. 19 April 2012 OIC conveys a 2nd written preliminary view to the Applicant and invites submissions in support of the Applicant’s case by 4 May 2012 if the view is contested. 4 May 2012 The Applicant objects to the preliminary view and provides a submission in support of his case. [1] Significant procedural steps relating to the application are set out in the Appendix.[2] Council originally identified 16 responsive pages. This was later confirmed to be 15 pages.[3] By decision dated 11 January 2011.[4] Pursuant to sections 47(3)(a) and 48 schedule 3, section 10(1)(d) of the Right to Information Act 2009 (RTI Act). Council upheld its initial decision on internal review. See Internal Review Decision dated 22 February 2011.[5] Including relevant submissions made by the Applicant, Council and the information provider/s.[6] As set out in section 47(3) of the RTI Act.[7] Pursuant to sections 47(3)(b) and 49 of the RTI Act.[8] Schedule 4, Part 2, Factor 1 of the RTI Act.[9] Schedule 4, Part 2, Factor 7 of the RTI Act.[10] Schedule 4, Part 3, Factor 16 of the RTI Act.[11] Schedule 4, Part 3, Factor 3 of the RTI Act.[12] Schedule 4, Part 4, section 6(1) of the RTI Act.[13] Correspondence dated 16 March 2011.[14] Among other things.[15] See Council’s website, www.cook.qld.gov.au [16] I am unable to set out these submissions in any further detail in these reasons as to do so could reasonably be expected to allow the identity of the information provider/s to be ascertained.[17] See OIC decision of Matthews and Gold Coast City Council (23 June 2011) at paragraphs 25 to 27.[18] See section 12 of the Information Privacy Act 2009 (Qld).[19] I am constrained by the RTI Act from discussing the content of the Relevant Information in any greater detail – see section 108(3) of the RTI Act. [20] And is properly characterised as ‘mutual personal information’.[21] To ensure vehicular access is available to relevant areas in emergency situations for the benefit of the local community.

queensland

court_judgement

Queensland Information Commissioner 1993-

D56CNT and Central Queensland University [2018] QICmr 3 (1 February 2018)

D56CNT and Central Queensland University [2018] QICmr 3 (1 February 2018) Last Updated: 14 February 2018 Decision and Reasons for Decision Citation: D56CNT and Central Queensland University [2017] QICmr 3 (1 February 2018) Application Number: 313474 Applicant: D56CNT  Respondent: Central Queensland University Decision Date: 1 February 2018 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - applicant sought access to documents about him - whether information attracts legal professional privilege and is exempt under schedule 3, section 7 of the Right to Information Act 2009 (Qld) - section 67(1) of the Information Privacy Act 2009 (Qld) and section 47(3)(a) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - mobile phone numbers and personal information of university staff members - whether disclosure would, on balance, be contrary to the public interest - section 67(1) of the Information Privacy Act 2009 (Qld) and section 47(3)(b) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - GIVING ACCESS - DELETION OF IRRELEVANT INFORMATION - information appearing in email correspondence about other individuals and unrelated subject matter - whether information is irrelevant to the terms of the access application - whether section 88 of the Information Privacy Act 2009 (Qld) applies REASONS FOR DECISION Summary The applicant applied[1] to Central Queensland University (CQU) under the Information Privacy Act 2009 (IP Act) for access to information about himself. Earlier on that date, the applicant had received written notification from CQU that his enrolment had been cancelled due to his recent criminal conviction.[2] CQU located 128 pages responding to the access application and decided to release the majority of the information to the applicant, but refused access to four full pages on the basis they comprise exempt information, and six part pages on the basis that their disclosure would, on balance, be contrary to the public interest.[3] CQU also decided to exclude a small amount of information on two part pages on the basis that it was irrelevant to the terms of the access application. The applicant applied to the Office of the Information Commissioner (OIC) for external review of CQU’s decision.[4] The applicant submitted that full access to all documents should be granted as they would reveal the evidence relied upon by CQU regarding the cancellation of his enrolment, demonstrate CQU’s treatment of the applicant and enhance transparency in the decision-making process followed by CQU.[5] For the reasons set out below, I affirm CQU’s decision. Background Significant procedural steps taken by OIC in conducting the external review are set out in the Appendix to these reasons. Reviewable decision The decision under review is CQU’s decision dated 17 August 2017. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). Information in issue The information in issue falls into the following four categories: email correspondence involving the University Solicitor (Legal Emails)[6] mobile phone numbers of CQU employees (Mobile Numbers)[7] personal information of CQU employees (Employee Personal Information)[8]; and information pertaining to unrelated subject matter (Irrelevant Information)[9]. Issues for determination The issues for determination are whether CQU was entitled to: (i) refuse access to the Legal Emails on the basis that they attract legal professional privilege and therefore comprise exempt information (ii) refuse access to the Mobile Numbers and Employee Personal Information on the basis that disclosure of this information would, on balance, be contrary to the public interest; and (iii) delete the Irrelevant Information on the basis that it is unrelated to the terms of the access application. Findings (i) Exempt Information Relevant law Under the IP Act, an individual has a right to be given access to documents of an agency to the extent the documents contain the individual’s personal information.[10] However, this right is subject to limitations, including grounds for refusal of access.[11] Access may be refused to documents to the extent that they comprise exempt information.[12] Information will be exempt from disclosure if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.[13] This exemption reflects the requirements for establishing legal professional privilege at common law. Confidential communications between a lawyer and client will be privileged where the communications are for the dominant purpose of seeking or giving legal advice or use in existing or anticipated legal proceedings. The concept of legal professional privilege has been summarised as follows: [14] It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provisions of legal services, including representation in legal proceedings. In the context of the IP Act and RTI Act, the Information Commissioner has consistently found that communications exchanged between the agency and its internal legal advisor can attract legal professional privilege.[15] Analysis The Legal Emails comprise correspondence between CQU staff and the University Solicitor regarding the applicant and issues pertaining to his enrolment. The IP Act limits the extent to which I can describe the particular content of those pages.[16] However, having carefully considered the email correspondence and taking into account the particular nature of the communications, I am satisfied that: the Legal Emails were created for the dominant purpose of CQU, as the client, obtaining/receiving legal advice from its legal advisor, the University Solicitor the solicitor who provided the advice was acting independently and is appropriately qualified;[17] and there is no evidence to indicate that CQU has waived privilege over the Legal Emails or that the communications are not confidential. The applicant submits[18] that, in cancelling his enrolment, CQU did not follow appropriate procedures. In view of this submission, I have considered whether the improper purpose exception to legal professional privilege may apply to the Legal Emails, in the circumstances of this case. In Secher and James Cook University[19] the Assistant Information Commissioner explained the operation of this exception as follows: Legal professional privilege will not apply to legal communications made in the furtherance of a fraud or crime. This exception operates to displace legal professional privilege where evidence exists that the relevant client has embarked on a deliberative course of action knowing that the proposed actions were contrary to law, and has made the relevant communications in furtherance of that illegal or improper purpose. The person alleging that privilege has been displaced by reason of an alleged illegal or improper purpose must show that it is made out in the current circumstances. In establishing improper purpose, the standard of proof is high. The High Court has observed that it “is a serious thing to override legal professional privilege where it would otherwise be applicable” and as a result “vague or generalised contentions of crimes or improper purposes will not suffice.” I have carefully considered the applicant’s submissions, requirements of the improper purpose exception and the content of the Legal Emails. Based on the information available to OIC, there is no objective evidence to indicate that the Legal Emails were made in furtherance of a fraud, crime or improper purpose. I am therefore satisfied that the exception does not preclude the application of legal professional privilege in the circumstances of this case. The applicant has also raised public interest arguments which he considers favour disclosure of the Legal Emails. The exemptions in schedule 3 of the RTI Act set out the types of information which Parliament has already decided, would, on balance, be contrary to the public interest to disclose. Once the requirements of an exemption have been established, as I have found in this case, the RTI Act does not give me any capacity to examine public interest factors, even where they may appear relevant to the circumstances of a particular case.[20] Therefore, I have not considered the applicant’s public interest submissions in the context of the Legal Emails. Conclusion For the reasons set out above, I am satisfied that access to the Legal Emails may be refused under the IP Act and RTI Act as they comprise exempt information on the basis of legal professional privilege.[21] (ii) Public interest Relevant law The RTI Act also provides that an agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[22] The RTI Act is however, premised on a pro-disclosure bias which requires access to be given unless it would be contrary to the public interest to do so.[23] The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest and explains the steps a decision-maker must take[24] in deciding the public interest as follows: identify any irrelevant factors and disregard them[25] identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Schedule 4 of the RTI Act lists various factors favouring disclosure and nondisclosure.[26] The RTI Act specifically recognises that disclosure of another individual’s ‘personal information’ is a factor favouring nondisclosure[27] which could reasonably be expected to lead to a public interest harm.[28] The term ‘personal information’ is defined in section 12 of the IP Act as follows: information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. Analysis In addition to the Mobile Numbers, the refused information in this category comprises Employee Personal Information, which includes details of leave arrangements, personal opinions and information that is not, in my view, in the nature of routine personal work information.[29] The applicant submits the public interest in enhancing CQU’s transparency in relation to the process it followed in cancelling his enrolment should be afforded very high weight and that this outweighs any need for protecting the privacy of third parties.[30] I acknowledge that disclosure of the Mobile Numbers and Employee Personal Information would to some extent, further enhance the accountability and transparency of CQU.[31] However, disclosure would only serve to reveal information of a limited nature. I am satisfied that the Mobile Numbers and Employee Personal Information would not reveal any background information to the process followed by CQU in making its decision to cancel the applicant’s enrolment, nor does the information reveal any factors/considerations taken into account by CQU in its decision making process. I therefore, afford very low weight to these factors in favour disclosure. By virtue of it having been located in response to the terms of his access application, the information appears in documents which concern the applicant and his enrolment at CQU. This gives rise to a factor favouring disclosure, to the extent that the documents comprise his personal information.[32] However, the Mobile Numbers and the Employee Personal Information do not comprise the applicant’s personal information, other than a very small amount of mutual personal information appearing on one page which cannot be separated from the personal information of others. Given the nature of the information, I afford very low weight to this factor favouring disclosure. In view of the arguments put forward by the applicant in favour of disclosure, I have also considered whether disclosure of the Mobile Numbers and Employee Personal Information could reasonably be expected to contribute to the administration of justice for a person, including procedural fairness.[33] Given the particular nature of the information, I do not consider its disclosure would discharge these factors to any degree. Accordingly, I afford these factors no weight in favour of disclosure. I am satisfied that all of the information in this category comprises the personal information of CQU employees, and therefore, the public interest harm factor applies in favour of nondisclosure.[34] I acknowledge the information appears in the context of the other individuals’ employment sphere, as opposed to medical records and family details which are generally considered part of an individual’s more sensitive, personal sphere. However, the information is not, in my view, in the nature of routine personal work information as it does not pertain to a University employee’s day to day performance of their routine work duties. Information about an employee’s leave arrangements and their personal opinions on sensitive workplace issues would in my view, cause a moderate level of public interest harm if disclosed. Similarly, disclosure of an employee’s mobile number would allow that individual to be contacted outside of business hours, which in my view, would lead to a similar level of public interest harm.[35] I have also considered whether disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy.[36] I am satisfied that releasing mobile telephone numbers and personal information relating to CQU staff is an intrusion into an individual’s private sphere.[37] I do acknowledge however, that it appears in an employment context and does not fall at the highest end of the spectrum in terms of personal privacy. As such, I afford this factor moderate weight in favour of nondisclosure. Conclusion I am satisfied that the combined weight of the nondisclosure factors is sufficient to outweigh that of the disclosure factors that apply in this case. Accordingly, I find that access may be refused to the Mobile Numbers and Employee Personal Information under section 47(3)(b) of the RTI Act, on the basis that disclosure would, on balance, be contrary to the public interest. (iii) Irrelevant Information Section 88 of the IP Act provides an agency may give access to a document subject to the deletion of information it considers is not relevant to the terms of an application. This is not a ground for refusal of access, but a mechanism to allow irrelevant information to be deleted from documents which are identified for release to an applicant.[38] In deciding whether information is irrelevant, it is necessary to consider whether the information has any bearing upon, or is pertinent to, the terms of the application.[39] The irrelevant information is duplicated on two part pages[40] and relates to other staff and/or issues which I am satisfied are unrelated to the applicant, and the terms of his access application. I have carefully considered the terms of the access application, the content of the irrelevant information and the applicant’s submissions. I am satisfied that the information has no bearing on, and is not pertinent to, the terms of the applicant’s request. Accordingly, I find that information contained on two part pages may be excluded from consideration under section 88 of the IP Act as it is irrelevant. DECISION For the reasons set out above, I affirm CQU’s decision, as follows: refuse access to four pages under section 47(3)(a) of the RTI Act on the basis that the information is exempt under schedule 3, section 7 of the RTI Act refuse access to parts of six pages under section 47(3)(b) of the RTI Act on the basis that disclosure would, on balance, be contrary to the public interest; and exclude irrelevant information from two pages under section 88 of the IP Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. K Shepherd Assistant Information Commissioner Date: 1 February 2018 APPENDIX Significant procedural steps Date Event 28 August 2017 OIC received the external review application. 29 August 2017 OIC notified CQU that the external review application had been received and requested various procedural documents from CQU. CQU provided the requested documents and further submissions to OIC. 1 September 2017 OIC notified CQU and the applicant that the external review application had been accepted and requested further documents from CQU. 8 September 2017 OIC received the requested documents from CQU. 22 September 2017 OIC provided CQU with an update on the status of the review and received submissions in response. 26 October 2017 OIC conveyed a preliminary view to the applicant and requested submissions in response. 27 October 2017 OIC provided CQU with an update on the status of the review. 29 November 2017 OIC provided the applicant with an update on the status of the review. 19 December 2017 OIC requested further submissions from the applicant. 27 December 2017 OIC received further submissions from the applicant. 16 January 2018 OIC provided the applicant with an update on the status of the review. [1] Application dated 30 June 2017. [2] A copy of that letter was located by CQU in processing the access application. [3] Decision dated 17 August 2017. In processing the access application, CQU consulted with two third parties and decided to disclose some information contrary to their objections—those parties then applied to OIC for external review. The decision 78FGQI and 3KTI5K and Central Queensland University; D56CNT (Third Party) [2018] QICmr 4 (1 February 2018) concerns the pages which were the subject of those third parties’ objections, which have since been partially released to the access applicant. While I have found in favour of those third parties in the related reviews, the applicant is listed as a third party in the final decision as he maintains that he is entitled to access all redacted information. [4] Application dated 28 August 2017. [5] Applicant’s letter to CQU dated 26 August 2017. [6] Pages 35-37 and 47.[7] Pages 29 and 80.[8] Pages 34, 58, 72-73 and 80. Pages 29, 34 and 79 are the subject of the related third party reviews. Pursuant to the related decision, 78FGQI and 3KTI5K and Central Queensland University; D56CNT (Third Party) [2018] QICmr 4 (1 February 2018), I have found that access to further information in those pages may be refused.[9] Pages 61 and 62.[10] Section 40 of the IP Act. [11] Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent it could refuse access to the document under section 47 of the Right to Information Act 2009 (Qld) (RTI Act) were the document to be the subject of an access application under the RTI Act. [12] Sections 47(3)(a) and 48 of the RTI Act. [13] Sections 47(3)(a) and 48 and schedule 3, section 7 of the RTI Act. [14] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 552.[15] See F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 (9 June 2017) at [24]-[32] and Jones and Queensland Police Service [2015] QICmr 15 (26 June 2015) at [33]-[35]. See also Waterford v Commonwealth [1987] HCA 25; (1986) 163 CLR 54 per Mason and Wilson JJ at 56. [16] Section 118(2) of the IP Act. [17] A lawyer employed by a government agency or an ‘in-house’ lawyer – such as a salaried officer employed as a legal adviser to the agency – may claim privilege on behalf of his or her employer as the client – Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 530-531. [18] Submissions to OIC dated 26 October 2017. [19] (Unreported, Queensland Information Commissioner, 6 June 2012) at [20] and [21]. [20] Under section 118(2) of the IP Act, the Information Commissioner does not have the power to direct that access to an exempt document be granted. [21] Sections 47(3)(a), 48 and schedule 3, section 7 of the RTI Act. [22] Sections 47(3)(b) and 49 of the RTI Act. [23] Section 44 of the RTI Act. [24] Section 49(3) of the RTI Act.[25] No irrelevant factors arise in the circumstances and I have not taken any into account. [26] However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant in a particular case. [27] Schedule 4, part 3, item 3 of the RTI Act.[28] Schedule 4, part 4, section 6 of the RTI Act. [29] This concept is explained in the OIC Guideline located at https://www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/processing-applications/routine-personal-work-information-of-public-sector-employees; and in previous decisions of the Information Commissioner in Hardy and Department of Health (Unreported, Queensland Information Commissioner, 27 June 2011) at [26], Australian Broadcasting Corporation and Psychologists Board of Australia (Unreported, Queensland Information Commissioner, 3 January 2012) at [20]-[21]; Kiepe and the University of Queensland (Unreported, Queensland Information Commissioner, 1 August 2012) at [19]-[20] (Kiepe) and 8A3BPQ and Queensland Police Service [2014] QICmr 42 (30 October 2014) at [37]-[40]. [30] Applicant submissions to OIC dated 26 October 2017.[31] Schedule 4, part 2, items 1 and 11 of the RTI Act. [32] Schedule 4, part 2, item 7 of the RTI Act. [33] Schedule 4, part 2, items 16 and 17 of the RTI Act. [34] Schedule 4, part 4, section 6 of the RTI Act. [35] The Information Commissioner has consistently found that disclosure of mobile telephone numbers of public service officers, would, on balance, be contrary to the public interest – see Kiepe at [20] and Smith and Sunshine Coast Regional Council; Diamond Energy Pty Ltd (Third Party) [2017] QICmr 42 (5 September 2017) (Smith) at [14]-[17]. [36] Schedule 4, part 3, item 3 of the RTI Act. [37] See Kiepe at [19]-[21], Smith and Sunshine Coast Regional council; Diamond Energy Pty Ltd (Third Party) [2017] QICmr 42 (5 September 2017 at [16]-[17] and Azzopardi and Department of Environment and Heritage Protection [2017] QICmr 48 (19 September 2017) at [13]-[16]. [38] Under section 88(3) of the IP Act, the agency may give access to the document if it considers from the terms of the application or after consultation with the applicant, that the applicant would accept the copy and it is reasonably practicable to give access to the copy. [39] O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [52]. This decision was made in the context of section 27(3) of the repealed Freedom of Information Act 1992 (Qld which is equivalent to section 88 of the IP Act. See also Kiepe at [11]. [40] Documents 61 and 62.

queensland

court_judgement

Queensland Information Commissioner 1993-

Y13 and Queensland Health [2019] QICmr 52 (28 November 2019)

Y13 and Queensland Health [2019] QICmr 52 (28 November 2019) Last Updated: 6 December 2019 Decision and Reasons for Decision Citation: Y13 and Queensland Health [2019] QICmr 52 (28 November 2019) Application Number: 314474 and 314561 Applicant: Y13 Respondent: Queensland Health Decision Date: 28 November 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL WITH ACCESS APPLICATION - PREVIOUS APPLICATION FOR SAME DOCUMENTS - whether the applicant has previously applied to the same agency for the same documents - whether the later application, on its face, discloses any reasonable basis for again seeking access to the documents - section 62 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NONEXISTENT DOCUMENTS - documents detailing Google searches and downloads about the applicant - whether the information sought is nonexistent - sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - IRRELEVANT INFORMATION - document regarding secure transfer of information between agency business units - whether deleted information was irrelevant to the terms of the access application - section 88 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - documents relating to the applicant and their interactions with the agency - personal information and privacy - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary This decision relates to two separate access applications made by the applicant to Queensland Health under the Information Privacy Act 2009 (Qld) (IP Act). In the First Application, which is the subject of external review 314474, the applicant applied[1] for access to: Queensland Ambulance Service [QAS] records of all triple 0 phone calls from [mobile phone number] and [mobile phone number]. Communications to and from QAS staff about [the applicant]. Date range: 2008 to 4 December 2018. Any medical records or communications by the watchhouse medical staff at Southport Watchhouse. Date range: 2012 to 4 December 2018. All records and communications about [the applicant] to and from Office of the Chief Psychiatrist employees, including conference notes, and calendar entries. Date range: 2014 to 4 December 2018. Queensland Health located 190 pages and 1 audio recording and decided[2] to refuse access to 1 page and parts of 31 pages on the basis that the information was either irrelevant to the scope of the access application, exempt from disclosure, or contrary to the public interest to disclose. Then, following an internal review application[3] by the applicant, Queensland Health decided[4] to release additional information contained within one page.[5] Queensland Health otherwise affirmed the original decision. In the Second Application, which is the subject of external review 314561, the applicant applied[6] for access to: All documents and emails about [the applicant] and [the applicant’s] matters seen by, searched by, sent to or from, or created by [named Queensland Health RTI officer who made the original decision regarding the First Application]. All QAS documents about [the applicant] and [the applicant’s] matters including all communications with police or hospitals or forensic medical officers. All complaints, investigations and related emails and file notes about [the applicant] by QAS. ALL DOCUMENTS ABOUT [the applicant] INCLUDING EMAILS TO AND FROM MINISTERY OF HEALTH. INCLUDE PERSONS BLIND COPIED. INCLUDED GOOGLE SEARCHES AND DOWNLOADS ABOUT [the applicant]. [sic] The time period / date range the applicant would like to search within: 1/1/2008 TO 14/2/19. In accordance with section 57 of the IP Act, Queensland Health transferred part of the applicant’s request relating to documents held by the Minister for Health sought at item 3 of the application to that Minister. In terms of the remainder of the application, Queensland Health refused to deal with some documents, on the basis that the applicant had made a previous application (that is, the First Application) for such documents. Otherwise, Queensland Health located 295 pages and 5 audio recordings and decided[7] to refuse access to: parts of 29 pages on the basis that the information was either exempt from disclosure or contrary to the public interest to disclose; and documents sought at item 3 relating to Google searches and downloads about the applicant on the basis that the documents sought are nonexistent. The applicant applied[8] to the Office of the Information Commissioner (OIC) for external reviews of Queensland Health’s two decisions refusing access to information and raised concerns about the sufficiency of the searches conducted by Queensland Health for documents responsive to item 3 of the Second Application. During the course of the two external reviews, Queensland Health agreed to release some further information to the applicant. Queensland Health also accepted OIC’s view that access to some information could be refused on the ground that its disclosure would be contrary to the public interest, rather than the ground that it was exempt information.[9] For the reasons set out below, I vary Queensland Health’s decisions and find that: Queensland Health can refuse to deal with items 1 and 2 of the Second Application to the extent that information responding to these items was located and considered in response to the First Application access to certain documents responding to item 3 of the Second Application and any further documents responding to the First and Second Applications may be refused on the ground that they are nonexistent or unlocatable part of one page of the Information in Issue[10] may be deleted on the basis that it is irrelevant to the scope of the Second Application; and access to the remaining Information in Issue may be refused on the ground that it comprises contrary to the public interest information. Background Significant procedural steps relating to these external reviews are set out in the Appendix. Reviewable decision The decisions under review in external reviews 314474 and 314561 are Queensland Health’s decisions dated 26 February 2019 and 4 April 2019 respectively. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). The applicant provided extensive submissions during the two reviews. I have considered all of this material and have only extracted those parts which I consider have relevance to the issues to be determined in these external reviews. Information in issue As noted at paragraph 7 above, some further information has been released to the applicant. The remaining Information in Issue is comprised of parts of 58 pages as set out at paragraphs 42 and 47 below. Issues for determination The issues for determination in these external reviews are whether: Queensland Health can refuse to deal with items 1 and 2 of the Second Application on the basis that the applicant has made a previous application for the same documents certain documents sought at item 3 of the Second Application are nonexistent; and the Information in Issue may be refused on the grounds that: it is irrelevant to the scope of the access application; or it would, on balance, be contrary to the public interest to disclose. Refusal to deal Relevant law Under the IP Act, an applicant has a general right to access documents of an agency to the extent they contain the individual’s personal information.[11] However, this right is subject to limitations. One such limitation is found under section 62 of the IP Act, which provides that an agency may refuse to deal with a later application where:[12] an applicant has made an access application under the IP Act[13] the applicant makes another application under the IP Act to the same agency for access to one or more of the same documents that were sought under the first application the later application does not, on its face, disclose any reasonable basis for again seeking access to the documents; and one of the grounds on which an agency may refuse to deal with the later application applies. Findings Has the applicant previously sought access to the same documents? Yes, for the reasons that follow. As set out at paragraphs 2 and 3 above, in terms of the first application referred to in section 62 of the IP Act: The First Application was made by the applicant under the IP Act to Queensland Health on 4 December 2018. The First Application applied for access to: Queensland Ambulance Service records of all triple 0 phone calls from [mobile phone number] and [mobile phone number]. Communications to and from QAS staff about [the applicant]. Date range: 2008 to 4 December 2018. ... All records and communications about [the applicant] to and from Office of the Chief Psychiatrist employees, including conference notes, and calendar entries. Date range: 2014 to 4 December 2018. In response to the First Application, Queensland Health located 190 pages and 1 audio recording and made a decision on access to those documents. The First Application is the subject of external review 314474. As set out at paragraphs 4 and 5 above, in terms of the later application referred to in section 62 of the IP Act: The Second Application was made by the applicant under the IP Act to Queensland Health on 14 February 2019. The Second Application applied for access to: All documents and emails about [the applicant] and [the applicant’s] matters seen by, searched by, sent to or from, or created by [named Queensland Health RTI officer who made the original decision regarding the First Application] . All QAS documents about [the applicant] and [the applicant’s] matters including all communications with police or hospitals or forensic medical officers.... ... date range: 1/1/2008 to 14/2/19. Queensland Health relevantly decided to refuse to deal with items 1 and 2 of the Second Application to the extent the information sought was located and considered in response to the First Application. The Second Application is the subject of external review 314561. Having carefully considered item 1 of the Second Application, I am satisfied that this item seeks access to two categories of information – firstly, all documents located and considered by the Queensland Health RTI officer in their original decision regarding the First Application (in other words, the information in issue responsive to the First Application); and secondly, all documents sent, received or created by the RTI officer during the process of making that decision (for example, documents related to locating and receiving copies of the information in issue from other officers within Queensland Health and preceding the final version of the original decision). Insofar as item 1 of the Second Application seeks access to the first category of information, I consider it clear that documents sought at item 1 of the Second Application were sought under the First Application.[14] In terms of item 2 of the Second Application, I consider that this item fully subsumes the documents sought under item 1 of the First Application, and also covers other documents. This is because item 2 of the Second Application seeks a wider range of QAS documents than item 1 of the First Application, and covers a small additional period of time.[15] Noting the extent to which the types of documents sought by the two items and the date ranges for them overlap, I am satisfied that some of the documents sought at item 2 of the Second Application[16] were sought under item 1 of the First Application.[17] Does the Second Application, on its face, disclose a reasonable basis for seeking access to those same documents? No. There is no information on the face of the Second Application which discloses any reasonable basis for again seeking access to these documents. Does a ground for refusing to deal with a later application apply? The grounds on which an agency may refuse to deal with the later application are listed in section 62(3) of the IP Act. Relevantly, these grounds include the ground that the applicant was given notice under section 68 of the IP Act that access to some of the documents was to be given,[18] and the ground that the first application is the subject of a review[19] that is not complete.[20] Given that Queensland Health decided to give the applicant access to some of the documents sought under the First Application, and given that the First Application is, until this decision is made and given to the parties, the subject of an external review that is not complete, I am satisfied that grounds for refusing to deal with the Second Application apply. Conclusion In summary, I am satisfied that: to the extent that the information responding to items 1 and 3 of the First Application was located and considered in response to the First Application, items 1 and 3 of the First Application and items 1 and 2 of the Second Application cover the same documents the grounds for refusing to deal with a later application listed at section 62(3)(b)(i) and (d)(i) of the IP Act apply; and the Second Application does not, on its face, disclose any reasonable basis for again seeking access to these documents. Accordingly, I find that Queensland Health was entitled to refuse to deal with items 1 and 2 of the Second Application, to the extent that the information sought was located and considered in response to the First Application. Nonexistent information Relevant law The right to access information in section 40 of the IP Act is also subject to grounds for refusal of access.[21] Under the RTI Act, access to a document may be refused if the document is nonexistent.[22] To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience and have regard to a number of key factors,[23] which include: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. When proper consideration is given to relevant factors, it may not be necessary for searches to be conducted. However, if searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case as the search and enquiry process an agency will be required to undertake will depend on which of the key factors are most relevant in the particular circumstances. To determine whether a document exists, but is unlocatable, the RTI Act requires consideration of whether there are reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency’s possession; and whether the agency has taken all reasonable steps to find the document. In answering these questions, regard should again be had to the circumstances of the case and the relevant key factors.[24] Findings Google searches and downloads As part of seeking external review of the entirety of Queensland Health’s decisions to refuse access to documents, the applicant sought review of Queensland’s Health’s decision that Google searches and downloads may be refused on the ground that they are non-existent – and, in this sense, can be taken to have challenged the sufficiency of Queensland Health’s searches for such documents. As set out at paragraph 5 above, Queensland Health refused access to documents relating to Google searches and downloads about the applicant sought at item 3 of the Second Application on the basis that the documents sought are nonexistent. In item 3 of the applicant’s Second Application, the applicant sought access to: All complaints, investigations and related emails and file notes about [the applicant] by QAS. ALL DOCUMENTS ABOUT [the applicant] INCLUDING EMAILS TO AND FROM MINISTERY OF HEALTH. INCLUDE PERSONS BLIND COPIED. INCLUDED GOOGLE SEARCHES AND DOWNLOADS ABOUT [the applicant]. [sic, my emphasis] Queensland Health’s decision states:[25] In response to the document search request for information relating to “google searches and downloads re [the applicant]”, eHealth has advised: "Our filtering software does not record what is searched by an employee, only that they have visited "Google". Similarly, we do not record what staff have searched for on other search engines / facebook or other social media sites. Therefore, the records of what a user has searched does not exist in our reports. I have also clarified that the information is not currently recorded in our proxy logs either - that will change over the next 12 months as we migrate to some newer technology." There are no documents or records relevant to Item 3 of [the access] application. Based on the advice of Queensland Health’s eHealth regarding the extent of information recorded by Queensland Health regarding internet searches and downloads, as set out at paragraph 32 above, I am satisfied that it is not necessary for searches regarding Google searches and downloads about the applicant to be conducted. I find that access to documents detailing Google searches and downloads about the applicant may be refused under section 67(1) of the IP Act and section 47(3)(e) of the RTI Act on the ground that the documents sought are n[26]existent.26 Other documents In the application for external review of Queensland Health’s internal review decision regarding the First Application, the applicant expressed concern that all QAS documents had not been located – however, these concerns were raised as a query regarding the scope of the application,[27] rather than in a manner suggesting that Queensland Health had failed to conduct sufficient searches for responsive documents. In the application for external review of Queensland Health’s decision regarding the Second Application, the applicant did not raise any concern regarding whether Queensland Health had located responsive documents. Several months after the commencement of the external reviews, the applicant submitted that: THE ISSUE IS INSUFFICIENT SEARCHES AND THAT THIRD PARTY DETAILS were used for the malicious purpose of creating a defamatory impression and a stigmatising criminalised mental health image which incited discrimination including severe torture and removal of personhood rights.I ask you to find all the calls from the watchhouse to QAS because those calls ridicule me and set me up for abusive medical treatment and more CIMHA records. I'd like the entire CIMHA record; [28] and emails around [named officer of the Office of Chief Psychiatrist] are essential ... INSUFFICIENT SEARCHES FOR [named officer of the Office of Chief Psychiatrist ]..[29] These submissions comprise the only information before me raising concerns about the sufficiency of Queensland Health’s searches for documents. Given the IP Act is beneficial legislation, I have considered these submissions and will now address them. Based on the applicant’s references to QAS, it is my understanding that the applicant considers that further QAS documents responsive to item 1 of the First Application, item 2 of the Second Application, and possibly item 3 of the Second Application, exist and should have been located by Queensland Health. Based on the applicant’s submissions regarding a named officer of the Office of the Chief Psychiatrist, it is my understanding that the applicant considers that further documents of the Office of the Chief Psychiatrist responsive to item 3 of the First Application exist, and should have been located by Queensland Health. I note that, in response to the First Application, Queensland Health located 3 pages and 1 audio recording of QAS documents, while in response to the Second Application, it located 221 pages and 5 audio recordings of QAS documents. I also note that, in response to the Second Application, Queensland Health located 187 pages of documents of the Office of the Chief Psychiatrist. I have carefully considered the applicant’s submissions about further documents of QAS or the Office of the Chief Psychiatrist. The applicant’s submissions assert that such documents exist, but provide no independent evidence or explanation to support this assertion. Given this position, the applicant’s submissions do not, in my opinion, provide sufficient evidence to establish, or reasonably suggest, that further documents responsive to the relevant items of the two applications exist. In these circumstances, and noting the significant amount of information responsive to the relevant items located and considered in Queensland Health’s decisions, there is nothing before me to suggest that Queensland Health has failed to conduct all reasonable searches, and I am satisfied that it is not necessary for Queensland Health to conduct further searches. Accordingly, I find that access to any further documents of QAS or the Office of the Chief Psychiatrist may be refused under section 67(1) of the IP Act and section 47(3)(e) of the RTI Act on the basis that the further documents sought at item 3 of the Second Application are nonexistent or unlocatable.[30] Irrelevant information Relevant law Under the IP Act, an agency may delete information that is irrelevant to the scope of the terms of the original application.[31] This is not a ground for refusal of access, but a mechanism to allow irrelevant information to be deleted from documents which are identified for release to an applicant. In deciding whether information is irrelevant, it is necessary to consider whether the information is pertinent to the terms of the access application. Findings Part of 1 page[32] of the Information in Issue comprises a single password. I have carefully considered this information and the terms of the Second Application as set out at paragraph 4 above. I am satisfied that this information is not information which responds to the access application as it is not about the applicant. Rather, it is about secure transfer of documents between business units within Queensland Health. Accordingly, I find that this information may be deleted under section 88 of the IP Act on the basis that it is not relevant to the access application. Contrary to the public interest information Relevant law Under the RTI Act, access to documents may also be refused to the extent they comprise information the disclosure of which would, on balance, be contrary to the public interest.[33] The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests.[34] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[35] identify factors irrelevant to the public interest and disregard them identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Findings The remaining Information in Issue is contained within parts of 57 pages and comprises: (i) mobile phone numbers of public service officers[36] (ii) names of public service officers in the context of their direct email address[37] (iii) leave details of public service officers[38] (iv) names of and other details about third parties;[39] and (v) collateral health information about the applicant provided by a third party.[40] Irrelevant factors No irrelevant factors have been taken into account in my decision. Factors favouring disclosure The RTI Act provides that there are factors favouring disclosure of information where such release could reasonably be expected to promote open discussion of public affairs, enhance the Government’s accountability, and inform the community of the Government’s operations.[41] Queensland Health must be transparent and accountable about how it deals with members of the public; however, I do not consider that the disclosure of the remaining Information in Issue would advance Queensland Health’s accountability and transparency in any significant way, particularly in light of the information which has been disclosed to the applicant in response to the access applications. I therefore afford the accountability and transparency factors favouring disclosure low weight. I acknowledge that the applicant’s personal information[42] appears in the information at (v) above as it comprises collateral health information about the applicant given by a third party. I acknowledge the importance of providing individuals with access to their personal information held by government and therefore, I give significant weight to the factor favouring disclosure regarding an applicant’s personal information[43] in relation to the information at (v) above. On the other hand, the information at (i), (ii), (iii) and (iv) above appears in documents about the applicant, but nevertheless does not comprise the applicant’s personal information. Accordingly, this factor favouring disclosure does not apply in relation to the information at (i), (ii), (iii) and (iv) above. Factors favouring nondisclosure The RTI Act recognises that disclosing an individual’s personal information to someone else can reasonably be expected to cause a public interest harm[44] and that a further factor favouring nondisclosure arises if disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[45] The information at (i), (ii), (iii) and (iv) above solely comprises the personal information of third parties. While some of this information relates to public service officers, I do not consider that it is routine personal work information[46] as it allows officers to be contacted directly and outside of work hours or it comprises details of leave taken by those officers. Disclosure of this type of information permits potential contact with a public service officer when off duty and/or engaged in private activity or discloses private details about their leave arrangements, thus giving rise to a reasonable expectation of intrusion in to the officer’s private life or ‘personal sphere’. In relation to the information at (v) above, while it comprises the applicant’s personal information, it also comprises sensitive personal information of a third party, including their opinions and observations, which cannot be separated. I consider disclosure of the information at (i), (ii), (iii), (iv) and (v) above could reasonably be expected to prejudice the protection of the right to privacy of other individuals and cause a public interest harm by disclosing their personal information. Given the nature of the information and the context in which it appears, I afford moderate weight to both of these factors with respect to the information at (i), (ii), (iii) and (iv). Noting the greater sensitivity and highly personal nature of the information at (v), I afford very high weight to the two factors with respect to this type of information. Balancing the public interest I have considered the pro-disclosure bias in deciding access to information.[47] As outlined above, I afford accountability and transparency factors favouring disclosure low weight with respect to all 5 types of information. I also afford the factor favouring disclosure concerning an applicant’s personal information[48] significant weight regarding the information at (v) above. On the other hand, I afford the factors favouring nondisclosure regarding the personal information and privacy of other individuals moderate weight with respect to the information at (i), (ii), (iii) and (iv) and very high weight with respect to the information at (v). On balance, for each of the 5 types of information, I consider the nondisclosure factors outweigh the disclosure factors in relation to the Information in Issue. Accordingly, I find that access to the remaining Information in Issue may be refused under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act on the basis that its disclosure would, on balance, be contrary to the public interest.DECISION I vary Queensland Health’s decisions and find that: Queensland Health can refuse to deal with items 1 and 2 of the Second Application[49] to the extent that information responding to these items was located and considered in response to the First Application access to Google searches and downloads responding to item 3 of the Second Application and further documents responding to the First and Second Applications may be refused on the ground that they are nonexistent or unlocatable[50] part of one page of the Information in Issue may be deleted on the basis that it is irrelevant to the scope of the Second Application;[51] and access to the remaining Information in Issue may be refused on the ground that its disclosure would, on balance, be contrary to the public interest information.[52] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.A RickardAssistant Information Commissioner Date: 28 November 2019 APPENDIX Significant procedural steps Date Event 26 February 2019 OIC received the applicant’s application for external review 314474. 27 February 2019 OIC received emailed submissions from the applicant. 1 March 2019 OIC notified Queensland Health and the applicant that the application for external review 314474 had been received and requested procedural documents from Queensland Health. 12 March 2019 OIC received the requested documents from Queensland Health. 15 March 2019 OIC received two emailed submissions from the applicant. 4 April 2019 OIC received the applicant’s application for external review 314561. OIC received emailed submissions from the applicant. 15 April 2019 OIC notified Queensland Health and the applicant that the application for external review 314561 had been received and requested procedural documents from Queensland Health. OIC received the requested documents from Queensland Health. 15 May 2019 OIC notified Queensland Health and the applicant that the applications for external review 314474 and 314561 had been accepted, and requested copies of the documents located in relation to both reviews from Queensland Health. 20 May 2019 OIC received emailed submissions from the applicant. 29 May 2019 OIC received copies of the documents located in relation to both external reviews 314474 and 314561 from Queensland Health. 12 July 2019 In relation to external review 314474, OIC received a copy of page 63 of the documents located marked in accordance with Queensland Health’s internal review decision. 22 July 2019 OIC conveyed a written preliminary view to Queensland Health in relation to external reviews 314474 and 314561. 23 July 2019 OIC received a response from Queensland Health advising that it accepted OIC’s preliminary view. 8 August 2019 OIC received emailed submissions from the applicant. 22 August 2019 OIC conveyed a written preliminary view to the applicant in relation to both external reviews 314474 and 314561. OIC requested Queensland Health release additional information to the applicant as agreed. OIC received emailed submissions from the applicant. 23 August 2019 Queensland Health advised OIC that it had released the additional information to the applicant. 27 August 2019 OIC received emailed submissions from the applicant. 28 August 2019 OIC received three emailed submissions from the applicant. With Queensland Health’s agreement, OIC released the additional information to the applicant in PDF format as the applicant was unable to access additional information that Queensland Health sent via secure file transfer on 23 August 2019. 29 August 2019 OIC received emailed submissions from the applicant. 11 September 2019 OIC received emailed submissions from the applicant. 13 September 2019 OIC received emailed submissions from the applicant. 19 September 2019 OIC received emailed submissions from the applicant. 25 September 2019 OIC wrote to the applicant about their external reviews. 26 September 2019 OIC received emailed submissions from the applicant. [1] Application dated 4 December 2018.[2] Decision dated 25 January 2019. [3] Internal review application dated 26 January 2019.[4] Internal review decision dated 26 February 2019.[5] Page 63. In the original decision dated 25 January 2019, the applicant was given access in part to this page.[6] Application dated 14 February 2019.[7] Decision subject of external review 314561 dated 4 April 2019. [8] For external reviews 314474 and 314561, the applications for external review are dated 26 February 2019 and 4 April 2019 respectively.[9] Email from Queensland Health dated 23 July 2019 in response to correspondence from OIC dated 22 July 2019.[10] Defined at paragraph 13 below.[11] Section 40 of the IP Act.[12] Section 62(1) of the IP Act.[13] Or the Right to Information Act 2009 (Qld) (RTI Act).[14] Insofar as item 1 of the Second Application seeks the second category of information, I note that Queensland Health located 74 pages of information and, in its decision dated 4 April 2019, decided to release 72 pages in full and 2 pages in part. [15] From 5 December 2018 to 14 February 2019.[16] That is, the 3 pages and 1 audio recording responsive to item 1 of the First Application that Queensland Health’s original decision dated 25 January 2019 decided to release in full. [17] Insofar as item 2 of the Second Application applies to a wider range of QAS documents and covers a small additional period of time, I note that Queensland Health located 221 pages and 5 audio recordings and, in its decision dated 4 April 2019, decided to release 194 pages and the 5 audio recordings in full and 27 pages in part. [18] Section 43(3)(b)(ii) of the RTI Act. [19] ‘Review’ is defined in section 62(5) of the IP Act to include an external review or a proceeding under chapter 3, part 11 of the RTI Act (that is, certain proceedings before the Queensland Civil and Administrative Tribunal). [20] Section 43(3)(d)(i) of the RTI Act. [21] Section 67(1) of the IP Act provides that access to a document may be refused on the same grounds upon which access to a document could be refused under section 47 of the RTI Act. [22] Sections 47(3)(e) and 52 of the RTI Act. A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist—section 52(1)(a) of the RTI Act.[23] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [19] which adopted the Information Commissioner’s comments in PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009). [24] Pryor at [21]. [25] At pages 2-3.[26] Section 52(1)(a) of the RTI Act.[27] As noted at paragraph 20 above, the scope of item 1 of the First Application seeks a narrower range of QAS documents than item 2 of the Second Application, and covers a slightly shorter period of time.[28] Submission dated 22 August 2019.[29] Submission dated 29 August 2019.[30] Section 52(1) of the RTI Act.[31] Section 88(2) of the IP Act.[32] Being page 25 of the ‘IP4834 processing documents’ in relation to external review 314561.[33] Section 47(3)(b) of the RTI Act.[34] However, there are some recognised public interest considerations that may apply for the benefit of an individual. [35] Section 49(3) of the RTI Act. [36] Appearing within pages 26, 29, 96 and 103 in relation to external review 314474 and page 34 of the ‘IP4834 processing documents’ and pages 94, 104, 138, 156, 168, 175, 178, 180, 183-184, 186-188, 190, 192-193, 195 and 197 of the ‘QAS documents about applicant’ in relation to external review 314561.[37] Appearing within pages 3, 6, 21-22, 27, 41-42, 47, 51, 95-96, 99, 101-102, 114, 119-120, 151-153, 157, 171-173, 184 and 187 in relation to external review 314474.[38] Appearing within pages 182 and 190 of the ‘QAS documents about applicant’ in relation to external review 314561.[39] Appearing within pages 63 and 157 in relation to external review 314474 and page 68 of the ‘IP4834 processing documents’ and pages 3-5, 7-8 and 11 of the ‘QAS documents about a named individual’ in relation to external review 314561.[40] Appearing within page 63 in relation to external review 314474.[41] Schedule 4, part 2, items 1 and 3 of the RTI Act. [42] Personal information is defined at section 12 of the IP Act: ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’[43] Schedule 4, part 2, item 7 of the RTI Act. [44] Schedule 4, part 4, section 6(1) of the RTI Act. [45] Schedule 4, part 3, item 3 of the RTI Act. [46] Routine personal work information is information that is solely and wholly related to the routine day to day work duties and responsibilities of a public sector employee, such as the fact of authorship of a work document or a work responsibility. Generally, it is not considered to be contrary to the public interest to disclose routine personal work information. However, it is considered to be contrary to the public interest to disclose sensitive personal information of public sector employees, such as complaints made by or about a public sector employee and reasons why an officer is accessing leave entitlements of any kind or when they have taken, or intend to take, leave.[47] Section 44 of the RTI Act. [48] Schedule 4, part 2, item 7 of the RTI Act. [49] Under section 62 of the IP Act.[50] Under section 67(1) of the IP Act and section 47(3)(e) of the RTI Act.[51] Under section 88(1) of the IP Act.[52] Under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

T85 and Wide Bay Hospital and Health Service [2022] QICmr 38 (9 August 2022)

T85 and Wide Bay Hospital and Health Service [2022] QICmr 38 (9 August 2022) Last Updated: 20 February 2023 Decision and Reasons for Decision Citation: T85 and Wide Bay Hospital and Health Service [2022] QICmr 38 (9 August 2022) Application Number: 316446 Applicant: T85 Respondent: Wide Bay Hospital and Health Service Decision Date: 9 August 2022 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY - AMENDMENT OF PERSONAL INFORMATION - information contained in the applicant’s health records - whether information is inaccurate, incomplete, out of date or misleading - whether agency entitled to exercise discretion to refuse amendment - whether amendment by deletion or notation appropriate - section 72 of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Wide Bay Hospital and Health Service (Health Service) under the Information Privacy Act 2009 (Qld) (IP Act) to amend certain personal information contained within his health records.[1] The information the applicant sought to amend falls into two categories. The Health Service decided to refuse to amend the health records, as it was not satisfied that the information was inaccurate, incomplete, out of date or misleading.[2] The applicant sought internal review of that decision[3] and the Health Service affirmed its original decision on internal review.[4] The applicant then applied to the Office of the Information Commissioner (OIC) for external review of the Health Service’s internal review decision.[5] On external review, the applicant provided evidence to support his contention that the first category of information was incorrect. The Health Service agreed to add a notation to the applicant’s health records to reflect this. While the applicant agreed to the proposed notation, he also requested that this category of information be removed from his health records.[6] Further, the applicant maintained that the second category of information is inaccurate and misleading. For the reasons set out below, I vary the Health Service’s decision and find that: the first category of information within the applicant’s health records can be amended by notation; and the applicant’s request to amend the second category of information within his health record may be refused. Reviewable decision and evidence considered The reviewable decision is the Health Service’s internal review decision dated 3 November 2021. Significant procedural steps taken in this review are set out in the Appendix. The evidence, submissions, legislation, and other material I have considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the rights to freedom of expression and reputation.[7] I consider a decision-maker will be ‘respecting and acting compatibly with’ those rights and others prescribed in the HR Act, when applying the law prescribed in the IP Act.[8] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act.[9] Issue for determination There is no dispute that the applicant has had access to his health records and that these records comprise his ‘personal information’.[10] The information which the applicant seeks to have amended within his health records (Information in Issue) comprises references to: the existence of a domestic and family violence order; and a history of aggression and domestic and family violence. The issue for determination is whether the Health Service was entitled to refuse to amend the applicant’s health records. Relevant law Under the IP Act, an individual who has had access to a document of an agency may apply to the agency for amendment of any part of the individual’s personal information[11] contained in the document that the individual claims is inaccurate, incomplete, out of date or misleading.[12] Without limiting the grounds on which the agency may refuse to amend the document, the agency may refuse to amend the document because the agency is not satisfied that the personal information is inaccurate, incomplete, out of date or misleading.[13] However, even if it is shown that the information an applicant seeks to amend is inaccurate, incomplete, out of date or misleading, the IP Act confers a discretion on the decision-maker to refuse amendment.[14] While an agency has the onus on external review of establishing that its decision was justified,[15] ‘the practical or evidentiary onus shifts to the party challenging the decision to provide evidence in support of the contention that the party is entitled to amendment on the basis that the documents in question contain information which is inaccurate, incomplete, out of date or misleading’.[16] If the agency decides to amend the document which is the subject of the amendment application, the agency may make the amendment by either altering the personal information or adding an appropriate notation to the personal information.[17] If a notation is added, it must state how the information is inaccurate, incomplete, out of date or misleading and, if the information is claimed to be incomplete or out of date, set out the information required to complete the information or bring it up to date.[18] Findings References to the existence of a domestic and family violence order The applicant provided OIC with a range of evidence supporting his position that he is not the subject of a domestic violence order and that references to such an order in his health records are therefore inaccurate or misleading.[19] On external review, the Health Service accepted that the references were inaccurate or misleading and agreed to the applicant’s health records being amended to reflect this. I have noted above that, while section 41 of the IP Act provides the applicant with a right to amend his personal information where it is inaccurate or misleading, sections 72 and 74 of the IP Act confer a discretion upon the decision maker as to whether an amendment should be made and whether this should be by way of alteration or notation. For this reason, as both the applicant and the Health Service agreed that references to the existence of a domestic violence order were inaccurate and misleading, and that an amendment can be made, I have proceeded to consider the form of amendment that is appropriate in the circumstances.[20] The Health Service proposed to amend the applicant’s health records by adding a notation where the relevant references appeared in his health records, stating: ‘This record is inaccurate, misleading or deceptive because there is no current evidence of a DVO being taken out’. I communicated this proposed notation to the applicant.[21] The applicant’s response seemed to accept the proposed notation being added to his records, however, he also requested that ‘all the false references [be] removed or redacted’ and ‘purged’.[22] On this basis, the applicant proposed that his health records be amended by both deleting all references to the existence of a domestic and family violence order and adding the notation proposed by the Health Service. I consider that deleting the references to a domestic and family violence order from the applicant’s health records would destroy the integrity of the Health Service’s record keeping process.[23] This information accurately records what the Health Service staff wrote at the time, although it has since been proven to be factually incorrect. On the other hand, the notation proposed by the Health Service: makes it clear that the references to a domestic and family violence order in the applicant’s health records are incorrect and misleading; and explains why, without altering the integrity of its original record.[24] For these reasons, I consider that references to a domestic and family violence order within the applicant’s health records should be amended by notation and the Health Service’s proposed notation is appropriate in the circumstances. Finally, I note that the applicant provided OIC with a letter from the Minister for Health and Ambulance Services to the Member for Burnett dated 1 October 2021, which relates to the ‘procedures for mental health service clinicians verifying court orders in medico-legal reports’. The last paragraph of this letter states: ‘Should the psychiatrist become aware that information contained within a report is not valid, they can amend the report to ensure all information remains current and accurate.’ The applicant submitted that this letter outlines the steps the doctors ‘should have taken to confirm an actual court order had been issued’[25] and that it supports his request for the information to be ‘purged’.[26] While I have considered the applicant’s submissions on this issue, the provided letter refers to the way in which clinicians can access and amend information as part of their duties with the Health Service, which is not directly relevant to the amendment provisions of the IP Act. References to a history of aggression and domestic and family violence I have carefully considered the applicant’s health records (as provided by the Health Service) and the relevant sections which refer to aggression and domestic and family violence, noting that the specific wording used in the health records varies—my words in this decision are simply a summary of that category of information. The applicant has provided extensive submissions (and supporting evidence) on external review in support of his case that this category of information is incorrect and misleading.[27] He asserts that there is no evidence to support these references to aggression and domestic and family violence, and he has had to ‘prove [our] innocence’.[28] He provided a detailed background about his health, marriage, family and employment, together with certified copies of statutory declarations signed by himself, his wife and son in relation to the events in January 2017 when police and ambulance staff attended his residence in relation to the emergency examination authority. He relies on the contents of these declarations to show that he was not aggressive or violent on that date. I have carefully considered these submissions and acknowledge that the applicant strongly disagrees with the information recorded within his health records. However, for information to be considered ‘inaccurate’, an applicant must establish not only that the information inaccurately represents the underlying events or issues, but also, that the author had not actually held and accurately entered their particular understanding of those events into the official record.[29] The term ‘misleading’ is not defined in the IP Act or the Acts Interpretation Act 1954 (Qld). This term is therefore used in its ordinary sense and the ordinary dictionary definition of ‘mislead’ (ie ‘to lead or guide wrongly; lead astray’ or ‘to lead into error of conduct, thought or judgement’[30]) is relevant. The amendment provisions under the IP Act are limited in their scope and effect, and there are a number of considerations a decision maker may appropriately take into account in determining whether or not to exercise the discretion to amend a particular document. Relevantly, the provisions are not intended to: rewrite history,[31] as this destroys the integrity of the record keeping process;[32] or determine disputed questions of opinion (including expert opinion), when that opinion was actually held and accurately entered in the official record.[33] In this context, I am not required to investigate whether the applicant does in fact have a history of aggression or domestic and family violence. Rather, the scope of my inquiry in this case is limited to deciding whether the information which has been conveyed to, and recorded by, the clinicians was recorded correctly in the applicant’s health records. The Health Service relevantly explained that:[34] The information in question is various notations by clinicians involved in the assessment and treatment of the applicant as part of referral to the Mental Health, Alcohol & Other Drugs Service (MHAODS). These notes are copies of progress notes that have either been completed contemporaneously or type written into the Consumer Integrated Mental Health & Addiction application (CIMHA) as soon as practicable after the assessment/interview has taken place. Based on my assessment of the applicant’s health records, I note that some of the information records direct observations of the applicant which were made by clinicians and other professionals. Other information is collateral information, provided by third parties, and in my view this information has been recorded contemporaneously in the progress notes, clinical reports and other documents relevant to the Mental Health Act 2016 (Qld). Despite the applicant’s submissions, there is nothing to suggest that these direct observations and collateral information were inaccurately recorded in the applicant’s health records or that they are misleading. Accordingly, I am not satisfied that this category of information is inaccurate, incomplete, out of date or misleading and the amendments requested by the applicant for this category of information may be refused under section 72(1)(a)(i) of the IP Act. I am also satisfied that, even if the applicant had demonstrated that this category of information was inaccurate or misleading, the discretion to refuse amendment could be exercised.[35] As noted above, this information records both direct observations and information received by clinicians and other professionals during the applicant’s health assessment and treatment. While the applicant considers these references should be ‘purged’, I consider their deletion from the health records could damage the integrity of those records. This is not, in my view, an outcome which the amendment provisions in the IP Act were intended to permit. DECISION For the reasons set out above, I vary[36] the Health Service’s decision and I find that the first category of information in the applicant’ health records can be amended by notation and the applicant’s request to amend the second category of information in his health records may be refused. T Lake Acting Assistant Information Commissioner Date: 9 August 2022 APPENDIX Significant procedural steps Date Event 26 November 2021 OIC received the application for external review (including supporting information). 16 December 2021 OIC notified the applicant and the Health Service that the external review application had been accepted and requested information from the Health Service. 7 January 2022 OIC received the requested information from the Health Service. 4 March 2022 OIC conveyed a preliminary view to the Health Service and invited the Health Service to propose wording for a notation. 25 March 2022 The Health Service notified OIC that it accepted OIC’s preliminary view and proposed the notation it would agree to add to the applicant’s health records. OIC notified the applicant of the notation proposed by the Health Service and conveyed a preliminary view to the applicant concerning the balance of his amendment request. The applicant was invited to provide submissions supporting his case if he did not accept the preliminary view. 8 April 2022 OIC received the applicant’s submissions (and supporting information). 14 April 2022 OIC notified the Health Service that the applicant had not accepted the preliminary view and that the external review would be finalised by a formal decision. [1] The application is dated 3 August 2021 and was received by the Health Service on 10 August 2021. [2] Decision dated 9 September 2021. [3] By email dated 7 October 2021. [4] Decision dated 3 November 2021. [5] External review application dated 24 November 2021. [6] Additionally, the applicant requested that OIC issue a formal decision in respect of the first category of information. [7] Sections 21 and 25(b) of the HR Act. [8] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. [9] I also note the following observations made by Bell J in XYZ at [573], on the interaction between equivalent pieces of Victorian legislation (namely, the Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic)): ‘... it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’. [10] As there is also no dispute that the health records comprise a functional record, it is unnecessary to consider section 72(1)(b) of the IP Act in this decision. [11] ‘Personal information’ is defined in section 12 of the IP Act as: ‘...information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’ [12] Section 41 of the IP Act. Section 44 of the IP Act sets out the requirements for making an amendment application. [13] Section 72(1)(a) of the IP Act. [14] In Purrer v Office of the Information Commissioner & Anor [2021] QCATA 92 (Purrer), Daubney J made the following observation about section 72(1) of the IP Act at [28]: ‘the prefatory words of the section clearly operate to retain in the relevant agency or Minister a general discretion to refuse to amend’. [15] Section 100(1) of the IP Act.[16] Purrer at [32]. Refer also to section 44(4) of the IP Act, which requires an applicant to state both the way in which the information is inaccurate, incomplete, out of date or misleading and the amendments necessary for the information to be accurate or not misleading. [17] Section 74 of the IP Act. Under section 118(b) of the IP Act, the Information Commissioner has the power on external review to decide any matter in relation to an application that could have been decided by the agency under the IP Act. [18] Section 75 of the IP Act. [19] This relevant evidence includes (i) a certified copy of a letter he received from the local Magistrates Court dated 22 October 2020, which confirms that no records about the applicant or his wife relating to domestic violence orders can be found on the court database (which records details of all domestic violence orders made in Queensland Courts since late 2000), and (ii) his Queensland Court Outcomes sheet which shows his finalised criminal offences and which does not record any information about a domestic violence order. The applicant provided a number of additional documents to support his contention on this issue, but those documents did not provide any information on the existence or otherwise of a domestic violence order and are not relevant for me to address in this decision. [20] Section 74 of the IP Act.[21] By email dated 25 March 2022. [22] Email from the applicant to OIC on 8 April 2022. [23] DenHollander and Department of Defence [2002] AATA 866 (DenHollander) at [96].[24] In accordance with section 75(a) of the IP Act. [25] External review application. [26] Applicant’s submissions dated 8 April 2022. [27] I have carefully considered all the information provided by the applicant. To the extent it is relevant to the issues for determination, I have addressed it in my reasons for decision above. As explained in paragraph 21, the letter from the Minister for Health and Ambulance Services to the Member for Burnett on 1 October 2021 is not directly relevant to the amendment provisions of the IP Act, and so I have not considered it here.[28] Email submissions dated 8 April 2022. [29] A4STL6K and Queensland Health (Unreported, Queensland Information Commissioner, 6 September 2013) at [27].[30] Macquarie Dictionary (7th ed, 2017) ‘mislead’ (def 1 and 2).[31] DenHollander at [96]. [32] To ensure that, in a record keeping context, the document is preserved without any alteration as a public record. [33] Crewdson v Central Sydney AHS [2002] NSWCA 345 at [34]. [34] In its internal review decision dated 7 October 2021.[35] See footnote 14 above. [36] As a delegate of the Information Commissioner, under section 139 of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

M96 and Queensland Police Service [2021] QICmr 48 (23 September 2021)

M96 and Queensland Police Service [2021] QICmr 48 (23 September 2021) Last Updated: 24 January 2022 Decision and Reasons for Decision Citation: M96 and Queensland Police Service [2021] QICmr 48 (23 September 2021) Application Number: 315685 Applicant: M96 Respondent: Queensland Police Service Decision Date: 23 September 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - IRRELEVANT INFORMATION - whether deleted information is irrelevant to the terms of the access application - section 88 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION -PREVENTION OR DETECTION OF POSSIBLE CONTRAVENTION OF THE LAW - information passing between Queensland Police Service Officers and Coronial Officers - prejudice prevention or detection of a possible contravention of the law - whether exempt - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 and schedule 3, section 10(1)(f) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST - personal information about other individuals - safeguarding personal information and the right to privacy of other individuals - whether disclosure would, on balance, be contrary to the public interest - whether access may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied to Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to documents regarding the circumstances which led to the applicant being interviewed by QPS Officers as part of an investigation into the death of the applicant’s husband.[1] The applicant sought information that would identify the family member who reported the death as suspicious.[2] 2. QPS did not make a considered decision[3] within the required timeframe and was therefore deemed to have made a decision refusing access to the requested information.[4] 3. The applicant applied to the Office of the Information Commissioner (OIC) for external review of QPS’s decision.[5] During the external review, QPS located documents and disclosed them to the applicant, subject to the redaction of some information. 4. In terms of the redacted information remaining in issue, for the reasons set out below, I find that this information may be refused or deleted on the following grounds: parts of seven pages are not relevant to the access application[6] parts of three pages are exempt information, as disclosure of them could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law;[7] and disclosure of parts of 33 pages would, on balance, be contrary to the public interest.[8] Background 5. Significant procedural steps taken during the external review are set out in the Appendix to this decision. Reviewable decision and evidence considered 6. The decision under review is the decision refusing access to all requested information, which QPS is deemed to have made under section 66(1) of the IP Act. 7. The evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). 8. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), which provides that it is unlawful for a public entity to make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a human right relevant to the decision.[9] Here, the right to seek and receive information[10] is particularly apposite. I note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[11] ‘it is perfectly compatible with the scope of that positive right in the [Charter of Human Rights and Responsibilities Act] for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[12] I consider a decision-maker will be ‘respecting, and acting compatibly with’ the right to seek and receive information and other rights prescribed in the HR Act, when applying the law prescribed in the IP Act and the Right to Information Act 2009 (Qld) (RTI Act).[13] I have, in accordance with section 58(1) of the HR Act, acted in this way in making this decision. Information in issue 9. The information in issue comprises portions of information appearing within QPS activity logs, emails sent or received by QPS’s Coronial Support Unit, forensic reports, witness statements, evidence management documents, police reports to the Coroner, a statement of formal identification and police notebooks. Issues for determination 10. On external review, QPS located documents and disclosed them to the applicant, subject to the redaction of some information. The applicant[14] confirmed that she did not want access to QPS Officers’ mobile telephone numbers and made submissions regarding some redacted information,[15] but did not address the remaining redacted information. For the sake of completeness, this decision addresses all redacted information, except QPS Officers’ mobile telephone numbers. 11. Accordingly, the issues for determination in this review are: Exempt information - whether access to parts of three pages[16] may be refused on the ground that this information is exempt information, namely information the disclosure of which could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. Contrary to public interest information - whether access to parts of 33 pages[17] may be refused on the ground that disclosure of this information would, on balance, be contrary to the public interest. Irrelevant information - whether parts of seven pages[18] may be deleted on the basis that the information is irrelevant to the scope of the access application. Exempt information Relevant law 12. Under the IP Act, an individual has the right to be given access to documents of a government agency, to the extent they contain the individual’s personal information.[19] However, the right of access under the IP Act, is subject to limitations, including grounds for refusing access. One ground for refusing access is where the information is exempt information.[20] Of relevance to this review, information will be exempt information if: there exists an identifiable lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law; and disclosure of the information could reasonably be expected to prejudice the effectiveness of that method or procedure.[21] Findings 13. The three part pages in issue[22] comprise portions of information which appear within: an email from an Officer in QPS’s Coronial Support Unit to another QPS Officer;[23] and an email from a Coronial Services Officer of the Coroners Court of Queensland and a Coronial Counsellor with the Department of Health, forwarded to QPS’s Coronial Support Unit.[24] 14. The information in issue relates to certain steps to be undertaken following concerns raised about the applicant’s husband’s death. While I am precluded from setting out the nature of this information in more detail,[25] I can say that the information comprises information of a procedural nature in relation to gathering certain types of evidence regarding the applicant’s husband’s death. 15. Further, having noted the Coroners Act 2003 (Qld) (Coroners Act) – in particular, its provisions which define ‘reportable deaths’, require the reporting of such deaths, and set out how they may be investigated – I can confirm that the procedures mentioned in the information in issue are lawful procedures for detecting or investigating possible contraventions of the law. 16. Part 3 of the Coroners Act provides general information in relation to investigations undertaken by the Coroner. However, the information in issue is much more specific and detailed. Also, given its context, it provides an indication of the type of circumstances in which certain procedures may be deployed. Given these considerations, I am satisfied that, if the public were to be alerted to the manner in which evidence is obtained in an investigation of this nature,[26] the effectiveness of the procedures in question could reasonably be expected to be reduced in future investigations. 17. In these circumstances, I find that both requirements referred to in paragraph 12 above, have been met. I also note that there is nothing in the information before me to suggest that any of the exceptions in schedule 3, section 10(2) of the RTI Act apply in the circumstances of this matter. Accordingly, I find that the three part pages are exempt information[27] and access may be refused on this ground.[28] 18. As a general point, the applicant submitted that the redacted information should be provided to her as ‘[her deceased husband]’s wife of almost [...] years’.[29] In the case of exemption grounds, there is no scope under the IP Act to consider this type of submission. This is because Parliament has identified that if information falls under an exemption ground access to it must always be refused, as it is considered contrary to the public interest to disclose, in all circumstances.[30] Contrary to the public interest information Relevant law 19. Under the IP Act, a further ground for refusing access to information is where its disclosure would, on balance, be contrary to the public interest.[31] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests.[32] 20. In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[33] identify factors irrelevant to the public interest and disregard them identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Findings 21. While I am limited in the extent to which I can describe the Information in Issue,[34] it may be categorised as follows: Category A Information - the personal information of third parties, which is not about the applicant; including those third parties’ names, ages, contact details and signatures.[35] Category B Information - information provided to QPS by some of those third parties[36] and communications that repeat the information or identify the individual that provided the information to QPS.[37] 22. In considering the Category A and Category B Information, I have not taken into account any irrelevant factors.[38] Factors favouring disclosure 23. The RTI Act recognises that, when the information in issue comprises an applicant’s personal information, a factor favouring disclosure applies.[39] Personal information is:[40] information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. 24. This pro-disclosure factor does not apply to the Category A Information, given that the information is not about the applicant. 25. It does apply to some of the Category B Information, which comprises information about the applicant provided by third parties to QPS.[41] Noting the public interest in individuals being able to access their own personal information held by government agencies, I afford this factor significant weight with respect to some of the Category B Information.[42] 26. I have also considered whether disclosure of the Information in Issue could reasonably be expected to: promote open discussion of public affairs and enhance Government’s accountability[43] inform the community of the Government’s operations;[44] or reveal reasons for a Government decision and any background or contextual information that informed the decision.[45] 27. I recognise that the disclosure of the Category A and Category B Information would provide the applicant with a greater understanding of what information was provided to QPS and by whom and why QPS decided to report her husband’s death to the State Coroner.[46] Accordingly, I afford these factors significant weight in relation to both categories of information. 28. The applicant has, as noted above, submitted generally that she should have access to the information as ‘[her deceased husband]’s wife of almost [...] years’.[47] In terms of the 33 part pages, specifically, the applicant’s submissions are:[48] I have heard with monotonous regularity “in the public interest”, my interests are fundamental and I believe worthy of more weighted consideration in this whole process. How is it that a family member can accuse me of this and walk away and yet I am left to feel scarred and devalued as I fight to obtain the answers I have been pursuing for the past 18 months. The only thing I can add to this submission is the fact that I haven’t had the opportunity to grieve the passing of my husband... 29. The Information Commissioner has previously recognised the existence of a public interest in the social and economic well-being of the community,[49] particularly in assisting an individual with the grieving process.[50] To the extent that the applicant is seeking access to her husband’s personal information, this has already been disclosed to her by QPS. However, I acknowledge that disclosing the Category A and Category B Information to the applicant would provide the applicant with information as to who contacted QPS about her husband’s death. Having carefully considered the applicant’s submissions, I am satisfied that it is more probable than not that disclosure of this information would assist the applicant to move forward with her grieving process and, in doing so, contribute to the social and economic well-being of the community. I afford this factor significant weight. 30. Finally, I have also carefully considered the remaining factors listed in schedule 4, part 2 of the RTI Act and turned my mind to other possible factors favouring disclosure;[51] however, I am satisfied that no other public interest factors favouring disclosure are relevant in the circumstances of this review. Factors favouring nondisclosure 31. As noted at paragraph 21 above, both the Category A and the Category B Information comprise the personal information of other third parties. 32. The RTI Act recognises that disclosing an individual’s personal information[52] to someone else can reasonably be expected to cause a public interest harm[53] and that a further factor favouring nondisclosure arises if disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[54] 33. I consider these nondisclosure factors warrant significant weight with respect to the Category A Information which, as noted above,[55] comprises solely the personal information of third parties. 34. In terms of the Category B Information, as noted above,[56] some of this information comprises information about the applicant, provided by third parties to QPS. Given the intertwined nature of this information, it is not possible to separate information concerning the applicant from information concerning the third parties. While some of the Category B Information is about the applicant, it is not solely about her, and its disclosure would also disclose the personal information of the third parties. 35. The Category B information records the third parties’ opinions, observations, and/or concerns relating to the death of the applicant’s husband. I consider that this information is highly sensitive in nature, given that it was provided in the context of concerns about the circumstances of the death of the applicant’s husband. In the circumstances of this review, I am satisfied that disclosure could reasonably be expected to prejudice the protection of the individuals’ right to privacy and cause a public interest harm; and I consider that these two nondisclosure factors should be given significant weight in relation to the Category B Information. 36. The Category A Information includes the identity of the third parties who contacted QPS to raise concerns about the death of the applicant’s husband and the Category B Information includes information that was provided to QPS in relation to those concerns. Accordingly, I have also considered whether disclosure of the Category A and Category B Information could reasonably be expected to prejudice the flow of information to law enforcement or regulatory agencies.[57] 37. It is generally recognised that there is very strong public interest in protecting the free flow of information to law enforcement agencies.[58] This is because agencies such as QPS often rely on information from the public and the efficient and effective use of public resources is facilitated by QPS being able to seek and obtain information from members of the community, whether they are complainants, witnesses, informers or the subjects of complaint.[59] Routinely disclosing this type of information under the IP Act process, would tend to discourage individuals from coming forward with relevant information. It is reasonable to expect that this would, in turn, detrimentally affect QPS’s ability to effectively discharge its functions.[60] 38. Taking into account the nature of the Category A and Category B Information, I consider the prejudice to the flow of information to QPS arising from the disclosure of this information would be significant and afford this nondisclosure factor significant weight. Balancing the public interest 39. As outlined above, in relation to the Category B Information, I afford the pro-disclosure factor concerning the applicant’s personal information significant weight. I also afford the pro-disclosure factors regarding accountability, informing the community of the Government’s operations, background or contextual information and the social and economic wellbeing of the community significant weight in relation to both the Category A and Category B Information. 40. On the other hand, I afford the nondisclosure factors regarding personal information and privacy of other individuals significant weight in relation to both the Category A and Category B Information. Similarly, I afford the nondisclosure factor regarding prejudice to the flow of information to QPS significant weight with respect to the Category A and Category B Information. 41. The applicant submits that she considers that her interests are ‘fundamental’ and require a ‘more weighted consideration’ when balancing the public interest.[61] While there are circumstances where an individual’s personal interest in accessing information may align with the public interest – for example, the circumstances noted at paragraph 29 above[62] – generally it is not necessary to consider the interests of an individual when considering the public interest.[63] As noted at paragraph 19 above, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests. 42. I acknowledge that the circumstances have been very distressing for the applicant and she has a strong personal interest in finding out who made the notification to QPS; however, in relation to the both the Category A and the Category B Information, I find that the pro-disclosure bias[64] and the combined weight of the applicable pro-disclosure factors, while significant, are outweighed by what I consider to be the relatively greater collective weight of the nondisclosure factors 43. Accordingly, I find that access to the both the Category A and Category B Information may be refused on the ground that its disclosure would, on balance, be contrary to the public interest. Irrelevant information Relevant law 44. Section 88 of the IP Act provides that an agency may give access to a document subject to the deletion of information it considers is not relevant to an access application. This provision does not set out a ground for refusal of access. Rather, it provides a mechanism to allow irrelevant information to be deleted from documents which are identified for release to an applicant. In deciding whether information is irrelevant, it is necessary to consider whether the information has any bearing upon, or is pertinent to, the terms of the application.[65] Findings 45. The deleted information comprises small portions of information on seven pages.[66] I am satisfied that these portions of information comprise details about other duties attended to by QPS Officers. These duties relate to entirely separate matters that do not, in any way, involve or have any relevance to the applicant or the circumstances referred to in her application. 46. Given the small portions of information on seven pages clearly fall outside the terms of the application, I find that they can be deleted from the copies of the documents released to the applicant.[67]DECISION 47. For the reasons set out above, I vary QPS’s decision and find that: parts of seven pages are not relevant to the access application and therefore may be deleted[68] access to parts of three pages may be refused on the ground that they comprise exempt information, namely information the disclosure of which could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law;[69] and access to parts of 33 pages may be refused on the ground that disclosure of this information would, on balance, be contrary to the public interest.[70] 48. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.A RickardA/Right to Information CommissionerDate: 23 September 2021 APPENDIX Significant procedural steps[71] Date Event 20 October 2020 OIC received the applicant’s external review application. 21 October 2020 OIC notified the applicant and QPS that the external review application had been received and requested procedural information and documents from QPS. 5 November 2020 OIC received the procedural information from QPS. 11 November 2020 OIC notified the applicant and QPS that the external review had been accepted, and requested the information in issue from QPS. 26 November 2020 QPS provided the information in issue to OIC. 23 February 2021 OIC wrote to QPS conveying a preliminary view. 31 March 2021 OIC contacted QPS requesting a response to OIC’s preliminary view dated 23 February 2021. 16 April 2021 OIC contacted QPS requesting a response to OIC’s preliminary view dated 23 February 2021. The applicant requested an update. 19 April 2021 QPS advised OIC that it accepted OIC’s preliminary view. 26 April 2021 The applicant contacted OIC expressing her dissatisfaction with the information disclosed to her by QPS. 28 April 2021 OIC provided a response to the applicant’s email dated 26 April 2021. 29 April 2021 The applicant contacted OIC to confirm that she wished to proceed with the external review. 6 May 2021 OIC wrote to the applicant conveying a preliminary view. 12 May 2021 The applicant provided a response to OIC’s preliminary view. 13 May 2021 OIC received a submission from the applicant. 21 May 2021 OIC advised the applicant that it would be proceeding to a formal decision. [1] For the time period 26 October 2019 to 5 November 2019.[2] Application dated 10 November 2019. [3] Section 65 of the IP Act.[4] Initially QPS made a decision on 20 February 2020 in which it refused to deal with the applicant’s application under section 59 of the IP Act and schedule 3, section 10(1)(a) of the Right to Information Act 2009 (Qld) (RTI Act). The applicant applied to OIC for external review. On external review, QPS accepted OIC’s view that it was not entitled to refuse to deal with the application, and the application was referred back to QPS to process. QPS then provided notice of the deemed decision, as required by section 66(2) of the IP Act, to the applicant on 12 October 2020.[5] On 20 October 2020.[6] Section 88 of the IP Act.[7] Under section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 10(1)(f) of the RTI Act. Section 67(1) of the IP Act sets out that an agency may refuse access to information in the same way and to the same extent that the agency could refuse access to the document under section 47 of the RTI Act were the document the subject of an access application under the RTI Act[8] Sections 47(3)(b) and 49 of the RTI Act.[9] Section 58(1) of the HR Act. [10] Section 21(2) of the HR Act. [11] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [12] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573].[13] XYZ at [573]; see also Horrocks v Department of Justice (General) [2012] VCAT 241 at [111].[14] Applicant’s letter to OIC dated 13 May 2021.[15] That is, the information referred to as ‘Contrary to public interest information’ below. [16] At pages 10, 17 and 56.[17] At parts of pages 1-4, 13-14, 16, 18, 21-34, 38, 40, 44-45, 48-50, 55 and 57-59.[18] At pages 52, 55, 57, 58, 59, 60 and 61.[19] Section 40(1)(a) of the IP Act.[20] Under section 48(4) and schedule 5 of the RTI Act, exempt information is defined as meaning information that is exempt information under schedule 3 of the RTI Act. Schedule 3 sets out the types of information, the disclosure of which Parliament has considered would, on balance, be contrary to the public interest – section 48(2) of the RTI Act.[21] Schedule 3, section 10(1)(f) of the RTI Act.[22] At pages 10, 17 and 56.[23] At page 10 and repeated at page 56.[24] At page 17.[25] Section 121(3) of the IP Act.[26] Noting that ‘There is no provision of that Act which contemplates any restriction or limitation on the use which that person can make of that information, including by way of further dissemination’ – see FLK v Information Commissioner [2021] QCATA 46 at [17] per McGill J. [27] Section 48 and schedule 3, section 10(1)(f) of the RTI Act.[28] Section 67(1) of the IP Act and section 47(3)(a) of the RTI Act.[29] Applicant’s email to OIC dated 26 April 2021.[30] Section 67(1) of the IP Act and section 48(2) of the RTI Act. [31] Section 67(1) of the IP Act and section 47(3)(b) and 49 of the RTI Act. [32] However, there are some recognised public interest considerations that may apply for the benefit of an individual. See Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12. [33] Section 49(3) of the RTI Act. [34] Section 121(3) of the IP Act.[35] At parts of pages 1-4, 13-14, 16, 18, 21-32, 34, 40, 44-45, 48, 50, 55, 58 and 59.[36] At pages 2, 32-33, 38, 55, 57 and 58. [37] At pages 18 and 49. [38] Section 49(3)(d) of the RTI Act.[39] Schedule 4, part 2, item 7 of the RTI Act.[40] Definition of ‘personal information’ in schedule 5 of the RTI Act and section 12 of the IP Act.[41] At pages 32, 33 and 38.[42] Given the references to the applicant were made by individuals other than the applicant, the information about the applicant is intertwined with the personal information of the other individuals. This issue of the ‘intertwined’ personal information is addressed below under the heading ‘Factors favouring nondisclosure’.[43] Schedule 4, part 2, item 1 of the RTI Act.[44] Schedule 4, part 2, item 3 of the RTI Act.[45] Schedule 4, part 2, item 11 of the RTI Act.[46] Pursuant to the Coroners Act.[47] Applicant’s email to OIC dated 26 April 2021.[48] Applicant’s letter to OIC dated 13 May 2021.[49] OKP and Department of Communities (Unreported, Queensland Information Commissioner, 9 July 2009) at [82].[50] Keogh and Department of Health (Unreported, Queensland Information Commissioner, 31 August 2010) at [12]-[22]. [51] Noting that, given the wording of section 49(3)(b) of the RTI Act, the factors favouring disclosure listed in schedule 4, part 2 of the RTI Act are non-exhaustive.[52] Again, ‘personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’[53] Schedule 4, part 4, section 6(1) of the RTI Act.[54] Schedule 4, part 3, item 3 of the RTI Act.[55] At paragraph 21.[56] At paragraph 25.[57] Schedule 4, part 3, item 13 of the RTI Act.[58] See for example P6Y4SX and Queensland Police Service [2015] QICmr 25 (11 September 2015), P6Y4SX and Department of Police (Unreported, Queensland Information Commissioner, 31 January 2012), SW5Z7D and Queensland Police Service [2016] OICmr 1 (15 January 2016) and Marshall and Department of Police (Unreported, Information Commissioner of Queensland, 25 February 2011) (Marshall).[59] See Marshall at [29].[60] See Marshall at [29]. Adopting the ordinary meaning of the term ‘prejudice’: see Daw and Queensland Rail (Unreported, Queensland Information Commissioner, 24 November 2010) at [16].[61] Applicant’s letter to OIC dated 13 May 2021.[62] Another example is where an applicant is seeking access to documents to pursue a legal remedy.[63] Parsons v Office of the Information Commissioner [2021] QCATA 75 at [5]. [64] Section 64(4) of the IP Act.[65] O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [52].[66] At pages 52, 55, 57, 58, 59, 60 and 61.[67] Under section 88 of the IP Act.[68] Section 88(2) of the IP Act.[69] Section 67(1) of the IP Act and section 47(3)(a) and schedule 3, section 10(1)(f) of the RTI Act.[70] Section 67(1) of the IP Act and section 47(3)(b) of the RTI Act.[71] In addition to the steps which progressed the review, OIC provided the applicant with updates on 27 November 2020, 28 January 2021, 10 February 2021, 12 February 2021, 1 March 2021, 4 March 2021, 20 April 2021, 6 August 2021 and 2 September 2021.

queensland

court_judgement

Queensland Information Commissioner 1993-

OKP and Department of Communities [2009] QICmr 38 (9 July 2009)

OKP and Department of Communities [2009] QICmr 38 (9 July 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210604 Applicant: OKP Respondent: Department of Communities Decision Date: 9 July 2009 Catchwords: ADMINISTRATIVE LAW – FREEDOM OF INFORMATION –REFUSAL OF ACCESS – EXEMPT MATTER – MATTER CONCERNING PERSONAL AFFAIRS – applicant sought access to documents relating to his family history and time in the care of the State – documents concern personal affairs of persons other than the applicant – whether public interest considerations favouring disclosure outweigh public interest considerations favouring non disclosure – whether disclosure to the applicant should be assumed to be disclosure to the world at large. ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REFUSAL OF ACCESS – EXEMPT MATTER – MATTER TO WHICH SECRECY PROVISIONS OF ENACTMENTS APPLY – whether disclosure is prohibited by section 187 of the Child Protection Act 1999. Contents REASONS FOR DECISION Summary 1. In this external review the applicant seeks access to documents concerning his time in the care of the State. The applicant was denied access to parts of the documents sought as this information concerns the personal affairs of his family members. 2. For the reasons set out below, I am satisfied that the matter in issue is not exempt from disclosure under sections 44(1) or 48(1) of the Freedom of Information Act 1992 (Qld) (FOI Act). Background 3. By letter dated 16 January 2008, the applicant applied to the Department of Communities[1] (Department) for access to ‘All files relating to my time at St Vincent’s Home, Nudgee and files at Children’s Services’ (FOI Application). 4. By letter dated 8 July 2008, the Department indicated that it had located seven files in response to the FOI Application and decided to release 7 pages in full, 136 pages in part and to refuse access to 54 pages (Original Decision). 5. By letter dated 14 July 2008, the applicant sought internal review of the Original Decision (Internal Review Application). 6. By letter dated 25 August 2008, the Department varied the Original Decision by partially releasing 25 pages (Internal Review Decision). 7. By letter dated 4 September 2008, the applicant sought external review of the Internal Review Decision (External Review Application). Decision under review 8. Under section 52(6) of the FOI Act, if an agency does not decide an application for internal review and notify the applicant of the decision within 28 days after receiving the application, the agency’s principal officer is taken to have made a decision at the end of the period affirming the original decision. 9. The applicant was notified of the Internal Review Decision outside of the statutory time limit. The Department’s principal officer is therefore taken to have affirmed the Original Decision, and on this basis, the deemed affirmation of the Original Decision is the decision under review. 10. I have taken the Internal Review Decision to be an explanation of the Department’s position and have taken this into account in making this decision. Steps taken in the external review process 11. By facsimile dated 10 September 2008, the Office of the Information Commissioner (Office) asked the Department to provide copies of documents relevant to the external review.[2] 12. The Department provided the documents requested at paragraph 11 above by facsimile dated 15 September 2008. 13. By letter dated 24 September 2008, the Department was advised that the External Review Application had been accepted and asked to provide copies of the documents containing information to which access had been refused. 14. The Department provided the documents requested at paragraph 13 above by letter dated 7 October 2008. 15. On 29 October 2008, the applicant advised a staff member of the Office that he particularly sought access to the folios attached to his External Review Application. 16. On 30 October 2008, a staff member of the Office made enquiries with the Department as to whether it would agree to release those folios referred to by the applicant in his External Review Application. 17. By email dated 30 October 2008, a staff member of the Office identified for the Department the particular folios sought by the applicant. 18. By email dated 3 November 2008, the Department indicated that it would not agree to release the folios. 19. On 10 November 2008, a staff member of the Office made enquiries with the Department regarding consultation with members of the applicant’s family under section 51 of the FOI Act. 20. On 10 March 2009, a staff member of the Office made enquiries with the applicant regarding consultation with his family members under section 51 of the FOI Act. 21. By letter dated 1 May 2009, I provided a preliminary view to the Department that (preliminary view letter): • disclosure of the Matter in Issue is not prohibited by section 189 of the Child Protection Act 1999 (Qld) (CP Act) • the Matter in Issue does not qualify for exemption under section 48(1) of the FOI Act • in respect of section 44(1) of the FOI Act: ○ the matter in issue is comprised of personal affairs information for the purpose of section 44(1) of the FOI Act ○ the following five public interest considerations favour disclosure of the matter in issue: - enhancing government’s transparency - enhancing government’s accountability - the applicant’s justifiable need to know the information sought - social and economic well-being of the community - respect for fundamental human rights. ○ the principal public interest consideration favouring non disclosure of the matter in issue is the inherent public interest in protecting personal privacy ○ release of the matter in issue to the applicant cannot be assumed to be release to the ‘world at large’, a concept which has been referred to in previous decisions of the Information Commissioner ○ the public interest arguments which favour disclosure of the matter in issue outweigh the public interest in protecting the privacy of the individuals named in the matter in issue ○ the matter in issue is not exempt from disclosure under section 44(1) of the FOI Act. I also confirmed that it was not reasonably practicable for the Department or the Office to consult with members of the applicant’s family under section 51 of the FOI Act. 22. By letter dated 7 May 2009, the Office provided a copy of the preliminary view letter to the applicant.[3] 23. By email dated 25 May 2009, the Department sought an extension of time in which to provide submissions in response to the preliminary view letter. 24. By letter dated 26 May 2009, Acting Assistant Commissioner Jefferies agreed to the requested extension. 25. By letter dated 5 June 2009,[4] the Department advised that it did not agree with the release of the matter in issue to the applicant and made submissions in relation to: • the scope of the FOI Application • section 187 of the CP Act • section 44(1) of the FOI Act. The Department did not make submissions in respect of section 189 of the CP Act and consequently this section is not addressed in my reasons for this decision. 26. In making my decision, I have taken into account the following: • the FOI Application, Internal Review Application and External Review Application • the Original Decision and Internal Review Decision • written correspondence received from the Department during the course of the review • file notes of various telephone and in-person conversations between staff members of this Office and the applicant during the course of the review • file notes of various telephone conversations between staff members of this Office and the Department during the course of the review • relevant provisions of the FOI Act and CP Act as referred to in this decision • legislation, case law and previous decisions of the Information Commissioner as referred to in this decision • national and international reports, publications, articles, conventions, inquiries and declarations as referred to in this decision • content of the material claimed to be exempt. Matter in issue 27. During the course of the review the applicant advised the Office that he is: • not seeking access to all of the information claimed to be exempt by the Department • only seeking access to information contained in particular folios (identified below). 28. Accordingly, the matter in issue in this review is comprised of parts of the following 13 folios which have been exempted from release by the Department:[5] • File 05: folios 54, 55 • File 06: folios 27, 61, 101 • File 07: folios 100, 101, 102 • File 08: folios 110, 124, 125, 131, 137. Scope 29. The Department submits that: ...the original application under Freedom of Information was ‘All files relating to my time at the St Vincent’s Home Nudgee and files at Children’s Services.’ That application was duly processed and was subject to internal review. It is submitted that all relevant information related to the applicant was released to the applicant via the original decision and the internal review. It appears that this current application for external review before the Information Commissioner outlines a change in the documents sought. It appears that the review is concerned with determining an application that includes documents to explain “why I was placed into care, including details of my parents and siblings” It is noted that the application subject to external review should be the original application. 30. In his FOI Application, the applicant sought access to ‘All files relating to my time at St Vincent’s Home, Nudgee and files at Children’s Services.’ 31. In response to the FOI application, the Department identified seven files and decided to release 7 pages in full, partially release 136 pages and refuse access to 54 pages.[6] 32. In the Internal Review Decision the Department identified eight files and decided to release 7 pages in full, partially release 137 pages and refuse access to 53 pages.[7] 33. During the course of the external review, the applicant refined the scope of his application to include only those documents which were attached to his External Review Application.[8] It is the applicant’s submission that information contained in these folios will explain why he was placed into care, including details of his parents and siblings. 34. The documents under consideration in this review comprise a subset of those documents which the Department determined were within scope of the FOI Application and to which it denied access. The reason the Department gave for exempting some of the information contained in these documents did not include arguments about the information being out of the scope of the FOI application or irrelevant to the application. Accordingly, the documents represent a narrowing rather than an enlargement of the scope of documents under consideration in this review. 35. I am satisfied that the matter in issue identified at paragraph 28 above is within the scope of the FOI Application. Findings Relevant Law - Section 44(1) of the FOI Act 36. Section 44(1) of the FOI Act provides: 44 Matter affecting personal affairs (1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. 37. Section 44(1) of the FOI Act therefore requires me to consider the following questions in relation to the matter in issue: • Firstly, does the matter in issue concern the personal affairs of person/s (other than the applicant)? (Personal Affairs Question) If so, a public interest consideration favouring non-disclosure of the matter in issue is established • Secondly, are there public interest considerations favouring disclosure of the matter in issue which outweigh all public interest considerations favouring non-disclosure of the matter in issue? (Public Interest Question). Personal Affairs Question What are the personal affairs of a person? 38. In Stewart and Department of Transport[9], a previous decision of this Office, the Information Commissioner discussed in detail the meaning of the phrase ‘personal affairs of a person’ as it appears in the FOI Act. In particular, the Information Commissioner found that information concerns the ‘personal affairs of a person’ if it concerns the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase ‘personal affairs’, that phrase has a well accepted core meaning which includes: • family and marital relationships • health or ill health • relationships and emotional ties with other people • domestic responsibilities or financial obligations. 39. The Information Commissioner has also indicated that the adjective ‘personal’ is used in the phrase ‘personal affairs’ in the same sense as a person might use it in refusing to answer an intrusive question with a retort such as: ‘I am not prepared to give you that information; it's personal’.[10] 40. Whether or not matter contained in a document comprises information concerning an individual's personal affairs is a question of fact, to be determined according to the proper characterisation of the information in question. Public Interest Question 41. The words ‘public interest’ are never specifically defined and generally refer to considerations affecting the good order and functioning of community and the well-being of citizens. In general, a public interest consideration is one which is common to all members of the community, or a substantial segment of them, and for their benefit. The public interest is usually treated as distinct from matters of purely private or personal interest. However, some recognised public interest considerations may apply for the benefit of individuals in a particular case. 42. As to what constitutes the public interest, Beazley J of the Federal Court of Australia stated:[11] The question of what constitutes the public interest is not a static or circumscribed notion. As was said in D v National Society for the Prevention of Cruelty to Children [1997] UKHL 1; (1978) AC 171 at 230, per Hailsham LJ “the categories of public interest are not closed...”. See also Sankey v Whitlam per Stephen J at 60. [my emphasis] 43. In Fox and the Department of Police[12] the Information Commissioner indicated that: Because of the way that section 44(1) of the FOI Act is worded and structured, the mere finding that information concerns the personal affairs of a person other than the applicant for access must always tip the scales against disclosure of that information (to an extent that will vary from case to case according to the relative weight of the privacy interests attaching to the particular information in issue in the particular circumstances of any given case), and must decisively tip the scales if there are no public interest considerations which tell in favour of disclosure of the information in issue. It therefore becomes necessary to examine whether there are public interest considerations favouring disclosure, and if so, whether they outweigh all public interest considerations favouring non-disclosure. Submissions of Participants Department’s submissions 44. In the Original and Internal Review Decisions, the Department’s decision-makers state that: • the matter in issue is personal affairs information for the purpose of section 44(1) of the FOI Act because it relates to information about the applicant’s parents, siblings and carers of his siblings, including details of: ○ the relationship between the applicant’s parents ○ the relationships between the applicant’s parents, siblings and foster carers ○ medical information ○ assessments of the applicant’s parents, siblings and other people ○ personal opinions, beliefs and comments of other people • the following factors favoured disclosure of the matter in issue: ○ the FOI Act gives applicants the right to seek access to documents held by government agencies ○ open, accountable and transparent decision making processes are enhanced by the provision of access to documents held by government agencies ○ given the applicant’s contact with the Department, it is understandable that he is seeking access to information regarding the time he spent in care and that will assist him to understand his family history. • the following factors favoured non-disclosure of the matter in issue: ○ individuals, including children and deceased persons, have a right to privacy regarding their personal affairs ○ there are details in the matter in issue which are clearly the personal affairs of other people and although families share day to day experiences, the intimate details of each family member is not necessarily shared with other members of the family, particularly when that family has been separated. 45. In its submissions to this Office dated 5 June 2009, the Department stated that: • the Department’s requirements under the CP Act should not be considered in the context of the current application for review as the relevant sections of the CP Act cannot apply to matters that occurred 40 years ago • the sections of the CP Act referred to do not entitle current care leavers to information that is private and belongs to another person • the matter in issue is highly personal and protected under section 44(1) of the FOI Act and section 187 of the CP Act does apply • the matter in issue is comprised of intrinsically personal information that is not information of the applicant but of other persons and notwithstanding the fact that those persons are related to the applicant, the information concerns the personal and private matters directly relevant only to the person that it is about • the information contained in the matter in issue is of such a nature that it cannot be said that it would be part of a shared family history • the legislation is clear in its intent that a person is entitled to his or her own information, but not to information that is not his or hers • there is no reference in the FOI Act that makes an exception to section 44(1) where the decision maker has any discretion to release, if the information would have, but for the person’s personal circumstances, been known to the applicant as part of a normal family history • it agrees that personal affairs of a third party can be released if there is compelling public interest favouring disclosure to outweigh the protected private interest. • the public interest considerations identified in the preliminary view should not be constructed in a way that creates a private right for the applicant to gain access to personal information that is not information about himself but private and personal to third parties • the reference to ‘justifiable need to know’ in the preliminary view is not a consideration referred to in the FOI Act and cannot be a reasonable consideration when making decisions about the release of information of third parties to an individual • the case of Victoria Police v Marke [2008] VSCA 218 is not applicable in the context of this external review as it concerns section 33(1) of the Freedom of Information Act 1982 (Vic) which is not comparable to section 44(1) of the FOI Act • determinations of previous information commissioners’ continue to apply and release of information to one person has to be viewed as release to the world • the shortcomings of the child protection system at the time that the applicant was in care are well known and already public via the publication of the CMC report into Abuse of Foster Children in State Care in 2001[13] and no further public interest can be served by releasing intrinsically personal and private information about third parties to the applicant • the only interest that is being served by release of the matter in issue is the private interest of the applicant • in this particular case, there are no public interest considerations that are capable of outweighing the protection of personal information conferred by section 44(1) of the FOI Act • in summary: ○ all of the information in question is highly personal, belonging to persons alive and dead, but not the applicant ○ the information is protected from release under section 44(1) of the FOI Act ○ there is no identifiable compelling public interest that would favour release of information of third parties to the applicant ○ the only interest that is being served is that of the applicant himself. Applicant’s submissions 46. In the External Review Application, a meeting with staff of the Office and telephone discussions with staff of the Office, the applicant made the following submissions regarding disclosure of the matter in issue: • it may explain why the applicant was placed in care • it will give the applicant insight into his childhood • the information will fulfill the applicant’s desire to know more about his family’s history and why decisions were made • disclosure of deceased family member’s information would not be detrimental to anyone • information written by staff and social workers has previously been incorrect. Findings of fact and application of section 44(1) of the FOI Act Personal Affairs Question 47. The matter in issue concerns the: • relationships between the applicant, his siblings and parents • living and care arrangements of the applicant’s siblings • health of the applicant’s family members • government officers’ observations and conclusions about the applicant’s family members • personal details of family members, including dates of birth and death • allegations of wrongdoing • religion of family members • name and residential address of family members. 48. I am satisfied that: • information suggesting that a person has been involved in some alleged (but unproven) wrongdoing concerns the personal affairs of that person for the purpose of section 44(1) of the FOI Act[14] • the personal details of a person, including dates of birth and death, comprise personal affairs information for the purpose of section 44(1) of the FOI Act[15] • although a person’s name and address in isolation does not ordinarily constitute personal affairs information, the name and residential address of the applicant’s family members in this context reveals a private aspect of their life (such as where they choose to live and make their home) and as such, comprises personal affairs information for the purpose of section 44(1) of the FOI Act.[16] • information concerning the health of the applicant’s family members, living and care arrangements, family relationships and religion fall within the accepted meaning of the phrase ‘personal affairs’ for the purpose of section 44(1) of the FOI Act.[17] 49. Accordingly, I am satisfied that the matter in issue comprises personal affairs information of persons other than the applicant for the purpose of section 44(1) of the FOI Act. Public Interest Question 50. Because I consider the matter in issue concerns the personal affairs of persons other than the applicant, consideration must be given to whether there are sufficient public interest considerations favouring disclosure of the matter in issue to outweigh the public interest considerations favouring non-disclosure of the matter in issue. 51. I note the following submission made by the Department on 5 June 2009 in respect of the public interest question: The department agrees that personal affairs of a third party can be released if there is compelling public interest favouring disclosure to outweigh the protected private interest. ... ...There is no identifiable compelling public interest that would favour release of information of third parties to the applicant and the only interest that is being served is that of the applicant himself. [my emphasis] 52. A number of provisions of the FOI Act contain public interest tests. The most common public interest test, as reflected in section 44(1), provides that specific information is exempt from disclosure ‘unless its disclosure would, on balance, be in the public interest.’ 53. The public interest test referred to in section 44(1) of the FOI Act requires a decision maker to: • identify all public interest considerations favouring disclosure • if public interest considerations favouring disclosure are identified, to balance these against public interest considerations favouring non disclosure • determine whether or not the considerations favouring disclosure outweigh those favouring non disclosure. 54. The public interest balancing test in section 44(1) of the FOI Act does not require a decision maker to identify compelling public interest considerations favouring disclosure. This is the public interest test referred to in section 48(1) of the FOI Act which states that specific information is exempt from disclosure ‘unless disclosure is required by a compelling reason in the public interest.’ This public interest test is set at a higher level than the test described in section 44(1) of the FOI Act. 55. Accordingly, I do not accept the Department’s submission that under section 44(1) of the FOI Act, personal affairs information can only be released if there is compelling public interest favouring disclosure that outweighs the protected private interest. Public interest considerations that favour disclosing the Matter in Issue 56. I have identified five public interest considerations that favour disclosing the matter in issue in this review. These are the public interest in: • enhancing government’s transparency • enhancing government’s accountability • the applicant’s justifiable need to know the information sought • social and economic well-being of the community • respect for fundamental human rights 57. I consider each of these public interest considerations in turn below. Transparency of government 58. Through no fault of his own the applicant had a disrupted upbringing. He carries with him unresolved issues from his separation from his parents and siblings, his becoming a ward of the state and from being raised in an institution. He seeks to understand the reasons this occurred. Under the State Children Act 1911 (Qld) and the Children’s Services Act 1965 (Qld), the Department at that time had a responsibility to protect a child if the child did not have a parent able and willing to protect him or her. 59. Transparency in government means clear government decisions for which reasons are made plain and other contextual information behind government decision making is made available. Transparent in this context means making plain the departmental reasoning behind its decisions concerning the applicant’s entry into care, the choice of placement in an institution, his placement away from his other siblings and the case management decisions made about maintaining contact with his family, work done to restore care of him to his family and any decisions made in his best interests. There is therefore a strong public interest in the applicant obtaining access to documents that assist him in his endeavour to understand how he came to be separated from his family and placed in institutional care. Accountability of government 60. The Department is charged with extensive statutory obligations under the CP Act for carrying out its duty of care in relation to those children whose parents are unwilling and/or unable to care for them. 61. The principles for administering the CP Act now provide in part that the welfare and best interests of a child are paramount.[18] 62. Although the CP Act was not in existence when the applicant was a child, the government’s responsibilities were essentially the same. However, the manner in which the government now discharges its responsibilities is measurably different to the period of the applicant’s experience and these changes can be in part attributed to the accountability of the government to the community for the performance of its role. The acceptance of the principles of transparency, openness and accountability in government has also grown since then. 63. In view of the Department’s role in ensuring the safety, health and fundamental rights of one of the most vulnerable groups of children in the State are protected and that decisions made by the Department are in the best interests of the child, there is a legitimate and strong public interest in the Department being accountable for the care of children in its custody or under its guardianship whether currently or previously. 64. This accountability occurs in different ways. The government is accountable through the legal system for the performance of its statutory duties and is accountable to individuals and the community through the provision of information, public debate and the electoral cycle. Governments at both state and national levels have initiated a number of inquiries through which they have accounted to the community. These included the Queensland Government’s initiating the 1998 Commission of Inquiry into the Abuse of Children in Queensland Institutions. The historical context of children in care is further recorded through a number of inquiries and reports in recent years.[19] 65. In discharging its statutory duties, the Department’s predecessors often placed children in non-government residential care facilities. The Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions[20] states that: Historical evidence demonstrates that the Department failed to provide protection from abuse for children in residential care facilities. Its performance fell far short of the requirements outlined in the Regulations. Notwithstanding the Director’s guardianship of State children, the Department appears to have ceded responsibility for the protection of children from abuse to the institutions.[21] 66. The Commission Report highlighted significant and extensive incidents of unsafe, improper and/or unlawful treatment of children in Queensland government and non-government institutions, concluding that ‘[t]he history of institutional care in Queensland up until the 1980s ... has been one of sacrificing children’s interests to expedience’.[22] 67. A report by the Senate Community Affairs References Committee on Australians who experienced institutional or out-of-home care as children[23] similarly concluded: The Committee considers that duty of care was lacking in several fundamental areas in relation to children in institutional care – in respect of the adequate provision for the basic needs of children ... the level of inspections undertaken and the consideration of the welfare of the children in the institutions appear to have been at best basic and in numerous cases deficient...[24] 68. In the context of discussing the effect of departmental decision-making on individual children in care, the Commission Report also noted that children in care may be rendered invisible in a form of systems abuse whereby children’s needs may simply not be considered as ‘a consequence of conflicting political priorities or interests, or because of adult ignorance.’[25] 69. It is this historical context which leads me to form a view that significant weight is to be accorded to the public interest in ensuring the Department is accountable for its decision-making, care and management of individuals in its care. 70. The agency submits that they have already accounted for the shortcomings of the child protection system at the time the applicant was in care. In a broad sense this is true, but this does not minimise the need for the Department to be accountable to individuals who have been in its care. 71. This is borne out in the applicant’s submission that information written by staff and social workers has previously been incorrect. On this point the Senate Report indicated that:[26] Care leavers are often distressed that many files contain not only simple errors such as misspelled or incorrect names and incorrect dates of birth, but also fundamental misinformation. The perpetuation of incorrect or unreliable information, which appeared to have been accepted at face value with minimal or no checking of its veracity, provided the basis in some cases for significant decisions that affected the child’s life. 72. Care leavers are often among the few people in a position to comment on the accuracy of government record-keeping on their files. It is my view that the public interest in ensuring the accuracy of relevant records is a further and important aspect of the public interest in the Department’s accountability in this matter. Justifiable need to know 73. The Department submits that[27]: A discourse on the applicant’s justifiable need to know has been included in the preliminary decision and formed part of the considerations that would favour release. It is noted in relation to those considerations that there is no reference to this consideration in the Freedom of Information Act 1992 and as such cannot be a reasonable consideration when making decisions about the release of information of third parties to an individual. 74. The Information Commissioner has previously indicated that in certain cases there may be a public interest in a particular applicant having access to information which affects or concerns them to such a degree as to give rise to a justifiable ‘need to know’ the information which is greater than for other FOI applicants.[28] This public interest consideration can be of determinative weight, depending on the relative weight of competing public interest considerations.[29] Accordingly, I do not accept the Department’s submission that the public interest in a particular applicant having a justifiable ‘need to know’ is not a reasonable public interest consideration because it is not referred to in the FOI Act. 75. The applicant is seeking access to information which may explain to him the circumstances that led to his placement in care as a child. 76. The importance for individuals, formerly in the care of the State, (Care Leavers) of accessing information about their family and the circumstances leading to their having been placed in State care is recognised in the Commission Report: In recent years there has been a greater awareness of the importance of providing former State wards with information about their time in care (Bringing Them Home 1997). Such information can help people to understand why they were placed in care, to deal with current personal issues that may have been the result of their time as wards, to re-establish contact with family members, to strengthen their sense of identity and to recover aspects of their family history. Much information can be made available for young people currently in the system or recently released from care, but for those who were wards prior to the 1980s the situation is less promising.[30] 77. The benefit that results from the provision of ‘family history records’ was succinctly argued by the Commissioner into Aboriginal Deaths in Custody, Patrick Dodson:[31] Access to knowledge can assist: to reinstate pride in family experiences; enhance a stronger sense of identity; re-establish contacts with family members; reaffirm interaction with broad family networks; ...; understand the historical background of contemporary personal issues ...; re-claim ownership of material pertaining to family life; develop resources ... 78. The increased awareness in more recent years of the need to provide children in the care of the State with information about their family history and the circumstances that brought them into care is now reflected in the CP Act. The Charter of Rights for a child in care[32] provides in part that: Because— The Parliament recognises the State has responsibilities for a child in need of protection who is in the custody or under the guardianship of the chief executive under this Act, this Act establishes the following rights for the child— ... (c) to maintain relationships with the child’s family and community; ... (e) to be given information about ... the child’s ... personal history, having regard to the child’s age or ability to understand. ... 79. The CP Act also now requires the chief executive to ensure that a child who is or has been a child under the guardianship of the CEO, is provided with assistance in the transition from care.[33] The Explanatory Notes in relation to this amendment state that this assistance may include, for example, providing information about identity and personal history. This would, in my view, include the type of information the applicant is seeking. 80. These statutory obligations on the Department did not exist when the applicant left care. However, because of the special role of a child’s guardian and the nature of the information held by the Department about families, there remains a duty on the Department, to the extent it can, to assist those who were in its care and who continue to carry the burdens identified by the applicant in this FOI application. 81. Though the applicant is no longer in the care of the State and is no longer a child, I consider that his interest in the information sought is of such a nature as to give rise to a justifiable need to know the information. With the passage of time, Parliament has come to recognise the importance of children in the care of the State having access to information that affects/affected their lives and the responsibility on the Department to assist people transitioning from care. The passage of time since the applicant leaving care has not diminished his need to know, nor the Department’s capacity to assist him through the provision of historical documents. I consider that this strongly supports significant weight being attributed to this public interest consideration. Social and economic well-being of the community 82. The primary objectives of social development are achieving the most productive community members and social inclusion. The achievement of these objectives directly affects the well-being of the community. The pre-requisites to giving children the best start in life are known. They inform the quality of both in- and out-of-home care. Attachment to a key figure, continuity in a child’s upbringing and the maintenance of family relationships are significant factors. These factors are specifically recognised in section 122(1)(j) of the CP Act. 83. It is well known that a person’s sense of identity affects patterns of exclusion and inclusion and provides a basis for both social cohesion and conflict and the extent to which they can maximise their contribution to the community. The provision of information to the applicant about his family will assist him to fill in some of the gaps in the formation of his identity and perhaps enable him to go on and reap some of the benefits identified by the Commissioner into Aboriginal Deaths in Custody, and canvassed above. 84. To the extent that the information may assist the applicant in re-establishing relationships with his family, or improve his health and outlook, the disclosure of information is in the interests of the social and economic well-being of the community. Respect for fundamental human rights 85. The principles for administering the CP Act provide in part that the welfare and best interests of a child are paramount. These principles reflect the government’s responsibilities in relation to the domestic implementation of the Convention on the Rights of the Child.[34] Article 18 of CROC provides that: Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern; 86. Article 20 of CROC provides that: A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 87. In relation to institutional care, Article 3 of CROC provides that: States shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the area of safety, health, in the number and suitability of their staff, as well as competent supervision. 88. The state parties to CROC, of which Australia is one, stated in the preamble to the Convention that they are “Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.” 89. State parties to the International Covenant on Economic, Social and Cultural Rights[35] also recognised: • the family is the natural and fundamental group unit of society • special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions.[36] 90. Whilst it has been acknowledged that ‘children in the care of the State have a right to expect, having been removed from neglect and abuse occurring at home, that the State will improve their lives and provide the chance for them to become positive and productive adults’,[37] the various reports referred to in this decision indicate that some children in the care of the State, particularly during the period when the applicant was in the care of the State, were deprived of the support and care that would encourage their development and wellbeing. 91. The absence or loss of a family relationship has a significant impact on a young person’s life, and that sense of loss was often further exacerbated by institutional care:[38] The loss of identity and connection with family is one of the most traumatic and distressing outcomes from a life lived in institutional care. While in care, few children were told the story behind their placement or encouraged to maintain connections with their families. 92. One of the consistent themes expressed in the course of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families[39] was the importance of knowing about one’s family and the need to know more of the events that occurred during childhood. In a statement that echoes the sentiments expressed by the applicant in this matter, a contributor to the Inquiry stated:[40] That's why I wanted the files brought down, so I could actually read it and find out why I was taken away and why these three here [siblings] were taken by [our] auntie ... Why didn't she take the lot of us instead of leaving two there? ... I'd like to get the files there and see why did these ones here go to the auntie and the other ones were fostered. 93. The Department has expressed a view that although families share day to day experiences, the intimate details of each family member are not necessarily shared with other members of the family, particularly when that family has been separated. Whilst I acknowledge that this may be the case, it is my view that separation from one’s family in childhood increases rather than decreases the public interest in a child so affected accessing remaining family information. 94. Commenting on the Department’s predecessor’s failure to encourage family relationships, the Commission Report indicates that:[41] Until the 1960s the Department did not keep children in its care informed about their families. It took no responsibility for ensuring that sibling relationships were promoted within the institutions, nor for maintaining ties with family outside ... Children were not kept informed of their family circumstances .... The situation improved considerably from the mid-1960s when the first qualified social workers began to be employed by the Department, heralding a gradual improvement in its level of involvement with the children in its care. 95. The applicant was taken into the care of the Department’s predecessor in 1963 at the age of 8, at a time in which there was little awareness of the importance of maintaining sibling and parental relationships or little attention was paid to it. Only later were there gradual improvements in this area. 96. The Senate Report found that the long term impacts of institutional care on children ‘are complex and varied’ but noted that in the main they have often ‘been significantly negative and destructive’ with legacies of lack of trust, low self esteem, anxiety, depression and other significant personal problems being attributed to the lack of normal family upbringing, with such problems possibly persisting across generations.[42] It was also noted that traumas associated with childhood did not have their fullest impact until mid-life, as recollections of childhood events tended to resurface, and for many, ‘feelings of abandonment, and of being absolutely and totally alone in their life ... intensified with the passing years’.[43] 97. Due to the effects of departmental practices, physical separation, fractured relationships and lack of resources and support, accessing information about their family history and background, which is often taken for granted by children raised with their families, has often been difficult for people who have left the care of the State. This is exacerbated by their trying to access this information later in their lives, long after their legal ties with the departmental guardian have been abruptly and statutorily severed. 98. The need of children in care to know the type of information sought by the applicant has been recognised since the United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally[44]. Article 9 of the Declaration states: The need of a foster or an adopted child to know about his or her background should be recognised by persons responsible for the child’s care unless this is contrary to the child’s best interests. 99. Similarly, the Charter of Rights for a child in care[45] partially reflects the implementation in domestic law of Australia’s obligation under article 8 of CROC to: Respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference. 100. The Senate Report concluded that:[46] The search for identity is crucial for care leavers. For many, being in care has meant the loss of family and connection with their place of origin. Care leavers do not have the mementos of childhood that are taken for granted by most Australian: school reports; photographs; and happy memories of birthdays. The task faced by many care leavers to access records and recover their lost past is immense. Records may be scattered across a number of agencies, they may be in a poor state, lack indexes and directories and agencies do not have the resources to adequately assist care leavers. Unfortunately, in many instances it is too late: the records have already been destroyed or lost ... 101. Accordingly, the Senate Report also found that ‘there is an urgent need to improve access to records’[47] and that ‘[c]are leavers should be extended the most flexible interpretation of both Freedom of Information legislation and privacy principles in order to access all personal information and to facilitate reconnection with family’.[48] The Senate Committee recommended that all government agencies agree on guidelines for care leavers accessing records which incorporate a ‘commitment to the flexible and compassionate interpretation of privacy legislation to allow a care leaver to identify their family and background’.[49] 102. In view of the above, I consider that there is a public interest in respecting the right of Care Leavers to know about their family and the events that occurred during their childhood. It is imperative that to the greatest extent possible, Care Leavers have the kind of knowledge about their families that they would have gained through living with them and which may afford them an opportunity to develop a better sense of their own identity from whatever information they can glean about their family history, health, language, culture, traditions, interests, preferences, strengths and weaknesses. It is my view that this public interest consideration should be accorded significant weight in the external review. Public interest considerations that favour not disclosing the Matter in Issue 103. Having considered the arguments put forward by the parties and the matter in issue, I consider that the principal public interest consideration favouring non-disclosure of the matter in issue is the inherent public interest in protecting personal privacy where the matter in issue concerns the personal affairs of persons other than the applicant (Privacy Interest). 104. An appropriate weight must be allocated to that interest, having regard to the character and significance of the particular matter in issue.[50] Privacy interest 105. I am satisfied that the type of personal affairs information contained in the matter in issue ordinarily attracts a strong privacy interest. 106. I do note however, that the documents containing the matter in issue are dated between 1969 and 1979 and refer to the applicant’s family members, including individuals who are now deceased. 107. I consider that the age of the documents and privacy concerns in respect of the deceased family members slightly reduces the weight to be accorded to this public interest factor, but not by any significant degree.[51] 108. The privacy interest however does appear to be diminished by the nature of the privacy right being protected. In Australia there is neither a constitutional right to privacy nor is there a generally recognised legal cause of action of “unjustified invasion of privacy”, although the possibility of one has not necessarily been excluded and Justice Skoien in Grosse v Purvis[52] formed the view that there was such an actionable right. In some States and at the Commonwealth level, a statutory regime has been implemented for the collection, correction, use and disclosure of personal information. This is to protect the privacy of individuals with respect to information held by those governments and some non-government entities. In Queensland, the Information Privacy Act 2009 recognises that personal information held by the public sector must be collected and handled fairly.[53] To that end, it places an obligation on Queensland government agencies and public authorities to comply with privacy principles that regulate the collection, storage, accuracy, use and disclosure of personal information.[54] The privacy principles relating to disclosure of personal information, however, give way where there is a legal authority to disclose personal information,[55] such as that contained in the FOI Act. 109. It is generally agreed that the first publication advocating privacy at least in the United States was “The Right to Privacy” by Samuel Warren and Louis Brandeis.[56] Published in 1890, the article was written largely in response to the increase in newspapers and photographs made possible by printing technologies. The authors asserted that privacy is the “right to be let alone”. 110. Privacy is however, a recognised human right and information privacy is reflected in section 44 of the FOI Act. Article 12 of the Universal Declaration of Human Rights[57] states: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks. 111. The recent Australian Law Reform Commission report[58] on a review of privacy laws found that privacy is generally accepted to be of four types: information privacy, bodily privacy, communication privacy and territorial privacy. The relevant privacy consideration in question here is information privacy. The application of information privacy principles to the sharing of information within the family unit and between family members in some circumstances, as opposed to its application to the sharing of an individual’s personal information held by government, is not straight forward. The privacy right is rooted in the notion of an arbitrary interference. For example, when considering information sharing between family members living under the same roof, what would be conclusively considered an ‘arbitrary interference with a person’s privacy’ by a member of the family? 112. In the family, whether living together or not, it is difficult for personal information to be kept ‘secret’ for a range of reasons. There is some information that cannot be kept ‘secret’. Individuals growing up in families, by virtue of living together have a ‘living’ and often ‘unspoken’ history of shared personal information. This knowledge comprises part of that which has been referred to as ‘inseverable personal affairs’. For example, a child growing up with a parent with mental health issues would experience the outward emanations of the condition and know their parent is different to other parents, even if they may not know the name of the illness or it remains undiagnosed. 113. This shared personal information goes to the identity of the child and is critical to his/her wellbeing. Parents are responsible for making judgments about what information children will be given and when, ideally with attention to whether or not the provision of information is in their best interests. Some information may be shared as the child grows older or become obvious to it without being verbally told. Had the applicant lived longer with his family or relatives, he would have seen with his own eyes and developed greater living memories of his family. The applicant was separated from his family at the age of eight and it is clear from his application that already by that age he understood that all was not well. The information on the Department’s file will not be a total surprise to him. 114. When the Department assumes the role of a child’s guardian, it assumes ultimate responsibility for the child’s development and making decisions critical to him/her. Children growing up in care have an impoverished sense of their ‘living history’ in their birth family, a history made no less important to the development of their identity having been separated from their family. Having a strong sense of a person’s identity is critical to the person achieving their fullest possible potential. The imparting of information to a child in care about their family, including the personal information of others, is therefore a critical part of the role of guardian. It is one of the decisions the Department must make in the best interests of the child and to fulfill its statutory duties as it substitutes for the parents. 115. Where there is a conflict between the Department performing its role of guardian and its other statutory duties in the best interests of the child and its observance of other obligations such as protecting personal information, there is a public interest in the Department prioritising the interests of the child. Where the Department needs to find a balance between the rights of others, such as the right of privacy not to be subject to arbitrary interference and the best interests of the child, the Department has a statutory responsibility to perform its duty to children in its care in the best interests of the child. 116. The privacy interest to be protected in the circumstance of the applicant is the personal affairs of other family members. Much of it is information he would have been privy to had he resided with his family. Much of it would have been so called ‘shared personal information’ whether spoken or unspoken. The information is necessary for him to complete to the extent possible his understanding of himself and his family and how he has come to be in the place he currently occupies in the world. 117. The privacy right should not be understood out of the context of the notion of ‘arbitrary interference’. Privacy rights were never intended to extend to interfere with the normal discourse within families nor to impede a child’s identity development. This puts in context the accepted notion that another person’s personal information can be the applicant’s personal information by virtue of the fact that it relates to the health of a biological parent. Many conditions including health conditions are inherited or result from learned behaviour. On this basis health information about the applicant’s family may be the health information of the applicant. 118. For these reasons my view is that the nature of this privacy interest lessens the significance of the weighting which should be accorded to it. Possible dissemination of the matter in issue by the Applicant 119. In my preliminary view letter to the Department, I referred to the Victorian Court of Appeal decision of Victoria Police v Marke[59] to support my view that: • release of documents under the FOI Act should not be assumed to be release to the ‘world at large’ • the likelihood of the applicant disseminating the information beyond other members of his family is relatively low given the personal nature of his interest in the information. 120. The Department made the following submission in response: Discussion is provided of a recently decided Victorian Case (Victoria Police v Marke [2008] VSCA 218) in relation to whether release to one person constitutes release to the world. The Department submits that this case in context of this external review is not applicable. The Victorian case concerned the application of Victorian Freedom of Information Act section 33(1) and whether the decision maker should or could consider in making the decision to release or not, if the recipient of the information will publish the information further. Section 33(1) is not comparable to section 44(1) of the Queensland Act. There is no indication in that case as to whether the issue in question was one of intrinsically personal information of third parties or if the matter in question concerned some other information. On that basis it is submitted that determinations of previous information commissioners would continue to apply and that release to one person has to be viewed as release to the world. [my emphasis] 121. The decision of Marke concerns section 33(1) of the Freedom of Information Act 1982 (Vic) (Vic FOI Act) which provides that: 33 Document affecting personal privacy (1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person). ... 122. Although it is clear that section 33(1) of the Vic FOI Act is drafted in different terms to section 44(1) of the FOI Act, the function of each section is relatively similar. Both provisions are concerned with the exemption of information relating to or concerning personal affairs. 123. In considering the personal affairs exemption in Queensland, the Electoral and Administrative Review Commission’s (EARC) Report on Freedom of Information stated that: ...if the information in the document relates in part to the personal affairs of a person other than the applicant, it is necessary to ask whether disclosure of that information would, on balance, be in the public interest. In this respect, the draft Bill differs from the FOI legislation of other Australian jurisdictions, which requires an assessment of whether disclosure would be unreasonable. The draft Bill departs from this model in order to make it clear that the public interest is the ultimate criterion for disclosure, but otherwise it is not intended to depart from the approach taken in other Australian jurisdictions. [my emphasis] 124. The decision of Marke is the most recent decision of an intermediate appellate court to consider the ‘world at large’ principle in the context of intended or likely dissemination of information claimed to be exempt under the personal affairs provision. 125. Although each member of the Court held that a decision-maker is not bound to regard disclosure to an applicant as disclosure to the world, each differed as to the reason for reaching this conclusion. 126. In his reasons for decision, Weinberg JA noted that ‘the expression ‘to the world at large’ is nothing more than a metaphor’ which really means that ‘there is nothing to limit or restrain general publication. Once a document is made available under FOI, the information is in the possession of the recipient who can do with it whatever he or she wishes, without any constraints.’[60] 127. Pagone AJA went on to agree with the trial judge that ‘an applicant can disseminate the documents to the world at large once obtained... [however] it does not follow as a matter of logic that the applicant will disseminate the documents widely, or at all.’[61] 128. In my view, the decision of Marke supports the proposition that a decision maker[62]: • should not assume that disclosure of information to an applicant is disclosure to the world at large • should not exclude from consideration evidence about the intended or likely extent of dissemination of information by the applicant. 129. I consider that this correctly states the position in Queensland. In my view, the FOI Act does not support the long held and widely utilised assumption that release of documents to an applicant is necessarily release to the world at large. 130. Accordingly, I do not accept the Department’s submission that release of information to one person has to be viewed as release to the world. 131. I have also considered the likelihood of the applicant disseminating the matter in issue beyond other members of his family and I find it is relatively low given the personal nature of his interest in the information. Summary – weighing the public interest considerations 132. I have considered and weighed the public interest considerations favouring non-disclosure against the public interest considerations favouring disclosure of the matter in issue. 133. On the basis of the matters discussed above, I am satisfied that: • significant weight should be given to the public interest in: ○ enhancing transparent in government ○ enhancing the accountability of government ○ the applicant’s justifiable need to know the information sought ○ social and economic wellbeing of the community ○ the equitable treatment of children in, or people formerly in, State care. • although the privacy interest in the matter in issue is strong and is only slightly reduced as a result of the: ○ age of the documents ○ diminished privacy concerns of deceased persons over time the nature of the privacy interest is such that its weight is significantly lessened. 134. Having weighed the privacy interest favouring non-disclosure against the public interest considerations favouring disclosure, I am satisfied that the public interest arguments which favour disclosure of the matter in issue (as discussed above) outweigh the public interest in protecting the privacy of the named individuals. 135. Accordingly, I find that the matter in issue is not exempt from disclosure under section 44(1) of the FOI Act and should be released to the applicant. Relevant Law – Section 48(1) of the FOI Act 136. As the Department submits that ‘...section 187 of the Child Protection Act 1997 does apply’, I have also considered the application of section 48(1) of the FOI Act briefly below. 137. Section 48 of the FOI Act provides: 48 Matter to which secrecy provisions of enactments apply (1) Matter is exempt matter if its disclosure is prohibited by an enactment mentioned in schedule 1 unless disclosure is required by a compelling reason in the public interest. (2) Matter is not exempt under subsection 1 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. 138. Sections 186, 187 and 188 of the CP Act are set out in Schedule 1 of the FOI Act. This means that matter will be exempt from disclosure under the FOI Act if its disclosure is prohibited by sections 186, 187 or 188 of the Child Protection Act 1999 unless: • the information relates to the applicant’s personal affairs only[63] or • there is any compelling reason in the public interest to disclose this information.[64] 139. I consider that only section 187 of the CP Act is relevant to this external review. This section provides essentially that information obtained by persons involved in the administration of the CP Act must be kept confidential except in specific circumstances. 140. As I am satisfied that the exception to section 48(1), as contained in subsection (2) does not apply, that is, the matter in issue does not concern the applicant’s personal affairs only, I will consider section 187 of the CP Act in more detail. Section 187 of the Child Protection Act 1999 - Confidentiality of information 141. Section 187(1) of the CP Act provides in part that a person who is or has been a public service employee performing functions in relation to the administration of the CP Act “must not use or disclose information about another person’s affairs.” 142. More specifically, section 187(2) of the CP Act provides that: The person must not use or disclose the information, or give access to the document, to anyone else. Maximum penalty – 100 penalty units or 2 years imprisonment. 143. However, subject to section 186 of the CP Act (which is not relevant for present purposes), section 187 provides that information may be disclosed for specific purposes. In particular, section 187(3)(a) allows information or documents to be disclosed to the extent necessary for a person to perform their functions under the CP Act. 144. As already discussed, the Department, to discharge its role as guardian, has a role in imparting personal and family history. Section 75 of the CP Act provides that the chief executive must ensure that a person who has been in their custody or under their guardianship is provided with help in the transition from being a child in care to independence. 145. The Explanatory Notes to the Child Protection Bill 1998 indicate that the help or assistance provided to a person who has been in care may include for example ‘providing information about identity and personal history.’[65] 146. As already discussed above, the Senate Committee found that the ‘search for identity is crucial for care leavers’[66] as is having an understanding of their personal history. 147. Despite the passage of time since the applicant was in care, and the fact that the CP Act was not in force when the applicant left care, I am satisfied that: • disclosure of the matter in issue is not prohibited by section 187 of the CP Act • the matter in issue does not qualify for exemption under section 48(1) of the FOI Act. Compelling reason in the public interest 148. As I am satisfied that the matter in issue does not qualify for exemption under section 48(1) of the FOI Act, it is unnecessary for me to consider whether disclosure is required by a compelling reason in the public interest. For sake of completeness, had I found that the matter in issue did qualify for an exemption under section 48(1) of the FOI Act, I would consider that there is a compelling reason in the public interest. 149. The public interest test contained in section 48 of the FOI Act carries with it a more demanding test for disclosure than the usual test for public interest disclosure under the FOI Act given the use of the word “compelling”. On this point the Information Commissioner has previously stated that:[67] In my view, the imposition of a more demanding test for disclosure in the public interest, i.e. the test of a “compelling reason in the public interest” must have been intended by Parliament to indicate that it regards the public interest consideration favouring non-disclosure, which is inherent in the satisfaction of the test for prima facie exemption under s. 48(1), as one deserving of very great weight, such that it is to be overborne only by a compelling reason requiring disclosure in the public interest. [my emphasis] 150. When considering the meaning of the phrase ‘required by a compelling reason in the public interest’ the Information Commissioner has also found that:[68] • the use of the word ‘required’ conveys a sense of the imperative, of something that is demanded or necessitated; and • there must be one or more identifiable public interest considerations favouring disclosure which are so compelling (in the sense of forceful or overpowering) as to require (in the sense of demand or necessitate) disclosure in the public interest. 151. The abuse and neglect of children in State care for a significant part of the last century, as uncovered by numerous inquiries throughout Australia in the past decade or so, was so pervasive and abhorrent as to result in apologies to Care Leavers from governments, churches and non-government organisations. In Queensland, in accordance with recommendations in the Commission Report, the government established a reparation scheme and provided funding for a dedicated resource service, the Aftercare Resource Centre, (Aftercare) to ‘support the needs’ of Care Leavers. Aftercare’s website states that: Many former children in care share feelings of sadness, rejection and shame about the past. Many struggle to understand who they are and where they belong, and have difficulty trusting and relating to others. 152. It is clear from the various inquiries that the government approaches to ‘child protection policies’ have had a significant personal and financial cost for the many thousands of individuals placed/taken into the care of the State. The Senate Report describes this cost as profound and notes that the harm that resulted to individuals also has ‘a massive long-term social and economic cost for society which may be compounded when badly harmed adults in turn create another generation of harmed children’.[69] 153. In relation to information concerning identity and personal history: • it has been acknowledged by Parliament that Care Leavers have suffered significant harm whilst in the care of the State and are entitled to special assistance to aid them in rebuilding their lives • inquiries concerning children in State care have identified that having access to information about their identity and personal history is of fundamental importance for Care Leavers in seeking to resolve the myriad effects of their early lives • in accordance with increased community understanding and awareness children currently in State care have a statutory right to be given access to information about their personal history as this is recognised by Parliament to be a fundamental aspect of ensuring that such children do not suffer the damage reported by Care Leavers including feelings of isolation, abandonment and loss of identity. 154. In view of the above and the public interest factors discussed in relation to section 44(1) of the FOI Act, I am satisfied that the public interest in ensuring that Care Leavers are afforded every opportunity to repair the damage done to their lives and reach their potential provides a compelling, that is, forceful reason that necessitates disclosure of the matter in issue. DECISION 155. I set aside the decision under review and find that the matter in issue is not exempt from disclosure under section 44(1) of the FOI Act. ________________________ Julie Kinross Acting Information Commissioner Date: 9 July 2009 [1] Formerly the Department of Child Safety.[2] Including the FOI Application, Original Decision, Internal Review Application and the Internal Review Decision.[3] A small amount of text which comprised information claimed to qualify for exemption was removed from the preliminary view letter.[4] Received by the Office on 11 June 2009.[5] A copy of the matter in issue is attached to this Decision, with the information sought to be released by the applicant highlighted in pink. Only the information highlighted in pink forms part of matter in issue in this review.[6] In accordance with the Original Decision.[7] One page which was considered to be exempt from release in the Original Decision was partially released to the applicant and information deleted on 24 pages was varied. [8] These documents are identified in paragraph 28 above.[9] [1993] QICmr 6; (1993) 1 QAR 227 (Stewart).[10] See Stewart at paragraph 55.[11] Australian Doctors’ Fund Limited v Commonwealth of Australia [1994] FCA 1053 at paragraph 34.[12] [2001] QICmr 20; (2001) 6 QAR 1 at paragraph 19.[13] I note this report is dated 2004.[14] Fox and Queensland Police Service [2001] QICmr 20; (2001) 6 QAR 1.[15] Williamson and Queensland Police Service; ‘A’ (Third Party) (2005) 7 QAR 51 at paragraphs 18-20.[16] Pearce and Queensland Rural Adjustment Authority and Others (1999) 5 QAR 242 at paragraph 136; Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 at paragraph 42; Schlegel and Department of Transport and Regional Services [2002] AATA 1184 at paragraphs 60, 63, 100, 101 and 103.[17] See Stewart.[18] Section 5(1) of the Child Protection Act 1999. [19] The Senate Community Affairs Reference Committee, Parliament of Australia, Protecting vulnerable children: A national challenge (2005). The report notes ‘recent inquiries in the States and Territories have identified deficiencies and shortcomings in their child protection regimes’ at paragraph 7.24.[20] Queensland Commission of Inquiry, Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions (1999) (Commission Report).[21] Commission Report, page 8.[22] Commission Report, page 107. See also Crime and Misconduct Commission, Protecting Children: An Inquiry into Abuse of Children in Foster Care (2004). [23] The Senate Community Affairs Reference Committee, Parliament of Australia, Forgotten Australians (2004) (Senate Report). [24] At paragraph 7.38.[25] Commission Report, page 12.[26] At paragraph 9.60.[27] In its letter dated 5 June 2009.[28] Pemberton and the University of Queensland (1994) 2 QAR 293 (Pemberton) at paragraphs 164 to 193.[29] Pemberton at paragraph 172.[30] Commission Report, page 105.[31] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report Volume 2 (1991) page 78.[32] Schedule 1, CP Act; section 74(2) of the CP Act provides that ‘[a]s far as reasonably practicable, the chief executive must ensure the charter of rights for a child in care in schedule 1 is complied with in relation to the child.’ [33] Section 75 of the CP Act.[34] Opened for signature 20 November 1989, ATS 1991 No. 4, (entered into force 2 September 1990) (CROC).[35] Opened for signature 16 December 1966, ATS 1976 No. 5 (entered into force 3 January 1976) (CESCR).[36] Article 10, CESCR. [37] Western Australia, Review of the Department for Community Development (2007) at page 89.[38] Senate Report at paragraph 9.4.[39] Commonwealth, Human Rights and Equal Opportunity Commission, Bringing Them Home (1997) (HREOC Report).[40] HREOC Report, confidential evidence 161.[41] At page 101. [42] Senate Report at paragraphs 6.1 to 6.4 and 6.19.[43] At paragraphs 6.34 and 6.29.[44] United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally, GA Res 41/85, UN GAOR (1986).[45] Schedule 1 CP Act.[46] At paragraph 9.99.[47] At paragraph 9.106.[48] At paragraph 9.111.[49] At paragraph 9.117.[50] See Lower Burdekin Newspaper Company Pty Ltd and Burdekin Shire Council; Hansen, Covolo and Cross (Third Parties) [2004] QICmr 6; (2004) 6 QAR 328 at paragraph 23.[51] I refer to the Information Commissioner’s comments in Fotheringham and Queensland Health [1995] QICmr 24; (1995) 2 QAR 799 at paragraph 31 in respect of this issue.[52] [2003] QDC 151; (2003) Aust Torts Reports 81-706.[53] Section 5, Information Privacy Act 2009 (IP Act).[54] Sections 26 and 30, IP Act.[55] Information Privacy Principle 11(1)(d), IP Act.[56] Samuel Warren and Louis Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard L.R. 193.[57] UN GAOR (1948).[58] Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No 108 (2008). [59] [2008] VSCA 218 (Marke).[60] Marke at paragraph 67.[61] Marke at paragraph 103.[62] This proposition may be found in the reasons of Weinberg JA and Pagone AJA.[63] In accordance with section 48(2) of the FOI Act.[64] In accordance with section 48(1) of the FOI Act.[65] At page 30. [66] At paragraph 9.99. [67] KT and Brisbane North Regional Health Authority [1998] QICmr 3; (1998) 4 QAR 287 at paragraph 66. [68] Whittaker and Queensland Audit Office (2001) 6 QAR 78 at paragraphs 29-30.[69] At paragraph 6.53.

queensland

court_judgement

Queensland Information Commissioner 1993-

Henderson and Department of Transport and Main Roads [2015] QICmr 24 (10 September 2015)

Henderson and Department of Transport and Main Roads [2015] QICmr 24 (10 September 2015) Last Updated: 22 November 2016 Decision and Reasons for Decision Citation: Henderson and Department of Transport and Main Roads [2015] QICmr 24 (10 September 2015) Application Number: 312472 Applicant: Henderson Respondent: Department of Transport and Main Roads Decision Date: 10 September 2015 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION – REFUSAL OF ACCESS – CONTRARY TO PUBLIC INTEREST INFORMATION – personal information and privacy – vehicle registration certificate – whether disclosure would, on balance, be contrary to the public interest – sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION ACT – DOCUMENTS NONEXISTENT OR UNLOCATABLE – vehicle registration application – whether agency has taken all reasonable steps to locate requested documents – whether documents are nonexistent or unlocatable – sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of Transport and Main Roads (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to two documents relating to a specific vehicle: certificate of current registration (Registration Certificate); and application by the registrant/s for first registration (First Registration Application). The Department refused the applicant access to: part of the Registration Certificate on the basis that it comprised the personal information of another individual, the disclosure of which would be, on balance, contrary to the public interest;[1] and the First Registration Application on the basis that this document had been destroyed and was therefore non-existent.[2] The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision. On external review, the Department agreed to release to the applicant some additional information in the Registration Certificate that in OIC’s view did not identify the third party.[3] The applicant continued to seek full access to the Registration Certificate. For the reasons set out below, I have decided to vary the Department’s decision[4] and find that access to: the remaining information in the Registration Certificate may be refused, as its disclosure would, on balance, be contrary to the public interest;[5] and the First Registration Application can be refused as this document has been destroyed by the Department and is therefore non-existent.[6] Background Significant procedural steps relating to the application and external review are set out in the Appendix. Reviewable decision The decision under review is the Department’s decision dated 11 May 2015. Evidence considered The evidence, submissions, legislation and other material considered in reaching this decision is disclosed in these reasons (including footnotes and Appendix). Information in Issue The information in issue comprises: parts of a current vehicle registration certificate[7] identifying the name, date of birth, personal address, driver’s licence number and insurance policy number of an individual other than the applicant; and the application for first registration of the same vehicle. Registration Certificate - Contrary to public interest information Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[8] However, this right of access is subject to other provisions of the RTI Act, including the grounds on which an agency may refuse access to documents.[9] Relevantly, an agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[10] and explains the steps that a decision-maker must take[11] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosing the information in issue would, on balance, be contrary to the public interest. Applicant submissions The applicant argues that:[12] vehicle registration documents are unique as they may be involved in civil, criminal or administrative incidents Queensland Regulatory Authorities appear to enjoy an ‘as of right’ access to these records to aid their investigations and there should not be discrimination against any private person who seeks to launch private criminal or civil proceedings involving registered vehicles; and the RTI Act provides there is a presumption towards disclosure of government information. I accept that the RTI Act provides a prodisclosure presumption[13] and I have taken this into account in reaching my decision. However, I also note this presumption is subject to the grounds set out in the RTI Act on which access can be refused to information as I have outlined paragraph 9 above. I do not consider that the applicant’s remaining submissions raise any public interest factors favouring disclosure of the specific information in issue in this review as the applicant refers to hypothetical situations rather than explaining how the Registration Certificate in this case is relevant to any ongoing legal, criminal or administrative matters. Findings No irrelevant public interest factors arise in the circumstances of this review. The information that has been refused in the Registration Certificate comprises the name, date of birth, personal address, driver’s licence number and insurance policy number of an individual other than the applicant. Personal information and privacy The RTI Act recognises factors in favour of nondisclosure where disclosure could reasonably be expected to: prejudice the protection of an individual’s right to privacy;[14] and cause a public interest harm if it would disclose personal information of a person, whether living or dead.[15] I am satisfied that the remaining information in the Registration Certificate comprises the personal information[16] of a third party as it is unique to a particular individual and can be used to identify that individual and their ownership of a specific vehicle.[17] Generally, individuals do not expect that the details they provide to the Department in order to register a vehicle would then be released without reason to other members of the public. This information is not made publicly available by the Department. The information in issue in the Registration Certificate provides details about where an individual resides, their birthdate and their ownership of a particular vehicle. I consider this to be a private aspect of that individual’s life and disclosure of this information can reasonably be expected to prejudice that individual’s privacy.[18] I attribute significant weight to these factors favouring nondisclosure as I consider that the disclosure of the remaining information on the Registration Certificate is likely to prejudice their privacy and cause significant public interest harm by disclosing what would otherwise be private personal information. There is no evidence before me to suggest that the privacy interest in this information is in any way diminished. Balancing the public interest As the information in issue in the Registration Certificate is limited to the personal information of a third party and all remaining information in the Registration Certificate has been disclosed to the applicant, I am unable to identify any factors in favour of disclosure that apply in this specific case. The information in issue does not disclose any details of government action or decision making. There is also no information before me to suggest that disclosure of the information in issue would promote any of the public interest factors relevant to the fair treatment of an individual or the pursuit of a legal remedy.[19] Accordingly, I find that there are no relevant factors in favour of disclosure of the information in issue. I am satisfied that significant weight can be afforded to the factors favouring nondisclosure relating to the personal information and privacy of the third party. I am satisfied that the weight of these factors sufficiently outweighs the general prodisclosure bias of the RTI Act. Accordingly, I find that disclosure of the remaining information in the Registration Certificate would, on balance be contrary to the public interest and access may be refused to this information under section 47(3)(b) of the RTI Act. Nonexistent or unlocatable documents The Department refused access to the First Registration Application on the basis that this document had been destroyed and is no longer available. Relevant Law Under the RTI Act an agency is entitled to refuse access to documents which do not exist or cannot be located.[20] Where documents do not exist, an agency must either provide an explanation for the nonexistence (e.g. by referring to its recordkeeping policies and practices) or conduct searches to demonstrate that the documents do not exist.[21] To demonstrate that documents are unlocatable, an agency must show that it has taken all reasonable steps to find the documents. What constitutes reasonable steps will vary from case to case as the search and enquiry process an agency will be required to undertake will depend on the particular circumstances. Findings The Department has provided OIC with search certifications and copies of its correspondence with its document archiving facility confirming that all vehicle registration documents prior to 2001 have been destroyed.[22] In a submission to OIC dated 29 June 2015 the Department explained that as the subject vehicle was first registered in March 2000 the Registration Application for this vehicle would have been destroyed as it predated 2001. The Department also confirmed in this submission that the destruction of this document was in accordance with the Department’s Retention and Disposal Schedule. In his submissions the applicant questions whether the destruction of the requested document was authorised. However, in this review I am considering whether or not the document sought by the applicant exists and not whether its destruction by the Department was authorised. Having assessed the submissions made by the Department, I am satisfied that the First Registration Application the applicant is seeking is non-existent as it has been destroyed by the Department. The Department has provided OIC with a clear explanation for why it does not exist and also provided evidence of the enquiries it made to confirm that the First Registration Application has been destroyed. Accordingly, I am satisfied the Department is entitled to refuse access to the First Registration Application under section 47(3)(e) of the RTI Act on the basis that it does not exist. DECISION For the reasons set out above, I vary the Department’s decision. I find that access to the remaining parts of the Registration Certificate may be refused under section 47(3)(b) of the RTI Act on the basis that its disclosure would, on balance, be contrary to the public interest under section 49 and schedule 4 of the RTI Act. I am also satisfied that the First Registration Application has been destroyed by the Department and access can be refused to this document under section 47(3)(e) of the RTI Act on the basis that it is nonexistent under section 52(1)(a) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Jenny Mead Acting Privacy Commissioner Date: 10 September 2015 APPENDIX Significant procedural steps Date Event 9 April 2015 The Department received the access application. 11 May 2015 The Department issued its initial decision. 1 June 2015 OIC received the applicant’s application for external review of the Department’s decision. 1 June 2015 OIC requested copies of documents relevant to the access application from the Department. 3 June 2015 OIC requested further information from Department, regarding search records or other information regarding the ‘first registration’ of the vehicle. 15 June 2015 The Department provided OIC with its search records. 22 June 2015 OIC notified the applicant and Department that the application had been accepted for external review. OIC conveyed a preliminary view to the Department that additional information in the Current Registration Certificate could be disclosed to the applicant. 29 June 2015 The Department accepted OIC’s preliminary view and agreed to release additional information to the applicant. 30 June 2015 OIC conveyed a preliminary view to the applicant. 1 July 2015 The applicant rejected OIC’s preliminary view and requested an extension of time to 14 August 2015 to provide submissions. OIC granted the requested extension of time. 21 July 2015 OIC asked the Department to provide the applicant with the additional information in the Registration Certificate in accordance with OIC’s preliminary view. OIC also requested that the Department provide OIC with additional information relevant to the registration of the subject vehicle. The Department provided OIC with the requested information. 17 August 2015 OIC wrote to the applicant seeking his final written submissions. 18 August 2015 OIC received the applicant’s submissions dated 12 August 2015 in response to the preliminary view. [1] Section 47(3)(b) of the RTI Act. [2] Section 47(3)(e) of the RTI Act.[3] Specifically this information comprised the details of the third party insurer.[4] As the Department released additional information on external review.[5] Section 47(3)(b) of the RTI Act. [6] Section 47(3)(e) of the RTI Act.[7] This certificate is in the form of a two page print out from the Department’s Vehicle Registration Hub.[8] Section 23 of the RTI Act.[9] Set out in section 47 of the RTI Act. [10] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant. [11] Section 49(3) of the RTI Act.[12] The applicants submissions are set out in a letter to OIC dated 12 August 2015.[13] Section 44(1) of the RTI Act states that an agency or Minister should decide to give access to the (requested) document unless giving access would, on balance, be contrary to the public interest.[14] Schedule 4, part 3, item 3 of the RTI Act.[15] Schedule 4, part 4, item 6(1) of the RTI Act. [16] In accordance with the definition of personal information in section 12 of the Information Privacy Act 2009 (Qld): “information or an opinion ... whether true or not ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion”. [17] On external review OIC issued a preliminary view to the Department that some additional information could be disclosed in the Registration Certificate without identifying the third party. Specifically, this information comprised details of the CTP Insurer and Class as well as details about the period of registration. The Department accepted OIC’s view and provided the applicant with this additional information on 21 July 2015.[18] Schedule 4, part 3, item 3 of the RTI Act.[19] While the applicant was presented with an opportunity to make submissions on these points in OIC’s preliminary view letter of 30 June 2015, the applicant did not advance any submissions relevant to the specific information in issue in this matter.[20] Sections 47(3)(e) and section 52(1)(a) and (b) of the RTI Act. [21] PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) [34-38].[22] Agency submissions dated 15 June 2015.

queensland

court_judgement

Queensland Information Commissioner 1993-

Gapsa and Department of Transport and Main Roads [2014] QICmr 38 (23 September 2014)

Gapsa and Department of Transport and Main Roads [2014] QICmr 38 (23 September 2014) Last Updated: 21 January 2015 Decision and Reasons for Decision Citation: Gapsa and Department of Transport and Main Roads [2014] QICmr 38 (23 September 2014) Application Number: 311929 Applicant: Gapsa Respondent: Department of Transport and Main Roads Decision Date: 23 September 2014 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – NONEXISTENT DOCUMENTS – policy, procedure and process documents – applicant contends further documents exist – whether all reasonable steps taken to locate documents but the documents do not exist – sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of Transport and Main Roads (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a range of information about policies and procedures, including the closed merit selection process, relating to the Department of Transport and Main Roads Reform Process (TMR Reform Process). The Department decided to grant full access to 114 pages of documents located in response to the access application.[1] The applicant sought internal review of that decision on the basis that the Department had failed to find all relevant documents. A further 41 responsive pages were located on internal review. The Department decided to release these pages in full to the applicant, and also considered that all reasonable steps had been taken to locate relevant documents. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s internal review decision, raising concerns about the sufficiency of the Department’s searches for relevant documents. Searches conducted on external review located 160 further pages and these were released in full to the applicant. For the reasons set out below, I affirm the Department’s decision and find that access to any additional documents can be refused, under sections 47(3)(e) and 52(1)(a) of the RTI Act, on the basis that they do not exist. Background The applicant is a former employee of the Department and is concerned about the legitimacy of the process used to identify individuals as surplus employees during a process described as the TMR Reform Process. Significant procedural steps are set out in the Appendix. Reviewable decision The decision under review is the Department’s internal review decision dated 20 January 2014. Evidence considered The evidence, submissions, legislation and other material considered in reaching this decision is disclosed in these reasons (including footnotes and Appendix). Issue for consideration The sole issue for determination[2] is whether access can be refused to any additional documents on the basis that they are nonexistent under sections 47(3)(e) and 52(1)(a) of the RTI Act. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[3] However, this right is subject to other provisions of the RTI Act, including the grounds on which as agency may refuse access to documents.[4] Access to a document may be refused if the document is nonexistent.[5] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[6] Whether there are reasonable grounds to be satisfied that a document does not exist is a question of fact to be determined based on the circumstances of each case. In PDE and University of Queensland,[7] the Information Commissioner explained that to be satisfied about the nonexistence of documents, an agency must rely on its particular knowledge and experience in the context of key factors including: the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including, but not exclusive to, its information management approaches); and other factors reasonably inferred from information supplied by the applicant, including: the nature and age of the requested document/s; and the nature of the government activity to which the request relates. An agency may also rely on searches to satisfy itself that documents do not exist. The Acting Information Commissioner indicated in PDE that if an agency does rely on searches to justify a decision that documents do not exist, all reasonable steps must be taken to locate the documents.[8] Such steps may include enquiries and searches of all relevant locations identified after consideration of the key factors listed above in paragraph 11. Findings The applicant submits[9] that the Department failed to explain in its internal review decision why it was satisfied the following documents had not been located: briefing material to the Director-General relating to the TMR Reform Process or material seeking authorisation for the process from the accountable officer briefing material about sections of the Public Service Act 2008 (Qld) used to undertake the closed merit selection process emails between nominated Departmental officers on particular dates documents about the Public Service Commission’s findings in relation to its review of the closed merit selection process agendas of meetings held between the Department and unions in relation to the TMR Reform Process other documentation relevant to the TMR Reform Process, such as the Divisional Reform Coordinator Toolkit drafts of documents relating to the TMR Reform Process any policy or procedure about use of the closed merit selection process; and documents that establish the legitimacy of the process used to identify individuals as surplus employees. The applicant contends[10] that with nothing having been found within the above categories of information, a reasonable person would conclude that searches must have been insufficient. Overall, in processing the original application and on internal and external review, the Department has spent approximately 12 hours searching for relevant documents.[11] The following is a summary of the searches conducted on the access application and on internal review: Location Searches performed Office of the Director-General Emails and local drives Legal Services Document Management System, Practice Evolve[12] and legal files Ethical Standards Emails, local drives and case files Human Resources Emails, local drives and reform team drives In conducting further searches on external review at OIC’s request, the Department searched the backup system email accounts of former Departmental employees identified by it as most likely to hold relevant information due to their involvement in the TMR Reform Process. Broad keyword searches using the terms ‘Reform’, ‘Reform Process’, ‘Reform Plan’, ‘Reform Planning’, ‘Closed Merit’ and ‘Closed Merit Process’ were conducted of the email accounts of former relevant officers, being the: Director-General Deputy Director-General, Corporate and Human Resources; and General Manager, Human Resources and Governance. As outlined in paragraphs 2 and 3, further documents were found on both internal and external review and all have been released to the applicant in full. The Department expla[13]ed in its submission13 that it is now satisfied that all reasonable steps have been taken to locate relevant documents. Its Human Resources unit—the area with overall responsibility for the TMR Reform Process—advised that: With regard to the reform process, discussions were largely verbal briefings and decisions were not formally documented. Therefore, any decision regarding the direction and approval of the reform are not documented. In response, the applicant submits[14] that in the information released to him: ... the process identified as “closed merit” has no documentation. There is no definition of “closed merit”; no legislative (Act) or regulatory (Directive) basis for what provided the lawful “head of power” for the “closed merit” process. The applicant also submits that no related briefing material was located, and further, that statements issued by Deputy President Bloomfield of the Queensland Industrial Relations Commission in an industrial relations matter between a union and the Department were not provided to him. The applicant submits that the Department’s statement is misleading because it is contrary to recommendations issued by Deputy President Broomfield about consultation. He asserts, in summary, that relevant verbal briefings, as explained by the area with overall responsibility for the TMR Reform Process, defy basic obligations in respect of decision-making, transparency and accountability. I have no jurisdiction under the RTI Act to consider either the actions of the Department in undertaking the TMR Reform Process or actions at all connected to any matter before the Queensland Industrial Relations Commission. Nor is there any evidence before me that the Department has provided misleading information to OIC on external review. In relation to verbal briefings, I am satisfied—despite the applicant’s dissatisfaction with the use of such an approach—that they were a tool utilised by the Department which likely resulted in fewer documents being created that might have been responsive to the access application. I am unable to identify any reasonable basis upon which to base a request for further searches having regard to: the emphasis on verbal briefings the volume of documents already located the extent of searches conducted so far, including in the locations identified by the Department as most likely to hold responsive documents; and the absence of any substantive evidence that such searches were deficient. Therefore, with reference to the factors outlined in PDE, I consider that the Department has taken all reasonable steps to identify documents in response to the access application. Accordingly, I am satisfied that the Department is entitled to refuse access to additional documents on the basis that they are nonexistent.[15] DECISION For the reasons set out above, I affirm the decision under review and find that the Department is entitled to refuse access to additional documents on the basis that they are nonexistent under sections 47(3)(e) and 52(1)(a) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ L Lynch Assistant Information Commissioner Date: 23 September 2014 APPENDIX Significant procedural steps Date Event 25 October 2013 The Department received the applicant’s access application. 13 December 2013 The Department issued its decision, granting full access to the 114 located pages, subject to the removal of certain mobile telephone numbers which the applicant did not seek. 18 December 2013 The Department received the applicant’s internal review application, in which the applicant raised sufficiency of search issues. 20 January 2014 The Department issued its internal review decision, granting full access to the 41 located pages, and considering that all reasonable steps had been taken to locate relevant documents. 17 February 2014 OIC received the application for external review of the Department’s decision. 19 February 2014 OIC notified the Department of the external review application and requested procedural documents in relation to the application. 25 February 2014 The Department provided OIC with the requested procedural documents and the documents located initially and on internal review. 5 March 2014 OIC notified the applicant and the Department that OIC had accepted the external review application. OIC requested that the Department provide a copy of its search records. 10 March 2014 OIC received a copy of the Department’s search records. 2 April 2014 OIC telephoned and wrote to the Department, requesting further information in relation to its searches. 4 April 2014 The Department telephoned and wrote to OIC, summarising the searches which had been undertaken. 6 May 2014 OIC wrote to the Department, requesting further information in relation to its searches, and asking that additional searches be conducted, if necessary. 19 May 2014 and 5 June 2014 OIC granted the Department extensions of time to respond to OIC’s letter dated 6 May 2014. 20 June 2014 OIC received a submission from the Department, explaining the context of the TMR Reform Process and providing the further 160 pages located by the Department’s additional searches. 16 July 2014 OIC issued the applicant with a preliminary view that no further documents exist, and invited the applicant to make submissions if he contested the preliminary view. 17 July 2014 The Department advised OIC it had posted the applicant a copy of the 160 pages located on external review. 30 July 2014 OIC received a submission from the applicant. 9 September 2014 OIC advised both the applicant and the Department that OIC’s preliminary view remained as set out in the letter dated 16 July 2014, and OIC would proceed to prepare a formal decision. [1] Subject to the removal of certain mobile telephone numbers which the applicant did not seek.[2] As confirmed in OIC’s letter to the applicant dated 5 March 2014. The applicant’s external review application also raised a number of concerns about the Department’s processing of the internal review application. OIC considered that the decision-making process on internal review accorded with the requirements of the RTI Act and accordingly, the applicant was advised that no further action would be taken by the OIC in relation to his processing concerns. [3] Section 23 of the RTI Act.[4] As set out in section 47 of the RTI Act.[5] Sections 47(3)(e) and 52 of the RTI Act.[6] Section 52(1)(a) of the RTI Act.[7] (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) [37]-[38]. The decision in PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld). Section 52 of the RTI Act is drafted in substantially the same terms as the provision considered in PDE and, therefore, the Acting Information Commissioner’s findings in PDE are relevant here.[8] PDE [49].[9] In his external review application dated 17 February 2014. [10] In his external review application dated 17 February 2014.[11] Having regard to the Department’s search records and submissions received 10 March 2014, 4 April 2014 and 20 June 2014.[12] The Department’s legal practice management software program.[13] Dated 20 June 2014.[14] In his submission dated 30 July 2014.[15] Under sections 47(3)(e) and 52(1)(a) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Straker and Sunshine Coast Regional Council; NBN Co Limited (Third Party) [2016] QICmr 44 (28 October 2016)

Straker and Sunshine Coast Regional Council; NBN Co Limited (Third Party) [2016] QICmr 44 (28 October 2016) Last Updated: 6 February 2017 Decision and Reasons for Decision Citation: Straker and Sunshine Coast Regional Council; NBN Co Limited (Third Party) [2016] QICmr 44 (28 October 2016) Application Number: 312519 Applicant: Straker Respondent: Sunshine Coast Regional Council Third Party: NBN Co Limited ACN 136 533 741 Decision Date: 28 October 2016 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - EXEMPT INFORMATION - BREACH OF CONFIDENCE - application for information held by Council about the National Broadband Network - general rollout information and negotiation communications about site selection for infrastructure development and terms of use of Council land - whether disclosure would found an action for breach of confidence - whether information is exempt under schedule 3, section 8 of the Right to Information Act 2009 (Qld) - whether exception for deliberative process information applies - application of Fairfax Doctrine - whether disclosure would cause detriment to the public interest - whether access may be refused under sections 47(3)(a) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - CONTRARY TO PUBLIC INTEREST INFORMATION - application for information held by Council about the National Broadband Network - general rollout information and negotiation communications about site selection for infrastructure development and terms of use of Council land - accountability and transparency - informed public participation in local planning processes - prejudice to business and commercial affairs of entities - prejudice to deliberative process of Council - prejudice to future supply of information to Council - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Sunshine Coast Regional Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to:[1] documents provided to NBN Co Limited (NBN Co) (or its representatives) by Council relating to the NBN Co ‘local government checklist’;[2] and correspondence with NBN Co relating to NBN Co’s use of towers ‘for the provision of NBN services’. The applicant clarified and narrowed the scope of his application with Council, specifically focusing on documents that specifically relate to the ‘Maleny area’.[3] The applicant excluded documents relating to previous planning schemes, current and finalised development applications and information relating to fibre/copper cable outside the Maleny area. Council located relevant documents and consulted with NBN Co about disclosure under section 37 of the RTI Act.[4] NBN Co objected to disclosure of certain information, primarily on the basis that disclosure would found an action for breach of confidence, or alternatively, on the basis that disclosure would, on balance, be contrary to the public interest.[5] Council then decided[6] to: grant access to 13 full pages refuse access to 28 part pages (including the information that was the subject of NBN Co’s objections) on the basis that disclosure would, on balance, be contrary to the public interest;[7] and refuse access to other documents because they were nonexistent.[8] On internal review,[9] Council affirmed its decision in relation to located pages,[10] but did not decide that any documents were nonexistent.[11] The applicant then applied[12] to the Office of the Information Commissioner (OIC) for external review of the internal review decision, seeking full disclosure of the refused information and raising extensive public interest arguments favouring disclosure. During the external review, due to sufficiency of search concerns raised by the applicant, Council conducted further searches and located 248 additional pages (Additional Documents) that it considered may fall within the scope of the access application.[13] Council advised OIC that it did not object to disclosure of the Additional Documents,[14] subject to consultation with relevant third parties, including NBN Co. OIC considered that NBN Co may be concerned about disclosure of the Additional Documents and therefore, invited it to participate in the review.[15] In response, NBN Co: did not object to certain information in the Additional Documents being released, and this was released to the applicant during the external review; and raised objections about disclosure of the remaining information in the Additional Documents on the basis that disclosure would found an action for breach of confidence, and/or would, on balance, be contrary to the public interest.[16] For the reasons set out below, I vary Council’s internal review decision and find that: access to certain information[17] may not be refused under the RTI Act, as it is not exempt information and nor would its disclosure, on balance, be contrary to the public interest access to certain information[18] may be refused[19] on the basis that it is exempt information as its disclosure would found an action for breach of confidence;[20] and access to information on one page[21] may be refused on the basis that its disclosure would, on balance, be contrary to the public interest.[22] Background Significant procedural steps taken in processing the application and the external review are set out in the Appendix. As discussed above, the terms of the access application (as narrowed with Council) relate particularly to the rollout of the National Broadband Network (NBN) in the Maleny area. The NBN is a new national telecommunications network for the high speed carriage of communications.[23] NBN Co describes the NBN network as the ‘most comprehensive and largest infrastructure development in Australia’s history, using world class technology to provide access to fast broadband to every home and business in Australia’.[24] The NBN is a ‘national, wholesale only, open-access broadband network’.[25] The technology used to deliver the NBN has been a matter of significant public debate, but for current purposes it is sufficient to note that the NBN network uses a mix of technologies depending on geographical location. These technologies include fibre optic cable, hybrid fibre-coaxial cable, fixed wireless towers and satellites.[26] In relation to the locality of concern to the applicant – the Maleny area – it is currently proposed that certain parts of this area are to be serviced by NBN fixed wireless towers.[27] The applicant is involved with a group that opposes fixed wireless towers in the Maleny hinterlands.[28] It is clear both from the information released during the course of the external review, and from the applicant’s submissions to OIC, that there is a particular level of community sensitivity in Maleny concerning fixed wireless towers. The applicant’s concerns centre around the potential for radio-communications transmitters (including NBN towers) to impact on local and regional scenic amenity, the health and welfare of the community, and property values. Given NBN Co’s role as a participant in this external review and the nature of the information in issue, it is also relevant to briefly set out some background concerning the company. NBN Co’s objects are to ‘roll-out, operate and maintain’ the NBN[29] and it: is wholly-owned by the Commonwealth of Australia is a ‘Government Business Enterprise’ incorporated under the Corporations Act 2001 (Cth) has numerous reporting obligations to its shareholding Ministers under the Public Governance, Performance and Accountability Act 2013 (Cth), the Public Governance, Performance and Accountability Rule 2014 (Cth) and the Commonwealth Government Business Enterprise Governance and Oversight Guidelines (August 2015); and is subject to a variety of other Commonwealth legislation, including legislation concerning telecommunications – most relevantly the National Broadband Companies Act 2011 (Cth) – which provides the regulatory framework for NBN Co. Certain information in issue in this review concerns the selection of a site for one specific fixed wireless tower in the Maleny area. The relevant background and current status of this process is that NBN Co has selected a preferred (Council owned) site for the tower, and this selection is public knowledge.[30] Council has confirmed to OIC that final site selection is yet to be negotiated between Council and NBN Co. Relevantly, Council has not yet received or decided on any development application from NBN Co.[31] Reviewable decision The decision under review is Council’s internal review decision dated 17 June 2015 to refuse access to information[32] on the basis that disclosure would, on balance, be contrary to the public interest.[33] Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). Information in issue The information remaining in issue in this review can be categorised as: information and communications concerning facilitation of the rollout of the NBN in the relevant area (General Rollout Information);[34] and potential sites for a fixed wireless NBN tower in Maleny (and comments and preferences in relation to these sites)[35] and part of one email[36] concerning the terms of using Council land for fixed wireless sites (Negotiation Information). The applicant narrowed the scope of his application with Council[37] and again, on external review.[38] In addition to excluding information specifically relating to areas other than the ‘Maleny area’, the applicant also does not seek access to: names and contact details redacted from the initial documents located by Council[39] information relating to current and finalised development applications planning information relating to previous planning schemes[40] information relating to fibre/copper cable outside the Maleny area[41] the following personal and administrative information in the Additional Documents: ○ names and personal contact details (eg. mobile phone numbers) of Council staff ○ names and titles of NBN Co staff, contact details, signature blocks on emails and signatures ○ third party contractor details and identifying information ○ names and titles of meeting attendees and personal reasons for non-attendance at meetings ○ certain administrative information about the timing of meetings; and ○ leave information and other personal comments and information. Accordingly, the information listed above does not form part of the information in issue in this review and therefore, is not addressed in these reasons for decision. Issues for determination The issues for determination in this review are: OIC’s jurisdiction to consider access to documents originating with NBN Co whether access to the General Rollout Information may be refused under the RTI Act on the basis that it is exempt information, or on the basis that disclosure is, on balance, contrary to the public interest; and whether access to the Negotiation Information may be refused under the RTI Act on the basis that it is exempt information, or on the basis that disclosure is, on balance, contrary to the public interest. In the circumstances of this review, there is a practical onus on the third party, NBN Co to establish that a decision not to disclose the information in issue, as described at paragraph 16 above, is[42]ustified.42 On external review, the applicant raised concerns as to the sufficiency of Council’s searches.[43] In response, OIC asked Council to conduct further searches,[44] and Council located the Additional Documents. This process satisfied the applicant’s concerns regarding the sufficiency of Council’s searches,[45] and accordingly, this is not an issue for determination in this external review. Jurisdiction In its submissions to Council and to OIC,[46] NBN Co has raised a jurisdictional issue concerning the application of the Freedom of Information Act 1982 (Cth) (Cth FOI Act). While NBN Co appears to recognise that this decision is required to be made under the RTI Act,[47] it also contends that: NBN Co is exempt from the operation of the Cth FOI Act in relation to documents in respect of its commercial activities[48] (Cth Carve-out) the Cth Carve-out is relevant to NBN Co’s arguments concerning prejudice to its commercial affairs and prejudice to intergovernmental relations; and if the documents were released under the Queensland RTI Act despite the existence of the Cth Carve-out, that this may ‘raise potential inconsistency issues, per s 109 of the Australian Constitution’. I have considered NBN Co’s submissions and I acknowledge that when a request is made to NBN Co for information under the Cth FOI Act,[49] it is necessary to consider the application of the Cth Carve-out. However, in this case, the access application was made to Council under the Queensland RTI Act, a separate information access scheme. Therefore, that is the applicable information access legislation for the purpose of this external review. Section 23 of the RTI Act creates a legally enforceable right for any person to access ‘documents of an agency’. Section 12 of the RTI Act relevantly defines ‘document of an agency’ as follows: ...a document, other than a document to which this Act does not apply, in the possession or under the control of the agency whether brought into existence or received in the agency, and includes – (a) a document to which the agency is entitled to access; (b) a document in the possession, or under the control, of an officer of the agency in the officer’s official capacity.(Emphasis added) Council is an ‘agency’ under the RTI Act[50] and the relevant documents are in its possession. Whether the documents were brought into existence by Council, or received by Council from NBN Co (or its representatives) or other third parties, I am satisfied that they are ‘documents of an agency’ for the purposes of the RTI Act. Accordingly, the applicant has a right to be given access to these documents, subject to the other provisions of the RTI Act, including the grounds for refusal of access. I am satisfied that in deciding an application under the RTI Act, a decision maker has no jurisdiction to apply the Cth Carve-out or other grounds for refusing access set out in the Cth FOI Act. Certain documents and entities are expressly excluded from the Queensland RTI regime[51] and as such, are listed in schedules 1 and 2 of the RTI Act.[52] Neither schedule lists NBN Co documents or the entity NBN Co. Had Parliament intended to specifically exclude NBN Co documents or the entity NBN Co from the scope of the Queensland RTI Act, I am satisfied that schedules 1 and/or 2 would in some way, reflect this. Below, I have also considered the related issue of whether disclosure is ‘prohibited by an Act’[53] and NBN Co’s arguments concerning prejudice to its commercial affairs and intergovernmental relations[54] in applying relevant public interest nondisclosure factors. In relation to NBN Co’s submission concerning ‘inconsistency issues’ under section 109 of the Constitution, I do not have any jurisdiction to decide on Constitutional matters.[55] Accordingly, I am satisfied that: the documents in issue in this review are ‘documents of an agency’ to which the RTI Act applies; and NBN Co documents, when in the possession or under the control of a Queensland government agency, are not excluded from the scope of the RTI Act. General Rollout Information As noted above, the General Rollout Information consists of information and communications concerning facilitation of the rollout of the NBN in the Maleny area. Broadly speaking, it consists of: parts of emails exchanged (i) between NBN Co (and its representatives) and Council, (ii) between Council and third parties and (iii) internally within Council parts of NBN Co’s materials used for presentations to Council about the rollout a briefing note and part of a ‘communications plan’; and a ‘two way confidentiality and licence agreement’ entered into in October 2012 between Council and NBN Co (Confidentiality Agreement).[56] NBN Co claims that all of the General Rollout Information is exempt under schedule 3, section 8 of the RTI Act because its disclosure would found an action for breach of confidence. In the alternative, it also claims that disclosure would, on balance, be contrary to the public interest. The law and my findings in relation to both of these matters are set out below. Relevant law – breach of confidence The RTI Act is administered with a pro-disclosure bias meaning that access should be given to a document unless giving access would, on balance, be contrary to the public interest.[57] The RTI Act also sets out certain grounds on which access to information may be refused.[58] It is Parliament’s intention that these grounds are to be interpreted narrowly.[59] Relevantly, access may be refused to exempt information.[60] Information will be exempt if its disclosure would found an action for breach of confidence (Breach of Confidence Exemption).[61] It is well-settled that the Breach of Confidence Exemption refers to an action based in equity for breach of an equitable obligation of confidence.[62] Where a contractual term requiring confidentiality exists and disclosure of information gives rise to an action for breach of contract, this in itself, is not sufficient to enliven the exemption, but will form part of the factual matrix relating to the circumstances of communication. The Breach of Confidence Exemption must be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, with appropriate standing to bring an action to enforce an obligation of confidence claimed to bind the agency not to disclose relevant information.[63] For this exemption to apply, five cumulative elements must be established:[64] information must be able to be specifically identified[65] information must have the necessary quality of confidence and will not extend to information that is generally known, useless or trivial[66] circumstances of the communication must create an equitable obligation of confidence[67] disclosure to the access applicant must constitute an unauthorised use of the confidential information;[68] and disclosure would result in detriment to the party claiming confidentiality.[69] I have considered these elements in relation to the General Rollout Information below. Findings As noted above, there is a Confidentiality Agreement in place between Council and NBN Co. While I am unable to set out the terms of the agreement here,[70] it is sufficient to note that under this agreement, Council is bound by a term requiring confidentiality that I am satisfied only applies to some of the General Rollout Information. As explained above, the existence of this agreement alone is insufficient to enliven the breach of confidence exemption. While it is relevant to consider within the context of element (c), even where a contractual term requiring confidentiality exists it remains necessary to consider all five elements identified above to determine whether disclosure would found an action based in equity for breach of confidence. In this case, I do not consider that element (e) is met in relation to any of the General Rollout Information.[71] I also consider there are some difficulties in applying elements (b) and (c) to some of the General Rollout Information, for the reasons set out below.[72] (b) Quality of confidence To establish element (b) the key inquiry is whether the subject information possesses a sufficient degree of secrecy for it to be the subject of a confidence.[73] The passing of time may reduce the secrecy of information and, particularly in the case of government information, may reduce the information to historical facts or even trivia.[74] Further, if information enters the public domain, or becomes public knowledge, it will no longer have the necessary quality of confidence. In the case of the General Rollout Information, NBN Co objects to the release of certain information that I am satisfied is now in the public domain, including:[75] a summary of an NBN Co public announcement community engagement and consultations that have taken place construction/development that has proceeded; and graphics and information that were previously included in public documents.[76] Further, I find that some of the information – particularly subject lines of emails and administrative information about meetings – is trivial.[77] While I accept that disclosure of these details may, at the time, have indirectly revealed that NBN Co’s fixed wireless service was to be rolled out in the Sunshine Coast area (and when this was likely to occur), this information is now in the public domain. NBN Co has published such information through media releases, advertisements and its three year construction plan.[78] NBN Co contends that ‘although certain information within the [Information in Issue] may be in the public domain, other information is secret and, it is compiled and utilised by [NBN Co] in a way such that the end product does have the requisite degree of secrecy’.[79] While it is true that secrecy may attach to the way public information is utilised – for example, a customer list which compiles information from various publicly available trade directories[80] – I have reviewed the General Rollout Information and I cannot accept that this is the case here. Accordingly, for the above reasons, I consider there is significant difficulty in satisfying element (b) in relation to General Rollout Information to the extent that it is already in the public domain or as I have found, trivial in nature. (c) Circumstances of the communication To establish element (c), I must be satisfied that the information was communicated and received on the basis of a mutual understanding of confidence. The understanding must have existed at the time of the communication and may be express or implied.[81] This is usually the most difficult requirement to satisfy and requires that the ‘recipient should be fixed with an enforceable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it.’[82] The Information Commissioner has previously indicated that the relevant circumstances to consider in determining element (c) include, but are not limited to, the: nature of the relationship between the parties nature and sensitivity of the information purpose/s for which the information was communicated nature and extent of any detriment to the interests of the information-supplier that would follow from an unauthorised disclosure of the information; and circumstances relating to the communication.[83] After considering the above, I am prepared to accept that some of the General Rollout Information was communicated from NBN Co to Council on the basis of a mutual understanding of confidence. While generally, it is not information of particular sensitivity, some of the information was subject to the Confidentiality Agreement and concerns details of the rollout that NBN Co would not ordinarily release publicly.[84] This demonstrates an intention of the parties that this information was communicated and received on the basis of a mutual understanding of confidence. I acknowledge NBN Co’s particular concerns about disclosure of the Confidentiality Agreement. In submissions to OIC, NBN Co contends that the Confidentially Agreement falls ‘squarely within the meaning of “Confidential Information” in clause 1.1 of that agreement’.[85] Having considered the terms of the Confidentiality Agreement, I do not consider that this is as uncontentious as NBN Co’s submits. However, I accept it is arguable that the Confidentiality Agreement covers itself. While I do not consider that it is particularly sensitive in nature – it appears to reflect a standard agreement of this nature and contains many ‘boilerplate’ terms – I am prepared to accept that it was communicated and received on the basis of a mutual understanding of confidence. However, to the extent that the information is not covered by the Confidentiality Agreement,[86] I am not satisfied that there is any evidence of a mutual understanding of confidence. I acknowledge the use of the term ‘confidential’ in a number of the emails between NBN Co and Council, but having considered the context of the relevant information, I consider that this was intended to flag the temporary secrecy of the information prior to the media announcement of the rollout in the relevant area. It does not point to any ongoing obligation of confidence on Council.[87] As discussed at paragraph 40 above, the relevant announcement has long since been made. Accordingly, even where the relevant emails are marked as ‘confidential’, having considered the nature of the information and the circumstances under which it was communicated, I do not consider that it was communicated and received on the basis of any ongoing mutual understanding of confidence. Further, much of the General Rollout Information comprises correspondence from Council to NBN Co (or its representatives), between Council and external third parties (including, in one case, a journalist) or internal Council correspondence.[88] This information cannot be said to reflect a communication from NBN Co (or its representatives) as confider, to Council as a recipient. Given that NBN Co is the relevant hypothetical plaintiff in an action for breach of confidence, to the extent that the information does not originate from NBN Co (or its representatives) as confider, this precludes a finding that NBN Co is owed a duty of confidence in relation to this information.[89] For the above reasons, I am satisfied that some,[90] but not all, of the General Rollout Information satisfies requirement (c). (e) Detriment In any event, I am satisfied that requirement (e) – the requirement of detriment – cannot be satisfied in relation to any of the General Rollout Information. In considering this requirement, it is necessary to consider the application of the ‘Fairfax Doctrine’.[91] This doctrine requires that public bodies claiming that information is confidential must demonstrate that disclosure of the information would be detrimental to the public interest (and not just to themselves) in order to successfully establish such as claim.[92] In a recent decision on an external review involving a government-owned corporation, the Right to Information Commissioner outlined the application of the Fairfax Doctrine:[93] In considering the detriment requirement, the nature of the body said to be the confider ... must be taken into account. As governments control information in a representative capacity, a higher burden is imposed on government bodies and entities than on private individuals to justify the secrecy of information in their possession. As Mason J explained in Commonwealth of Australia v John Fairfax and Sons Ltd, the leading Australian case in this area, government plaintiffs claiming information is subject to an equitable obligation of confidence owed to them must demonstrate that disclosing relevant information would be detrimental to the public – and not the government confider’s – interest. Unless it can be established that disclosure is likely to injure the public interest, it will not be protected, and in the context of the RTI Act, a claim for exemption under schedule 3, section 8 will fail. (Emphasis added) In its submissions to OIC,[94] NBN Co contends that a number of factors ‘weigh against [NBN Co] being characterised as a “public body” for the purposes of the doctrine’, including: NBN Co being a public company limited by shares with a board of directors and a constitution that none of NBN Co’s directors hold political office, and that all were selected for their private sector experience NBN Co’s structure as a public company rather than the ‘typical structure of a statutory authority or public utility’ that Commonwealth ownership of NBN Co is a ‘stage in a broader context, which is intended to result in potential privatisation and operation as a non-government commercial entity’ that, due to the large number and worth of contracts entered into by NBN Co, it could not be readily wound up by the Commonwealth without extensive financial, legal as well as ‘other significant economic costs and dislocation in the telecommunications and related industries’; and that NBN Co has flexibility and discretion in operational, technology and network design decisions within the constraints of its funding agreement with the Commonwealth. The following comments of Senior Member (SM) Bayne of the Administrative Appeals Tribunal (AAT) in Sullivan v Department of Industry, Science and Technology and Australian Technology Group Pty Ltd (Sullivan)[95] are relevant in considering the application of the Fairfax Doctrine[96] to a proprietary company largely owned by the Commonwealth:[97] I turn first to whether ATG should be regarded as a public body for the purposes of the Fairfax doctrine. A number of matters are relevant in this respect. In his oral evidence...Mr Harbour deposed that ATG is "99% plus" owned by the Commonwealth, and that the Commonwealth has been the sole source of shareholder funds for the ATG. He conceded that the Commonwealth could wind up ATG without any difficulty. Mr Harbour said that the ATG's auditor is the Commonwealth Auditor-General. This by itself is some indication of the public status of ATG. Furthermore, the "Statement" at annexure B to Dr Read's affidavit included documents called "Draft ATG Guidelines" and "Public Interest Safeguards", and the latter in particular indicates the extent of Commonwealth control over ATG's activities. 28. On the other hand, the Respondent pointed to evidence from Mr Harbour that while a public servant and a Senator were directors of this company incorporated under the Corporations Law, the Commonwealth had appointed a majority of the directors from the private sector. Other than through the two non-private sector directors, the Commonwealth had not sought to influence decisions made by the Board of ATG. There is very little guidance in the case-law as to what bodies may be regarded as sufficiently public in nature as to be affected by the Fairfax doctrine. What was said above by Mason CJ in Plowman indicates that the doctrine applies to "statutory authorities or public utilities". A body such as ATG, albeit that it is a public company almost wholly owned by the Commonwealth, might not in ordinary usage be regarded as a statutory authority or a public utility. But I do not take Mason CJ's reference to "statutory authorities or public utilities" as exhausting the range of bodies beyond government Departments which are affected by the Fairfax doctrine. The Chief Justice approved of the observation of Professor Finn that in the public sector "(t)he need is for compelled openness, not for burgeoning secrecy". In a functional sense, ATG is a public sector body. (Emphasis added) SM Bayne’s above approach has been endorsed by a Deputy President of the AAT[98] and applied by the Information Commissioner in external reviews under the RTI Act.[99] I accept, for the purposes of the laws of Queensland, NBN Co is not a public authority or an instrumentality or agency of the Crown[100] and that NBN Co is a public company limited by shares with directors that do not hold public office, and that it operates ‘at arm’s length from the Government’.[101] On the other hand, NBN Co is a ‘government business enterprise’[102] which is currently wholly owned and funded by the Commonwealth.[103] NBN Co is also subject to audit by the Commonwealth Auditor-General,[104] and has numerous responsibilities to report to its shareholding ministers under the Public Governance, Performance and Accountability Act 2013 (Cth).[105] Despite NBN Co’s submissions,[106] I am also satisfied that NBN Co could readily be wound up by the Commonwealth,[107] in the relevant sense that the Commonwealth has the legal power to do so.[108] While NBN Co’s directors may have been selected for their private sector experience as NBN Co contends, they were selected and may be replaced by the Commonwealth government.[109] NBN Co’s ‘public status’ is also reinforced by its establishment documents. In particular, NBN Co’s Constitution limits its powers under the Corporations Act to ‘only to do all things that are necessary, convenient or incidental to carry out the objects set out in rule 4.1.1 and which are consistent with Australian Government policy as communicated to the Company by the Commonwealth from time to time’. [110] While I accept that NBN Co has ‘flexibility and discretion in operational, technology and network design’,[111] it is clear that the Commonwealth has ultimate strategic control over the entity. This is outlined in NBN Co’s Board Charter, which provides that:[112] the Board regards [NBN Co] as bound by and required to implement Australian Government policy as set out in formal communications from both the Shareholder Ministers as well as to exercise its powers in the best interest of [NBN Co]. Accordingly, based on the indicia outlined by SM Bayne, I am satisfied that NBN Co is a public sector body in the relevant ‘functional sense’. I do not accept that NBN Co is, in a functional sense, a private commercial entity, as NBN Co contends. NBN Co also submitted that the Fairfax Doctrine should be ‘confined to the receipt of ordinary governmental information, rather than commercial information’, and in a related argument, contends that entities pursuing commercial activities for the benefit of government should not be encompassed by the doctrine. In support of this proposition, NBN Co cites the High Court decision of Esso Australia Resources Ltd v Plowman,[113] and notes that Mason CJ made an express distinction between ‘governmental secrets’ on the one hand and ‘personal and commercial secrets’ on the other. The full relevant passage of the High Court judgment is as follows: The courts have consistently viewed governmental secrets differently from personal and commercial secrets. As I stated in The Commonwealth of Australia v. John Fairfax and Sons Ltd., the judiciary must view the disclosure of governmental information "through different spectacles". This involves a reversal of the onus of proof: the government must prove that the public interest demands non-disclosure. This approach was not adopted by the majority of the House of Lords in British Steel Corporation v. Granada Television Ltd., where the confidential documents in question revealed the internal mismanagement of a statutory authority. In passing, the majority attributed to the public interest exception a very narrow scope, stating that, although disclosure was of public interest, it was not in the public interest. I would not accept this view. The approach outlined in John Fairfax should be adopted when the information relates to statutory authorities or public utilities because, as Professor Finn notes, in the public sector "(t)he need is for compelled openness, not for burgeoning secrecy". The present case is a striking illustration of this principle. Why should the consumers and the public of Victoria be denied knowledge of what happens in these arbitrations, the outcome of which will affect, in all probability, the prices chargeable to consumers by the public utilities? (Footnotes omitted) The above passage does not support the position that the Fairfax Doctrine should be confined in the way that NBN Co contends. To the contrary, the case involved documents concerning a commercial arbitration involving the sale of natural gas to two public utilities, and in this context, Mason CJ noted the need for ‘compelled openness, not for burgeoning secrecy’, and questioned why consumers and members of the public should be denied information that is relevant to the prices chargeable to consumers by these public utilities. Relevantly, the Right to Information Commissioner recently confirmed:[114] ...whether the Fairfax Doctrine is enlivened in a particular case turns on a proper characterisation of the entity claiming to be owed an obligation of confidence, rather than the information said to be subject to such obligation. If the said entity is a public sector body within the broad meaning of that concept as stated in Sullivan, relevant information must axiomatically comprise ‘government information’ of some type. Accordingly, I am satisfied that the General Rollout Information is ‘government information’ in the relevant sense, and the Fairfax Doctrine applies to it. As I have found that the Fairfax Doctrine applies to NBN Co (and accordingly, to the General Rollout Information), I am now required to assess whether disclosure of the information would be detrimental to the public interest. In this case, much of the information is either: innocuous[115] out of date;[116] relatively ‘high-level’; or already in the public domain.[117] I have analysed public interest factors for and against disclosure at length below in finding that access may not be refused to the General Rollout Information under section 47(3)(b) of the RTI Act. For present purposes, it is sufficient to note that although there are some factors favouring nondisclosure, there are also significant public interest factors favouring disclosure in this case. In considering whether potential detriment to the public interest requires nondisclosure of information, it is, as SM Bayne observed in Sullivan, ‘also relevant to have regard to the public interest in disclosure of the documents’.[118] The NBN is the ‘most comprehensive and largest infrastructure development in Australia’s history’,[119] carried out by a government owned and funded entity, implementing Australian government policies. The General Rollout Information deals with how NBN Co has undertaken this project in a particular local government area, and how the local council in this area has facilitated it. It has previously been held that there is a manifest public interest in the community having access to information concerning the operations of entities which are entirely government-owned, taxpayer funded and charged with carrying out public duties.[120] To this end, I consider disclosure of the General Rollout Information would advance the public interest, rather than cause it any detriment. NBN Co has raised particular concerns about the Confidentiality Agreement which forms part of the General Rollout Information. While I am prepared to accept, as discussed above, that the first four elements of the Breach of Confidence Exemption are met in relation to this document, I am not satisfied that its disclosure could lead to any additional level of detriment to the public interest, than disclosure of the remaining General Rollout Information. The fact that a document concerns confidentiality does not, of itself, confer on it any special added quality of confidence. To the contrary, this document comprises standard or relatively generic provisions which are common to documents of this kind. It establishes the basis for communication of information between NBN Co and Council, and its disclosure will allow the public to see how the rollout is facilitated between these bodies. Accordingly, I am satisfied that the relevant detriment required by element (e) of the Breach of Confidence Exemption and the Fairfax Doctrine is not made out in relation to the Confidentiality Agreement. Conclusion For the above reasons, I find that the detriment required to found an equitable action for a breach of confidence by NBN Co is not established, and the General Rollout Information therefore, cannot comprise exempt information under schedule 3, section 8 of the RTI Act. Contrary to the public interest NBN Co also contends that disclosure of the General Rollout Information would, on balance, be contrary to the public interest. Relevant law An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[121] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[122] and explains the steps that a decision-maker must take[123] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest. Irrelevant factors NBN Co contends that disclosure of the General Rollout Information would tend to undermine confidence in its brand and cause frustration in the market when ‘services are not activated or construction is not commenced as first planned’.[124] I have not taken this into consideration to the extent that it relates solely to loss of confidence in NBN Co, or embarrassment that might arise as a result of disclosure of the General Rollout Information.[125] To the extent that this submission is relevant to the issue of prejudice to NBN Co’s business and commercial affairs, I have considered this in paragraphs 80 to 92 below. Factors favouring disclosure The significance of the NBN is discussed at paragraph 9 and paragraph 64 in relation to the Fairfax Doctrine. As noted above, the General Rollout Information discloses information about the progress (in a particular local government area) of a very significant public infrastructure project being carried out by a Commonwealth government-owned entity at significant cost to taxpayers. Although the information is general in nature (when compared to the Negotiation Information) and, in places, only provides administrative details of meetings between Council and NBN Co, I am satisfied that disclosure would promote open discussion of the rollout of this significant publicly funded project in the Sunshine Coast area (and Maleny in particular) and that it would enhance Council’s accountability and inform the community of its operations by revealing its role in facilitating the rollout.[126] The applicant contends that it is in the public interest to release the General Rollout Information because NBN Co’s proposals in the area have potential to impact on local and regional scenic amenity, health and welfare of people and wildlife, and property values in the area.[127] While the General Rollout Information does not specifically address these matters in any meaningful way,[128] I am satisfied that releasing the information would generally contribute to positive and informed debate about matters relevant to these concerns, including: [129] the rollout of the NBN in the area NBN Co’s choice of technology for the area Council’s role in facilitating the rollout; and NBN Co’s approach to collaborating with Council. I consider the above matters are of serious concern to the community generally, given the scale and importance of the NBN, but are of particular concern in Maleny, where there is a particularly high level of community concern about the rollout.[130] I am also satisfied that, to a certain extent, the General Rollout Information could reasonably be expected to ensure effective oversight of expenditure of public funds.[131] While the information does not specifically reveal expenditure or costs, it does provide a Council officer’s estimate of the value of NBN Co investment in the area, and allow general scrutiny of the rollout process, timelines and choice of technology for the area. This, in turn, would allow the public to make an informed judgement about expenditure on and ‘value for money’ of the NBN in relation to the area. Given the scale and importance of the NBN, and the public concern about the rollout in this particular area, I consider that the factors concerning open discussion of public affairs, accountability and operations of Council, and positive and informed debate carry significant weight. I note that the General Rollout Information does not reveal any information concerning the cost of the NBN to taxpayers. Rather, the information provides general insight into NBN Co investment in the area, and a Council estimate of the value of this investment. On this basis I afford the factor concerning effective oversight of expenditure of public funds low weight. Factors favouring nondisclosure NBN Co claims that disclosure of the General Rollout Information could reasonably be expected to prejudice: its business, professional, commercial or financial affairs (Business Prejudice Factor);[132] and intergovernmental relations[133] NBN Co also contends that disclosure of the information could reasonably be expected to cause a public interest harm by: disclosing deliberative process information (Deliberative Process Harm Factor)[134] disclosing information concerning its business, professional, commercial or financial affairs in circumstances where disclosure could reasonably be expected to have an adverse effect on those affairs or prejudice the future supply of this type of information to government in the future (Business Harm Factor);[135] and disclosing information of a confidential nature that was communicated in confidence in circumstances where disclosure could reasonably be expected to prejudice the future supply of information of this type.[136] Business, professional, commercial or financial affairs of entities NBN Co’s submissions, to a great extent, appear to be based on the assertion that disclosure of the General Rollout Information would ‘expose a significant amount of information about [NBN Co’s] commercial activities’.[137] In this regard, I acknowledge that NBN Co is required to ‘operate its business on a commercial basis’ and ‘it is a ‘commercial entity operating in a market environment and can compete and innovate like other companies in this environment’.[138] However, as previously held by the Right to Information Commissioner, under the RTI Act, the mere fact that information discusses commercial issues of entities does not, of itself, lead to an automatic presumption that disclosure under the RTI Act would be contrary to the public interest.[139] When commercial information of entities come into the possession or control of an agency, this information is subject to the RTI Act. The necessary approach is ‘to balance the interests of commercial undertakings which have supplied material to government agencies and the interests of members of the public in gaining access to that information’.[140] In this regard, NBN Co contends that a series of significant consequences may unfold as a result of releasing prospective rollout information that is subject to change. NBN Co’s submissions cite and paraphrase the submissions of NBN Co’s chairman, Mr Bill Morrow, to the Senate Environment and Communications Legislation Committee concerning release of estimated rollout dates.[141] In summary, NBN Co submits that disclosure could: undermine confidence in its brand and cause frustration in the market cause NBN Co’s customers (Registered Service Providers) to ‘go to market’ based on incorrect public expectations about NBN service provision cause Registered Service Providers to spend less on marketing cause people to use alternative services, result in a lower take-up rate and a lower internal rate of return on investment; and ultimately, compromise its ability to roll out the NBN network at the lowest reasonable cost along with its capacity to generate shareholder value. In terms of the Business Prejudice Factor, I do not accept that release of the General Rollout Information could reasonably be expected to give rise to the prejudices identified by NBN Co. The phrase ‘could reasonably be expected to’ requires an expectation that is reasonably based (ie. not absurd, irrational or ridiculous).[142] I note that a very small amount of the General Rollout Information relates to specific predicted rollout dates. To the extent that the General Rollout Information does contain dates, I do not consider it reasonable to expect that another business would rely on dates provided in this format (slideshows and emails to Council) alone to ‘go to market’ with a NBN product, particularly given that it is relatively dated and a significant amount of up-to-date rollout information for the area is now available on NBN Co’s official website.[143] In terms of the remaining prejudices claimed by NBN Co, I acknowledge that in order to protect its reputation and brand, NBN Co has a general policy of not publicly releasing prospective rollout information that is subject to change. However, in this review, I am required to consider the particular information in issue (the General Rollout Information) and determine whether disclosure could reasonably be expected to give rise to the relevant prejudice. Having considered the General Rollout Information, I do not consider that disclosure is reasonably likely to result in a lower take-up rate of NBN Co services, or the other consequential prejudices claimed. As noted at paragraph 62 above, to the extent that the General Rollout Information contains information other than dates, it is relatively innocuous, out of date, ‘high level’ and much of it is in the public domain. To the extent that it does contain estimated rollout dates, as discussed at paragraph 70 above, I do not consider that potential loss of confidence or embarrassment to NBN Co alone (without any consequent prejudice to its business or commercial affairs) is a relevant consideration. I do not have any evidence of any other specific prejudices to NBN Co’s commercial or business affairs, and accordingly, I am not satisfied that the Business Prejudice Factor applies in relation to the General Rollout Information. For the Business Harm Factor to arise,[144] I must be satisfied that the General Rollout Information: concerns the business, professional, commercial or financial affairs of NBN Co; and disclosure could reasonably be expected to: ○ have an adverse effect on those affairs; or ○ prejudice future supply of like information to government. The General Rollout Information consists of information about the rollout of the NBN in the relevant area,[145] which is a Commonwealth infrastructure project that NBN Co performs as a government-owned and funded enterprise. It does not, for example, directly relate to any commercial agreement for the sale of goods or services, or the use of another entity’s infrastructure on commercial terms.[146] Despite this, I am prepared to accept that, broadly speaking, the General Rollout Information does concern NBN Co’s business affairs,[147] in the sense that NBN Co’s ‘business’ is to ‘roll-out, operate and maintain a national wholesale broadband network’.[148] Accordingly, the first limb of the Business Harm Factor is made out. However, unlike the Cth Carve Out under the Cth FOI Act,[149] the Business Harm Factor also requires that disclosure could reasonably be expected to have an adverse effect on those affairs or prejudice future supply of like information to government. The adverse effect required by the Business Harm Factor is almost invariably financial in nature (either directly or indirectly). In most cases the question of whether disclosure of information could reasonably be expected to have an adverse effect will turn on whether the information is capable of causing competitive harm to the relevant entity.[150] While I acknowledge that NBN Co is part of a competitive commercial wholesale market, in the sense that it sells NBN services to a variety of retailers, the General Rollout Information does not directly relate to this activity. Rather it relates to infrastructure development, and in particular, the construction of the network in a particular area. Having carefully considered the General Rollout Information, I cannot see how release of this information could reasonably be expected to result in competitive harm to NBN Co. Accordingly, I am not satisfied that disclosure would be reasonably likely to have any adverse effect on NBN Co’s business, professional, commercial or financial affairs. In relation to prejudice of future supply of like information to government, NBN Co relevantly contends that it provides as much information to local councils as possible in order to minimise delays and potential objections, and disclosure of the General Rollout Information could: ... cause [NBN Co] to reconsider this approach, and possibly provide less confidential information to councils. This, in turn, may potentially result in less cooperative negotiations, more objections and an adverse impact on [NBN Co’s] ability to rollout our network across the country efficiently and at the lowest possible cost. This may result in significant public interest harm, specifically, [NBN Co] ability to generate profitable returns for our Shareholders and provide essential services to the Australian public. I accept that disclosure of the General Rollout Information covered by the Confidentiality Agreement[151] (including the Confidentiality Agreement itself) could – to a certain extent – reasonably be expected to discourage NBN Co, and other infrastructure developers from early and detailed collaboration with Council (and other local governments) on their projects. That is, infrastructure developers may not communicate with Council (or other local governments) at an early stage in relation to their projects if they believe their correspondence may be subject to disclosure under the RTI Act, even where there is a contractual confidentiality clause in place. Accordingly, I am satisfied that the Business Harm Factor applies to the information that is covered by the Confidentiality Agreement. However, in terms of the weight to be attributed to this factor, NBN Co’s own submissions to OIC indicate that the reason for providing information to Council is to ‘minimise delays and potential objections, which could in turn slow down the NBN rollout’. Given NBN Co’s mandate to rollout the NBN,[152] and Government’s expectation that it ‘engage productively and collaboratively with its stakeholders’ (including local communities),[153] I consider any reluctance to cooperate with local councils would be minimal, regardless of whether the General Rollout Information is released under the RTI Act. More broadly, given local governments’ specialised knowledge of their area and their development approval role, any failure by other infrastructure developers to collaborate and share information with local governments would be likely to prejudice their operations to a far greater extent than the disclosure of information about their projects. Accordingly, to the extent that the Business Harm Factor applies, it attracts only low weight. Finally, NBN Co contends that release of the General Rollout Information by Council will adversely effect NBN Co’s ability to obtain confidential information from its ‘suppliers, related commercial entities and potential business partners’ in the future, or that they will supply this information to NBN Co but at an increased cost. I am not satisfied that this is the case. The General Rollout Information either relates to, or is produced by Council, NBN Co (or its representatives) or members of the public concerned or interested in the rollout. None of the information originates from or reveals the business affairs of NBN Co’s suppliers, related commercial entities or potential business partners. On this basis, I am not satisfied that disclosure of this information could reasonably be expected to prejudice the future supply of information from these third parties to NBN Co. Intergovernmental relations NBN Co contends that if the same application was made to it under the Cth FOI Act, it would be likely to be entitled to refuse access to the General Rollout Information on the basis of the Cth Carve Out (discussed at paragraph 22<[154] above).154 NBN Co further submits that if ‘applicants could access information from one State body, but the same information is likely to be exempt under another jurisdiction’s public information access regime’ this could potentially prejudice relations with the Commonwealth. The RTI Act recognises that the public interest will favour nondisclosure of information where disclosure could reasonably be expected to prejudice intergovernmental relations.[155] I am not satisfied that the relevant prejudice could reasonably be expected to arise in the circumstances of this case. Queensland’s RTI Act applies to documents in the possession or under the control of Queensland government agencies.[156] In many cases, this can include information authored by private companies and parties external to Queensland government that has been provided to an agency. Similarly, information of Queensland government agencies and business/private entities that is in the possession of Commonwealth agencies will be subject to the provisions of the Cth FOI Act. Each information access regime has different requirements and applies to the entities as provided for in the legislation, subject to the other provisions of the Acts. I cannot accept that lawfully applying valid, current legislation in the relevant jurisdiction could reasonably be expected to prejudice intergovernmental relations. I do not consider this an outcome that was intended by Parliament in enacting beneficial information access legislation. NBN Co also contends that disclosure of the General Rollout Information would ‘divulge information of a confidential nature that was communicated to the Council in confidence, [and] may set an incorrect presumption that information exchanged in confidence with [NBN Co] will not be protected in Queensland, or in other States and Territories’.[157] As I have found that the General Rollout Information does not meet the Breach of Confidence Exemption requirements, I am unable to accept this submission as I do not consider the information is of a confidential nature, as NBN Co contends. Based on the above, I find that disclosure of the General Rollout Information could not reasonably be expected to prejudice relations between Council and/or the Queensland Government and the Commonwealth and therefore, this factor does not apply. Prohibited by an Act Where disclosure of information is prohibited by an Act, this gives rise to a factor favouring nondisclosure in the public interest. While this factor has not been raised by Council or NBN Co, I consider it is relevant in considering the submissions made by NBN Co in relation to the Cth FOI Act and Cth Carve-out. The Cth FOI Act relevantly provides: a person who wishes to obtain access to a document of an ‘agency’ may request access to it[158] an ‘agency’ includes NBN Co[159] however, NBN Co is subject to the Cth Carve-out, that is, it is exempt from the operation of the Cth FOI Act in relation to documents in respect of its ‘commercial activities’;[160] and ‘commercial activities’ means activities carried on by NBN Co on a commercial basis, or activities, carried on by NBN Co, that may reasonably be expected in the foreseeable future to be carried on by NBN Co on a commercial basis.[161] In summary, this means that NBN Co is subject to the Cth FOI Act, but is exempt from its operation in relation to documents received or brought into existence in the course of, or for the purposes of, carrying on its commercial activities.[162] However, the Cth FOI Act does not prohibit disclosure these documents. To the contrary, the Cth FOI Act specifically does not limit the power of an agency to give access to information or a document, whether or not access to the information has been requested under the Cth FOI Act.[163] Accordingly, I am satisfied that disclosure of the General Rollout Information is not prohibited by an Act, and this nondisclosure factor does not apply. Deliberative process The public interest favours nondisclosure of information where disclosure could reasonably be expected to: prejudice a deliberative process of government (Deliberative Process Prejudice Factor);[164] or cause a public interest harm through disclosure of an opinion, advice or recommendation that has been obtained, prepared or recorded or a consultation or deliberation that has taken place, in the course of, or for, the deliberative processes involved in the functions of government (Deliberative Process Harm Factor).[165] The General Rollout Information is comprised of information and communications concerning facilitation of the rollout of the NBN in the relevant area. I accept that it consists of a ‘consultation’ that has taken place between NBN Co and Council about the rollout. However, I am not satisfied that this consultation was part of any relevant ‘deliberative process’, for the reasons set out below. Deliberative processes involved in the functions of government have been defined as ‘...thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action’.[166] It has also been defined as ‘careful consideration with a view to decision’.[167] I am satisfied that the documents do not disclose any consultation that has taken place in the course of any ‘thinking process’ of Council.[168] The consultation in the General Rollout Information can more accurately be described as NBN Co keeping Council informed of its intentions in relation to the rollout, setting the terms in relation to flow of information, explaining the rollout process and NBN Co’s process of community engagement. Unlike the information about appropriate sites for wireless towers (discussed below), the General Rollout Information does not relate to any current ‘thinking processes’ of Council. On this basis, I am satisfied that neither the Deliberative Process Prejudice Factor nor the Deliberative Process Harm Factor apply in relation to the information. I do not have any evidence before me of potential prejudice to an ongoing deliberative process, and I do not consider that disclosure of the General Rollout Information would reveal a consultation that has taken place in the course of, or for, any deliberative process involved in the functions of government. Finally, having considered the General Rollout Information, I do not accept that either of the examples of information covered by the Deliberative Process Harm Factor provided in schedule 4, part 4, item 4 of the RTI Act are ‘directly analogous’ to the General Rollout Information as NBN Co contends.[169] Supply of confidential information The RTI Act provides that the public interest will favour nondisclosure if: disclosure of the information could reasonably be expected to prejudice an agency’s ability to obtain confidential information (Confidential Prejudice Factor);[170] and/or the information is of a confidential nature and was communicated in confidence, and disclosure could reasonably be expected to prejudice the future supply of information of this type (Confidential Harm Factor).[171] NBN Co contends that:[172] ... the circumstances in which the Council received the Documents gave rise to obligations of confidence. The release of the Documents could therefore potentially found an action for breach of confidence. This could have obvious adverse impacts upon the Council and/or nbn, including reputational damage as well as potential legal costs. If the Council were to release the Documents, nbn is of the opinion that it could potentially and adversely affect the Council’s ability to obtain confidential information from other business partners in the future. This could also potentially undermine the Council’s ability to negotiate commercially sound business arrangements or obtain the best quality service providers, particularly for infrastructure projects. As the decision that the Documents should be released would ultimately come from the OIC, the disclosure could impact other councils in Queensland in the same way. Arguably, that would not be in the best interests of the Council, its ratepayers or the public interest broadly. nbn is of the opinion that the potential impact on Council’s – and Queensland councils’ broadly – ability to negotiate sound arrangements for infrastructure projects is a public interest harm that should be given considerable weight. In addition, nbn is also of the opinion that the potential release of confidential information within the Documents could set a precedent in Queensland – and more broadly across the country. This could adversely impact upon nbn’s ability to make similar confidential undertakings with councils and State bodies, as well as with other commercial entities. The ability to obtain, exchange or provide information in confidence is a key attribute to any commercial player, including nbn. The potential release of the Documents may adversely impact upon nbn’s ability to attract quality commercial partners, as well as effectively undertake commercial negotiations in a very competitive market – or require nbn to pay a premium for services. This would most likely have an adverse impact upon nbn’s ability to function as a commercial player. As outlined above, nbn’s standard practise is to provide local government authorities with information regarding nbn’s rollout in confidence and for distribution to its staff for their internal purposes only. If, as a result of disclosure of the Documents, nbn generally provided less information to councils in the future, this may result in less cooperative negotiations, more objections and an adverse impact on nbn’s ability to rollout our network across the country efficiently and at the lowest possible cost. This could ultimately impact upon nbn’s ability to generate profitable returns for our Shareholders and provide essential services to the Australian public. In terms of the Confidentiality Prejudice Factor, I accept that in relation to the information that is covered by the Confidentiality Agreement, disclosure could reasonably be expected to prejudice Council’s ability to obtain confidential information in the future. That is, third parties may be less inclined to provide information to Council in confidence in the knowledge that it may be released under the RTI Act. Accordingly, in relation to the information covered by the Confidentiality Agreement, I am satisfied that the Confidentiality Prejudice Factor applies. In relation to the Confidentiality Harm Factor, I have noted in discussing the Breach of Confidence Exemption, that a significant amount of the General Rollout Information could not be said to comprise ‘information of a confidential nature that was communicated in confidence’. To the extent that it is however, I accept that the Confidentiality Harm Factor applies. Disclosure of this information could reasonably be expected to prejudice the future supply of similar information from NBN Co to Council, and more broadly, could reasonably be expected to prejudice the future supply of preparatory development information (including information about infrastructure development) to local governments in Queensland. However, as discussed in relation to the Business Harm Factor at paragraph 91 above, NBN Co’s own submissions to OIC indicate that not providing the relevant information to local councils in the future may have an adverse impact on NBN Co’s ability to rollout its network across the country efficiently and at the lowest possible cost. Given NBN Co’s mandate to rollo[173]the NBN,173 and the Commonwealth Government’s expectation that it ‘engage productively and collaboratively with its stakeholders’ (including local co[174]nities),174 I consider any reluctance to cooperate with Council (or with local governments generally) would be minimal. Similarly, given local governments’ specialised knowledge of their area and their development approval role, failing to collaborate and share information with local governments would be likely to prejudice developers and infrastructure construction entities to a far greater extent than would disclosing information about their projects. Accordingly, to the extent that the Confidentiality Prejudice Factor and Confidentiality Harm Factor apply to the General Rollout Information, I consider the relevant prejudice and harm to be relatively minor, and accordingly, I afford them low weight. Conclusion For the reasons explained above, I afford significant weight to each of the public interest factors favouring disclosure that concern open discussion of public affairs, Council’s accountability, informing the community of Council’s operations and positive and informed debate. As set out above, the NBN is a public infrastructure project of immense scale at significant cost to taxpayers. Council’s accountability and its operations in relation to facilitating the rollout are of particular relevance in the geographical area, given the level of public concern about the NBN rollout. Given the particular nature of the documents, I have attributed low weight to the factor concerning effective oversight of expenditure of public funds. On the other hand, I am not satisfied that a number of the nondisclosure factors raised by NBN Co arise. To the extent that the Business Harm Factor, the Confidentiality Prejudice Factor and Confidentiality Harm Factor are relevant, I have afforded them low weight. While there may be some reluctance in future supply to Council of information that is subject to a confidentiality agreement (and local governments) in the future, that failure to collaborate with Council is likely to prejudice infrastructure development entities to a greater extent than would disclosure of the information. On balance, I find that disclosure of the General Rollout Information would not be contrary to the public interest and therefore, there is no basis on which to refuse access under section 47(3)(b) of the RTI Act. Negotiation Information The Negotiation Information is comprised of potential sites for a fixed wireless NBN tower in Maleny (and comments and preferences in relation to these sites) and one email communication concerning the terms of using Council land for fixed wireless sites. NBN Co contends that this information is exempt, because its disclosure would found an action for breach of confidence, and both NBN Co and Council contend that disclosure would, on balance, be contrary to the public interest. Breach of confidence The relevant law in relation to the Breach of Confidence Exemption is set out in paragraphs 31 to 35 above. Some of the Negotiation Information has been authored by Council and sent to NBN Co (or its representatives). At first glance, this would seem sufficient to preclude a finding that these parts of the Negotiation Information are subject to the Breach of Confidence Exemption.[175] However, having carefully considered the information, I am satisfied that to the extent information was communicated from Council, the information is in the nature of a re-communication.[176] Although I am not able to disclose the content of the information in these reasons,[177] it is sufficient to say that the nature of it is such that it is impossible to separate Council’s input from NBN Co’s. Accordingly, I am satisfied that even where the Negotiation Information consists of parts of emails sent by Council to NBN Co (or its representatives), it remains relevant to consider the Breach of Confidence Exemption with NBN Co as the hypothetical plaintiff. I consider below whether the Negotiation Information satisfies the five cumulative elements of the Breach of Confidence Exemption. (a) specifically identifiable It is possible to identify the Negotiation Information with specificity. This is not a matter of contention in this external review. (b) necessary quality of confidence The Negotiation Information is the subject of ongoing negotiations between Council and NBN Co about the location of a specific NBN tower, and the terms of using Council land for such towers. Although some information about the location of the tower in Maleny has been made publicly available, the process is ongoing, and the various site options have not all been made public. Accordingly, I do not consider that the information is generally known. I also do not consider that options for the location of public infrastructure and the terms of use of Council owned land to be useless or trivial. (c) circumstances of the communication To establish element (c), I must be satisfied that the information was communicated and received on the basis of a mutual understanding of confidence. The following circumstances[178] are relevant to the Negotiation Information about proposed sites: the Confidentiality Agreement between NBN Co and Council the nature and sensitivity of the information (ie. it concerns an ongoing negotiation between NBN Co and Council about specific sites); and the detriment to NBN Co that would flow from unauthorised disclosure of the information (including the effect of disruptive debate about options that are unlikely to proceed). On the basis of the above, I am satisfied that the Negotiation Information about proposed sites for a fixed wireless tower[179] was communicated to Council in circumstances which give rise to an equitable obligation of confidence. However, on the information before me, there is no basis for finding that the Negotiation Information concerning the terms of use of Council land[180] was communicated in confidence. While I acknowledge that the information is of a sensitive nature, the circumstances of the communication are such that there is no evidence of an express or implied understanding that the information was communicated from NBN Co (or its representatives) to Council on a mutual understanding of confidence. In particular, the email is not covered by the Confidentiality Agreement, and there is no clear statement of confidentiality in the email itself. (d) unauthorised use To establish element (d), the relevant inquiry is whether disclosure under the RTI Act would involve a misuse of the confidential information.[181] I am satisfied that disclosure of the Negotiation Information about the proposed sites in this circumstance is not authorised by NBN Co, and accordingly, this element is readily satisfied. (e) detriment As noted above in relation to the General Rollout Information, in considering the requirement of detriment, the Fairfax Doctrine is relevant to consider in this case.[182] The law in relation to the Fairfax Doctrine and its application to NBN Co is set out in detail above at paragraphs 50 to 64. Adopting that reasoning, I am satisfied that the Fairfax Doctrine applies to NBN Co, and accordingly, it is necessary to consider whether disclosure of the Negotiation Information would be detrimental to the public interest (and not just to NBN Co) in order to successfully establish a claim of breach of confidence. In the case of the Negotiation Information, I am satisfied that disclosure would be detrimental to the public interest. I have analysed public interest factors for and against disclosure below in finding that access may be refused to the Negotiation Information under section 47(3)(b) of the RTI Act. For present purposes, it is sufficient to note that although there is a significant public interest in community access to information about publicly funded infrastructure projects, there is an ongoing deliberative process to which these particular documents relate, and I consider significant public interest harm could reasonably be expected to result from release. Accordingly, I find that element (e) is satisfied in relation to the Negotiation Information. Exception Schedule 3, section 8(2) of the RTI Act provides an exception to the Breach of Confidence Exemption. It relevantly provides that ‘deliberative process information’[183] is not exempt information unless it consists of information communicated by an entity other than the State, an agency, or a person in the capacity of an officer of an agency.[184] Accordingly, in this case, if information is found to be deliberative process information and communicated by Council, it will be subject to the exception and therefore, not exempt information. I am satisfied that the Negotiation Information is ‘deliberative process information’. It discloses a consultation or deliberation that has taken place in the course of Council’s thinking process about potential sites for a fixed wireless NBN tower and the terms of use of Council land for a fixed wireless tower. However, I am also satisfied that the Negotiation Information was communicated by an entity other than the State or an agency or a person in the capacity of an agency as it was communicated by NBN Co (or its representatives) to Council. To the extent that some of the Negotiation Information is comprised of information in emails sent by Council to NBN Co, the information is in the nature of a re-communication.[185] All of the information contains and is comprised of information communicated by NBN Co (or its representatives) to Council, and it is impossible to separate Council’s input from that of NBN Co. Accordingly, I am satisfied that the exception to the Breach of Confidence Exemption does not apply in relation to any of the Negotiation Information. Conclusion For the reasons set out above, I find that the Breach of Confidence Exemption: (a) applies to Negotiation Information about potential sites for a fixed wireless NBN tower in Maleny (and comments and preferences in relation to these sites);[186] (b) does not apply to Negotiation Information concerning the terms of use of Council’s land (because element (c) is not satisfied).[187] Accordingly, I find that access to the information at (a) above may be refused under section 47(3)(a) of the RTI Act on the basis that it is exempt information. However, I am satisfied that the information at (b) is not exempt information and therefore, there is no basis to refuse access to it under section 47(3)(a) of the RTI Act. Contrary to the public interest Council[188] and NBN Co[189] both contend that disclosure of the Negotiation Information would, on balance, be contrary to the public interest. The relevant law in relation to deciding the public interest is set out at paragraph 69 above. No irrelevant factors arise in relation to the Negotiation Information. I consider below the public interest factors favouring disclosure and nondisclosure.[190] Factors favouring disclosure The applicant has submitted[191] that it is in the public interest to have full details of infrastructure proposals available for communities, as these proposals effect the amenity of the area, property values and businesses in the area, and, in relation to fixed wireless towers in particular, there are potential health consequences for local residents. I acknowledge that generally, there is community concern regarding the potential health and visual effects of radio-communications transmitters, including NBN Co’s fixed wireless towers. This is a matter of particular concern in Maleny, where there is an increased level of community concern about related health issues and infrastructure development in general.[192] The applicant has also submitted, and I accept, that there is a public interest in having access to information about site selection prior to a development application being lodged. The Information Commissioner has previously noted that there is a public interest in providing access to preliminary planning proposals at a timely stage in the process, as this promotes informed public participation in the processes of government.[193] Accordingly, I am satisfied that disclosing the Negotiation Information could reasonably be expected to: promote open discussion of the proposal for a fixed wireless tower in Maleny and different site options in relation to this proposal, and enhance Council’s accountability in relation to its part in this process and negotiations the terms of use of Council owned land by NBN Co for fixed wireless towers[194] contribute to positive and informed debate about various site options and the appropriate terms of use of Council owned land by NBN Co;[195] and provide some insight into Council’s operations,[196] and the background to any final decision on its site preferences and any future development approval granted in relation to fixed wireless towers in the Maleny area.[197] On the other hand, I also note that in this case, NBN Co has kept the community informed by a number of ‘community engagement activities’,[198] including a public meeting concerning its preferred site.[199] The information already released to the applicant by Council and during this external review also provides some insight into Council’s operations, in that it shows that Council and NBN Co were engaged in consultation concerning site selection. This lowers the weight to be attributed to these factors. While the Negotiation Information provides further background concerning Council’s preferences, and some information concerning the background negotiations concerning use of Council land, it is generally procedural in nature and does not demonstrate any level of critical analysis. It does not, for example, provide any level of insight into: the reasoning behind technology selected to deliver the NBN to Maleny any health concerns or risks related to the selection of this technology or more broadly to the rollout of the NBN in Maleny;[200] or Council’s views on or involvement with these issues. For these reasons, I afford the factors favouring disclosure listed above moderate weight. I am also satisfied that, to a certain extent, the Negotiation Information could reasonably be expected to ensure effective oversight of expenditure of public funds.[201] A number of the suggested sites are owned by Council, and as noted above, one email in particular relates to the terms of NBN Co using Council land. Disclosure of this information could reasonably be expected to ensure effective oversight of public funds by NBN Co (which is funded by taxpayers) and Council. However, I consider that this factor should only be given low weight, as the information concerning use of Council land appears to be informal and preliminary, and none of the Negotiation Information provides sufficient detail to provide any in-depth or detailed analysis of the expenditure of public funds. Factors favouring nondisclosure Private, business, professional, commercial and financial affairs of entities If disclosure of information could reasonably be expected to prejudice the private, business, commercial or financial affairs of entities,[202] this gives rise to a public interest factor in favour of nondisclosure.[203] NBN Co contends that the release of the Negotiation Information concerning potential sites for a fixed wireless NBN tower in Maleny could reasonably be expected to prejudice its business, commercial and financial affairs because the site data is subject to ‘live commercial negotiations’, and release would allow landowners to ‘reverse engineer’ NBN Co’s approach to site selection which would enable landowners to seek higher site rental rates.[204] While I accept that the negotiation process is ongoing, I am not satisfied that disclosure of the Negotiation Information concerning potential sites for a fixed wireless NBN tower in Maleny would be reasonably likely to result in the prejudice that NBN Co contends. A number of NBN Co fixed wireless towers have been built, both in the Sunshine Coast area, and around the country. Accordingly, if individuals were motivated to ‘reverse engineer’ NBN Co’s approach to site selection they could do so by simply considering the completed towers and the attributes of the sites that they have been built (or co-located) on. Accordingly, I cannot accept that release of this information would give rise to any relevant further prejudice. However, I am satisfied, in relation to the Negotiation Information concerning the terms of use of Council land, that disclosure could reasonably be expected to prejudice NBN Co’s commercial affairs. It constitutes a preliminary negotiation with Council about the terms of a commercial agreement, and this negotiation is ongoing as the rollout continues in Council’s local government area. I accept that release may impact on its ability to negotiate terms of use with Council and other local governments in the future. In terms of the weight to be attributed to this factor, while I acknowledge that it could be utilised by other property owners negotiating with NBN Co in other areas, the extent of the potential prejudice is reduced by the nature of the communication. It appears to be informal, preliminary and does not show any final conclusion concerning the terms of use of Council’s land. Accordingly, I attribute this factor only moderate weight. I also accept that disclosure of the Negotiation Information concerning potential sites may impact on decisions concerning property purchases in the area, and accordingly disclosure could reasonably be expected to prejudice the financial affairs of surrounding residents. OIC has previously held that the following could reasonably be expected to financially prejudice residents if disclosed: documents concerning sites under consideration by the local council for a proposed bioreactor landfill[205] a report identifying properties as subject to flooding impacts in the context of Road Upgrade options under consideration by Council;[206] and road upgrade options and recommendations to improve traffic in the South West Corridor and project documentation.[207] Similarly in this case, I consider release of the Negotiation Information about site selection is reasonably likely to inflict unnecessary financial harm to property owners surrounding the sites that are listed, but ultimately are not subject to installation of the tower. In terms of the weight to be attributed to this factor, the extent and the impact of the likely prejudice to surrounding residents in this case is not as significant as the examples listed above. Accordingly, I attribute this factor moderate weight. Finally, I consider that the Business Harm Factor[208] also applies to the Negotiation Information, as release of the information would disclose information about the commercial affairs of NBN Co, and that this could reasonably be expected to prejudice the future supply of information of this type (ie. preliminary thoughts on negotiations, development and site selection information), both to Council, and to other local governments in Queensland. However, as discussed in relation to the General Rollout Information above,[209] given local governments’ critical role in identifying local issues or requirements that need to be taken into consideration for the rollout of the NBN (and other infrastructure projects)[210] and the need to negotiate with Council concerning the use of its land, I consider that the flow of information to Council (and other local governments) would not be impaired to a great extent by release of this information under the RTI Act. For this reason, I afford the Business Harm Factor low weight. Intergovernmental relations and prohibited by an Act Both Council and NBN Co have raised this factor in relation to the Negotiation Information. NBN Co’s submission appears to focus on this factor in the context of the Cth Carve Out.[211] For the same reasons as discussed in relation to the General Rollout Information at paragraphs 93 to 97 above, I do not consider that this factor applies. For the same reasons as discussed at paragraph 98 to 100 above in relation to the General Rollout Information, I also do not consider that disclosure of the Negotiation Information is prohibited by an Act. Accordingly, I do not consider that the factor favouring nondisclosure set out in schedule 4, part 3, item 22 applies. Deliberative process As noted in relation to the General Rollout Information, the public interest favours nondisclosure of information where disclosure could reasonably be expected to: prejudice a deliberative process of government (Deliberative Process Prejudice Factor);[212] or cause a public interest harm through disclosure of an opinion, advice or recommendation that has been obtained, prepared or recorded or a consultation or deliberation that has taken place, in the course of, or for, the deliberative processes involved in the functions of government (Deliberative Process Harm Factor).[213] In relation to the Deliberative Process Prejudice Factor, it is relevant to determine whether there is an ongoing deliberative process of Council that will be prejudiced by release of the Negotiation Information. In this regard, the applicant submits that the relevant deliberative process for a site at a location ‘only commences when the Development Application is lodged’.[214] While I accept that there are a number of separate steps involved, I consider that the relevant deliberative process encompasses all of these steps, including Council’s entire ‘thinking process’ about proposed development.[215] This includes the steps prior to a development application being lodged, such as preliminary negotiation with an infrastructure developer about the proposal. In relation to the proposed installation of the fixed wireless tower in Maleny, the relevant ‘thinking process’ began with NBN Co’s initial contact with Council over the proposed site. I consider that this process may come to an end by Council making a final decision on a site after an application is made under the Sustainable Planning Act 2009 (Qld),[216] or alternatively, by NBN Co advising Council that it is withdrawing the proposal to build a tower in the area or altering its plans so that Council approval is not required. On the evidence available to OIC, none of these events have occurred, and in fact, Council and NBN Co are still in the process of reaching agreement as to an appropriate site. In relation to the Negotiation Information concerning the terms of use of Council’s land, I understand that there are ongoing negotiations concerning NBN Co’s use of Council land for its infrastructure. While agreement has been reached in relation to certain locations, it is ongoing in others, including in areas such as Maleny where a site has not yet been finally selected. Council has advised that there is no agreement in place that applies generally to all such negotiations between itself and NBN Co. Accordingly, I am satisfied that Council’s ‘thinking process’ about the terms of use of its land by NBN Co is current and ongoing. In relation to the potential prejudice to these two ongoing deliberative processes, it is well established that there is a public interest in government being able to:[217] make informed decisions in the course of carrying out its functions and in doing so, to have access to the widest possible range of information and advice without fear of interference; and maintain the confidentiality of their deliberative process in some circumstances, particularly where those deliberative process relate to ongoing negotiations. It has also previously been held that prejudice to a deliberative process can arise where releasing a document would cause disruptive public debate, reallocation of resources to deal with the disruption (resources which would otherwise be involved in finalising the deliberative process) and interference with the ability of an agency to objectively consider its options and reach a decision.[218] I consider this is reasonably likely to apply here, as the deliberative process is at an early stage, Council is yet to decide on any development application in relation to the proposed fixed wireless tower or decide on the terms of use of its land, and there is likely to be a high level of community consternation at the list of suggested sites and use of Council land for NBN fixed wireless towers more generally. I am also satisfied that the Deliberative Process Harm Factor applies. The Negotiation Information discloses a consultation that has taken place in the course of, or for, the ‘thinking process’ of Council in relation to the proposed installation of the fixed wireless tower in Maleny, and the terms of the use of its land for towers. The next step is to assess the weight of these factors. The Negotiation Information relates to infrastructure that generally gives rise to a high degree of concern in the community about scenic amenity, health impacts and, to a lesser extent, property values. Disclosure is likely to cause disagreement, anxiety and a level of community unrest about various options that may not (and in some cases are very unlikely to) eventuate.[219] Accordingly, it is my preliminary view that these factors carry significant weight. Supply of confidential information As set out in relation to the General Rollout Information, the RTI Act provides two nondisclosure factors concerning confidential information, being the Confidential Prejudice Factor[220] and the Confidential Harm Factor.[221] As discussed in relation to the Breach of Confidence Exemption above, I do not consider that the Negotiation Information concerning use of Council land by NBN Co was confidential. Accordingly, I find that the Confidential Prejudice Factor and the Confidential Harm Factor do not apply to this information. In terms of the Negotiation Information concerning potential sites for a fixed wireless tower in Maleny, I consider that the Confidential Prejudice Factor applies. The information was communicated confidentially, and is subject to the Confidentiality Agreement. I accept that disclosure could reasonably be expected to result in third parties being reluctant to provide information to Council in confidence if it was known that the information may be released under the RTI Act. I am also satisfied that the Confidential Harm Factor applies to this information. As discussed in relation to the Breach of Confidence Exemption above,[222] I am satisfied that the information is of a confidential nature and was communicated in confidence. Disclosure could reasonably be expected to prejudice the future supply of information of this type (ie. preliminary development and site selection information), both to Council, and to other local governments in Queensland. This harm factor contains an exception for certain ‘deliberative process information’ that is identical to the exception to the Breach of Confidence Exemption discussed at paragraph 126 to 128 above. For the same reasons as discussed above, I do not consider this exception applies. In terms of the weight to be attributed to these factors, I acknowledge the importance of the flow of information between Council and infrastructure developers, and in particular, with NBN Co (and its representatives) for the design and deployment of the NBN network. Local governments have broad powers and responsibilities in relation to their local government area,[223] and accordingly, it is in the public interest that they are included at an early stage in the planning of infrastructure projects. On the other hand, given local governments’ critical role in identifying local issues or requirements that need to be taken into consideration for the rollout of the NBN (and other infrastructure projects),[224] I consider that the flow of information to Council (and other local governments) would not be impaired to a great extent by release of this information under the RTI Act. For this reason, to the extent that they apply, I afford these factors low weight. Balancing the relevant factors In addition to the pro-disclosure bias, there are several factors which favour disclosure of the Negotiation Information. Generally, there is a public interest in the community being able to discuss, debate and understand proposals regarding the installation of significant infrastructure in their area, Council’s role, the terms of use of Council’s land and the expenditure of public funds for such proposals. However, given that NBN Co has already conducted community consultation concerning the proposed location of the relevant tower and given the limited nature of the Negotiation Information, these factors carry low to moderate weight. On the other hand, I am satisfied that disclosure of certain information[225] could reasonably be expected to prejudice the commercial affairs of NBN Co, and disclosure of the remaining information could reasonably be expected to prejudice the financial affairs of residents surrounding the proposed sites. I am also satisfied that disclosure of the Negotiation Information could reasonably be expected to give rise to some reluctance to provide development and early negotiation information to Council (and other local governments) in the future.[226] However, in this case it is the Deliberative Process Prejudice Factor and the Deliberative Process Harm Factor that carry determinative weight. The relevant process is at an early stage and given the community interest in the project, disclosure is likely to cause reallocation of Council resources to deal with a level of community unrest, particularly about options and terms of use that may not (and in some cases, are unlikely to) eventuate. Conclusion On balance, I find that the public interest factors favouring nondisclosure outweigh the factors favouring disclosure. Accordingly, I find that disclosure of the Negotiation Information would, on balance, be contrary in the public interest, and therefore, access to this information may be refused under section 47(3)(b) of the RTI Act. DECISION I vary Council’s internal review decision and find that: access to certain information[227] may not be refused under the RTI Act, as it is not exempt information and nor would its disclosure, on balance, be contrary to the public interest access to certain information[228] may be refused[229] on the basis that it is exempt information[230] and due to the specific circumstances of this case, I have also found that disclosure of this particular information would, on balance be contrary to the public interest and therefore, access may also be refused on that basis;[231] and access to information on one page[232] may be refused on the basis that its disclosure would, on balance, be contrary to the public interest.[233] I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ K Shepherd Assistant Information Commissioner Date: 28 October 2016 APPENDIX 1 Significant procedural steps Date Event 6 February 2015 Council received the access application. 19 February 2015 The applicant narrowed the scope of the access application. 27 March 2015 Council consulted with NBN Co concerning the access application. 17 April 2015 NBN Co objected to the release of certain information. 21 April 2015 Council issued its decision to the applicant. 19 May 2015 The applicant applied for internal review of Council’s decision. 17 June 2015 Council issued its internal review decision to the applicant, affirming its original decision but not raising the issue of nonexistent documents. 11 July 2015 OIC received the external review application. 13 July 2015 OIC notified Council the external review application had been received and requested relevant procedural information. 13 July 2015 OIC received the requested information from Council. 16 July 2015 OIC notified the applicant and Council that it had accepted the external review application and asked Council to provide additional information. 20 July 2015 OIC provided an update to the applicant and clarified that the external review was in his name, and not in the name of a group. 22 July 2015 OIC received the requested information from Council. 17 August 2015 OIC provided the applicant with an update on the status of the review. 4 September 2015 OIC provided Council with an update on the status of the review. 25 September 2015 OIC provided the applicant with an update on the status of the review. 14 October 2015 OIC contacted Council to clarify the status of the site selection process. 16 October 2015 OIC received information from Council concerning the status of the relevant site selection process. 12 November 2015 OIC advised NBN Co by telephone of the review and NBN Co confirmed that it maintained its objection to the release of the requested information. 13 November 2015 OIC provided the applicant with an update on the status of the review. 19 November 2015 OIC requested NBN Co to confirm that it continued to object to the release of certain information and if so, to provide background information relevant to the external review. 20 November 2015 OIC provided Council with an update on the status of the review. 30 November 2015 NBN Co asked OIC for an extension of time to provide information. 1 December 2015 OIC granted NBN Co the requested extension of time. 7 December 2015 OIC received the requested information from NBN Co. 9 December 2015 OIC confirmed with NBN Co its preferred site for a fixed wireless tower in Maleny and confirmed that this information was publicly available. 11 December 2015 OIC provided Council and the applicant with an update on the status of the review. Council confirmed that no development application had been received in relation to NBN Co’s preferred site for a fixed wireless tower in Maleny. 4 February 2016 OIC conveyed a preliminary view to the applicant that access to the information in issue in the review may be refused because disclosure would, on balance, be contrary to the public interest, and that there were no reasonable grounds to require Council to conduct any further searches for documents. OIC asked for submissions supporting the applicant’s case by 19 February 2016. 10 February 2016 The applicant advised OIC that the preliminary view was not accepted, provided submissions supporting his case and set out his concerns regarding the sufficiency of Council’s searches. 12 February 2016 OIC provided Council with an update on the status of the review. 16 February 2016 OIC confirmed with the applicant that his submissions had been received. 19 February 2016 OIC provided the applicant with an update on the status of the review. 26 February 2016 OIC confirmed to Council its preliminary view that access to the information in issue in the review could be refused, raised the applicant’s concerns regarding sufficiency of searches and requested that Council conduct further searches for documents and provide submissions to OIC by 14 March 2016. 1 March 2016 Council requested an extension of time to provide submissions. OIC granted an extension of time for Council to make further submissions. 31 March 2016 Council provided OIC with an update concerning their pending submissions. 1 April 2016 OIC granted Council a further extension of time to make submissions. 5 April 2016 OIC contacted Council concerning its submissions and discussed difficulties with searches. OIC granted Council a further extension of time to make submissions. 8 April 2016 OIC received the requested information from Council. 13 April 2016 OIC received copies of the Additional Documents from Council. 22 April 2016 OIC provided the applicant with an update on the status of the review. Council confirmed certain background information relevant to the review. 26 April 2016 OIC informed NBN Co that Council had located the Additional Documents and provided information concerning the consultation process. 29 April 2016 OIC wrote to NBN Co and explained the recent steps taken in the review, conveyed its preliminary view about the Additional Documents and sought NBN Co’s views about the Additional Documents. OIC asked Council to provide NBN Co with a copy of the Additional Documents. 4 May 2016 OIC received an extension of time request from NBN Co. 5 May 2016 Council confirmed that the Additional Documents had been provided to NBN Co on 3 May 2016. 6 May 2016 OIC granted NBN Co an extension of time to make submissions. 27 May 2016 OIC received submissions from NBN Co objecting to disclosure of some of the Additional Documents. 30 May 2016 OIC received a copy of the Additional Documents from NBN Co with redactions showing its objections. 31 May 2016 OIC provided NBN Co with an update on the status of the review and sought clarification on their submissions. 2 June 2016 OIC provided the applicant with an update on the status of the review. 3 June 2016 OIC provided Council with an update on the status of the review. OIC confirmed with the applicant that some of the information in the Additional Documents did not fall within the scope of his access application, and that he did not seek access to some other information. 7 June 2016 NBN Co clarified their objection concerning certain Additional Documents and OIC confirmed that NBN Co would like to be a participant in the review. 10 June 2016 OIC contacted Council to confirm relevant background information. 14 June 2016 OIC advised NBN Co that information no longer in issue would be released to the applicant. 16 June 2016 NBN Co requested a copy of the redacted document before it was released to the applicant. 17 June 2016 OIC confirmed to the applicant that Council had agreed to release some of the Additional Documents and asked that he advise OIC if he sought access to the information deleted from these documents. OIC also confirmed its view in relation to the initial documents located by Council. OIC provided NBN Co with the Additional Documents to be released to the applicant. 21 June 2016 NBN Co clarified its objections in relation to 3 pages of the Additional Documents, and confirmed that it did not object to the release (with information deleted in accordance with OIC’s email dated 17 June 2016 and on the 3 additional pages). OIC conveyed a letter to Council requesting that the Additional Documents (with information that was the subject of NBN Co’s objections deleted) be released to the applicant. 23 June 2016 Council confirmed release of a copy of the Additional Documents (with information that was the subject of NBN Co’s objections deleted) to the applicant. 5 July 2016 The applicant advised OIC that he had not received the Additional Documents due to a technology problem. Council re-sent the documents to the applicant. 12 July 2016 OIC contacted Council to confirm relevant background information. 16 July 2016 The applicant provided submissions to OIC concerning the information deleted from the Additional Documents. 20 July 2016 The applicant advised OIC of his correspondence with NBN Co. 21 July 2016 OIC clarified with the applicant that a decision has not been made in relation to the review, and provided an update on the status of the review. 5 August 2016 OIC confirmed that it would shortly issue a formal decision and acknowledged NBN Co’s strong objections in relation to the information remaining in issue. OIC invited NBN Co to provide further and final submissions. 18 August 2016 OIC provided the applicant with an update on the status of the review and advised the applicant of OIC’s view concerning the breach of confidence exemption. OIC invited the applicant to provide further and final submissions. The applicant confirmed that he did not wish to make any further submissions. NBN Co provided OIC with further and final submissions. 6 September 2016 OIC provided Council with an update on the status of the review. 29 September 2016 OIC contacted Council to confirm relevant background information. 21 October 2016 OIC notified the applicant that OIC would shortly be issuing a final decision. [1] Access application dated 3 February 2015, received by Council on 6 February 2015. [2] A list of information NBN Co and its contractors/agents may need to assist the NBN planning process, eg. zoning and overlay maps, development application requirements, information on whether there is any opportunity for co-development and co-investment with NBN Co works. See <http://www2.nbnco.com.au/develop-or-plan-with-the-nbn/local-government-planning/local-government-checklist.html> accessed on 20 October 2016.[3] Including information relating to fibre/copper cable in the Maleny Area. In an email to Council dated 19 February 2015, the applicant defined the ‘Maleny area’ as including ‘Cambroon, Conondale, Crystal Waters, Witta, Reesville, Central Maleny, North Maleny, South Maleny, Mary Cairncross/ Mountain View Road/ Stanley River Road area and Wottha’.[4] By letter from Council to NBN Co dated 27 March 2015.[5] By letter to Council dated 17 April 2015.[6] Decision dated 21 April 2015. Council’s decision indicated 12 pages were to be released in full and 29 pages in part. This appears to be an administrative/typographical error. OIC has confirmed that 13 pages were released in full and 28 in part.[7] Council’s decision dated 21 April 2015 indicates that it decided to release 12 pages in full and 29 pages in part. This one page discrepancy appears to be an error.[8] Under section 47(3)(e) and section 52 of the RTI Act.[9] The applicant applied to Council for internal review on 19 May 2015.[10] Internal review decision dated 17 June 2015. [11] In the internal review decision, Council did not specifically address the issue of nonexistent documents, but noted that it was ‘satisfied that there was a sufficiency of search carried out with the original decision so as to identify all relevant documents to [the applicant’s] application’.[12] On 11 July 2015.[13] Council’s letter to OIC dated 8 April 2016.[14] With the exception of certain personal information, to which the applicant does not seek access.[15] By letter from OIC to NBN Co dated 29 April 2016, and confirmed in a telephone conversation on 7 June 2016.[16] By letter from NBN Co to OIC dated 27 May 2016.[17] The ‘General Rollout Information’ as defined under the ‘Information in issue’ heading on page 5 below.[18] On pages 19-23 of the information initially located by Council in response to the access application (including duplicates).[19] Under section 47(3)(a) of the RTI Act.[20] Under section 48 and schedule 3, section 8 of the RTI Act. Due to the specific circumstances of this case, I have also found that disclosure of this information would, on balance be contrary to the public interest and therefore, access may also be refused under section 47(3)(b) of the RTI Act. See paragraphs 125 and 132 of these reasons for decision. [21] Part of the email on page 36 of the Additional Documents.[22] Under section 47(3)(b) of the RTI Act.[23] Section 5 of the National Broadband Network Companies Act 2011 (Cth). [24] NBN Co, Corporate Plan 2017, page 8.[25] NBN Co, Corporate Plan 2017, page 30.[26] See NBN Co, What is the nbn™ Multi Technology Mix? at <http://www.nbnco.com.au/blog/the-nbn-project/what-is-the-nbn-multi-technology-mix.html> , accessed on 21 October 2016.[27] See NBN Co’s Three Year Construction Plan at <http://www.nbnco.com.au/learn-about-the-nbn/three-year-construction-plan.html> (Three Year Construction Plan), accessed on 21 October 2016.[28] While the access application names Mr Jim Straker as the applicant, his submissions and application material confirm that he is part of a local community action group known as Towerless NBN for the Maleny Hinterlands and that he applied for access to the information to use in preparing the group’s objections to any development applications lodged by NBN Co in the Maleny area. [29] Clause 4.1.1 of NBN Co’s Constitution.[30] This was confirmed by NBN Co by email to OIC dated 9 December 2015.[31] The information before OIC indicates that NBN Co proposes to install a new freestanding tower in Maleny (as opposed to co-locating on existing structures). This is not classified as a ‘low impact facility’ under the Telecommunications (Low-impact Facilities) Determination 1997 (Cth) and accordingly, installation is subject to state and local planning approval processes.[32] In 28 pages.[33] Under section 47(3)(b) of the RTI Act.[34] This information appears in the following Additional Documents: parts of emails (on pages 2, 7, 9, 10, 11, 21-24, 33-34, 66-69, 85, 88-89, 164, 166, 168-169, 171, 177, 178, 181, 188, 198, 241-244), a two way confidentiality and licence agreement (on pages 26-32), parts of NBN Co’s presentation materials (on pages 49, 61, 94, 102, 110, 116, 125, 129, 135, 142, 148, 156, 216-221, 223, 228 and 231-237), a briefing paper (on page 210) and part of a communications plan (on page 247).[35] On pages 19-23 of the information initially located by Council in response to the access application (including duplicates).[36] Part of the email on page 36 of the Additional Documents.[37] By email to Council dated 19 February 2015.[38] In the external review application dated 11 July 2015 the applicant noted that he did not seek names and contact details, and this was confirmed in a letter to him from OIC dated 16 July 2016. In relation to the Additional Documents, the applicant narrowed the scope of the application in a telephone conversation with OIC on 2 June 2016 (OIC later confirmed this in an email to the applicant on 3 June 2016).[39] In Council’s internal review decision dated 17 June 2015, this was identified as ‘Category A’ information.[40] However, the applicant expressly seeks access to information relating to procedures under the current planning scheme.[41] However, the applicant expressly seeks access to information relating to fibre/copper cable in the Maleny area.[42] Section 87 of the RTI Act. While the reviewable decision is not a ‘disclosure decision’, the respondent agency, Council, does not object to the disclosure of the General Rollout Information. As a result, the proper contradictor to the external review application is the third party objecting to disclosure of the information, i.e. NBN Co. A similar approach was recently taken in Sunshine Coast Environment Council Inc and Department of National Parks, Sport and Racing; Springborg MP (Third Party) [2016] QICmr 10 (4 March 2016), see [18] and the cases cited therein. [43] Applicant’s letter to OIC dated 10 February 2016.[44] By letter from OIC to Council dated 26 February 2016.[45] OIC’s letter to the applicant dated 17 June 2016 noted that Council had located the Additional Documents and that OIC would proceed on the basis that this satisfied the applicant’s concerns regarding the sufficiency of Council’s searches. The applicant did not raise any further concerns in relation to this matter during the course of the external review.[46] Submissions to Council dated 17 April 2015 and to OIC dated 27 May 2016. [47] In NBN Co’s submissions dated 27 May 2016 it ‘acknowledges that the OIC must make its decision under the RTI Act’.[48] I note that NBN Co is a ‘prescribed authority’ and is not entirely exempt from the Cth FOI Act. Rather, under section 7(2) and schedule 2, Part II of the Cth FOI Act, NBN Co is exempt from the operation of the Cth FOI Act in relation to documents in respect of its ‘commercial activities’. ‘Commercial activities’ is relevantly defined in section 7(3A) of the Cth FOI Act as activities carried on by NBN Co on a commercial basis or activities carried on by NBN Co, that may reasonably be expected in the foreseeable future to be carried on by NBN Co on a commercial basis.[49] Under section 15 of the Cth FOI Act.[50] Under section 14 of the RTI Act, an ‘agency’ relevantly includes a local government.[51] By sections 11, 12, 14(2) and 17 and schedules 1 and 2 of the RTI Act.[52] However, documents created by the entities listed in schedule 2 will be subject to the RTI Act if they are in the possession or control of a Queensland government agency (under section 14(1) of the RTI Act). See analysis in Seven Network (Operations) Limited and Department of Justice and Attorney-General; Carmody (Third Party) [2016] QICmr 22 (27 June 2016) at [73] to [79]. [53] This is listed in schedule 4, part 3, item 22 of the RTI Act as a factor favouring nondisclosure in the public interest. See paragraphs 98 to 100 below.[54] Paragraphs 80 to 92 and 93 to 97 (in relation to the General Rollout Information) and paragraphs 140 to 144 and 146 to 147 (in relation to Negotiation Information).[55] Section 109 of the Commonwealth of Australia Constitution Act states that ‘when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’. While I do not have jurisdiction to make findings concerning constitutional validity, by way of observation I note that the Cth FOI Act and the Qld RTI Act establish two separate information access regimes. The Cth FOI Act does not apply to access applications made to Queensland government agencies, and does not prohibit the disclosure of the information in issue in this review. See analysis of the ‘prohibited by an Act’ nondisclosure factor at paragraphs 98 to 100 below.[56] The Confidentiality Agreement was attached to correspondence with NBN Co and relates to NBN Co’s use of towers for provision of NBN services, amongst other things. In addition to forming part of the General Rollout Information, the terms of the Confidentiality Agreement are relevant in considering the breach of confidence exemption and certain nondisclosure factors. [57] Section 44(1) of the RTI Act. [58] Section 47(3) of the RTI Act. [59] Section 47(2)(a) of the RTI Act. [60] Sections 47(3)(a) and 48 and schedule 3 of the RTI Act.[61] Section 48 and schedule 3, section 8 of the RTI Act. [62] See TSO08G and Department of Health (Unreported, Queensland Information Commissioner, 13 December 2011) at [12] (TSO08G), citing Callejo and Department of Immigration and Citizenship [2010] AATA 244 (Callejo) at [163] to [166]. [63] B and Brisbane North Regional Health Authority [1994] QICmr 1 (B and BNRHA), a decision of the Information Commissioner analysing the equivalent exemption in the repealed Freedom of Information Act 1992 (Qld) at [44].[64] See B and BNRHA at [60] to [118]. The criteria stated in B and BNRHA have been consistently applied in the context of the RTI Act, see TSO08G at [13] and more recently in Edmistone and Blackall-Tambo Regional Council [2016] QICmr 12 (15 April 2016) at [14], Australian Workers Union and Queensland Treasury; Ardent Leisure Limited (Third Party) [2016] QICmr 27 (28 July 2016) at [16], Queensland Newspapers and Department of Justice and Attorney General; Carmody (Third Party) [2016] QICmr 24 (27 June 2016) at [120] and Glass Media Pty Ltd and Department of the Premier and Cabinet; Screen Queensland Pty Ltd (Third Party); The Walt Disney Company (Australia) Pty Ltd (Fourth Party) [2016] QICmr 30 (18 August 2016) (Glass Media) at [38].[65] B and BNRHA at [60] to [63]. [66] B and BNRHA at [64].[67] B and BNRHA at [76]. [68] B and BNRHA at [103] to [106]. [69] B and BNRNA at [111] citing Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109 (Lord Keith of Kinkel at 256). [70] As the Confidentiality Agreement forms part of the General Rollout Information and is claimed by NBN Co to be exempt or contrary to the public interest to disclose. See section 108(3) of the RTI Act.[71] See paragraphs 50 to 65 below. [72] Elements (a) and (d) are readily established and are therefore, not in contention in relation to the General Rollout Information. [73] B and BNRHA at [71].[74] B and BNRHA at page 24.[75] This information appears on pages 85, 94, 125, 129, 135, 217, 218, 232, 233 and 237 of the Additional Documents.[76] For example, NBN Co objects to the release of a graphic and a heading on pages 94, 129 and 135 of the Additional Documents which have previously been included (with slightly amended formatting) in the 2011/2012 Commonwealth Budget. See <http://www.budget.gov.au/2011-12/content/glossy/regional/html/regional_overview_15.htm> , accessed 21 October 2016.[77] Subject lines of emails on pages 21-23, 33-34, 66, 68, 164, 168-169, 177 and 241-244 of the Additional Documents and administrative information about meetings appearing on pages 66-67, 69, 164 and 168-169 of the Additional Documents.[78] NBN Co issued a media release on 26 February 2013 titled ‘Parts of Gympie and the Sunshine Coast regions to receive high-speed NBN fixed wireless’. It also issued an advertorial titled ‘High-speed National Broadband Network fixed wireless for Sunshine Coast local government area’. Both documents indicate that NBN Co works with local councils as part of the rollout process. NBN Co’s current three-year construction plan also lists the anticipated technology for ‘Maleny and surrounds’ as ‘fixed wireless’ and the estimated rollout date as 2016. See http://www.nbnco.com.au/learn-about-the-nbn/three-year-construction-plan.html, accessed on 21 October 2016.[79] Submissions to OIC dated 27 May 2016.[80] B and BNRHA at page 24.[81] B and BNRHA at [90].[82] B and BNRHA at [76].[83] B and BNRHA at [84].[84] In this regard, I note NBN Co’s submissions dated 27 May 2016 concerning potential brand damage and frustration in the market caused by disclosure of estimated rollout dates. While I acknowledge that there may be some reputational advantage for NBN Co in keeping some rollout information secret until its predetermined announcement date, I do not consider that any of the General Rollout Information is so sensitive as to give rise to a presumption of confidence.[85] NBN Co’s submissions to OIC dated 18 August 2016.[86] Or a copy or draft of this agreement. For example, the following pages are comprised of correspondence (and attachments) that took place prior to Council and NBN Co entering the Confidentiality Agreement: pages 2, 7, 9-11, 21-22, 23-24, 33-34, 49 and 61 of the Additional Documents. [87] I note that in any event, such markings are only one factor to be evaluated in the circumstances of a case and are not determinative. See B and BNRHA at [91].[88] For example, some of the General Rollout Information appearing on pages 2, 7, 9-11, 21-22, 24, 34, 66 - 68, 85, 164, 166, 169, 242 and 244.[89] Glass Media at [44] to [53].[90] General Rollout Information that is subject to the Confidentiality Agreement and which was sent from NBN Co (or its representatives) to Council.[91] The principles enunciated by Mason J in Commonwealth of Australia v John Fairfax & Sons Limited and Others [1980] HCA 44; (1981) 55 ALJR 45 (Fairfax).[92] Kalinga Wooloowin Residents Association Inc and Department of Employment, Economic Development and Innovation; City North Infrastructure Pty Ltd (Third party) (Unreported, Queensland Information Commissioner, 19 December 2011) (Kalinga and DEEDI) and Kalinga Wooloowin Residents Association Inc and Brisbane City Council; City North Infrastructure Pty Ltd (Third Party); Department of Treasury (Fourth Party)) (Unreported, Queensland Information Commissioner, 9 May 2012) (Kalinga and BCC), applying principles enunciated by Mason J in Fairfax.[93] Glass Media at [73] to [74]. Internal citations and references omitted. [94] Dated 27 May 2016.[95] [1997] AATA 192.[96] Under the provision of the Freedom of Information Act 1982 (Cth) that is equivalent to schedule 3, section 8 of the RTI Act.[97] Internal citations and references omitted.[98] Callejo at [167] to [172]. [99] See for example Kalinga and DEEDI, Kalinga and BCC, Glass Media.[100] Section 95 of the National Broadband Network Companies Act 2011 (Cth).[101] NBN Co, Statement of Expectations, 24 August 2016.[102] Section 5(2)(e) of the Public Governance, Performance and Accountability Rule 2014 (Cth).[103] Under the Commonwealth Ownership Provisions in the National Broadband Network Companies Act 2011 (Cth), the Commonwealth is required to retain ownership of NBN Co, until the Commonwealth Ownership Provisions cease to have effect (which occurs when certain preconditions, within the control of the Government, have been met). Section 5.8 of NBN Co’s Corporate Plan 2017 indicates that NBN Co is currently funded with Commonwealth equity within the constraints of a public equity capital limit of $29.5 billion. The plan indicates that anticipates that NBN Co will use debt funding in the future (by the end of the 2017 financial year), when NBN Co ‘has sufficient cash flows and track record to support private sector debt without explicit Commonwealth support’.[104] Section 98 of the Public Governance, Performance and Accountability Act 2013 (Cth) and section 17 of the Auditor-General Act 1997 (Cth). [105] In particular, see chapter 3 of the Public Governance, Performance and Accountability Act 2013 (Cth).[106] To OIC dated 27 May 2016.[107] Under section 97 of the National Broadband Network Companies Act 2011 (Cth), that Act does not prevent an NBN corporation being wound up under the Corporations Act 2001 (Cth). Accordingly, NBN Co may be wound up by its shareholding Ministers.[108] Despite there being inconvenience or cost of doing so.[109] Clause 5.4 of NBN Co’s Constitution.[110] My emphasis. Under clause 4.1.1 of NBN Co’s Constitution, its objects are to ‘roll-out, operate and maintain a national wholesale broadband network while working closely with the Commonwealth during the implementation study in order to facilitate the implementation of Australian Government broadband policy and regulation.’[111] As indicated in NBN Co’s submissions to OIC dated 27 May 2016 and explained in part 2.1 of NBN Co’s Corporate Plan 2017.[112] Clause 2.3(d). Note that under subclause (c), the best interests of NBN Co are defined by reference to ‘the objects and purposes of [NBN Co] including Australian Government policy communicated to [NBN Co] from time to time and set out in the GBE Guidelines’.[113] (1995) 183 CLR 10.[114] Glass Media at [91].[115] For example, administrative meeting arrangements between Council and NBN Co’s representatives.[116] For example, a large portion of the information is ‘pre-announcement’, as discussed at paragraph 40 and 47 above.[117] See paragraphs 38 to 39 above.[118] At paragraph 37.[119] NBN Co, Corporate Plan 2017, page 8.[120] Kalinga and DEEDI at [54] and Kalinga and BCC at [50].[121] Section 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[122] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant.[123] Section 49(3) of the RTI Act.[124] NBN Co’s submissions to OIC dated 27 May 2016.[125] Schedule 4, part 1 of the RTI Act sets out a non-exhaustive list of factors that are irrelevant to deciding the public interest. One of these factors is that ‘disclosure of the information could reasonably be expected to cause embarrassment to the Government or to cause a loss of confidence in the Government’. While NBN Co is not ‘the Government’ within the meaning of RTI Act, it is a Commonwealth Government Business Enterprise funded with public money, and on this basis, I do not consider embarrassment or loss of confidence as relevant factors favouring nondisclosure. [126] Schedule 4, part 2, item 1 and item 3 of the RTI Act.[127] Applicant’s submissions to OIC dated 16 July 2016.[128] And for this reason, I do not consider that the factors favouring disclosure concerning the protection of the environment (schedule 4, part 2, item 13 of the RTI Act) or environmental or health risks or measures relating to public health and safety (schedule 4, part 2, item 14 of the RTI Act) are relevant to the General Rollout Information.[129] Schedule 4, part 2, item 2 of the RTI Act.[130] This community concern is evident from the information released during the course of the external review.[131] Schedule 4, part 2, item 4 of the RTI Act.[132] Schedule 4, part 3, item 2 of the RTI Act.[133] Schedule 4, part 3, item 14 of the RTI Act.[134] Schedule 4, part 4, item 4 of the RTI Act.[135] Schedule 4, part 4, item 7(1)(c) of the RTI Act.[136] Schedule 4, part 4, item 8 of the RTI Act.[137] NBN Co’s submissions to OIC dated 27 May 2016.[138] Subject to legal and policy parameters. See NBN Co’s Statement of Expectations dated 24 August 2016.[139] In relation to a Queensland government-owned company: Kalinga and BCC at [79].[140] Cannon and Australian Quality Egg Farms Ltd (1994)1 QAR 491 at [32].[141] Senate Environment and Communications Legislation Committee Estimates, Official Committee Hansard (20 October 2015), 153 – 155 available at <http://www.aph.gov.au/Parliamentary_Business/Senate_Estimates/ecctte/estimates/supp1516/index> accessed on 28 October 2016.[142] See Channel Seven and Redland City Council (Unreported, Queensland Information Commissioner, 30 June 2011) at [20].[143] See NBN Co’s Three Year Construction Plan.[144] Schedule 4, part 4, item 7(2) contains an exception to the Business Harm Factor in item 7(1) if what would be disclosed concerns only the business, professional, commercial or financial affairs of the person by, or on whose behalf, an application for access to the document containing the information is being made. I do not consider this exception applies here.[145] And communications concerning facilitation of this with Council.[146] Unlike the documents in issue in the decision of Internode Pty Ltd and NBN Co Ltd [2012] AICmr 4 (20 January 2012) (Internode), concerning NBN Co’s Cth Carve-Out under the Cth FOI Act. [147] The words ‘business, professional, commercial or financial’ have been interpreted as meaning ‘a business undertaking carried on in an organised way for the purpose of generating income or profits, or is otherwise involved in an ongoing operation involving the provision of goods or services for the purpose of generating income or profits’: Seeney, MP and Department of State Development; Berri Limited (Third Party) (2004) 6 QAR 354 concerning the application of the equivalent provisions of the now repealed Freedom of Information Act 1992 (Qld).[148] Clause 4. 1 of NBN Co’s Constitution.[149] As applied in Internode.[150] Kalinga and BCC, [89].[151] Discussed at paragraph 29 above.[152] Clause 2.1 of NBN Co’s Corporate Plan, 2017 states that ‘in 2009, [NBN Co] was established to build and operate Australia’s first ever national, wholesale-only, open-access broadband network. [NBN Co’s] objective is to ensure all Australians have access to fast broadband as soon as possible, at affordable prices, and at least cost to taxpayers’. See also clause 4.1.1 of NBN Co’s Constitution which provides that its objects are to ‘roll-out, operate and maintain a national wholesale broadband network’. [153] NBN Co, Statement of Expectations, 24 August 2016.[154] NBN Co is exempt from the operation of the Cth FOI Act in relation to documents in respect of its commercial activities.[155] Under schedule 4, part 3, item 14 of the RTI Act.[156] And Ministers.[157] NBN Co’s submissions to OIC dated 27 May 2016.[158] Section 15 of the Cth FOI Act.[159] Under section 4 of the Cth FOI Act, an ‘agency’ includes a ‘prescribed authority’, and a ‘prescribed authority’ includes NBN Co.[160] Section 7(2) of the Cth FOI Act.[161] Section 7(3A) of the Cth FOI Act. Under section 7(4) of the Cth FOI Act, a reference to documents in respect of particular activities shall be read as a reference to documents received or brought into existence in the course of, or for the purposes of, the carrying on of those activities.[162] As summarised by the Australian Information Commissioner in Internode. [163] See ‘Objects – information or documents otherwise accessible’ in the Cth FOI Act.[164] Schedule 4, part 3, item 20 of the RTI Act.[165] Schedule 4, part 4, item 4 of the RTI Act.[166] Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at [28-30] citing with approval the definition given in Re Waterford and Department of Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588 at 606.[167] Ibid.[168] And nor do I consider that the General Rollout Information reveals any ‘thinking process’ of NBN Co, but this is not relevant given that NBN Co is not ‘government’ for the purposes of the provision. For the purposes of the laws of Queensland, NBN Co is not a public authority or an instrumentality or agency of the Crown: Section 95 of the National Broadband Network Companies Act 2011 (Cth). This is a different analysis to that required to determine if NBN Co is a public sector body in the ‘functional sense’ required by the Fairfax Doctrine discussed above.[169] NBN Co submissions to OIC dated 27 May 2016.[170] Schedule 4, part 3, item 16 of the RTI Act.[171] Schedule 4, part 4, item 8 of the RTI Act.[172] In its submissions to OIC dated 27 May 2016.[173] Clause 2.1 of NBN Co’s Corporate Plan, 2017 states that ‘in 2009, [NBN Co] was established to build and operate Australia’s first ever national, wholesale-only, open-access broadband network. [NBN Co’s] objective is to ensure all Australians have access to fast broadband as soon as possible, at affordable prices, and at least cost to taxpayers’. See also clause 4.1.1 of NBN Co’s Constitution which provides that its objects are to ‘roll-out, operate and maintain a national wholesale broadband network’. [174] NBN Co, Statement of Expectations, 24 August 2016.[175] As NBN Co is the relevant hypothetical plaintiff in an action for equitable breach of confidence, to the extent that information is not authored by NBN Co (or its representatives) as confider, this would ordinarily preclude a finding that NBN Co is owed a duty of confidence in relation to this information. See paragraph 48 above.[176] For a discussion of this issue see Glass Media at [46] to [47].[177] Section 108(3) of the RTI Act.[178] See B and BNRHA at [84] and the discussion of circumstances relevant to determining element (c), at paragraph 44 above.[179] On pages 19-23 of the information initially located by Council in response to the accessapplication (including duplicates).[180] Part of the email on page 36 of the Additional Documents.[181] B and BNRHA at [103].[182] The principles enunciated by Mason J in Fairfax.[183] ‘Deliberative process information’ means an opinion, advice or recommendation that has been obtained prepared or recorded, or a consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of government. ‘Deliberative processes involved in the functions of government’ have been defined as ‘...thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action’: Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at [28-30] citing with approval the definition given in Re Waterford and Department of Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588 at 606.[184] Schedule 3, section 8(2) of the RTI Act.[185] See paragraph 116 above.[186] On pages 19-23 of the information initially located by Council in response to the access application (including duplicates).[187] Part of the email on page 36 of the Additional Documents.[188] In its internal review decision dated 17 June 2015.[189] In its submissions to Council dated 17 April 2015.[190] While I have found that some of the Negotiation Information is exempt due to the Breach of Confidence Exemption, the examination of public interest factors below is necessary for the purpose of demonstrating my reasons in relation to application of the Fairfax Doctrine. While it is generally unnecessary for a decision maker to consider a further ground for refusal of access when one has already been established, the circumstances of this case necessitate an analysis of public interest factors in relation to all of the Negotiation Information.[191] In his external review application dated 19 May 2015 and submissions to OIC dated 10 February 2016.[192] This community concern is evident from the information released during the course of the external review.[193] Johnston and Brisbane City Council (Unreported, Queensland Information Commissioner, 6 December 2013) (Johnston) at [20] citing Johnson and Department of Transport; Department of Public Works (2004) 6 QAR 307 at [39].[194] Schedule 4, part 2 item 1 of the RTI Act.[195] Schedule 4, part 2, item 2 of the RTI Act.[196] Schedule 4, part 2, item 3 of the RTI Act.[197] Schedule 4, part 2, item 11 of the RTI Act.[198] NBN Co’s submission dated 7 December 2015 set out a number of community engagement activities in the Maleny area, including notices posted to residents and published in the local newspaper, briefings of stakeholder groups and public meetings.[199] In particular, a site specific information session was held at Maleny Community Centre on 14 May 2015.[200] And for this reason, I do not consider that the factors favouring disclosure concerning the protection of the environment (schedule 4, part 2, item 13 of the RTI Act) or environmental or health risks or measures relating to public health and safety (schedule 4, part 2, item 14 of the RTI Act) are relevant to the General Rollout Information.[201] Schedule 4, part 2, item 4 of the RTI Act.[202] Section 36 and schedule 1 of the Acts Interpretation Act 1954 (Qld) defines ‘entity’ to include ‘a person and an unincorporated body’; ‘person’ to include ‘an individual and a corporation’; and ‘individual’ to mean ‘a natural person’.[203] Schedule 4, part 3, item 2 of the RTI Act.[204] The relevant part of NBN Co’s submission was repeated in Council’s internal review decision dated 17 June 2015.[205] Metcalf and Maroochy Shire Council (Unreported, Queensland Information Commissioner, 19 December 2007) (Metcalf) at [59].[206] Pallara Action Group Inc and Brisbane City Council (Unreported, Queensland Information Commissioner, 21 September 2012) (Pallara) at [32].[207] To the extent that this information was about significant changes, which if implemented, were likely to have a significant impact on residential land and residents’ amenity – eg. changes to existing road routes. See Johnston at [52].[208] Schedule 4, part 4, item 7(1)(c) of the RTI Act. Set out above at paragraph 79 in relation to the General Rollout Information. As noted in relation to the General Rollout Information, schedule 4, part 4, item 7(2) contains an exception to the Business Harm Factor in item 7(1) if what would be disclosed concerns only the business, professional, commercial or financial affairs of the person by, or on whose behalf, an application for access to the document containing the information is being made. I do not consider this exception applies here.[209] At paragraph 91.[210] See ‘Local Government Planning’ : <http://www.nbnco.com.au/develop-or-plan-with-the-nbn/local-government-planning/local-government-checklist.html> , accessed on 21 October 2016.[211] In its submissions to Council dated 17 April 2015, NBN Co states ‘if applicants could obtain information from one State body, but the same information is likely to be exempts under another jurisdiction’s FOI regime, this could potentially cause an adverse impact on intergovernmental relations’.[212] Schedule 4, part 3, item 20 of the RTI Act.[213] Schedule 4, part 4, item 4 of the RTI Act.[214] Applicant’s submissions to OIC dated 10 February 2016, page 3, 5 and 6.[215] See discussion of deliberative process at paragraph 102 above.[216] This is consistent with previous decisions of the Information Commissioner concerning Council’s deliberative process in relation to infrastructure development. See Metcalf at [22].[217] Pallara at [42] citing Metcalf at [47].[218] Pallara at [42-43] and Johnston at [39] and [42].[219] This is a factor which has previously been given significant weight in the context of infrastructure development (in particular, changes to existing road routes): see Johnston at [42].[220] Schedule 4, part 3, item 16 of the RTI Act.[221] Schedule 4, part 4, item 8 of the RTI Act.[222] At paragraphs 119 to 122.[223] See section 9 of the Local Government Act 2009 (Qld). [224] See ‘Local Government Planning’: <http://www.nbnco.com.au/develop-or-plan-with-the-nbn/local-government-planning/local-government-checklist.html> , accessed on 21 October 2016.[225] The information concerning NBN Co’s use of Council land for its infrastructure.[226] And accordingly, the Business Harm Factor applies, and the Confidential Information Prejudice Factor and Confidential Information Harm Factor applies to information covered by the Confidentiality Agreement. To the extent they apply, these factors carry some (albeit low) weight. See analysis at paragraphs 145 and 156 to 159 above.[227] The ‘General Rollout Information’ as defined under the ‘Information in issue’ heading on page 5 above.[228] On pages 19-23 of the information initially located by Council in response to the access application (including duplicates).[229] Under section 47(3)(a) of the RTI Act.[230] Under section 48 and schedule 3, section 8 of the RTI Act.[231] Under section 47(3)(b) of the RTI Act.[232] Part of the email on page 36 of the Additional Documents.[233] Under section 47(3)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Ensham Resources Pty Ltd and Department of Natural Resources and Water [2009] QICmr 52 (19 October 2009)

Ensham Resources Pty Ltd and Department of Natural Resources and Water [2009] QICmr 52 (19 October 2009) Office of the Information Commissioner Decision and Reasons for Decision Application Number: 210706 Applicant: Ensham Resources Pty Ltd Respondent: Department of Natural Resources and Water Decision Date: 19 October 2009 Catchwords: FREEDOM OF INFORMATION – section 45(1)(c) of the Freedom of Information Act 1992 – matter relating to trade secrets, business affairs and research – whether the matter in issue concerns the business affairs of another person – whether disclosure could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government – whether disclosure would, on balance, be in the public interest FREEDOM OF INFORMATION – section 46 of the Freedom of Information Act 1992 – matter communicated in confidence – whether disclosure of the matter in issue would found an action for breach of confidence – whether the matter in issue consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest FREEDOM OF INFORMATION – section 41 of the Freedom of Information Act 1992 – matter relating to deliberative processes – whether the matter in issue would disclose an opinion, advice or recommendation that has been obtained, prepared or recorded or a consultation or deliberation that has taken place in the course of, or for the purposes of, the deliberative processes involved in the functions of government – whether disclosure of the matter in issue would, on balance, be contrary to the public interest Contents REASONS FOR DECISION Summary 1. For the reasons set out below, I find that the matter in issue in this external review is not exempt from disclosure under sections 45(1)(c), 46 or 41(1) of the Freedom of Information Act 1992 (Qld) (FOI Act.) Background 2. By letter dated 17 July 2008, Mallesons Stephen Jaques, on behalf of AOAI Insurance Co Limited (FOI Applicant), applied to the Department of Natural Resources and Water (now known as the Department of Environment and Resource Management) (Department) for access to various documents under the FOI Act (FOI Application). The documents sought relate to the Ensham Central Project, more particularly to the flood risk and/or flood protection levee banks in the Nogoa River floodplain. 3. By letter dated 19 September 2008, the Department consulted Ensham Resources Pty Ltd (Ensham) in relation to the possible release of a number of documents responding to the FOI Application. 4. By letter dated 29 September 2008, Clayton Utz, on behalf of Ensham, advised that Ensham objected to the release of the relevant documents and provided reasons in support of Ensham’s case. 5. By letters dated 8 October 2008, the Department provided the FOI Applicant and Clayton Utz with considered decisions.[1] The Department located a large number of documents responding to the FOI Application and decided that some of the relevant documents qualified for exemption from disclosure under the FOI Act while the remainder of the relevant documents did not qualify for exemption or were only partially exempt from disclosure under the FOI Act. 6. By letter dated 11 November 2008, the FOI Applicant applied for internal review of the considered decision. 7. Clayton Utz did not apply on Ensham’s behalf for internal review of the Department’s considered decision. 8. By letter dated 12 December 2008, the Department issued a response to the FOI Applicant’s internal review application and provided Clayton Utz with a copy of the response. The Department decided to release further documents to the FOI Applicant as the information contained in those documents was publicly available. 9. As the Department’s response to the internal review application was received by the relevant parties outside the timeframe stipulated in the FOI Act, the Department is deemed to have affirmed its considered decision.[2] However, for the purpose of this review, the Department’s response to the internal review application is treated as the Department’s submissions. 10. By letter dated 9 January 2009, Clayton Utz, on behalf of Ensham, applied to the Information Commissioner for external review of the deemed affirmation. Decision under review 11. The decision under review is the deemed affirmation of the Department’s considered decision. Steps taken in the external review process 12. By facsimile on 13 January 2009, the Office of the Information Commissioner (Office) requested that the Department provide a number of initiating documents relevant to the review. 13. By letter dated 15 January 2009, the Department provided the requested documents. 14. By letter dated 20 January 2009, the Office wrote to Clayton Utz to: • advise that the external review application had been accepted • invite it to provide any further submissions on behalf of Ensham. 15. By letter dated 20 January 2009, the Office wrote to the Department to advise that the external review application had been accepted and to request a copy of the matter in issue. 16. By letter dated 21 January 2009, Clayton Utz confirmed that Ensham based its objection to release of the relevant matter in issue on sections 41, 45(1)(c) and 46 of the FOI Act. 17. By letter dated 30 January 2009, the Department provided a copy of the matter in issue. 18. On 18 February 2009, a staff member of the Office telephoned the Department to advise that the decision under review was the deemed affirmation of the considered decision. 19. On 15 April 2009 and 14 May 2009, a staff member of the Office telephoned the Department to clarify a number of issues relevant to the review. 20. On 19 May 2009, a staff member of the Office telephoned Clayton Utz and invited Ensham to provide updated submissions in support of its case, given the passage of time since its last submissions had been made. 21. On 2 June 2009, a staff member of the Office met with officers from the Department in order to discuss the extent that the relevant information was publicly available. The Department provided a file note setting out the reasons for its view that certain information was publicly available. 22. On 5 June 2009, a staff member of the Office telephoned Clayton Utz and, in an attempt to informally resolve all or part of the external review, invited it to meet with the Office to review: • the documents that Ensham objected to the release of • the information about Ensham’s operations that is publicly available. 23. On 12 June 2009, two staff members of the Office met with two staff members of Clayton Utz. The staff member of the Office explained that: • a large amount of information about Ensham’s operations which also appears in the matter in issue is publicly available • as that information is publicly available it is unlikely that it would qualify for exemption from disclosure under the FOI Act • given the extent of publicly available information and the passage of time since Ensham last made submissions in support of its case, Ensham may wish to: o provide updated submissions if it still objected to disclosure of the matter in issue o narrow the scope of the matter in issue on external review by withdrawing its objections to the disclosure of documents containing information which is publicly available. 24. Clayton Utz was provided with a copy of the matter in issue in this review and a schedule setting out: • the various types of relevant information • where that type of information is publicly available. 25. Clayton Utz was invited to provide updated submissions to the Office by no later than 3 July 2009. 26. On 3 July 2009, a staff member of Clayton Utz telephoned the Office to clarify which documents comprise the matter in issue in this review. 27. By facsimile on 3 July 2009, Clayton Utz declined the opportunity to provide submissions in support of Ensham’s case and said: To the extent that it is said that certain documents might now be in the public domain, we ask that you identify those documents specifically and state the means by which each of those documents is said to be in the public domain. Upon receipt of that information we will seek further instructions from our client. In the meantime, although our client has had no need to make submission in respect of this issue for some months, we wish to make it clear that our client maintains its objection to disclosure of each of the documents in issue on the grounds set out in our letters of 29 September 2008 and 9 January 2009. 28. By letter dated 29 July 2009, I provided the applicant with a preliminary view in relation to the matter in issue. In that letter I: • noted that section 81(2) of the FOI Act provides that if the decision under review is a disclosure decision, the party objecting to disclosure of the documents (which in this review is Ensham) has the onus of establishing that a decision not to disclose the matter is justified • set out the relevant law, with reference to previous decisions of the Office, in relation to the relevant sections of the FOI Act that Ensham was relying on and the applicant’s submissions on each provision • specifically identified a range of information about Ensham’s operations that is publicly available and provided various examples of instances where information which is subject to consideration in this external review appears in the public domain • advised the applicant of my preliminary view that: o Ensham had not satisfied the requirements of sections 45(1)(c), 46(1)(b) or 41(1) of the FOI Act in respect of the matter in issue as this information is in the public domain and therefore not exempt from disclosure under the FOI Act o some of the information which the Department found was exempt from disclosure under the FOI Act is not exempt as it is publicly available. • advised that if Ensham did not accept the preliminary view and wished to maintain that the matter in issue was exempt from disclosure under the FOI Act, it should, by 14 August 2009, specifically: o identify any information which is not publicly available o address the requirements for exemption under sections 45(1)(c), 46(1)(b) or 41(1) of the FOI Act which I set out in the letter. 29. By facsimile on 14 August 2009, Clayton Utz provided the following response to the issues set out in the preliminary view letter: You appear to be of the view that our client has the onus of establishing that information contained within the matter in issue is not publicly available. With respect, in our view, that approach is incorrect as it would be impossible for our client to prove that information is not publicly available. In effect, you are asking our client to prove a negative. In the circumstances, it seems to us that the correct approach is for you to identify precisely where each item of information contained in matter in issue is publicly available and then to allow our client a proper opportunity to respond and, if necessary, establish that that is not the case. ... In the meantime, our client repeats and relies on its earlier submissions regarding its objection to the release of the documents referred to in its submissions. 30. By letter dated 26 August 2009, I wrote to Clayton Utz and provided Ensham with a final opportunity to provide specific, substantive and updated submissions in support of its case if Ensham maintained its objection to release after considering all of the information provided by the Office. I requested that any submissions by provided to the Office by 9 September 2009. 31. By facsimile on 8 September 2009, Clayton Utz advised the Office that Ensham did not intend to make any further submissions in this review. 32. On 9 September 2009, I provided the Department with a copy of the preliminary view letter dated 29 July 2009 and asked the Department to advise whether it accepted my preliminary view in relation to the documents which: • I considered were not exempt from disclosure • the Department had decided did qualify for exemption under the FOI Act. 33. By letter dated 21 September 2009, the Department advised that it accepted the preliminary view. 34. The FOI Act was repealed by the Right to Information Act 2009 (RTI Act)[3] which commenced on 1 July 2009.[4] However, because the FOI Application was made under the FOI Act and has not yet been finalised, for the purposes of making a decision in this review, I am required to consider the application of the FOI Act (and not the RTI Act) to the matter in issue.[5] 35. In making this decision, I have taken the following into account: • the FOI Application dated 17 July 2008 • the Department’s considered decisions dated 8 October 2008 • the Department’s purported internal review decisions dated 12 December 2008 • information provided by Clayton Utz on behalf of Ensham dated 29 September 2008, 21 January 2009, 3 July 2009, 14 August 2009 and 8 September 2009 and the external review application dated 9 January 2009 • information provided by the Department dated 30 January 2009 and 21 September 2009 • file notes of conversations with staff members of the Department on 15 April 2009 and 2 June 2009 • the matter in issue • the relevant provisions of the FOI Act • previous decisions of the Information Commissioner as referred to in this decision. Matter in issue 36. The matter in issue in this review (Matter in Issue) comprises the documents: • about which the applicant was consulted • which the Department decided to release (either in full or in part) after considering the applicant’s objections to disclosure. 37. The following folios, which the Department decided qualify for partial exemption under the FOI Act, are also in issue in this review: • Collection 1 Folio 428 (which is the same as Collection 5 Folio 17 and Collection 13 Folio 44) • Collection 5 Folio 12 • Collection 6 Folios 135, 134, 115, 96 and 65 • Collection 13 Folios 40 and 37. 38. For ease of reference, I have provided both the applicant and the Department with a schedule identifying the specific folios which comprise the Matter in Issue in this review. 39. The Matter in Issue in this review does not include the information the Department decided was exempt from disclosure under section 44(1) of the FOI Act.[6] 40. The Matter in Issue in this review is comprised of the following types of documents: • maps, diagrams and photographs of the region and aspects of Ensham’s mine • emails between the Department and Ensham • various slides from presentations given by Ensham to the Department • information relating to flood studies and technical specifications for the Ensham mine. Onus on external review 41. Section 81 of the FOI Act provides: 81 Onus (1) On a review by the commissioner, the agency which or Minister who made the decision under review has the onus of establishing that the decision was justified or that the commissioner should give a decision adverse to the applicant. (2) However, if the decision under review is a disclosure decision, the participant in the application for review who opposes the disclosure decision has the onus of establishing that a decision not to disclose the document or matter is justified or that the commissioner should give a decision adverse to the person who wishes to obtain access to the document. (3) In this section— disclosure decision means— (a) a decision to disclose a document or matter contrary to the views of a person obtained under section 51; or (b) a decision to disclose a document or matter if the agency or Minister should have taken, but has not taken, steps to obtain the views of a person under section 51. 42. As the Department has decided to disclose matter contrary to the applicant’s view, the applicant has the onus of establishing that a decision not to disclose the Matter in Issue is justified and/or that the Information Commissioner should give a decision adverse to the FOI Applicant. 43. By letters dated 29 September 2008 and 9 January 2009, the applicant made submissions objecting to release of the Matter in Issue. Those submissions refer to the application of sections 45(1)(c), 46(1)(a), 46(1)(b) and 41 of the FOI Act. I will consider the application of each section below. Section 45(1)(c) of the FOI Act Relevant law 44. Section 45(1)(c) of the FOI Act provides: 45 Matter relating to trade secrets, business affairs and research (1) Matter is exempt matter if— ... (c) its disclosure— (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government; unless its disclosure would, on balance, be in the public interest. 45. The Information Commissioner has previously indicated that section 45(1) of the FOI Act is the primary vehicle for reconciling the main objects of the FOI Act, that is, promoting open and accountable government administration and fostering informed public participation in the process of government, with the legitimate concerns for the protection from disclosure of commercially sensitive information.[7] The purpose of the section is to provide a means whereby the general right of access to documents in the possession or control of government agencies can be prevented from causing unwarranted commercial disadvantage to: • persons carrying on commercial activity who supply information to government or about whom government collects information; or • agencies which carry on commercial activities. 46. Section 45(1)(c) of the FOI Act can apply only if sub-sections 45(1)(a) and (b) are inapplicable, that is, if the matter in issue is information other than trade secrets or information that has an intrinsic commercial value to an agency or another person.[8] 47. To be prima facie exempt under section 45(1)(c): • the matter in issue must be properly characterised as information concerning the business, professional, commercial or financial affairs of an agency or another person; and • it must be determined that disclosure of the matter in issue could reasonably be expected to have either of the prejudicial effects contemplated by section 45(1)(c)(ii), namely: o an adverse effect on the business, professional, commercial or financial affairs of the agency or other person, which the information in issue concerns or o prejudice to the future supply of such information to government. 48. If these requirements are established, the information will qualify for exemption, unless disclosure would, on balance, be in the public interest. 49. The common link between the words ‘business, professional, commercial or financial’ in section 45(1)(c) is to activities carried on, at least to some degree, for the purpose of generating income or profits. 50. The phrase ‘could reasonably be expected to’ in this context requires consideration of whether the expectation that disclosure of the matter in issue could result in either of the prejudicial effects contemplated by section 45(1)(c)(ii) is reasonably based.[9] 51. In Cannon[10] the Information Commissioner made the following observations: • An adverse effect under section 45(1)(c) will almost invariably be financial in nature, whether directly or indirectly (e.g. an adverse effect on an entity’s ‘business reputation or goodwill ... is feared ultimately for its potential to result in loss of income or profits, through loss of customers’). • If information is already in the public domain or is common knowledge in the industry, it would ordinarily be difficult to show that disclosure of the information could reasonably be expected to have an adverse effect as the information. • In most instances the question of whether disclosure of information could reasonably be expected to have an adverse effect will turn on whether the information is capable of causing competitive harm to the relevant entity – a relevant factor in this is whether the entity enjoys a monopoly position or whether it operates in a commercially competitive environment. • The phrase ‘prejudice the future supply of information’ has the same meaning in section 45(1)(c) as it does in section 46(1).[11] Accordingly, where a person/entity would be disadvantaged by withholding information, then ordinarily, disclosure could not reasonably be expected to prejudice the future supply of such information.[12] The applicant’s submissions 52. By letter dated 29 September 2008, the applicant made submissions to the Department on the application of section 45(1)(c) of the FOI Act. Those submissions can be summarised as follows: • It is evident that all the documents relate to the commercial affairs of Ensham. • All of the photographs and figures included in the Matter in Issue depict Ensham’s mine layouts (or potential layouts) from which a person with the requisite knowledge can easily infer with some accuracy, sensitive information concerning Ensham’s commercially sensitive existing and planned operations. • All the emails included in the documents under consideration for access plainly disclose sensitive business and commercial information concerning Ensham. • The potential for adverse effect and prejudicing of information supply is again borne out by the very nature of the documents. Ensham has provided the documents, many of which are strictly confidential in nature to the Queensland Government outside of any statutory obligation to do so. If this information is released then it may be republished without limitation or restriction. Where this occurs, businesses will be less inclined to provide such sensitive information to the Queensland Government outside of the restrictions of some formal legal arrangement such as a contract of secrecy. • There are no arguments of significance that can be submitted to sustain an assertion that disclosure of the Matter in Issue could be in the public interest. It is evident from the wording of section 45(1)(c) of the FOI Act that the onus of proof is on the FOI Applicant to show that it is in the public interest for such access to be granted. The documents and materials under consideration here are of a high level of official communication involving sensitive issues that calls for them to be kept confidential. No factual matter is shown which satisfies the onus that it is in the public interest to disclose these documents. 53. By letter dated 9 January 2009, the applicant made submissions to the Office on the application of section 45(1)(c) of the FOI Act. Those submissions can be summarised as follows: • Information about Ensham’s sales, and the sales Ensham aims to achieve, relates to Ensham’s business affairs and should be exempt because the release of such information could have an adverse effect on Ensham’s contractual discussions with service providers. • Information such as sales Ensham aims to achieve, Ensham’s future plans and proposed timeframes for recommencing mining activity are still the subject of internal discussions between Ensham and its owners/investors and are commercially sensitive issues. • Information regarding how Ensham aims to achieve its plans in the future, such as the proposed use of various mining techniques, directly relates to the business affairs of Ensham and should be exempt. Information about the future is commercially and operationally sensitive, and remains the subject of deliberation and due diligence (for example to undergo community consultation, discussions with environmental authorities, mining lease applications, safety and management considerations and industrial relations considerations). • Information regarding proposed timeframes for recommencing mining activity also clearly relates to Ensham’s business affairs. The release of such information could have an adverse effect on Ensham in that it could affect contractual arrangements with its customers and future negotiations with existing and potential customers. • The release of information about the future of the Ensham mine is not in the public interest (and does not relate to the flood risk and/or flood protection levee banks) and clearly could have adverse effects on the business affairs of Ensham because competitors and contractors of Ensham could use the information to their commercial advantage when dealing with Ensham. Section 46 of the FOI Act Relevant law 54. Section 46(1) of the FOI Act provides: 46 Matter communicated in confidence (1) Matter is exempt if— (a) its disclosure would found an action for breach of confidence; (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest. Section 46(1)(a) of the FOI Act 55. The test for exemption under section 46(1)(a) of the FOI Act is considered by reference to a hypothetical legal action in which an identified plaintiff has standing to enforce an obligation of confidence in respect of the matter in issue.[13] In other words the decision-maker must determine whether the disclosure of a particular document would be actionable under the general law.[14] 56. An obligation of confidence may arise, either expressly or impliedly, between the parties to a contract.[15] 57. In B, the Information Commissioner identified five requirements, all of which must be established, to obtain protection in equity of allegedly confidential information as follows: a) It must be possible to specifically identify the information, in order to establish that it is secret, rather than generally available information.[16] b) The information in issue must have ‘the necessary quality of confidence’; i.e. the information must not be trivial or useless information, and it must have a degree of secrecy sufficient for it to be the subject of an obligation of conscience.[17] c) The information must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it.[18] d) Disclosure to the applicant for access would constitute an unauthorised use of the confidential information.[19] e) Disclosure would be likely to cause detriment to the confider of the confidential information.[20] Section 46(1)(b) of the FOI Act 58. The Information Commissioner has previously found that to establish the prima facie ground of exemption under section 46(1)(b) three requirements must be satisfied: [21] a) the matter in issue must consist of information of a confidential nature b) it must be information that was communicated in confidence c) the disclosure of the information could reasonably be expected to prejudice the future supply of such information. 59. If all of these requirements are established, the matter in issue will be prima facie exempt from disclosure. It is then necessary to determine whether the prima facie ground is displaced by the weight of identifiable public interest considerations which favour disclosure of the matter in issue.[22] 60. The requirements of section 46(1)(b) are cumulative, that is, each one must be satisfied before the information can qualify for exemption under section 46(1)(b) of the FOI Act. 61. In relation to requirement c), to determine whether disclosure of information could reasonably be expected to prejudice the future supply of such information to government, I must be satisfied that disclosure could reasonably be expected to prejudice the future supply of such information from a substantial number of the sources available or likely to be available to an agency.[23] 62. I note that where individuals or companies must disclose information if they wish to obtain some benefit from the government (or they would otherwise be disadvantaged by withholding information) then ordinarily, disclosure could not reasonably be expected to prejudice the future supply of such information.[24] The applicant’s submissions 63. By letter to the Department dated 29 September 2008, the applicant submitted that all documents under consideration are exempt under section 46(1)(b) of the FOI Act.[25] 64. In relation to the public interest considerations, the applicant refers to the submissions which are set out above in relation to section 45(1)(c) of the FOI Act. 65. By letter to the Office dated 9 January 2009, the applicant made submissions on the application of section 46(1)(b) of the FOI Act. Those submissions can be summarised as follows: • Documents were marked ‘commercial-in-confidence’ because it was understood that the information contained in the documents was confidential to Ensham and was only communicated to the Department with the understanding that the Department would keep the information confidential. • The Department intends to release documents contained within presentations given by Ensham to the Department which are marked commercial-in-confidence. Any presentations given by Ensham are not in the public domain and so the information in those presentations retains its confidential nature. • The Department in its statement of reasons at page 8 says that confidentiality was confirmed by the recipient and the documents are subject to a sustainable undertaking of confidentiality. Section 41 of the FOI Act Relevant law 66. Section 41(1) of the FOI Act provides: 41 Matter relating to deliberative processes (1) Matter is exempt matter if its disclosure— (a) would disclose— (i) an opinion, advice or recommendation that has been obtained, prepared or recorded; or (ii) a consultation or deliberation that has taken place; in the course of, or for the purposes of, the deliberative processes involved in the functions of government; and (b) would, on balance, be contrary to the public interest. 67. For matter to be exempt under section 41(1) of the FOI Act, the following questions must be answered affirmatively:[26] • Would disclosure of the matter disclose any opinion, advice, or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, (in either case) in the course of, or for the purposes of, the deliberative processes involved in the functions of government? • Would disclosure, on balance, be contrary to the public interest? 68. The fact that a document falls within section 41(1)(a) (i.e. that it is a deliberative process document) carries no presumption that its disclosure would be contrary to the public interest. 69. The term ‘deliberative processes’ is sometimes explained as the pre-decisional thinking processes of an agency. The term refers to the processes of evaluating relevant evidence, arguments and options, for the purpose of making a decision related to the performance of an agency's functions. It includes contributions to the formulation of policy, or to the making of decisions under statutory powers. The Information Commissioner in Eccleston stated that:[27] Normally, deliberative processes occur toward the end stage of a larger process, following investigations of various kinds, establishing facts, and getting inputs from relevant sources... 70. The term ‘public interest’ under the FOI Act refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. In general, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests. 71. Under section 41(1) of the FOI Act an applicant is entitled to access documents unless it can be demonstrated that disclosure of the particular deliberative process matter would be contrary to the public interest. 72. Unlike other exemption provisions within the FOI Act that incorporate a public interest test, there is no prima facie public interest consideration favouring non-disclosure within section 41(1) of the FOI Act. Finding that disclosure would be contrary to the public interest is a separate requirement for exemption which must be independently established. 73. The onus is on the party relying on the exemption to establish that:[28] a) specific and tangible harm to an identifiable public interest(s) would result from disclosing the matter in issue b) the harm is of sufficient gravity that, when weighed against competing public interest considerations which favour disclosure, it would, on balance, be contrary to the public interest. 74. This means that the party relying on the exemption must identify the specific and tangible harm that would result to an identifiable public interest or interests if the particular documents comprising the matter in issue were disclosed. The identified harm to the public interest must then be weighed against public interest considerations in favour of disclosure. The applicant’s submissions 75. By letter to the Department dated 29 September 2008, the applicant made submissions in relation to the application of section 41(1) of the FOI Act to Collection 14 Folios 131 – 127. I note that in its initial decision (which was affirmed on internal review) the Department decided that these folios fall outside the scope of the FOI Application. Therefore these folios are not in issue in this review. 76. The applicant also submits that section 41(1) of the FOI Act applies to exempt all of the Matter in Issue but the applicant does not address the specific requirements of the provision. The Department’s submissions 77. The Department submits[29] that the Matter in Issue is not exempt from disclosure under the FOI Act as the information is in the public domain and accordingly: • in relation to section 45(1)(c) of the FOI Act, its release could not have an adverse effect on Ensham’s business affairs nor does it have the potential to prejudice the future supply of similar information • in relation to section 46 of the FOI Act, the information no longer possesses the necessary quality of confidence. Findings Age of the Matter in Issue 78. I consider that information which was once commercially sensitive may lose its sensitivity with the passage of time in circumstances where the information becomes aged or out of date. 79. In this review, some of the Matter in Issue is more than three years old. For example, the Matter in Issue in Collections 4 and 7 is comprised of flood study documents which were created in 2006 and 2007. Given the significant flooding event which affected Ensham’s operations in January 2008, I am satisfied that this information: • is likely to have been significantly revised or superseded • is likely to have lost any commercial sensitivity due to subsequent events and/or the passage of time. 80. During the course of this external review, I have invited the applicant on several occasions to provide updated submissions to the Office in respect of the application of the relevant exemption provisions.[30] The applicant declined the opportunity to provide the requested submissions and has not specifically identified any information within the Matter in Issue which it considers has retained any commercial sensitivity. General nature of the Matter in Issue 81. I consider that the disclosure under the FOI Act of information which is general in nature (that is, not specific to Ensham’s operations) does not satisfy the requirements of sections 45(1)(c), 46(1)(b) or 41(1) of the FOI Act. 82. In this review, some of the Matter in Issue is information which, is not only commonly known, but is also general and does not reveal any detailed information about Ensham or its operations. For example, some of the Matter in Issue in Collection 6 relates generally to the process by which coal is formed and provides a citation for that information. Matter in Issue that is publicly available 83. The Office has referred the applicant to a range of information about Ensham’s operations that is publicly available including: • the Environmental Impact Statement for the Ensham Central Project (EIS) (including appendices) which is available in full on Ensham’s website[31] • information about the Ensham Central Project on the Department of Environment and Resources Management’s (DERM) website[32] • other information from Ensham’s website including: o various company announcements o a customer brochure o fact sheets o information under the ‘latest news’ section of the website o general information about Ensham’s vision and existing operations • other articles and information available on the internet. 84. I am satisfied that the following categories of information appearing in the Matter in Issue are publicly available: • diagrams, maps and photographs of the region and the mine layout[33] • the sales that Ensham aims to achieve in 2009 (by reference to the amount of coal sold)[34] • how Ensham hopes to achieve its mid-term plan[35] • the proposed timeframes for recommencing mining activity[36] • the number of people Ensham employs[37] • Ensham’s economic losses as a result of the flood and other economic losses in the region[38] • the amount of freehold land Ensham supports[39] • Ensham’s yearly coal mining amount[40] • the other land uses on Ensham land[41] • photographs of the flooding and pumps[42] • floodplain levee management (including flood studies and technical specifications for levees)[43] • the amount of money spent on recovery activities[44] • Ensham’s total coal resource and the nature of the coal resource.[45] 85. Where information is publicly available, a claim that the information is exempt from disclosure under the FOI Act is difficult to sustain. This is because, ordinarily, the release of information under the FOI Act that is already publicly available cannot reasonably be expected to have an adverse effect on business affairs or prejudice the future supply of information to government. It is also difficult to satisfy the requirement for exemption on the basis of confidentiality where the relevant information is publicly available. 86. If is not necessary for me to establish that the Matter in Issue is publicly available in the same form. Rather, for present purposes, it will be sufficient to establish that the information contained within the Matter in Issue is publicly available. 87. I am satisfied that in some cases, the Matter in Issue in this review is publicly available in the same form. For example: • the diagrams which are located in the Matter in Issue at Collection 3 Folios 328, 327 and 326 are publicly available at Section 3, Figures 3-1, 3-2 and 3-3 of the EIS • the map which is located in the Matter in Issue at Collection 1 Folio 437 is publicly available at page 8 of the Customer Brochure on Ensham’s website. 88. I am satisfied that for the most part, it is the information contained within the matter in issue that is publicly available. For example, information regarding proposed timeframes for recommencing mining activity (which the applicant claims is exempt) is publicly available from the following sources: • Article – Dewatering flooded coal mine like draining Sydney Harbour (Earthmover and Civil Contractor 07/2008) on page 2 which states: ‘The company hopes to reach full mining capacity by mid-2009.’ • Report – Channel 10 news 06/05/2008 (Ensham website) which states: ‘The dragline will be jumpstarted in a few weeks time. They hope it will be uncovering coal again by Christmas and they’ll be back just mining early next year.’ • Ensham Fact Sheet – The Way Forward on page 1 which states: ‘Development plans for the site were suspended as a result of the January 2008 flood and did not recommence until the flood recovery process was completed in January 2009.’ • Article – Ensham’s flooded dragline high and dry (ABC Capricornia 02/05/2008) at paragraph 9 which states: ‘... they expect the dragline to be back operating later this year.’ • Article – Goliath plane to Ensham’s rescue (The Mining Chronicle) at the last paragraph which states: ‘Meanwhile, Ensham hopes to have its two flooded mine pits back in operation in the first half of 2009.’ • Article – Ensham reaches millstone under the pump (Queensland Coal Review 06/2008) at paragraph 6 which states: “Provided we encounter no unexpected setbacks, we hope to have the flooded pits emptied, dried and stabilised to allow the resumption of normal production by the end of the first quarter of 2009,” Ensham chief executive John Pegler said.’ Matter in Issue which the Department found was not exempt under the FOI Act 89. For the reasons set out above, I am satisfied that: • the applicant has not discharged its onus in accordance with section 81(2) of the FOI Act • the Department has correctly decided that the relevant Matter in Issue is not exempt from disclosure under the FOI Act. Matter in Issue which the Department found was partially exempt under the FOI Act 90. The Department found that the following folios which form part of the Matter in Issue were partially exempt from disclosure under sections 45(1)(c) and 46(1)(a) of the FOI Act:[46] • Collection 1 Folio 428 (which is the same as Collection 5 Folio 17 and Collection 13 Folio 44) • Collection 5 Folio 12 • Collection 6 Folios 135, 134, 115, 96 and 65 • Collection 13 Folios 40 and 37. 91. For the reasons set out below, I am not satisfied that the folios listed in paragraph 90 above are partially exempt from disclosure under the FOI Act. Collection 1 Folio 428 92. In its purported internal review decision, the Department identified part of Collection 1 Folio 428 (and Collection 5 Folio 17 and Collection 13 Folio 44) as exempt from disclosure under section 45(1)(c) of the FOI Act. The relevant information in those folios relates to: • the amount of freehold land Ensham supports • information about the multiple land uses Ensham supports. 93. As I have noted above, I am satisfied that this information is publicly available from: • page 4 of the Customer Brochure on Ensham’s website (although the figure is different) • the EIS at Section 6 (Land Use) at paragraph 6.6 and figure 6-1. 94. I confirm that the applicant has not provided any specific submissions in relation to my view that this information is publicly available and therefore does not qualify for exemption from disclosure. Accordingly, as the information is publicly available, I am not satisfied that it is exempt from disclosure under the FOI Act. Collection 5 Folio 12 and Collection 13 Folio 40 95. In its purported internal review decision, the Department identified the amount that Ensham has spent on recovery activities which appears in Collection 5 Folio 12 and Collection 13 Folio 40 as exempt from disclosure under section 45(1)(c) of the FOI Act. 96. I am satisfied that this information is publicly available from: • the Channel 10 news report on 06/05/2008 which states: ‘The financial blow is staggering. Ensham predicts losses somewhere above $300 million.’ • pages 3 – 4 of the report Energy Efficient Opportunities: First Public Report which state:[47] ‘Expenditure for the recovery was in the order of $350 million and significant management time was occupied by these tasks rather than routine operations.’ • the article Ensham’s flooded dragline high and dry (ABC Capricornia 02/05/2008) which states: ‘Mr Pegler says cost of a new dragline would be over $10 million, with the total damages bill for the mine at least $270 million.’ 97. I confirm that the applicant has not provided any specific submissions in relation to my view that this information is publicly available and therefore does not qualify for exemption from disclosure. Accordingly, as the information is publicly available, I am not satisfied that it is exempt from disclosure under the FOI Act. Collection 6 Folio 115 98. In its purported internal review decision, the Department identified information about Ensham’s total coal resource which appears in Collection 6 Folio 115 as exempt from disclosure under section 45(1)(c) of the FOI Act. 99. I am satisfied that this information is publicly available from: • the Company announcement Ensham dragline returns to service as the mine rebuilds which states: ‘Ensham has a very large 1 billion tonne coal resource and we are committed to recovering that resource in a sustainable manner’. • the Ensham Fact Sheet The Way Forward which states: ‘Ensham’s vast coal resource of around 900 million tonnes of thermal coal naturally differs in quality’. • the article Ensham announces $1bn project (Central Queensland News 24/03/2009) which states: ‘With the five-metre open cut thermal coal seam that has yielded some 75 million tonnes in the last 15 years dipping downward and an estimated in situ 800 million tonne resource to mine, the richest vein forms the Ensham Central expansion project’. • page 3 of the Customer Brochure which states: ‘Ensham has ... [a] resource of more than 1000Mt of high quality coal’. 100. I confirm that the applicant has not provided any specific submissions in relation to my view that this information is publicly available and therefore does not qualify for exemption from disclosure. Accordingly, as the information is publicly available, I am not satisfied that it is exempt from disclosure under the FOI Act. Collection 6 Folios 96 and 65 101. In its purported internal review decision, the Department decided that parts of Collection 6 Folios 96 and 65 are exempt from disclosure under section 45(1)(c) of the FOI Act. 102. The applicant was invited to provide specific submissions on how the information in those folios qualifies for exemption from disclosure under section 45(1)(c) of the FOI Act but has declined the opportunity to do so. The Department has not provided any specific submissions on this issue. 103. In the absence of any specific submissions on the issue, I am unable to contemplate how disclosure of these folios could reasonably be expected to have either of the prejudicial effects contemplated by section 45(1)(c)(ii) of the FOI Act. Accordingly, I am not satisfied that these folios are exempt from disclosure under section 45(1)(c) of the FOI Act. Collection 6 Folios 134 – 135 and Collection 13 Folio 37 104. In its purported internal review decision, the Department decided that parts of Collection 6 Folios 134 – 135 and Collection 13 Folio 37 are exempt from disclosure under section 46(1)(a) the FOI Act. 105. The applicant was invited to provide specific submissions on how the information in those folios qualifies for exemption from disclosure under section 46(1)(a) of the FOI Act but has declined the opportunity to do so. The Department has not provided any specific submissions on this issue. 106. In the absence of any specific submissions on the issue, I am unable to contemplate how the information in these folios satisfies the requirements for exemption under section 46(1)(a) of the FOI Act. Accordingly, I am not satisfied that these folios are exempt from disclosure under section 46(1)(a) of the FOI Act. Conclusion 107. In summary, I find that the Matter in Issue in this review which I have identified above does not qualify for exemption from disclosure under the FOI Act. DECISION 108. For the reasons set out above, I set aside the Department’s decision and find that the Matter in Issue is not exempt from disclosure under sections 45(1)(c), 46 or 41(1) of the FOI Act. 109. I have made this decision as a delegate of the Information Commissioner, under section 90 of the FOI Act. ________________________ Assistant Commissioner Henry Date: 19 October 2009[1] In accordance with section 27B(4) of the FOI Act. [2] In accordance with section 52(6) of the FOI Act. [3] Section 194 of the RTI Act.[4] With the exception of sections 118 and 122 of the RTI Act.[5] Section 199 of the RTI Act.[6] See footnote 46 below. [7] Cannon and Australian Quality Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 (Cannon).[8] Cannon at paragraph 66. [9] Sheridan and South Burnett Regional Council, Local Government Association of Queensland Inc. and Dalby Regional Council (Unreported, Queensland Information Commissioner, 9 April 2009) referring to Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97.[10] At paragraphs 82 – 84. [11] Cannon at paragraph 85.[12] B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (B) at paragraph 161. [13] B at paragraph 44. [14] Corrs Pavey v Collector of Customs [1987] FCA 266; (1987) 74 ALR 428 per SweeneyJ at 430.[15] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10. [16] At paragraphs 60 – 63. [17] At paragraphs 64 – 75. [18] At paragraphs 76 – 102. [19] At paragraphs 103 – 106. [20] At paragraphs 107 – 118. [21] B at paragraph 146.[22] B at paragraph 147. [23] B at paragraph 161.[24] B at paragraph 161.[25] The applicant has not made any specific submissions on the application of section 46(1)(a) of the FOI Act to the Matter in Issue in this review. I have therefore assumed that the applicant bases it objection primarily on section 46(1)(b) of the FOI Act. I also note that by letter to the Department dated 29 September 2008, the applicant made submissions in relation to the application of section 46(1)(a) of the FOI Act to Collection 12 Folios 80 – 77. In its initial decision (which was affirmed on internal review) the Department decided that these folios are exempt from disclosure under section 46(1)(a) of the FOI Act. Therefore these folios are not in issue in this review. [26] Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 (Eccleston) at paragraphs 21-22. [27] At paragraph 30.[28] Eccleston at paragraph 140; Trustees of the De La Salle Brothers and Queensland Corrective Services Commission [1996] QICmr 4; (1996) 3 QAR 206 at paragraph 34.[29] In its purported internal review decision. [30] Given the significant passage of time since the FOI Application was made and Ensham was consulted by the Department.[31] Available at: http://www.ensham.com.au/updated/eis.asp. [32] The Department of Environment and Resource Management is the Department formerly known as the Environmental Protection Agency. Available at: http://www.epa.qld.gov.au/environmental_management/impact_assessment/current_eis_processes/ensham_central_project/. [33] See, for example, the EIS which includes numerous and detailed maps, diagrams and photographs of the region and the mine layout and the Layout Plan on the DERM website which shows Ensham’s land boundary, existing open cut operations and potential mining area and is available at http://www.epa.qld.gov.au/environmental_management/impact_assessment/current_eis_processes/ensham_central_project/. [34] See, for example, the Ensham Company Announcement Ensham dragline returns to service as the mine rebuilds and the article Ensham takes the road less travelled in (Mining Australia 10/11/02008). [35] See, for example, the following articles Ensham announces $1bn project (Central Queensland News 24/03/2009), Ensham plans mine expansion (Ensham website), Ensham gets creative (Australia’s Mining Monthly 07/2007), Innovation key to future at Ensham (Queensland Government Mining Journal 07/2007) and Pressing on with development plans (Mining Chronicle 04/2007). See also under the ‘vision’ tab on Ensham’s website and Ensham Resources – Energy Efficient Opportunities: First Public Report. [36] See, for example, the following articles Dewatering flooded coal mine like draining Sydney Harbour (Earthmover and Civil Contractor 07/2008), Ensham’s flooded dragline high and dry (ABC Capricornia 02/05/2008), Goliath plane to Ensham’s rescue (The Mining Chronicle), Ensham reaches millstone under the pump (Queensland Coal Review 06/2008). See also the Channel 10 news report on 06/05/2008 (Ensham website) and the Ensham Fact Sheet The Way Forward. [37] See, for example, the following articles Ensham announces $1bn project (Central Queensland News 24/03/2009), Ensham reaches millstone under the pump (Queensland Coal Review 06/2008), Approvals fast-tracked (Townsville Bulletin 23/04/2008). See also Ensham Fact Sheets The Way Forward and Flood Response and Recovery and Company announcement Ensham mine conducts flood review 14/02/2008. [38] See, for example, the Ministerial Media Statement Impacts of Queensland’s 40 days, 40 nights of flooding rains (Minister for Emergency Services 04/02/2008) and the following articles Rising above the flood (Australia’s Mining Monthly 07/2008) and Ensham reaches millstone under the pump (Queensland Coal Review 06/2008). [39] See, for example, page 4 of the Customer Brochure on Ensham’s website. [40] See, for example, the information on the DERM website, the Initial Advice Statement for the Ensham Central Project (see for example paragraph 1.2), the Public Notice of the EIS, Company Announcements Ensham dragline returns to service as the mine rebuilds and Ensham flood recovery continues 31/01/2008 and the following articles Dewatering flooded coal mine like draining Sydney Harbour (Earthmover and Civil Contractor 07/2008), Ensham reaches millstone under the pump (Queensland Coal Review 06/2008) and Pressing on with development plans (Mining Chronicle 04/2007). [41] See, for example, the EIS at Section 6 (Land Use) paragraph 6.6 and Figure 6-1. [42] See, for example, the Channel 10 news report on 06/05/2008 (Ensham website) and the following articles Ensham consults on aftermath of flood (Blackwater Herald 06/05/2008), Ensham’s flooded dragline high and dry (ABC Capricornia 02/05/2008) and Ensham consults with neighbours in flood aftermath (Queensland Government Mining Journal 07/2008). [43] See, for example, the EIS at Annexure D (Surface Water). [44] See, for example, the Channel 10 news report on 06/05/2008 (Ensham website), Ensham Resources – Energy Efficient Opportunities: First Public Report and the article Ensham’s flooded dragline high and dry (ABC Capricornia 02/05/2008). [45] See, for example, pages 14 – 16 of the Customer Brochure on Ensham’s website, the Company Announcement Ensham dragline returns to service as the mine rebuilds, the Ensham Fact Sheet The Way Forward and the article Ensham announces $1bn project (Central Queensland News 24/03/2009). [46] The Department also found that a number of folios were partially exempt from disclosure under section 44(1) of the FOI Act. Those folios are not in issue in this review and I will not consider this aspect of the Department’s decision any further. [47] Available at: http://www.ensham.com.au/updated/pdf/Ensham%20Resources%20EEO%20Public%20Report%20December%202008.pdf.

queensland

court_judgement

Queensland Information Commissioner 1993-

Ott and Logan City Council [2011] QICmr 33 (30 August 2011)

Ott and Logan City Council [2011] QICmr 33 (30 August 2011) Last Updated: 21 October 2011 Decision and Reasons for Decision Application Number: 310609 Applicant: Ott Respondent: Logan City Council Decision Date: 30 August 2011 Catchwords: ADMINISTRATIVE LAW – INFORMATION PRIVACY ACT – application for access to an investigator’s request to the agency for a copy of the applicant’s personnel file and investigation file – section 67(1) of the Information Privacy Act 2009 (Qld) – grounds on which access may be refused ADMINISTRATIVE LAW – RIGHT TO INFORMATION ACT – whether there are reasonable grounds for the agency to be satisfied documents do not exist – whether the agency has taken all reasonable steps to locate documents – whether access can be refused under sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary The applicant, a Logan City Council (Council) employee, made a complaint to Council about a number of Council officers. Council retained Local Government Workcare (LGW) to investigate the applicant’s complaint. The applicant applied to Council under the Information Privacy Act 2009 (Qld) (IP Act) for access to “all requests to Council from [a LGW Investigator] in relation to investigation file and for CD copy of my personnel file” (Requested Documents). After conducting searches for the Requested Documents, Council decided to refuse access under section 67(1) of the IP Act and section 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) (RTI Act) on the basis that the Requested Documents were nonexistent or unlocatable. The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision. During the course of the external review, Council conducted further searches for the Requested Documents and provided an explanation as to why the Requested Documents do not exist. For the reasons set out below, I am satisfied that Council may refuse access to the Requested Documents under section under section 67(1) of the IP Act and section 47(3)(e) and section 52(1)(a) of the RTI Act on the basis that they do not exist. Background Significant procedural steps relating to the application and external review are set out in the appendix to this decision. Reviewable decision The decision under review is Council’s decision dated 13 April 2011.[1] Evidence considered In reaching a decision in this external review, I have considered the following: the applicant’s access application to Council and external review application to OIC the applicant’s submissions to OIC Council’s decision and submissions to OIC file notes of telephone conversations between OIC officers and the applicant during the external review file notes of telephone conversations between OIC officers and Council during the external review relevant sections of the IP Act and RTI Act as referred to in this decision; and previous decisions of the Queensland Information Commissioner as referred to below. Relevant law Under the IP Act, a person has a right to access documents of an agency[2] subject to other provisions of the IP Act and RTI Act including the grounds on which an agency may refuse access to documents.[3] Section 47(3)(e) of the RTI Act provides that access to a document may be refused if the document is nonexistent or unlocatable under section 52 of the RTI Act. Section 52(1)(a) of the RTI Act provides that a document is nonexistent if there are reasonable grounds for the agency or Minister dealing with the access application to be satisfied that the document does not exist. The RTI Act is silent on how an agency or Minister can be satisfied that a document does not exist. However, in PDE and the University of Queensland (PDE) [4] the Information Commissioner explained that, to be satisfied that a document does not exist, an agency must rely on its particular knowledge and experience, having regard to various key factors including:[5] administrative arrangements of government structure of the agency functions and responsibilities of the agency (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) practices and procedures of the agency (including but not limited to its information management approach); and other factors reasonably inferred from information supplied by the applicant including: ○ the nature and age of the requested document/s; and ○ the nature of the government activity the request relates to. By considering the factors above, an agency may ascertain that a particular document was not created because, for example, its processes do not involve creating the specific document. In such instances, it is not necessary for the agency to search for the document. It is sufficient that the relevant circumstances to account for the non-existent document are explained. In assessing whether documents are nonexistent, an agency may also conduct searches. Where searches are conducted, an agency must demonstrate that it has taken all reasonable steps to locate responsive documents, prior to deciding that the documents are nonexistent.[6] Applicant’s submissions The applicant submits that there should be a record of the LGW investigator[7] requesting that Council provide a copy of the applicant’s personnel and investigation file in relation to the complaint. To support his belief that such a record exists, the applicant provided OIC with a cover note dated 14 April 2010 which appears to have been attached to the files sent by Council to the LGW investigator. The applicant submits that Council’s explanation as to why the Requested Documents do not exist is ‘unacceptably vague if not obtuse’. Council’s submissions Council does not dispute that it provided the LGW investigator with the applicant’s investigation file and personnel file on 14 April 2010. With respect to the arrangement that exists between Council and LGW, Council has explained that: the LGW investigator is regularly retained by LGW to investigate workplace grievances relating to Council; Council generally sends documents through to LGW in response to a verbal request from the LGW investigator; it is not standard practice for the LGW investigator to issue Council with a written request for files relevant to his investigations; and generally, Council officers do not make records of all telephone discussions with the LGW investigator. Council also advised OIC that its Employee Relations Program Leader is Council’s point of contact for the LGW investigator. In a telephone discussion with OIC on 24 June 2011, Council’s Employee Relations Program Leader explained that: generally, prior to conducting an investigation and collecting any witness statements, the LGW investigator telephones him to request the relevant files he is in very regular telephone contact with the LGW investigator and, for this reason, does not make records of all discussions; and in some instances the LGW investigator will meet with the Employee Relations Program Leader directly and while taking his statement in relation to the incident also obtains the relevant files. In relation to the workplace investigation involving the applicant, the Employee Relations Program Leader was unable to recall the exact date or details of the conversation, given that it occurred over a year ago and also due to the regularity in which he is in contact with the LGW investigator. However, he explained that given the date on which the files were sent to the LGW investigator and the date on which his witness statement was signed, he would expect that the LGW investigator requested the relevant files in a telephone discussion which occurred shortly prior to 14 April 2010. In the course of the external review, the Employee Relations Program Leader provided a signed statement dated 10 May 2011 confirming that the LGW investigator made a verbal request for the applicant’s personnel and investigation files which was not recorded by Council. The Employee Relations Program Leader has also confirmed that he has searched his personal records and emails to confirm that he did not receive any written request from the LGW investigator and submits that this was the outcome he expected given that it is his general practice not to create file notes of telephone calls with the LGW investigator. In addition to the explanation proved by the Employee Relations Program Leader, Council has also conducted searches of the following locations in the People and Culture Unit of Council on two separate occasions:[8] the email archiving system (known as Archive Manager) the electronic document management system; and hardcopy files . Findings I have carefully considered the submissions made by Council and the applicant in the course of the external review. I accept that the information provided by Council in relation to its general practices when dealing with LGW investigators, and the specific details provided by the Employee Relations Program Leader in relation to this particular investigation, indicate that Council mostly corresponds with LGW informally, and primarily through telephone contact. Based on my careful consideration of Council’s submissions, I am also satisfied that it is not Council’s standard practice to send workplace investigation files to LGW only in response to written requests or to keep records of every telephone conversation that occurs. In the circumstances, having regards to the factors outlined above in PDE, I am satisfied that: Council has provided a reasonable explanation as to why the Requested Documents do not exist; and Council has taken all reasonable steps in searching for the Requested Documents to be satisfied that they do not exist. For the reasons set out above, I am satisfied that the Requested Documents do not exist. DECISION I affirm Council’s decision to refuse access to the Requested Documents under section 67(1) of the IP Act and sections 47(3)(e) and 52(1)(a) of the RTI Act on the basis that the Requested Documents do not exist. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________ Jenny Mead Right to Information Commissioner Date: 30 August 2011 APPENDIX Significant procedural steps Date Event 8 April 2011 The access applicant applies to Council for “all requests to Council from [a LGW investigator] in relation to investigation file and for CD copy of my personnel file”. 13 April 2011 Council decides to refuse access to the Requested Documents on the basis that they are nonexistent or unlocatable. 18 April 2011 The applicant applies to OIC for external review of Council’s decision. 21 April 2011 A staff member of OIC telephones the applicant and Council to clarify the background to the external review. 21 April 2011 Council provides submissions in support of its case. 3 May 2011 A staff member of OIC telephones the applicant to convey Council’s submissions. 4 May 2011 The applicant telephones a staff member of OIC to provide further submissions in support of his case. 6 May 2011 OIC notifies Council and the applicant that the external review application has been accepted. OIC requests that Council provide submissions on the searches conducted and certifications. 10 May 2011 Council provides the requested submissions and search records. 12 May 2011 OIC sends the applicant a copy of Council’s submissions and search certifications. 18 May 2011 The applicant’s solicitor provides submissions in support of his client’s case. 26 May 2011 OIC notifies the applicant’s solicitors that it will proceed to make further enquiries with Council about the searches conducted for the Requested Documents. 24 June 2011 A staff member of OIC telephones Council’s Employee Relations Program Leader who provides further submission in support of Council’s case. 14 July 2011 OIC conveys a preliminary view to the applicant and invites the applicant to provide submissions in support of his case by 28 July 2011 if he does not accept the preliminary view. 26 July 2011 22 August 2011 The applicant’s solicitor provides submissions in support of the applicant’s case. [1] Schedule 5 of the IP Act provides that a decision refusing access to a document under section 67 of the IP Act is a reviewable decision. [2] Section 40 of the IP Act. [3] As set out in section 67 of the IP Act and section 47 of the RTI Act. Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent the agency could refuse access under section 47 of the RTI Act were the document the subject of an application under the IP Act. [4] (Unreported, Queensland Information Commissioner, 9 February 2009). Although PDE concerned section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are replicated in section 52(1) of the RTI Act and therefore, the reasoning in PDE can be applied in the context of the RTI Act. See also Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010). [5] At paragraph 47[6] As set out in PDE at paragraph 44. See also section 137(2) of the IP Act. [7] A private sector employment consultancy organisation contracted by Council. [8] Each search was conducted by two separate Council officers who have certified that the searches conducted did not locate the Requested Documents.

queensland

court_judgement

Queensland Information Commissioner 1993-

Mickelberg MP and Sunshine Coast Hospital and Health Service [2022] QICmr 48 (4 November 2022)

Mickelberg MP and Sunshine Coast Hospital and Health Service [2022] QICmr 48 (4 November 2022) Last Updated: 27 March 2023 Decision and Reasons for Decision Citation: Mickelberg MP and Sunshine Coast Hospital and Health Service [2022] QICmr 48 (4 November 2022) Application Number: 316237 Applicant: Mr Brent Mickelberg MP Respondent: Sunshine Coast Hospital and Health Service Decision Date: 4 November 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - agency management and governance information - whether disclosure would on balance be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Sunshine Coast Hospital and Health Service (Service) under the Right to Information Act 2009 (Qld) (RTI Act) for access to various board documents concerning ‘the culture or workplace environment of senior employees of the Sunshine Coast Hospital and Health Service for the period of 1 July 2019 to 31 July 2020.’ The Service located several sets of board meeting minutes, to which it decided[2] to grant the applicant partial access, subject to redaction of irrelevant information[3] and information disclosure of which would, on balance, be contrary to the public interest.[4] The applicant applied[5] to the Office of the Information Commissioner (OIC) for external review of the Service’s decision. The applicant’s issue with the Service’s decision was its interpretation of his access application, ie, that it had proceeded on an overly narrow understanding of the scope of the application, thus failing to identify and locate all relevant documents to which he had requested access. This initial issue was resolved in the applicant’s favour, leading to the identification by the Service of additional relevant information. It is this additional information, and the question of the applicant’s entitlement to access same under the RTI Act, that has comprised the focus of OIC’s external review. Some of this information was released to the applicant. Other information comprised, in my preliminary view, irrelevant information, or information the disclosure of which would, on balance, be contrary to the public interest. The applicant did not contest this preliminary view, thus eliminating the need to further consider this information. What remains to be addressed is a relatively limited amount of information. As explained below, the Service does not seek to argue that access to this information may be refused; disclosure is, however, objected to by two third parties. Having carefully considered all relevant material – including those parties’ objections, and the information itself – I have decided that no grounds exist to refuse access to that information. The applicant is therefore entitled to access same. Background This review had something of a complex procedural history, explanation of which helps to contextualise my findings on substantive access issues as set out below. As noted, on applying for external review, the applicant’s case was that the Service had misinterpreted his access application. OIC accepted this submission, taking the view that the Service’s decision construed the scope of the access application in too narrow a fashion. OIC conveyed this view to the Service and requested that it collate any additional information that might fall within the terms of the access application as properly, in our view, construed.[6] This resulted in the Service identifying and locating a considerable amount of additional information, access to much of which the Service submitted may be refused, arguing that its disclosure would, on balance, be contrary to the public interest.[7] Having carefully assessed this additional information, OIC formed the view[8] that while a considerable amount was irrelevant to the applicant’s RTI access request, substantial parts were relevant, and, further, that the applicant was entitled to access those parts. We did, however, form the preliminary view that access to certain documents may be refused, on the grounds their disclosure would, on balance, be contrary to the public interest. The Service agreed to release to the applicant some of the additional information canvassed in the preceding paragraph.[9] OIC requested the Service release this information, and, at the same time,[10] explained to the applicant our preliminary view that access to various pages may be refused. The Service, however, not only released information which we considered the applicant was entitled to access, but also disclosed one page of the several we had explained comprised information to which access may be refused under the RTI Act.[11] This fact was not made known to me until several months later.[12] In the meantime, the applicant replied[13] to our 25 January 2021 preliminary view, contesting that view and putting submissions in support of his case for access. Taking those submissions under consideration, I then initiated consultation with certain Service personnel. That consultation process[14] led me to revisit OIC’s initial preliminary view – to reach a further preliminary view[15] that disclosure of some information would not, on balance, be contrary to the public interest. It remained, however, my preliminary view that access to other information might be refused (principally, the page noted in paragraph 10 which, as explained, OIC was not a[16]this time16 aware had been released). The Service ultimately accepted the revised preliminary view noted in the preceding paragraph.[17] On the understanding any necessary third party consultation was complete, I asked[18] the Service to arrange release of this further information to the applicant. The applicant was advised[19] to anticipate such release, the occurrence of which I anticipated may well resolve outstanding issues and allow for informal resolution of the review. Shortly prior to the deadline for release,[20] however, the Service advised OIC that it had notified three additional third parties of the impending disclosure, all of whom had expressed concern at the prospect of that disclosure. Given this, the Service advised that it was no longer in a position to agree to disclosure of relevant pages. The Service further advised that it had located more documents relevant to the access application.[21] I wrote to the applicant,[22] advising of the above developments. A comprehensive consultation process with each of the three third parties was undertaken, seeking their submissions as to why information should not be disclosed, and giving them the benefit of detailed preliminary views[23] explaining why I did not consider that release of some of that information would, on balance, be contrary to the public interest. One of the three third parties did not ultimately press any objections to disclosure of the information remaining in issue.[24] Two did,[25] although neither took up my invitation to apply to participate in the review.[26] Following conclusion of this further consultation process, I then wrote again to the applicant.[27] This correspondence relevantly explained the nature of the additional information belatedly located by the Service. It went on to explain that while I remained of the preliminary view that he was entitled to access both the information that had been poised for release in May, and a degree of the additional information subsequently located by the Service, access to other information may be refused, on public interest and relevance grounds. The applicant did not contest my final preliminary view, and in accordance with the terms of the letter explaining that view, relevant information[28] no longer remains in issue.[29] That information does therefore not need to be addressed in these reasons. As noted in paragraph 16, two third parties – while not having applied to participate in the review – have nevertheless maintained objections to disclosure of the balance of the information in issue. It is therefore appropriate that I state reasons explaining my view that the applicant is entitled to access this information. Significant procedural steps are otherwise as detailed in the Appendix to this decision. Reviewable decision The decision under review is the Service’s decision dated 14 July 2021. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). In making this decision I have had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[30] I consider that in observing and applying the law prescribed in the RTI Act, an RTI decision-maker will be ‘respecting and acting compatibly with’ this right and others prescribed in the HR Act,[31] and that I have done so in making this decision, as required under section 58(1) of the HR Act. In this regard, I note Bell J’s observations on the interaction between the Victorian analogues of Queensland’s RTI Act and HR Act: ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[32] Information in issue The information in issue comprises parts of 14 pages of information, as follows: parts of 11 pages of Correspondence; and parts of a three-page Letter from the Service to Queensland Health.[33] Issue for determination The issue for determination in this review is whether disclosure of the information in issue would, on balance, be contrary to the public interest. Relevant law The RTI Act’s primary object is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access.[34] The Act must be applied and interpreted to further this primary object,[35] and is to be administered with a pro-disclosure bias.[36] Section 23 of the RTI Act gives effect to the Act’s primary object, by conferring a right to be given access to documents. This right is subject to other provisions of the RTI Act,[37] including grounds on which access may be refused.[38] One of these grounds – which are to be interpreted narrowly[39] – permits an agency to refuse access to a document to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest.[40] The steps to be followed in determining whether disclosure of information would, on balance, be contrary to the public interest,[41] are prescribed in section 49 of the RTI Act. In summary, a decision-maker must: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Schedule 4 of the RTI Act contains non-exhaustive lists of factors that may be relevant in determining where the balance of the public interest lies in a particular case. I have had regard to these,[42] and the entirety of the applicant’s and objecting third parties’ submissions, in reaching my decision. As for onus, this formally rests with the Service: section 87 of the RTI Act. As noted above, however, the Service accepted my preliminary view that no grounds existed to refuse access to most of the information in issue, and has made no case that access to the information in issue as contained in documents located subsequent to that preliminary view should be refused. A practical onus thus falls to the objecting third parties to establish grounds for refusing access. Findings I fielded extensive submissions from the two objecting third parties, in support of their objections to disclosure of this information.[43] As noted, however, neither has elected to apply to formally participate in the review. Given this, and in the interests of respecting privacy concerns expressed by each third party to me during the review, I do not propose nor consider it necessary to traverse those objections in detail in these reasons. It is sufficient to note that I have, as each third party should be aware from my correspondence with them during the review, given their objections and supporting submissions very close deliberation, and carefully weighed competing public interest considerations. Factors favouring nondisclosure In general terms, the third parties submit that disclosure of the information in issue could reasonably be expected to:[44] cause a public interest harm, through disclosure of their personal information,[45] prejudice protection of their right to privacy;[46] and prejudice each third party’s fair treatment, by disseminating unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct.[47] Informing to some considerable degree the third parties’ objections was the February 2022 release by the Service of the document noted in paragraph [48].48 While I acknowledge the obviously sincere concerns of the third parties relating to this disclosure, I am, as I explained to each of them, legally obliged to assess the consequences that might reasonably be expected to follow disclosure of the information in issue, ie whether disclosure of that latter information would, on balance, be contrary to the public interest. I am not persuaded that this would be the case. My reasons for this conclusion were explained at length in my letters to each third party dated 24 and 29 June 2022. In these letters, I accepted that relevance of the personal information public interest harm factor[49] in balancing the public interest, but expressed my reservation that either the privacy[50] or unsubstantiated allegations[51] nondisclosure factors were enlivened, so as to favour nondisclosure. [52] My doubt as to the application of the former stems from the fact that the information in issue concerns occupation by each third party of public roles, discharging public functions, and that as such it seems to me questionable that the information concerns matters within their ‘personal spheres’[53] as is necessary to enliven this factor – that it concerned public vocational, rather than private, personal concerns. As for the unsubstantiated allegations nondisclosure factor, while some of the information might be characterised as allegation, generally speaking the conduct alleged[54] does not strike me as sufficiently serious so as to amount to ‘misconduct or unlawful, negligent or improper conduct’; as this factor requires. Nevertheless, as I advised each of the third parties, I accept that my analysis of the privacy and unsubstantiated allegations nondisclosure factors, as summarised in the preceding two paragraphs, may be incorrect. Given this, and acknowledging the considered submissions of each third party received in reply to those letters, maintaining cases for nondisclosure premised on these factors, I am prepared to proceed on the basis that each applies in this case. That is, that these two nondisclosure factors are enlivened, favouring nondisclosure, and, together with the personal information harm factor, thus fall to be assessed in balancing the public interest. The weight that these three factors should be afforded, however, is in my view relatively modest – a weight commensurate with the nature of the information in issue, and the context in which it was created. The information in issue is concerned with workplace issues[55] between senior personnel discharging service delivery, governance and management functions on behalf of a public agency. Further, much of the information is framed in the main in temperate and professional – albeit, at times pointed and robust – terms.[56] To the extent it might be said to touch on either third party’s private or personal spheres or concerns, it does so in a relatively peripheral sense. Insofar as it comprises the third parties’ personal information, it does not seem to be especially sensitive (unlike, for example, health information, or information as to political or religious beliefs). Here, too, the context in which the information was created and to which it relates – public office and discharge of public duties – is to my mind relevant in assessing weight. As OIC has noted in an analogous context: [A] degree of public scrutiny...is something that must reasonably be expected to ‘come with the territory’ of State employment, and those serving in government roles should anticipate they will cede a degree of personal privacy in exchange for receipt of public monies.[57] Insofar as the information in issue concerns unsubstantiated allegations, those allegations, though occasionally stridently worded, generally appear relatively moderate, going to matters of workplace culture and interpersonal tension, rather than matters of illegality or impropriety. Further, many do not seem to be directed to or against any specific individual. In this context, it is worth noting, too, that a deal of the information in issue seems to coherently counter said allegations, and, indeed, to my mind reflects favourably on the third parties. For these reasons I would, as noted, afford relevant nondisclosure considerations[58] reasonably modest weight. Factors favouring disclosure Telling in favour of disclosure of the information in issue is the general public interest in promoting access to government-held information.[59] Disclosure of this information could also reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability for the governance and management of public health services[60] contribute to positive and informed debate on important issues or matters of serious interest, ie the management and functioning of the public health system[61] by disclosing documents revealing exchanges between staff and the Service board, inform the community of public health system, and thus government, operations;[62] and reveal background or contextual information informing Service board decisions.[63] These are significant public interests, deserving of relatively substantial weight. In this context, it is important to bear in mind that the information in issue discloses not only staff concerns, but the fact that these concerns appear to have been taken under consideration by Service governance, and were the subject of measured deliberation and reply. Disclosure of all of this information would, therefore, not only allow for public scrutiny and contemplation of ‘cultural’ issues that may have affected the Service, but help to demonstrate that those issues do appear to have been considered by the Service. This would, in my view, serve to enhance the transparency of Service operations, and foster confidence in its ability to deliver public health services. Balancing the public interest Balancing competing interests against one another, my view is that factors and considerations favouring disclosure in this case outweigh those moderately-weighted factors favouring nondisclosure identified and discussed above. In saying this, I do not wish to appear dismissive of the third parties’ submissions or concerns as raised with me during the review. Ultimately, however, I am not persuaded that disclosure of the information in issue – much of it framed relatively moderately and without direct reference to any specific individual, and canvassing matters many of which are not uncommon in contemporary workplaces – would have the adverse public interest outcomes apprehended by the third parties, to a degree sufficient to justify nondisclosure under an Act that Parliament has mandated must be administered with a pro-disclosure bias. Conclusion For the above reasons, I find that disclosure of the information in issue would not, on balance, be contrary to the public interest. With no other grounds for refusing access having been raised for my consideration, nor appearing on the face of the information itself or any other material before me, the applicant is therefore entitled to access the information in issue. Finally, for completeness, I also note that the Letter contains a passage which at face value points to the existence of further documents potentially responsive to the access application.[64] OIC explored this issue with the Service on our own initiative[65] during the review:[66] it advised us[67] that no such documents exist, material/information to which the passage refers having been conveyed orally, and not in documentary form. I have no reason to gainsay this advice, and thus accept it as accurate. To the extent it may be necessary to do so, I thus find that access to such information may be refused, on the basis it is nonexistent.[68]DECISION None of the information in issue addressed in these reasons was dealt with in the decision under review, all of it having only been brought into issue on external review. Accordingly, I consider it appropriate to vary the decision under review, by finding that disclosure of the information in issue would not, on balance, be contrary to the public interest. I further find that no missing documents issues arise, in terms as stated in paragraph 50. I have made this decision under section 110 of the RTI Act, as a delegate of the Information Commissioner under section 145 of the RTI Act.A RickardActing Right to Information CommissionerDate: 4 November 2022 APPENDIX Significant procedural steps Date Event 2 August 2021 OIC received the external review application. 3 August 2021 OIC requested the preliminary documents from Service. 10 August 2021 OIC received the preliminary documents from Service. 24 August 2021 OIC advised the applicant and Service that the external review application had been accepted. OIC requested information in issue from Service. 14 September 2021 Service provided submissions and information requested by OIC. 16 November 2021 OIC provided an update to the applicant. OIC conveyed a preliminary view to Service. 13 December 2021 Service requested an extension of time to respond to OIC’s preliminary view. 15 December 2021 OIC granted Service an extension of time. 7 January 2022 Service requested a further extension of time. 10 January 2022 Service provided submissions in response to OIC’s preliminary view. 25 January 2022 OIC requested that Service disclose particular documents to the applicant. OIC conveyed a preliminary view to the applicant. 2 February 2022 Service requested an extension of time to disclose the documents to the applicant. OIC granted the extension of time. OIC advised the applicant of the extension of time. 18 February 2022 Applicant provided submissions contesting OIC’s preliminary view. 23 February 2022 OIC conveyed a second preliminary view to Service. 1 March 2022 OIC provided the applicant with an update. 8 March 2022 Service provided submissions in response to OIC’s preliminary view. 16 March 2022 OIC issued correspondence to Service reiterating OIC’s preliminary view. OIC issued consultation correspondence to a third party. 25 March 2022 Service provided further submissions in response to OIC’s preliminary view. 1 April 2022 OIC requested Service confirm if agreeable to release of certain information. 7 April 2022 Service advised OIC it was prepared to release further information; OIC requested the Service arrange release. 13 April 2022 Third party recipient of OIC’s 16 March 2022 consultation correspondence advised no objections to disclosure. 21 April 2022 OIC requested Service confirm if agreeable to release of documents to applicant, given position of third party. 27 April 2022 Service advised it was not agreeable to disclosure of the remaining documents and provided submissions. OIC conveyed a preliminary view to Service in response. 5 May 2022 Service agreed with OIC’s preliminary view to release the remaining documents, with redactions. 6 May 2022 OIC advised the applicant that Service was willing to release the remaining documents with redactions. 12 May 2022 OIC received verbal advice from Service that it had changed its position on releasing the documents and requested further information from Service. 13 May 2022 OIC received correspondence from Service that it had changed its position on releasing the documents. OIC requested Service conduct consultations with three additional third parties. OIC provided the applicant with an update. 23 May 2022 Service advised OIC that a third party objected to disclosure of the remaining documents. 24 May 2022 OIC received submissions from the third party. 25 May 2022 Service advised OIC that two other third parties objected to disclosure of the remaining documents. 14 June 2022 The applicant requested an update. 15 June 2022 OIC provided the applicant with an update. 24 June 2022 OIC conveyed a preliminary view to two of the additional third parties objecting to disclosure. 29 June 2022 OIC conveyed a preliminary view to third of the additional third parties objecting to disclosure. 1 July 2022 OIC received submissions from a third party in response to OIC’s preliminary view conveyed on 24 June 2022. 21 July 2022 OIC wrote to a third party advising that, as they had not responded by the due date, OIC would proceed on basis that third party did not object to OIC’s preliminary view conveyed on 24 June 2022 and did not wish to participate in the review. 27 July 2022 OIC received submissions from a third party in response to OIC’s preliminary view conveyed on 29 June 2022. 12 August 2022 OIC conveyed a preliminary view to the applicant. OIC conveyed a further preliminary view to one of the additional third parties. 25 August 2022 The applicant requested an extension of time to respond to OIC’s preliminary view. OIC granted the extension of time. 2 September 2022 The applicant requested a further extension of time to respond to OIC’s preliminary view. OIC granted the extension of time. 21 September 2022 No further submissions having been received by OIC from the applicant, OIC advised the applicant the review would proceed to formal decision. 6 October 2022 OIC advised Service that the matter would proceed to formal decision. [1] Application dated 15 April 2021.[2] Decision dated 14 July 2021.[3] Section 73 of the RTI Act.[4] Section 47(3)(b) of the RTI Act.[5] External review application dated 2 August 2021.[6] OIC letter to Service dated 24 August 2021.[7] Service submissions dated 14 September 2021.[8] Conveyed to the Service by letter dated 16 November 2021.[9] Service letter dated 10 January 2022.[10] OIC letters to the Service and applicant dated 25 January 2022.[11] In OIC letters to the Service and applicant dated 25 January 2022.[12] Service email to OIC dated 27 April 2022.[13] Applicant submissions dated 18 February 2022.[14] Documented in correspondence between OIC and relevant personnel dated 16, 22 and 25 March 2022, and 13 April 2022.[15] Conveyed to the Service by email dated 21 April 2022.[16] Ie, 21 April 2022.[17] Email from the Service to OIC dated 5 May 2022.[18] By letter dated 6 May 2022.[19] Also by letter from OIC dated 6 May 2022.[20] Initially via telephone call on 12 May 2022; confirmed via email dated 13 May 2022.[21] Email from the Service dated 26 May 2022, attaching copies of relevant documents.[22] Emails to the applicant dated 13 May and 15 June 2022.[23] Dated 24 and 29 June 2022.[24] See my email to this third party dated 21 July 2022.[25] Putting forward submissions in support of those objections by way of correspondence dated 12 May, 23 May, 24 May, 1 July and 27 July 2022. [26] As entitled to do under section 89(2) of the RTI Act.[27] By letter dated 12 August 2022.[28] Ie, information access to which may, for the reasons explained in my 12 August 2022 letter to the applicant, be refused, or deleted as irrelevant.[29] As I confirmed to the applicant by email dated 21 September 2022.[30] As embodied in section 21 of the HR Act.[31] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[32] XYZ at [573]. XYZ at [573]. OIC’s approach to the HR Act set out in this paragraph has recently been considered and endorsed by QCA, Judicial Member McGill in Lawrence v Queensland Police Service [2022] QCATA 134, noting that he saw ‘no reason to differ’ from our position ([23]).[33] Copies of relevant pages, marked up so as to depict information the applicant has not pressed to access and which is therefore not in issue (see paragraphs 4, 17, and 18) will accompany the copy of these reasons forwarded to the Service. [34] Section 3(1) of the RTI Act.[35] Section 3(2) of the RTI Act.[36] Section 44 of the RTI Act.[37] Section 23(1) of the RTI Act.[38] Section 47 of the RTI Act.[39] Section 47(2)(a) of the RTI Act.[40] Sections 47(3)(b) and 49 of the RTI Act. [41] The ‘public interest’ ‘...is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interests of an individual or individuals’: Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The concept refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests, although there are some recognised public interest considerations that may apply for the benefit of an individual: Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12, 14.[42] Taking care to disregard irrelevant factors.[43] See footnote 25.[44] The phrase ‘could reasonably be expected’ requires a decision-maker to distinguish ‘between what is merely possible ... and expectations that are reasonably based’ and for which ‘real and substantial grounds exist’: B and Brisbane North Regional Health Authority [1994] QICmr 1, a decision of the Information Commissioner analysing the equivalent exemption in the repealed Freedom of Information Act 1992 (Qld), at [154]-[160]. Other jurisdictions have similarly interpreted the phrase ‘as distinct from something that is irrational, absurd or ridiculous’: See Smolenski v Commissioner of Police, NSW Police [2015] NSWCATAD 21 at [34], citing Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [28], McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] and Attorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at [190].[45] Schedule 4, part 4, section 6 of the RTI Act. Personal information is ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’: section 12 of the Information Privacy Act 2009 (Qld) (IP Act), schedule 5 of the RTI Act.[46] A factor favouring nondisclosure of information: schedule 4, part 3, item 3 of the RTI Act.[47] Schedule 4, part 3, item 6 of the RTI Act.[48] Contrary to the preliminary view expressed in OIC letters to the Service and applicant dated 25 January 2022. There was some concern that this disclosure was intentional, whereas the Service stated it was in error.[49] Ie, schedule 4, part 4, section 6 of the RTI Act.[50] Schedule 4, part 3, item 3 of the RTI Act.[51] Schedule 4, part 3, item 6 of the RTI Act.[52] Other factors were cited by each of the third parties in their initial 12 May, 23 May and 24 May 2022 objections to disclosure – schedule 4, part 3, items 1, 8 and 19 of the RTI Act. I explained why none of these three factors had application in this case in my letters to each third party dated 24 and 29 June 2022, and my understanding of their submissions in reply is that neither seeks to maintain their initial reliance on these factors. For the sake of completeness, I adopt relevant reasoning expressed in my letters as final for the purposes of this decision: the factors listed in the opening sentence of this footnote have no application in this case, and do not arise to be considered in balancing the public interest. I should also note that one of the third parties raised concern as to reputational impacts of disclosure on the Service and senior officials (see submissions dated 24 May 2022, reiterated in further submissions dated 1 July 2022). This is not, of itself, a matter weighing against disclosure in the public interest, and indeed seems to me to comprise a matter I am expressly proscribed from considering in balancing the public interest: schedule 4, part 1, item 1 of the RTI Act.[53] The concept of ‘privacy’ is not defined in the IP Act or RTI Act. It can, however, be viewed as the right of an individual to preserve their personal sphere free from interference from others – see the Australian Law Reform Commission’s definition of the concept in “For your information: Australian Privacy Law and Practice” Australian Law Reform Commission Report No. 108 released 11 August 2008, at paragraph 1.56.[54] Which I have touched on further below, for the purposes of assessing weight.[55] Rather than personal or private matters, such as domestic concerns.[56] A view which I have formed having due regard to the submissions of the third parties, including those received in reply to my 24 and 29 June 2022 letters, and which submissions I acknowledge express views as to the characterisation of this information that differ to mine.[57] Deputy Premier and Minister for State Development, Infrastructure and Planning and The Premier; Mulherin, MP (Third Party) [2014] QICmr 41 (23 October 2014) at [46].[58] That is, schedule 4, part 3, items 3 and 6, and schedule 4, part 4, section 6 of the RTI Act.[59] Implicit in the object to the RTI Act.[60] Schedule 4, part 2, item 1 of the RTI Act.[61] Schedule 4, part 2, item 2 of the RTI Act.[62] Schedule 4, part 2, item 3 of the RTI Act.[63] Schedule 4, part 2, item 11 of the RTI Act.[64] Section 108 of the RTI Act precludes me from further describing or detailing this passage in these reasons. [65] Noting that OIC’s powers on external review include investigating and reviewing whether agencies have taken reasonable steps to identify and locate documents applied for by an applicant: section 130 of the RTI Act.[66] OIC email to the Service dated 25 May 2022.[67] By email dated 26 May 2022.[68] Sections 47(3)(e) and 52 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Mathews and The University of Queensland [2008] QICmr 31 (18 December 2008)

Mathews and The University of Queensland [2008] QICmr 31 (18 December 2008) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210612 Applicant: R Mathews Respondent: The University of Queensland Decision Date: 18 December 2008 Catchwords: FREEDOM OF INFORMATION – section 29B of the Freedom of Information Act 1992 (Qld) – refusal to deal with application – previous application for same document – previous application the subject of external review – waiver Contents REASONS FOR DECISION Summary 1. The applicant’s freedom of information application dated 28 July 2008 (Later Application) seeks the same documents sought in an earlier freedom of information application dated 22 April 2005 (Earlier Application).[1] 2. The Earlier Application has been the subject of a completed review under Part 5 of the Freedom of Information Act 1992 (Qld) (FOI Act). 3. The Later Application does not disclose any reasonable basis for again seeking access to the document. 4. I affirm the decision under review. Background 5. By email dated 28 July 2008 (FOI Application), the applicant sought access to: ...all the information on all documents in the possession of, or under the control of, the UQ, where that info relates to my personal affairs. I further limit this application to the external legal opinion [ELO] that UQ obtained re my assistance dogs. 6. By letter dated 1 August 2008 to the applicant, The University of Queensland (UQ): a) indicated that: • it had considered an application seeking access to the same document in 2005 and decided the document was exempt under section 43(1) of the FOI Act • the above decision was affirmed in a decision of the Information Commissioner on 28 February 2008[2] • presumably the FOI Application was based on the applicant’s belief that UQ had waived legal professional privilege (LPP) after 28 February 2008 • accordingly, UQ’s inquiries would be limited to whether UQ had waived LPP in relation to the document sought (ELO) in the period since 28 February 2008 b) requested further evidence from the applicant in relation to his claim that Mr Porter had waived LPP in the ELO. 7. By letter dated 29 August 2008 (Original Decision), UQ: • advised that the applicant had not provided further evidence to suggest that UQ had waived LPP in the ELO • refused to deal with the applicant’s FOI Application on the basis of section 29B of the FOI Act. 8. By email dated 29 August 2008 (Internal Review Application), the applicant sought internal review of the Original Decision. 9. By letter dated 10 September 2008 (Internal Review Decision), Mr Douglas Porter, Secretary and Registrar of UQ, affirmed the Original Decision and refused to deal with the applicant’s FOI Application under section 29B of the FOI Act. 10. By email dated 12 September 2008 (External Review Application), the applicant applied to this Office for external review of the Internal Review Decision. Decision under review 11. The decision under review is the Internal Review Decision by Mr Porter, dated 10 September 2008. Steps taken in the external review process 12. By email dated 16 September 2008, this Office requested copies of documents relevant to the external review from UQ. 13. By letter dated 17 September 2008, UQ provided this Office with copies of the documents requested at paragraph 12 above. 14. By letter dated 16 October 2008, I wrote to the applicant seeking submissions. 15. The applicant did not provide any submissions to this external review. 16. In making my decision in this matter, I have taken the following into consideration: • FOI Application • Original Decision • Internal Review Application • Internal Review Decision • External Review Application • the decision of Assistant Commissioner Barker of 28 February 2006 in external review no 657/05 • relevant legislation, case law and previous decisions of this Office as referred to in this decision. Issue for consideration in this review 17. The issue to be considered in this external review is whether the UQ was entitled to refuse to deal with the applicant’s FOI Application on the basis of section 29B of the FOI Act. Findings Relevant law Section 29B of the FOI Act 18. Section 29B of the FOI Act relevantly provides: 29B Refusal to deal with application—previous application for same documents (1) This section applies if an applicant applies to an agency or Minister (the later application) for access to documents that have been the subject of an earlier application made by the same applicant to the same agency or Minister (the earlier application). ... (3) The agency or Minister may, to the extent the later application relates to documents sought under the earlier application, refuse to deal with the later application on a ground mentioned in subsection (4) if— (a) the agency or Minister is satisfied the documents sought under the later application are the documents sought under the earlier application; and (b) the later application has not disclosed any reasonable basis for again seeking access to the documents. (4) The grounds are as follows— (a) the agency’s or Minister’s decision on the earlier application— ... (ii) has been the subject of a completed review under part 5; ... Waiver of legal professional privilege 19. In relation to the principles relating to waiver of LPP, the High Court of Australia has previously said:[3] Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege... Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is ‘imputed by operation of the law’. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister’s version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some over-riding principle of fairness operating at large. ... Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client’s actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency. The reasoning of the majority in Goldberg illustrates this. Analysis 20. In the Original Decision, Mr Zgrajewski refused to deal with the FOI Application under section 29B of the FOI Act on the basis that: • he was satisfied that the ELO requested by the applicant in the Later Application was the same advice he had sought in the Earlier Application (which was subsequently the subject of a completed review by the Information Commissioner) • the applicant had not disclosed any reasonable basis for again seeking access to the legal advice. 21. The Internal Review Decision affirmed the Original Decision and confirmed that the Earlier Application was the subject of a completed external review where it was found that the legal advice was exempt from disclosure under section 43 of the FOI Act. Accordingly, UQ refused to deal with the FOI Application on the basis of section 29B(4)(a)(ii) of the FOI Act. 22. For UQ to be entitled to refuse to deal with the FOI Application on the basis of section 29B(4)(a)(ii) of the FOI Act, I must be satisfied that: a) the documents sought under the Later Application are the documents sought under the Earlier Application b) UQ’s decision on the Earlier Application has been the subject of a completed review under Part 5 of the FOI Act c) the Later Application has not disclosed any reasonable basis for again seeking access to the documents. 23. I consider each of these requirements below. a) Documents sought under the Later Application are the documents sought under the Earlier Application 24. The FOI Application sought access to: ...all the information on all documents in the possession of, or under the control of, the UQ, where that info relates to my personal affairs. I further limit this application to the external legal opinion [ELO] that UQ obtained re my assistance dogs. 25. The Earlier Application sought access to: ... all the information on all documents in the possession of or under the control of UQ, where that info relates to my personal affairs. 26. In response to the Earlier Application, UQ located a substantial number of documents which included confidential communications from Corrs Chambers Westgarth to UQ.[4] 27. Accordingly, I am satisfied that: • folios 75 to 84 are the documents to which the applicant seeks access in the Later Application. • the documents sought in the Later Application are the same documents as those sought in the Earlier Application • the requirement in section 29B(3)(a) of the FOI Act is satisfied. b) UQ’s decision on the earlier application has been the subject of a completed review under Part 5 of the FOI Act 28. As noted above, the Earlier Application resulted in external review number 657/05. That review was completed on 28 February 2006 when a decision was issued by Assistant Commissioner Barker.[5] 29. Accordingly, I am satisfied that the requirement in section 29B(4)(a)(ii) of the FOI Act is satisfied. c) The later application failed to disclose any reasonable basis for again seeking access to the documents Waiver of LPP 30. In the Later Application, the applicant did not raise any grounds for again seeking access to the documents. However, the applicant made the following written submissions to UQ in the Later Application: Porter raises ‘Client Privilege’ aka ‘legal professional privilege’ [lpp]. I advise, as one qualified in Law, that Porter has regularily [sic] waived the privilege by his mentioning the ELO, and in fact by his relying on it and stating that he is relying upon the ELO. This is clear waiver of lpp. ... Porter has waived lpp, albeit without doubt, unintentionally on repeated occasions, since receiving the External Legal Opinion [ELO]. He has mentioned it, and relied upon it and stated that to me, in letters and other documents that you have seen. There are many of Porter’s letters and emails, waiving lpp that you have released to me. ...Porter’s stating to me that he is relying upon it is the antithesis of confidentiality. He cannot in effect, wave it around in my face and say it says whatever, but say ‘I’m not going to let you see it’. This is precisely what he has done. In doing so he has waived lpp. Unintentionally on his part, I believe. 31. By letter dated 16 October 2008, I wrote to the applicant seeking submissions and stating: In your FOI application, you indicate that Mr Porter has waived legal professional privilege (LPP) in relation to the Legal Advice. You state that there are many letters and emails waiving LPP that the University has released to you and you indicate that Mr Porter ‘has continued to act in ways where he was waiving LPP’. I note that the issue of waiver was dealt with in the Decision. To the extent that you contend that, Mr Porter or UQ have waived LPP in the Legal Advice (other than on the basis of information already considered in the Decision) and that this discloses a reasonable basis for you again seeking access to these documents, please include in/with your submissions: • copies of the letters and/or emails referred to or any other relevant correspondence • details of the circumstances in which you say that Mr Porter has ‘continued to act to waive privilege’. 32. The applicant did not respond to my letter at paragraph 31 above. 33. In his FOI Application the applicant indicates that: • Mr Porter has mentioned the ELO, relied on the ELO and stated that he is relying on the ELO • there is evidence of this in many of the documents released to him. 34. In Osland v Secretary to the Department of Justice (Osland)[6], the majority[7] stated that: Whether, in a given context, a limited disclosure of the existence, and the effect, of legal advice is inconsistent with maintaining confidentiality in the terms of advice will depend upon the circumstances of the case. As Tamberlin J said in Nine Films and Television Pty Ltd v Ninox Television Ltd, questions of waiver are matters of fact and degree ... 35. In Osland, the Court considered whether LPP was waived in a press release issued by the Attorney-General in which the Attorney-General stated: On July 5, 1999, Mrs Osland submitted a petition for mercy to the then Attorney-General Jan Wade. That petition set out six grounds on which the petition should be granted. Following consultation with the State Opposition, I appointed a panel of three senior counsel, Susan Crennan QC, Jack Rush QC and Paul Holdenson QC, to consider Mrs Osland’s petition. This week I received a memorandum of joint advice from the panel in relation to the petition. The joint advice recommends on every ground that the petition should be denied. After carefully considering the joint advice, I have recommended to the Premier that the Governor be advised to deny the petition. The Governor has accepted this advice and denied the petition. 36. The context considered in Osland included ‘the nature of the matter in respect of which the advice was received, the evident purpose of the Attorney-General in making the disclosure that was made, and the legal and practical consequences of limited rather than complete disclosure’. 37. In this review the applicant has merely asserted that Mr Porter has mentioned the ELO, relied on the ELO and stated that he is relying on the ELO. There is insufficient evidence before me to establish, in the circumstances of this case, that Mr Porter’s conduct was inconsistent with maintaining confidentiality in the terms of the advice. Accordingly, I am not satisfied that LPP in the ELO has been waived by Mr Porter or UQ. Reasonable basis for again seeking access to the ELO 38. In view of my conclusion at paragraph 37 above, the Later Application does not disclose any reasonable basis for the applicant again seeking access to the ELO. 39. On the basis of the information available to me, I am satisfied that: • the Later Application fails to disclose any reasonable basis for again seeking access to the ELO • the requirement of section 29B(3)(b) of the FOI Act is met. Conclusion 40. In light of the above, I am satisfied that: • the requirements of section 29B of the FOI Act are met • UQ was entitled to refuse to deal with the FOI Application on the basis of section 29B of the FOI Act. DECISION 41. I affirm the decision under review. 42. I have made this decision as a delegate of the Information Commissioner, under section 90 of the Freedom of Information Act 1992 (Qld). ________________________ Acting Assistant Commissioner Jefferies Date: 18 December 2008 [1] Which was the subject of external review no. 657/05.[2] This appears to be a typographical error as the decision was dated 28 February 2006. In any event, the preceding paragraph refers to the external review having been conducted in 2006.[3] Mann v Carnell [1999] HCA 66; (1999) 74 ALJR 378, paras 28, 29 and 34.[4] Folios 75-84.[5] Mathews and The University of Queensland (Unreported, Queensland Office of the Information Commissioner, 28 February 2006)[6] 249 ALR 1 at 49.[7] Gleeson CJ, Gummow, Heydon and Kiefel JJ.

queensland

court_judgement

Queensland Information Commissioner 1993-

Mewburn and Sunwater Limited [2014] QICmr 44 (4 November 2014)

Mewburn and Sunwater Limited [2014] QICmr 44 (4 November 2014) Last Updated: 26 May 2015 Decision and Reasons for Decision Citation: Mewburn and SunWater Limited [2014] QICmr 44 (4 November 2014) Application Number: 311927 Applicant: Mewburn Respondent: SunWater Limited Decision Date: 4 November 2014 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – DOCUMENT OF AN AGENCY – DOCUMENT TO WHICH ACT DOES NOT APPLY – fee for service documents – whether documents subject to section 11A of the repealed Freedom of Information Act 1992 (Qld) – activities conducted on a commercial basis – community service obligations – whether document of an agency – section 11 and schedule 1, section 14 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – CONTRARY TO PUBLIC INTEREST INFORMATION – names, addresses, property details, private contractual arrangements, billing information and telephone call records relating to landowners, as well as dealings with their water allocations, land and water use – personal information – whether disclosure would, on balance, be contrary to the public interest – sections 47(3)(b), 49 and schedule 4 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – OTHER ACCESS AVAILABLE – documents available through access schemes under the Land Title Act 1994 (Qld) or Water Act 2000 (Qld) – whether applicant can reasonably access documents under another Act – sections 47(3)(f) and 53(a) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to SunWater Limited (SunWater), under the Right to Information Act 2009 (Qld) (RTI Act), for access to ‘[a]ll procedures, processes & information pertaining to providing [11 named property lot numbers] access to Sunwater allocations and infrastructure & all relevant related matters’ within the date range 2000-2013.[1] SunWater located 46 documents[2] deciding that they were documents to which the RTI Act does not apply and also that their disclosure would, on balance, be contrary to the public interest. Additionally and in order to demonstrate to the applicant the types of documents SunWater generates as a result of its business operations that related to the scope of the access application, SunWater provided partial access to 8 documents chosen as ‘samples’ from the 46 located documents. It redacted information in these ‘sample’ documents on the basis that disclosure would, on balance, be contrary to the public interest. The applicant sought internal review of this decision, submitting also that SunWater had failed to find all relevant documents. On internal review SunWater: decided that: the 46 located documents were documents to which the RTI Act does not apply; and the 8 ‘sample’ documents were documents of an agency, and access could be provided in their redacted form;[3] and did not locate any further documents. The applicant applied to the Office of the Information Commissioner (OIC) for external review of SunWater’s internal review decision, raising concerns about: the public interest factors relied on by SunWater SunWater’s decision that the RTI Act does not apply to the located documents; and SunWater’s failure to locate further documents. Searches conducted on external review located 410 additional documents, and SunWater also provided OIC with 4 documents which it had initially considered to be out of scope. For the reasons set out below, I set aside the decision under review, and find that: the RTI Act does not apply to the documents that were received or brought into existence by SunWater both: prior to 1 July 2009; and in carrying out the supply of ‘fee for service’ activities by SunWater in relation to the relevant properties; and the RTI Act does apply to the remaining documents,[4] but access may be refused to them because: the applicant can reasonably access some of these documents under other Acts; and disclosure of the remainder of the documents would, on balance, be contrary to the public interest. Background Significant procedural steps relating to the application and the external review process are set out in the Appendix. Reviewable decision The decision under review is SunWater’s internal review decision dated 10 February 2014. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including the footnotes and Appendix). Information in issue The documents in issue are divided into two categories in these reasons: Fee For Service Documents:[5] documents that were received or brought into existence by SunWater both: prior to 1 July 2009; and in carrying out the supply of ‘fee for service’ activities[6] by SunWater in relation to the relevant properties; and Other Documents:[7] the remaining documents, being those that were either received or brought into existence by SunWater either: on or after 1 July 2009; or in establishing or carrying out the supply of rural irrigation water[8] to the relevant properties. Fee For Service Documents Relevant law Section 23 of the RTI Act establishes a general right of access to ‘documents of an agency’, subject to the specific provisions of the RTI Act. This right of access applies to documents of an agency even if the documents came into existence before the commencement of the RTI Act.[9] The term ‘document, of an agency’ is defined to exclude documents to which the RTI Act does not apply.[10] The RTI Act does not apply to certain documents of Queensland government owned corporations (GOCs), and these provisions (referred to in this decision as the exclusion provisions) are explained below. A ‘document to which the [RTI Act] does not apply’ means a document mentioned in schedule 1 of the RTI Act.[11] Schedule 1, section 14 of the RTI Act provides that the RTI Act does not apply to documents to which the repealed Freedom of Information Act 1992 (Qld) (FOI Act) did not apply under section 11A of the FOI Act. Section 11A of the FOI Act provided that the FOI Act did not apply to documents received, or brought into existence, in carrying out activities of a GOC[12] mentioned in schedule 2 of the FOI Act to the extent provided under the application provision mentioned for the GOC in that schedule. One of the GOCs mentioned in schedule 2 of the FOI Act is ‘[t]he GOC that was the commercialised business unit known as State Water Projects in the Department of Natural Resources’. SunWater replaced State Water Projects in 2000.[13] The application provision set out in schedule 2 of the FOI Act that applies to SunWater (and previously State Water Projects) is section 998 of the Water Act. Section 998 of the Water Act relevantly provided that the FOI Act did not apply to a document received or brought into existence by the GOC in carrying out its ‘excluded activities’.[14] The term ‘excluded activities’ is defined to mean: activities conducted on a ‘commercial basis’; or ‘community service obligations’ prescribed under the regulations.[15] Accordingly, the RTI Act does not apply to documents received or brought into existence by SunWater both: prior to 1 July 2009[16]; and in carrying out activities conducted on a ‘commercial basis’. Findings The Fee For Service Documents were received or brought into existence by SunWater both: prior to 1 July 2009; and in carrying out the supply of ‘fee for service’ activities in relation to the relevant properties. In order to determine whether the exclusion provisions apply to these documents, it is necessary to characterise the nature of the ‘fee for service’ activities and determine whether they are activities conducted on a ‘commercial basis’. The term ‘commercial’ is not defined in any of the relevant legislation.[17] Accordingly, the Information Commissioner has previously cited dictionary definitions of this term, such as ‘of, connected with, or engaged in, commerce’, with the term ‘commerce’ having the corresponding meaning of ‘the activity embracing all forms of the purchase and sale of goods and services’.[18] It has also been noted that a subsidiary meaning of the term ‘commercial’ is ‘having profit as the main aim’.[19] Here, the ‘fee for service’ activities can generally be described as installation of new infrastructure on the relevant properties and other services provided to landowners in relation to the relevant properties (other than the supply of rural irrigation water) for a price. One example of a ‘fee for service’ activity is a special meter read. Accordingly, ‘fee for service’ activities are in the nature of the purchase and sale of goods and services, with profit as the main aim. In contrast to the supply of rural irrigation water (which is discussed below), SunWater sets the price in relation to these activities. For these reasons, ‘fee for service’ activities are, in my view, activities conducted by SunWater on a ‘commercial basis’. On this basis, I consider that the Fee For Service Documents: satisfy the requirements of schedule 1, section 14 of the RTI Act; and are therefore documents to which the RTI Act does not apply under section 11 of the RTI Act. Accordingly, I am satisfied that there is no right of access under the RTI Act to these documents. Other Documents The Other Documents were received or brought into existence by SunWater either: on or after 1 July 2009;[20] or in establishing or carrying out the supply of rural irrigation water to the relevant properties.[21] Findings – that the RTI Act applies to the Other Documents For the reasons set out below, I find that the RTI Act applies to the Other Documents, as the exclusion provisions do not apply to them. Documents received or brought into existence on or after 1 July 2009 The exclusion provisions do not apply to documents created on or after 1 July 2009.[22] Consequently, the RTI Act applies to all located documents which were created on or after 1 July 2009. Documents relevant to the supply of rural irrigation water The documents that were received or brought into existence by SunWater in establishing or carrying out the supply of rural irrigation water to the relevant properties can generally be described as contracts for the supply of rural irrigation water in relation to the relevant properties (and associated material) and related documents concerning contract amendments, billing, dealings with allocations, water use and meter reading. I consider that the exclusion provisions do not apply to these documents because: the supply of rural irrigation water is conducted in accordance with government directions[23] with which SunWater must comply;[24] and this is a ‘community service obligation’ for SunWater, being an activity that: is not in the commercial interests of SunWater to perform;[25] and arises because of a direction to which section 121 of the GOC Act applies.[26] Accordingly, establishing and carrying out the supply of rural irrigation water to the relevant properties is not an activity conducted on a ‘commercial basis’ by SunWater because it is, by definition, one which is not in the commercial interests of SunWater to perform. Consequently, I am satisfied that the RTI Act applies to documents that were received or brought into existence by SunWater in establishing or carrying out the supply of rural irrigation water to the relevant properties. Relevant law Given my finding that the RTI Act applies to the Other Documents, it is necessary to consider whether SunWater is entitled to refuse access to these documents (or parts thereof). Under the RTI Act, a person has a right to be given access to documents of an agency.[27] However, this right is subject to other provisions of the RTI Act, including the grounds on which an agency may refuse access to documents.[28] Access to a document may be refused if: other access is available to the document, including where the applicant can reasonably access it under another Act;[29] or disclosing the document would, on balance, be contrary to the public interest.[30] Findings – other access available The relevant documents comprise five Transfer forms (Form 1) and their attachments. These documents relate to the transfer of the fee simple interests and/or water allocations for some of the property lots listed in the access application. A person may, on payment of the fee prescribed under regulations, search and obtain a copy of: a registered instrument under the Land Title Act 1994 (Qld) (Land Title Act);[31] or an instrument registered in relation to a water allocation.[32] An officer of the Queensland Titles Registry confirmed to OIC that Transfer forms are available for purchase by a member of the public, and OIC has provided the applicant with sufficient details in order for her to be able to access the relevant documents. The fact that a fee is payable is irrelevant to the issue of whether access may be refused under this provision.[33] Accordingly, I am satisfied that the applicant can reasonably access the five Transfer forms under the Land Title Act or the Water Act, and that access may therefore be refused to these documents under sections 47(3)(f) and 53 of the RTI Act. Findings – public interest My findings in this section apply to all of the Other Documents excluding the five Transfer forms dealt with at paragraphs 32 to 34 above. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[34] and explains the steps that a decision-maker must take[35] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring nondisclosure; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Irrelevant factors The applicant has submitted[36] that the ‘real reason’ for refusing access to documents is found in schedule 4, part 1, item 1 of the RTI Act—namely, that disclosing the information could reasonably be expected to cause embarrassment to or a loss of confidence in the government. I have been unable to identify any information in the Other Documents that has the potential to cause embarrassment to or a loss of confidence in the government or SunWater. In any event, I have not taken this factor into account as it is irrelevant to deciding the public interest under schedule 4, part 1, item 1 of the RTI Act. Nor have I taken any other irrelevant factors into account. Factors favouring disclosure All of the applicant’s submissions have emphasised the need for accountability, transparency and scrutiny of SunWater. For example, the applicant has submitted: as a fully government owned corporation, SunWater is accountable under administrative law and is open to judicial review of its operations, decisions and processes[37] SunWater is accountable to the paramount purpose and intent of the RTI Act, accountability, public interest scrutiny, fairness and equity and also the rule of law[38] factors favouring disclosure in the public interest in this case are found in schedule 4, part 2, items 1-6 and 10-12 of the RTI Act, and these greatly outweigh the reasons for nondisclosure[39] ‘vested interests of staff seems or is apparent, and is in need of public scrutiny’[40] the refusal of access to information amounts to a ‘dictator’s attempt at censorship’[41] public scrutiny of government decisions is not welcomed by the ‘administration’ and it is apparent that they have much to hide, whereas ‘people who have nothing to hide, hide nothing’;[42] and covering up corruption is not in the public’s interest.[43] The applicant states that SunWater and the Department of Natural Resources and Mines (DNRM) have provided bulk water for a subdivision (non-agricultural) and neighbouring residence (non-commercial), and that DNRM documents reveal that DNRM classified the subdivision water allocations as agricultural use.[44] The applicant states that the public is aware that subdivision and water allocation took place on agricultural land in a Soil Conservation Act 1986 (Qld) area, and contends that quasi judicial decisions have been made by government, which affect property and breach fundamental property rights.[45] The applicant submits that this raises ‘‘public interest’ questions’ regarding the authorisation of the subdivision and water allocation and other matters relating to this.[46] The submissions raise the issue of whether disclosing the Other Documents could reasonably be expected to: promote open discussion of public affairs and enhance government accountability[47] contribute to positive and informed debate on important issues or matters of serious interest[48] inform the community of the government’s operations[49] ensure effective oversight of expenditure of public funds[50] allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official[51] reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct[52] advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies[53] reveal the reason for a government decision (or any background or contextual information informing the decision);[54] or reveal the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[55] Having carefully reviewed the Other Documents, I consider it arguable that only the following two factors favouring disclosure apply: informing the community of SunWater’s operations, by showing the conditions and processes that apply in relation to the supply of water to the relevant properties; and ensuring effective oversight of expenditure of public funds, as some documents provide information about the price and conditions of water supply, which (in the case of rural irrigation water) is subsidised by the government. However, I note that, in general, the documents comprise information that is administrative or transactional in nature, or concerns the practicalities of water supply. None of the documents primarily concern the categorisation of the relevant land as agricultural or otherwise.[56] Accordingly, on the information before me, there is nothing to indicate that other factors favouring disclosure apply—including those referenced by the applicant, as identified in paragraph 39 —and I have not taken them into account. I also note that the applicant does not advance any arguments about how some of the factors she referenced expressly apply in this matter. As previously stated, the applicant’s submissions may be described as founding an overall concern for ensuring the accountability, transparency and scrutiny of SunWater. Accordingly, given the administrative and transactional nature of the Other Documents, I consider the weight to be attributed to the factors concerning informing the community of the government’s operations and ensuring the effective oversight of expenditure of public funds is low. Factors favouring nondisclosure The RTI Act recognises that: disclosure of information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person other than the applicant;[57] and a factor favouring nondisclosure arises where disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy.[58] SunWater’s initial decision and submission to OIC[59] identified these as factors favouring nondisclosure. The documents reveal the names, addresses, property details, private contractual arrangements, billing information and telephone call records relating to landowners, as well as dealings with their water allocations, land and water use. In view of the nature of the information, I consider that these factors relating to personal information and privacy apply and attract moderate weight. Balancing the public interest I have afforded low weight to the factors identified as favouring disclosure of the Other Documents. On the other hand, I consider that moderate weight can be attributed to the factors favouring nondisclosure of the relevant information. Accordingly, I consider that access can be refused to the Other Documents, on the basis that disclosing them would, on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the RTI Act. Deletion of contrary to public interest information Under section 75 of the RTI Act, if: it is practicable to give access to a copy of the Other Documents from which the contrary to the public interest information (ie, the private and personal information) has been deleted; and it appears (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to the copy, access must be given accordingly. Given that the terms of the access application seek information about 11 specific properties, deletion of significant amounts of information would be required to ensure that the landowners’ personal information could not reasonably be ascertained from the documents. Deletion of this amount of information would mean that the documents would, in most cases, become nonsensical, and in any event, would mean that the documents do not reveal any information that would fall within the scope of the access application (ie, information about providing the relevant lots with SunWater allocations and infrastructure). This is supported by the applicant’s comment that the 8 ‘sample’ documents released by SunWater ‘have no information’.[60] I therefore consider that it is not practicable to give access to the Other Documents from which the landowners’ personal and private information has been deleted. Applicant’s submissions regarding interpretation of the RTI Act In contesting OIC’s preliminary views and in providing submissions in response, the applicant submitted that OIC had erred in interpreting the RTI Act by failing to give precedence to the pro-disclosure bias. The applicant’s submissions appear to relate to OIC’s application of both the exclusion provisions and the public interest test. In particular, the applicant submits:[61] the purpose of the RTI Act is ‘paramount’, as required by section 14A of the Acts Interpretation Act the basic purpose of freedom of information legislation generally has been found by the High Court to be ‘to reinforce “the three basic principles of democratic government, namely, openness, accountability and responsibility”’[62] OIC’s references to ‘subordinate sections’ of the RTI Act, in preference to the RTI Act’s actual overriding purpose and indeed the objects section, results in wholly frustrating the RTI Act and its purpose the High Court in Project Blue Sky Inc v Australian Broadcasting Authority[63] has judicially upheld meaning which gives effect to legislative purpose[64] it was not Parliament’s intent to use the shield of the Crown to protect government agents or its decision makers from scrutiny; and OIC’s preliminary views breach the purpose of the RTI Act and Parliament’s intent. The RTI Act must be applied and interpreted to further the primary object of that Act, which is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give access.[65] It is Parliament’s intention that the RTI Act should be administered with a pro-disclosure bias,[66] and also that if an access application is made to an agency for a document, the agency should decide to give access to the document unless giving access would, on balance, be contrary to the public interest.[67] Section 14A(1) of the Acts Interpretation Act provides that, in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. In contrast to the applicant’s submissions, I do not consider that section 14A of the Acts Interpretation Act requires the purpose of an Act itself to be ‘paramount’. In the context of the exclusion provisions, reference to the purpose or object of the RTI Act is not of particular assistance, given that Parliament has clearly made provision for certain documents to be inaccessible under the RTI Act, by setting out those documents to which the RTI Act does not apply.[68] Although these provisions may be complex and require examination of a number of other current and repealed pieces of legislation, the result in the end is unambiguous, and I do not consider it necessary to have regard to the purpose or object of the RTI Act in forming a conclusion on the interpretation of the exclusion provisions. Similarly, in applying the public interest test, I have followed the test set out in the RTI Act.[69] While the RTI Act does expressly note that it should be administered with a pro-disclosure bias,[70] it also makes clear that Parliament’s intention and the primary object of the RTI Act are that access should be given unless, on balance, it is contrary to the public interest to give access.[71] This does not mean that the factors favouring disclosure should always outweigh those favouring nondisclosure. Rather, a decision-maker is required—as I have done above—to identify the relevant factors, balance them and decide whether, on balance, disclosure of the information would be contrary to the public interest. It does not follow that because I have not decided in favour of the applicant, I have by that very fact disregarded the object of the RTI Act. DECISION I set aside the decision under review, and find that: the RTI Act does not apply to the Fee For Service Documents, in accordance with section 11 and schedule 1, section 14 of the RTI Act the RTI Act does apply to the Other Documents, but access may be refused to them because: the applicant can reasonably access some of these documents under other Acts;[72] and disclosure of the remainder of the documents would, on balance, be contrary to the public interest.[73] I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ L Lynch Assistant Information Commissioner Date: 4 November 2014 APPENDIX Significant procedural steps Date Event 19 November 2013 SunWater received the applicant’s access application. 23 December 2013 SunWater issued its initial decision. 15 January 2014 SunWater received the applicant’s internal review application. 10 February 2014 SunWater issued its internal review decision. 18 February 2014 OIC received the applicant’s external review application. 19 February 2014 OIC notified SunWater of the external review application and requested procedural documents in relation to the application. 25 February 2014 SunWater provided OIC with the requested procedural documents. 28 February 2014 OIC notified the applicant and SunWater that OIC had accepted the external review application. OIC requested that SunWater provide a copy of the documents located in response to the access application, as well as its search records. 17 March 2014 OIC received a copy of the located documents and SunWater’s search records. 5 May 2014 OIC issued the applicant with a preliminary view that: the RTI Act does not apply to the located documents; and any further documents which the applicant submitted exist would also likely be documents to which the RTI Act does not apply. 19 May 2014 OIC received a submission from the applicant, contesting the preliminary view. 7 July 2014 OIC wrote to SunWater, requesting details about the properties or services which are the subject of the access application, including whether any ‘community service obligations’ are relevant to them. 11 July 2014 OIC telephoned SunWater to discuss the 7 July 2014 letter and ask for further information about whether any further documents relevant to the scope exist. 14 July 2014 OIC received SunWater’s submission in response to OIC’s 7 July 2014 letter. 17 July 2014 SunWater notified OIC that a large number of additional documents had been located which were relevant to the scope. OIC wrote to SunWater, requesting further searches and information relating to these searches. 1 August 2014 SunWater telephoned OIC to discuss the further searches. OIC requested a copy of any further located documents. 14 August 2014 OIC received a copy of the further located documents and SunWater’s submission regarding disclosure of all located documents. 22 August 2014 OIC advised the applicant that further documents had been located, but, following OIC’s initial assessment, OIC’s view was likely to be that access to the documents could be refused, albeit for reasons different from those given in the 5 May 2014 letter. 26 August 2014 The applicant wrote to OIC, providing a submission regarding the public interest in disclosing the located documents and raising an issue regarding OIC’s 22 August 2014 correspondence. 1 September 2014 OIC wrote to the applicant, informing her that OIC was seeking submissions from SunWater and that OIC would seek submissions from her in due course. OIC also responded to the applicant’s issue regarding OIC’s 22 August 2014 correspondence. 1 September 2014 OIC issued SunWater with a preliminary view that: the RTI Act does not apply to certain located documents; and while the RTI Act applies to the remaining located documents, disclosing them would be contrary to the public interest or other access is available to them. 15 September 2014 SunWater notified OIC that it has no objection to the position set out in OIC’s preliminary view. 19 September 2014 OIC issued the applicant with a preliminary view to the same effect as OIC’s preliminary view to SunWater dated 1 September 2014. 10 October 2014 OIC received a submission from the applicant, contesting the preliminary view and requesting that her submissions and related documents be placed on the internet. 15 October 2014 OIC advised the applicant that OIC’s preliminary view remained as set out in the 19 September 2014 letter and that OIC would proceed to prepare a formal decision. OIC informed the applicant that her submissions would not be uploaded to OIC’s website. [1] The date range extends until 19 November 2013, being the date of the access application: section 27(1) of the RTI Act.[2] This number of documents represents the number of distinct documents located by the Department, some of which comprise more than one page. Therefore, the number of pages located exceeds the number of documents listed. This is the same for all numbers of documents referred to in this decision.[3] As explained above at paragraph 2, these 8 ‘sample’ documents were drawn from the 46 located documents. My decision in respect of the 8 original documents from which these ‘samples’ were drawn is that the RTI Act does not apply to them: see my reasoning at paragraphs 17-23. As the 8 ‘sample’ documents were created after the access application was received, the applicant is not entitled to review under the RTI Act of a decision made about them: section 27(2) and (3)(b) of the RTI Act.[4] That is, documents that were either received or brought into existence by SunWater either: • on or after 1 July 2009; or • in establishing or carrying out the supply of rural irrigation water to the relevant properties.[5] 31 documents located initially, and 29 documents located on external review.[6] ‘Fee for service’ activities are the services provided by SunWater other than the supply of rural irrigation water (for example, special meter reads). The price for these services is set by SunWater and is not subject to direction by government.[7] 15 documents located initially, 4 documents which were initially considered to be out of scope, and 381 documents located on external review.[8] In this decision, the ‘supply of rural irrigation water’ means the supply of water to which a rural pricing direction notice applies under section 999 of the Water Act 2000 (Qld) (Water Act) (or formerly section 1120 of that Act).[9] Section 23(2) of the RTI Act.[10] Section 12 of the RTI Act provides: In this Act, document, of an agency, means a document, other than a document to which this Act does not apply, in the possession, or under the control, of the agency whether bought into existence or received in the agency, and includes— (a) a document to which the agency is entitled to access; and (b) a document in the possession, or under the control, of an officer of the agency in the officer’s official capacity.[11] Section 11 of the RTI Act.[12] Section 5 of the Government Owned Corporations Act 1993 (Qld) (GOC Act) states that a GOC is a government entity that is: • established as a body corporate under an Act or the Corporations Act 2001 (Cth); and • declared by regulation to be a GOC.[13] The Government Owned Corporations (State Water Projects Corporatisation) Regulation 2000 (Qld) established SunWater as replacing State Water Projects (section 15), and declared SunWater to be a GOC (section 20(2)).[14] Section 998(2) of the Water Act, as it then was. The enactment of the RTI Act omitted section 998 from the Water Act. [15] Section 998(3) of the Water Act. ‘Community service obligations’ are not ‘excluded activities’ unless they are prescribed under the regulations. No relevant regulations exist.[16] The commencement date of the RTI Act.[17] Namely, the RTI Act, FOI Act, Water Act or Acts Interpretation Act 1954 (Qld) (Acts Interpretation Act).[18] Hansen and Queensland Industry Development Corporation [1996] QICmr 9; (1996) 3 QAR 265 [25].[19] Hansen and Queensland Industry Development Corporation [1996] QICmr 9; (1996) 3 QAR 265 [26]. See also Stewart and SunWater Limited (Unreported, Queensland Information Commissioner, 21 December 2012) [22]-[23].[20] 96 documents located on external review.[21] 15 documents located initially, 4 documents which had initially considered to be out of scope, and 285 documents located on external review.[22] The repeal of the FOI Act become effective on 1 July 2009: section 194 of the RTI Act and Subordinate Legislation 2009 No. 132 - Proclamation (Qld). This means that the exclusion in section 11A of the FOI Act (given effect by section 11 and schedule 1, section 14 of the RTI Act) only applies to documents received or brought into existence by a GOC prior to this date.[23] Various directions (and amendments to these directions) have been in place over this time: Rural Water Pricing Direction Notice (No 01) 2000, gazetted on 6 October 2000 at pages 429 to 432; Rural Water Pricing Direction Notice (No 01) 2002, gazetted on 28 June 2002 at page 803; Rural Water Pricing Direction Notice (No 02) 2002, gazetted on 27 September 2002 at page 268; Amendment of Rural Water Pricing Direction Notices (No 01) 2005, gazetted on 1 July 2005 at page 678; Rural Water Pricing Direction Notice (No 01) 2006, gazetted on 14 July 2006 at page 1187; Amendment of Rural Water Pricing Direction Notice (No 01) 2011, gazetted on 1 July 2011 at pages 553-554; and Rural Water Pricing Direction Notice 2012 (No. 1), gazetted on 13 July 2012 at page 816.[24] These directions have been made under section 999 of the Water Act (or previously, former section 1120 of the Water Act), and have been in place since 2000. Section 999(2) of the Water Act provides that SunWater must comply with such directions.[25] Section 121(1)(a) of the GOC Act. Under this provision, for an obligation to be a ‘community service obligation’, the GOC must establish to the satisfaction of its shareholding Ministers that the obligations are ‘not in the commercial interests of the GOC to perform’.[26] Section 121(1)(b) of the GOC Act. Section 121(2)(h) of the GOC Act provides that section 121 of the GOC Act applies to a statutory duty to perform activities that arise under an Act applying specifically to a GOC. I consider that section 999(2) of the Water Act comprises such a duty, and further note that both SunWater’s Annual Report 2013-2014 <http://www.sunwater.com.au/__data/assets/pdf_file/0007/13975/SunWater_Annual-Report_2013-2014_web.pdf> at page 26 and Statement of Corporate Intent 2013-14 <http://www.google.com.au/url?sa=t & rct=j & q= & esrc=s & source=web & cd=1 & ved=0CB0QFjAA & url=http%3A%2F%2Fwww.sunwater.com.au%2F__data%2Fassets%2Fpdf_file%2F0003%2F2001%2FSunWater_SCI_2013-2014_web.PDF & ei=97pRVLSqE4378QWuiIE4 & usg=AFQjCNEDQXlzweOskk-_35OH09zJLcJ0Qg & bvm=bv.78597519,d.dGc> at page 10 indicate that SunWater considers its community service obligations to include the provision of rural irrigation water. [27] Section 23 of the RTI Act.[28] As set out in section 47 of the RTI Act.[29] Sections 47(3)(f) and 53(a) of the RTI Act.[30] Sections 47(3)(b) and 49 of the RTI Act. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the wellbeing of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[31] Section 35(1)(a)(ii) of the Land Title Act.[32] Section 153(a)(ii) of the Water Act.[33] Section 53(a) of the RTI Act, and Underwood and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 18 May 2012) [75].[34] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive; in other words, factors that are not listed may also be relevant.[35] Section 49(3) of the RTI Act.[36] Applicant’s submission dated 19 May 2014.[37] External review application.[38] Applicant’s submission dated 19 May 2014.[39] Applicant’s submission dated 19 May 2014.[40] Applicant’s submission dated 19 May 2014.[41] Applicant’s submission dated 19 May 2014.[42] Applicant’s submission dated 26 August 2014.[43] Applicant’s submission dated 9 October 2014.[44] Applicant’s submission dated 19 May 2014.[45] Applicant’s submission dated 9 October 2014.[46] Applicant’s submission dated 9 October 2014.[47] Schedule 4, part 2, item 1 of the RTI Act.[48] Schedule 4, part 2, item 2 of the RTI Act.[49] Schedule 4, part 2, item 3 of the RTI Act.[50] Schedule 4, part 2, item 4 of the RTI Act.[51] Schedule 4, part 2, item 5 of the RTI Act.[52] Schedule 4, part 2, item 6 of the RTI Act.[53] Schedule 4, part 2, item 10 of the RTI Act.[54] Schedule 4, part 2, item 11 of the RTI Act.[55] Schedule 4, part 2, item 12 of the RTI Act.[56] The applicant’s submission dated 19 May 2014 raised concerns about this matter.[57] Schedule 4, part 4, item 6 of the RTI Act.[58] Schedule 4, part 3, item 3 of the RTI Act.[59] Dated 15 September 2014.[60] External review application.[61] Applicant’s submission dated 9 October 2014.[62] Osland v Secretary to the Department of Justice [2008] HCA 37 [62] (Kirby J). Justice Kirby was citing New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 2 June 1988 at 1399 which cited Commissioner of Police v District Court of New South Wales and Another (1993) 31 NSWLR 606, 612.[63] (1998) 194 CLR 355.[64] The applicant cites Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [70] which states (with citations omitted and emphasis added by the applicant): Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.[65] Section 3 of the RTI Act.[66] Section 44(4) of the RTI Act.[67] Section 44(1) of the RTI Act.[68] See also Davis v City North Infrastructure Pty Ltd [2011] QSC 285 [25]; and Fendley Consultancy Pty Ltd and Queensland Treasury and Trade (Unreported, Queensland Information Commissioner, 26 April 2013) [29] for examples of decisions which had to consider the interpretation of specific provisions within the RTI Act, but which found that the purpose or object of the RTI Act was of no particular assistance in resolving the interpretation issues.[69] As described above at paragraph 36, and noting that the Queensland Civil and Administrative Tribunal accepted OIC’s approach to the public interest balancing test in Gordon Resources Pty Ltd v State of Queensland acting through Treasury and Trade [2012] QCATA 135.[70] Section 44(4) of the RTI Act.[71] Sections 3 and 44(1) of the RTI Act.[72] Under sections 47(3)(f) and 53(a) of the RTI Act.[73] Under sections 47(3)(b) and 49 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Hobden and Ipswich City Council [1998] QICmr 7; (1998) 4 QAR 404 (25 June 1998)

Hobden and Ipswich City Council [1998] QICmr 7; (1998) 4 QAR 404 (25 June 1998) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 98007Application L 20/97 Participants: NATHAN JOHN HOBDEN Applicant IPSWICH CITY COUNCIL Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - documents relating to investigation of bicycle accident and possible claim for compensation by the applicant against the respondent - whether matter in issue is deliberative process matter falling within the terms of s.41(1)(a) of the Freedom of Information Act 1992 Qld - whether disclosure of matter in issue would, on balance, be contrary to the public interest - application of s.41(1) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - refusal of access - documents created in the course of investigating the applicant's claim, and communications between the respondent and its insurer about whether to deny liability to compensate the applicant for injury suffered - whether subject to legal professional privilege - whether copies of non-privileged documents made solely for a privileged purpose - application of s.43(1) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.41(1), s.41(1)(a), s.41(1)(b), s.41(2)(b), s.43(1), s.44(1), s.52, s.81Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52Cairns Port Authority and Department of Lands, Re [1994] QICmr 17; (1994) 1 QAR 663Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 71 ALJR 327; 141 ALR 545Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re [1993] QICmr 2; (1993) 1 QAR 60 ii Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 Hewitt and Queensland Law Society Inc, Re (Information Commissioner Qld, Decision No. 98005, 24 June 1998, unreported)Little and Department of Natural Resources, Re [1996] QICmr 2; (1996) 3 QAR 170National Employers Mutual General Insurance Association Ltd v Waind & Anor [1979] HCA 11; (1979) 24 ALR 86Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44Pemberton and The University of Queensland, Re (1994) 2 QAR 293Smith and Administrative Services Department, Re [1993] QICmr 3; (1993) 1 QAR 22Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244Trustees of the De La Salle Brothers and Queensland Corrective Services Commission, Re [1996] QICmr 4; (1996) 3 QAR 206Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54Willsford and Brisbane City Council, Re (Information Commissioner Qld, Decision No. 96017, 27 August 1996, unreported) DECISION I set aside the decision under review (which is identified in paragraph 4 of my accompanying reasons for decision). In substitution for it, I decide that the matter remaining in issue in this review (which is identified in paragraph 10 of my accompanying reasons for decision) is not exempt from disclosure to the applicant under the Freedom of Information Act 1992 Qld.Date of decision: 25 June 1998.........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background 1External review process 2Application of s.41(1) of the FOI Act 4 Application of s.41(1)(a) 5 Application of s.41(1)(b) 5Application of s.43(1) of the FOI Act 10Conclusion 16 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 98007Application L 20/97 Participants: NATHAN JOHN HOBDEN Applicant IPSWICH CITY COUNCIL Respondent REASONS FOR DECISION Background1. The applicant seeks review of the respondent's decision to refuse him access, under the Freedom of Information Act 1992 Qld (the FOI Act), to certain documents relating to the applicant's claim for compensation for injury suffered when the applicant allegedly was thrown from his bicycle as he was riding over an uneven footpath surface. The respondent contends that the matter remaining in issue is exempt matter under s.41(1) (the deliberative process matter exemption) or s.43(1) (the legal professional privilege exemption) of the FOI Act. 2. By letter dated 24 March 1997, Cervetto and Co, Solicitors, acting on behalf of the applicant, made an FOI access application to the Ipswich City Council (the Council) in the following terms:1. We act on behalf of the above (Mr Hobden) in relation to injuries he sustained on Tuesday 19 November 1996 at about 6.00 pm on the foot path in front of Mrs O'Reilly's home at 15 School Street, Rosewood.2. We make application under the Freedom of Information Legislation for all documents which the Council holds relevant to the matter.3. The documents relevant to the matter would include:- (a) Any documents relevant to the investigation of the matter; (b) Any documents relevant to the repair of the foot path which was undertaken on 25 November 1996; (c) Any submission made to Councillor Pahlke in relation to the matter between 19 November 1996 and 25 November 1996; and (d) All documents in relation to File No. 45-PL-641: PO'L:LLB (Phil O'Leary).3. By letter dated 2 May 1997, Mr C Simpson, the Council's Records Manager, informed the applicant that he had identified 59 folios falling within the terms of the FOI access application, and that he had decided to -(a) grant access to 12 folios;(b) refuse access to 11 folios which he found to be exempt under s.41(1) of the FOI Act; and(c) refuse access to 36 folios which he found to be exempt under s.43(1) of the FOI Act.4. By letter dated 19 May 1997, Cervetto and Co, on behalf of the applicant, applied to the Council for internal review of Mr Simpson's decision, in accordance with s.52 of the FOI Act.By letter dated 13 June 1997, Mr N Craswell, the Council's Deputy Chief Executive Officer, conveyed to the applicant his internal review decision. Mr Craswell decided to give the applicant access under the FOI Act to six of the folios to which Mr Simpson had refused access under s.41(1) of the FOI Act (being correspondence between the Council and the applicant's mother, Mrs K Hobden, dated 26 and 28 November 1996), but otherwise Mr Craswell affirmed Mr Simpson's initial decision.5. By letter dated 8 July 1997, Cervetto and Co, on behalf of Mr Hobden, applied to me for review, under Part 5 of the FOI Act, of Mr Craswell's decision.External review process6. Copies of documents falling within the terms of the relevant FOI access application have been obtained from the Council and examined. It appears that the applicant, then aged 16, was injured on 19 November 1996 when he fell from his bicycle while riding on the footpath outside 15 School Street, Rosewood. The applicant's mother, Mrs Kerry Hobden, wrote to the Council on 26 November 1996, describing what had happened and asking what the Council intended to do about it. The Financial Operations Manager of the Council then notified the Queensland Local Government Mutual Liability Pool (the insurer) of a possible claim. On the same day, the Financial Operations Manager also sought a report on the incident from a Council officer. A report was prepared by the Council officer and a copy was provided to the insurer. The insurer subsequently engaged a loss assessor to prepare a report.The insurer ultimately wrote to the applicant's solicitors on 1 April 1997 denying liability, on behalf of the Council, for payment of compensation to the applicant.7. The documents in issue include correspondence between the Council and the insurer, copies of correspondence from Mrs Hobden to the Council, and from the insurer to the applicant, and a report and draft Statement by a Council officer. In addition, there are in issue a number of documents which record exchanges between Councillor Pahlke and the Council officer responsible for dealing with public liability insurance claims, Mr Phil O'Leary, in relation to the incident. It appears that Councillor Pahlke kept a watching brief in respect of this matter on behalf of his constituents.8. On 6 November 1997, a member of my staff convened a conference with Mr Simpson and Mr O'Leary of the Council, in order to discuss each document claimed to be exempt, and Council's procedures for dealing with complaints of injury. Under cover of a letter dated 12 December 1997, the Council provided a schedule which particularised the exemption provision relied upon in respect of each document in issue, together with an affidavit of Philip Lawrence O'Leary sworn 9 December 1997, which described the Council's procedures for dealing with public liability insurance claims received by the Council.9. By letter dated 11 March 1998, I informed the Council of my preliminary view that none of the documents in issue appeared to qualify for exemption under either s.41(1) or s.43(1) of the FOI Act. By letter dated 25 March 1998, the Council advised that it was prepared to withdraw its objection to the disclosure of some folios, and parts of folios, from Councillor Pahlke's file. That material has since been disclosed to the applicant, and it is no longer in issue in this external review. The Council's letter dated 25 March 1998 also set out arguments in support of its claims for exemption in respect of the matter remaining in issue. A copy of that submission was provided to the applicant, whose solicitors lodged a submission in response dated 29 April 1998. The Council was given the opportunity to lodge a reply to the applicant's written submission, but did not take advantage of that opportunity.10. Following the concessions made by the Council, the matter remaining in issue comprises: Folio No. Date Description Exemption claimed Council's Insurance file A7-11 29/11/96 Copy of letter, Mrs Hobden to Council, with attachments s.43(1) A12-13 29/11/96 Copy Notification Form to insurer s.43(1) A14 29/11/96 Letter, Council to insurer attaching original notification form and copy letter s.43(1) A15 29/11/96 Memorandum, Financial Operations Manager, to Roads and Drainage Manager s.43(1) A16 Copy of A18, unsigned s.43(1) A17 Photographs attached to A18 s.43(1) A18 9/12/96 Memorandum, District Technical Officer to Financial Operations Manager s.43(1) A19 11/12/96 Letter, Council to insurer s.43(1) A20 6/12/96 Letter, Councillor Pahlke to Council Chief Executive Officer s.43(1) A21 11/12/96 Letter, Council to insurer s.43(1) A22 e-mail, P O'Leary to Councillor Pahlke s.43(1) A23 11/12/96 Letter, insurer to Council s.43(1) A24 16/12/96 Letter, Council to insurer s.43(1) A25-27 30/1/97 Letter, Freemans Loss Adjusters to Council, enclosing draft Statement. s.43(1) A28 13/4/97 Letter, insurer to Council s.43(1) A29 19/3/97 e-mail, P O'Leary to Councillor Pahlke s.43(1) A30 20/3/97 Letter, Council to insurer s.43(1) A31 1/4/97 Copy letter, insurer to Cervetto & Co s.43(1) A32 1/4/97 Letter, insurer to Council s.43(1) District Engineer's file E6-7 Duplicate of A10-11 s.43(1) E8 Duplicate of A20 s.43(1) E9 Duplicate of A16 s.43(1) Councillor Pahlke's file P13 6/12/96 Last two paragraphs of letter, Councillor Pahlke to Council's Chief Executive Officer s.41(1) P15 9/12/96 Last paragraph of memorandum, District Technical Officer to Financial Operations Manager s.41(1) P17 13/4/97 Final two sentences in third paragraph, and the whole of fourth paragraph, in letter from insurer to Council s.41(1) P18 19/3/97 Fourth last paragraph of e-mail, P O'Leary to Councillor Pahlke s.41(1) 11. I note that, pursuant to s.81 of the FOI Act, the Council has the onus of establishing that the decision under review was justified, or that I should give a decision adverse to the applicant.Application of s.41(1) of the FOI Act12. The Council contends that the matter remaining in issue in documents from Councillor Pahlke's file is exempt matter under s.41(1) of the FOI Act, which provides:Matter relating to deliberative processes 41.(1) Matter is exempt matter if its disclosure-- (a) would disclose-- (i) an opinion, advice or recommendation that has been obtained, prepared or recorded; or (ii) a consultation or deliberation that has taken place; in the course of, or for the purposes of, the deliberative processes involved in the functions of government; and (b) would, on balance, be contrary to the public interest. (2) Matter is not exempt under subsection (1) if it merely consists of-- (a) matter that appears in an agency's policy document; or (b) factual or statistical matter; or (c) expert opinion or analysis by a person recognised as an expert in the field of knowledge to which the opinion or analysis relates.13. A detailed analysis of s.41 of the FOI Act can be found in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60, at pp.66-72, where, at p.68 (paragraphs 21-22), I said:21. Thus, for matter in a document to fall within s.41(1), there must be a positive answer to two questions:(a) would disclosure of the matter disclose any opinion, advice, or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, (in either case) in the course of, or for the purposes of, the deliberative processes involved in the functions of government? and (b) would disclosure, on balance, be contrary to the public interest?22. The fact that a document falls within s.41(1)(a) (ie. that it is a deliberative process document) carries no presumption that its disclosure would be contrary to the public interest. ...Application of s.41(1)(a)14. Folios P13, P15, P17 and P18 were initially claimed by the Council to be exempt in full under s.41(1) of the FOI Act. However, the Council accepted my preliminary view (conveyed in my letter dated 11 March 1998) that most of the matter contained in those folios consisted merely of factual matter, which was excluded from eligibility for exemption under s.41(1) of the FOI Act by the terms of s.41(2)(b) of the FOI Act. That matter has since been disclosed to the applicant: see paragraph 9 above. The Council has, however, maintained a claim for exemption under s.41(1) in respect of those segments of the documents which are framed in terms of expressing an opinion, advice, or recommendation.15. Folio P13 is a letter from Councillor Pahlke to the Chief Executive Officer of the Council. The matter in issue in folio P13 can be characterised as Councillor Pahlke's opinion about the way the Council should handle the applicant's claim for compensation. I have some doubts as to whether it was prepared for the purposes of the deliberative processes of the Council. It is more in the nature of a representation from a Councillor, on behalf of constituents, that proper action be taken.Nevertheless, I will consider below whether disclosure of the matter in issue in folio P13 would, on balance, be contrary to the public interest.16. The matter in issue in folio P15 is the conclusion expressed in a report concerning the footpath outside 15 School Street, Rosewood, made by the Council's District Technical Officer. One finding recorded in the report (in a part previously disclosed to the applicant) was that there was an 8mm difference between the height of two concrete slabs. The conclusion to the report comments on the significance of that finding. I am satisfied that the conclusion constitutes opinion prepared for the purposes of the deliberative processes of the Council in deciding its response to Mrs Hobden's letter dated 26 November 1996, and hence that it falls within the terms of s.41(1)(a) of the FOI Act.17. Folio P17 is a letter from the insurer to the Council. The matter in issue in folio P17 comprises comment by the insurer on the significance of the 8mm height difference, as part of a discussion as to what should be the Council's response to Mrs Hobden's letter dated 26 November 1996. I find that the matter in issue in folio P17 falls within the terms of s.41(1)(a) of the FOI Act.18. The relevant part of folio P18 is a copy of an e-mail message to Councillor Pahlke from Mr O'Leary, the Council officer responsible for processing public liability insurance claims. The matter in issue in folio P18 comprises one sentence which, again, comments on the significance of the 8mm height difference. However, in this instance, the information appears to have been provided to Councillor Pahlke, not for the purposes of the deliberative processes of the Council, but merely for the sake of providing information to a Councillor who had made representations on behalf of a constituent. I therefore find that the matter in issue in folio P18 does not fall within the terms of s.41(1)(a) of the FOI Act, and hence does not qualify for exemption under s.41(1) of the FOI Act. (In light of that finding, it is not necessary for me to consider the application of s.41(1)(b) to the matter in issue in folio P18. However, since the information in issue in folio P18 is, in substance, identical to the information in issue in folios P15 and P17, I have dealt with folio P18 when considering the application of s.41(1)(b) to the matter in issue in folios P15 and P17.)Application of s.41(1)(b)19. An applicant for access is not required to demonstrate that disclosure of deliberative process matter would be in the public interest; an applicant is entitled to access unless an agency can establish that disclosure of the relevant deliberative process matter would be contrary to the public interest. In Re Trustees of the De La Salle Brothers and Queensland Corrective Services Commission [1996] QICmr 4; (1996) 3 QAR 206, I said (at p.218, paragraph 34):The correct approach to the application of s.41(1)(b) of the FOI Act was analysed at length in my reasons for decision in Re Eccleston, where I indicated (see p.110; paragraph 140) that an agency or Minister seeking to rely on s.41(1) needs to establish that specific and tangible harm to an identifiable public interest (or interests) would result from disclosure of the particular deliberative process matter in issue. It must further be established that the harm is of sufficient gravity when weighed against competing public interest considerations which favour disclosure of the matter in issue, that it would nevertheless be proper to find that disclosure of the matter in issue would, on balance, be contrary to the public interest.20. In a written submission on behalf of the Council dated 25 March 1998, Mr Craswell contended:With regard to public interest considerations, both Mr Simpson and I considered the weight of the public interest of the (approx) 130,000 people Ipswich City Council represents in ensuring that the Council avoids loss in a matter of litigation to far outweigh the interest of a single party. Council has an obligation to the people it serves to ensure that public monies are not wasted; and, therefore, our responsibility lies with protection of their interests....Council, in having an obligation to the people it represents, has a right to create and collate documents to defend a possible litigation.21. The matter claimed to be exempt in folios P15, P17 and P18 comprises comment on the significance (for the applicant's claim for compensation) of the 8mm height difference between two concrete slabs outside 15 School Street, Rosewood. The substance of that information has already been disclosed to the applicant, in a letter dated 1 April 1997 from the insurer to the applicant's solicitors. In other words, the relevant deliberative process (to which the matter in issue was contributed) has been finalised, and the outcome of that deliberative process has been communicated to the applicant in a letter which also disclosed the substance of the matter in issue. For that reason alone, I am not satisfied that disclosure, under the FOI Act, of the matter claimed to be exempt in folios P15, P17 and P18 would be contrary to the public interest, and I find that it does not qualify for exemption under s.41(1) of the FOI Act.Even if the information had not been previously disclosed, I would not have been satisfied that its disclosure under the FOI Act would, on balance, have been contrary to the public interest, having regard to the considerations discussed in paragraphs 23-28 below.22. The matter in issue in folio P13, being Councillor Pahlke's opinion as to how the applicant's claim for compensation should be dealt with by the Council, might conceivably be construed as adverse to the position taken by the Council. However, it must be remembered that Councillor Pahlke is not an officer of the Council with expertise in the area of footpath construction or bicycle accidents. As I have indicated earlier, the letter appears to have been written in his capacity as a representative of his constituents, to ensure proper action was taken in respect of a claim made by one of his constituents. I do not consider it likely that a court would regard the opinions expressed in the matter in issue in folio P13 as relevant to the determination of any issue concerning the prospective liability of the Council. A court might regard the facts on which Councillor Pahlke's opinions were based as relevant, but those facts have already been disclosed to the applicant in another part of folio P13, which has alreadybeen released to the applicant. I am, therefore, not satisfied that disclosure of the matter in issue in folio P13 would cause any detriment to the Council in any legal proceedings that might be initiated by the applicant; and I am not aware of any other ground on which it might be contended that disclosure of the matter in issue in folio P13 would be contrary to the public interest.23. In any event, I do not accept that it would necessarily be contrary to the public interest for a local government authority to disclose to a citizen who has suffered injury, allegedly as a result of an unsafe footpath, information concerning the authority's maintenance and inspection of the relevant footpath, or information explaining the basis on which the authority refuses to accept liability for injury or damage claimed to have been suffered by the citizen. Indeed, it seems to me that there is a public interest consideration favouring disclosure to the applicant of the matter in issue in folios P13, P15, P17 and P18, according to the principles which I stated in Re Willsford and Brisbane City Council (Information Commissioner Qld, Decision No. 96017, 27 August 1996, unreported) at paragraphs 15-18.24. In that regard, the Council was incorrect in asserting (in its written submission dated 25 March 1998) that the principles from Re Willsford only apply where the respondent agency, which holds documents that may be relevant to the issue of whether a legal remedy is available to an applicant or is worth pursuing, is a non-involved third party. That happened to be the factual position in Re Willsford itself, but the principles in Re Willsford are also applicable where the respondent agency is a potential defendant in legal proceedings, or potential respondent in some less formal procedure for seeking a remedy (e.g., lodging a complaint to a 'watchdog' or regulatory body). That should have been apparent from the references, in paragraph 16 of Re Willsford, to Re Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663 at pp.713-714 (paragraphs 103-104), p.717 (paragraph 120), and p.723 (paragraph 142), where I applied similar principles in a situation where the respondent agency was a potential defendant in legal proceedings.25. With respect to the public interest balancing test in s.41(1)(b), the applicant's solicitors submitted:...2. The Council's argument for exemption under the Act is based on two propositions, namely public interest and legal professional privilege.In his correspondence to yourself dated 25 March 1998, Mr Craswell reveals what we would suggest is a highly skewed understanding of the former. He states that as the Council represents 130,000 people and Nathan Hobden is a mere individual, the greater good is served by any course that serves the interest of the majority. The interest of the majority in this matter, he argues, lies in the protection of the Council's interests (apparently regardless of the justice of the case) by ensuring that public monies are not "wasted" presumably by the admission of, investigation into or potential judicial determination of the matter of liability.3. The Act clearly envisages a broader meaning for public interest than that propounded by Mr Craswell. Section 5, which outlines the reasons for enactment, states unequivocally that public interest is served by enhancing a government's accountability and that the community should be kept informed of government's operations, in particular the rules and practices followed by government in its dealings with members of the community. Exemption is granted under Section 41(1)(b) in circumstances where public interests are prejudiced. It is difficult to see how public interest is served by the Council's refusal to allow access to documentation that is fundamental to a fair and just investigation of the matter of liability. If the Council has arrived at its position of denial of liability honestly, then an examination of its supporting evidence should prove no threat. Public interest is surely not advanced by a governing body that evades its responsibility and justifies its stance on the basis of protection of revenue. That Mr Craswell speaks of the Council being found liable in terms of monies "wasted" suggests to us a highly biased and cynical view of public liability claims.4. Further, in his response to your initial determination regarding this matter, Mr Craswell distinguished the present case from that of your decision number 96017 Re Willsford and Brisbane City Council on the basis that in the latter the Council was a non-involved third party and that apparently, therefore, the "relevance to the matter under review is lost". We would argue that this conclusion has been reached less through a careful examination of the FOI issues involved in both cases than through Mr Craswell's conviction that public interest and Council interest are irrevocably bound. In Re Willsford it was held that it should be sufficient to found the existence of a public interest consideration favouring disclosure of information held by an agency if an applicant can demonstrate that:-(a) Loss or damage or some kind of wrong has been suffered in respect of which a remedy is, or may be, available under the law;(b) The applicant has a reasonable basis for seeking to pursue the remedy; and (c) Disclosure of the information held by the agency would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available, or worth pursuing.5. The only public consideration Mr Craswell has offered to weigh against disclosure is the possible diminution of Council coffers. The remarks of Mason CJ in Attorney-General (NSW) -v- Quin (1990) 64 ALJR 327 seem particularly apposite "the public interest necessarily comprehends an element of justice to the individual". Thus, as was observed in Re Eccleston and Department of Family Services "there is a public interest in individuals receiving fair treatment in accordance with the law in their dealings with government, as this is an interest common to all members of the community. Similarly, the fact that individuals and corporations have, and are entitled to pursue, legitimate private rights and interests can be given recognition as a public interest consideration worthy of protection, depending on the circumstances of any particular case".6. In Re Willsford it is stated that the greater the magnitude of the loss, damage or wrong and/or the stronger the prospects of successfully pursuing an available remedy in respect of the loss, damage or wrong, then the stronger would be the weight of the public interest consideration favouring disclosure which is to be taken into account in the application of a public interest balancing test incorporated in an exemption provision of the Freedom of Information Act. In this regard, to demonstrate the strength of Nathan Hobden's case, we would tender:-(a) The letter from Mr Pahlke to Mr Quinn in which he makes mention of the Council's inaction to repair a reported footpath fault back in July and that he personally followed up as to the completion of the action on no less than three or four occasions. Further, Mr Pahlke states that there is some onus on Council for the length of time this footpath has taken to be repaired....26. I agree with the broad thrust of the submissions made by the applicant's solicitors. The public interest in acting fairly in the interests of the ratepayers of the Council as a whole is not incompatible with the public interest in acting fairly in the interests of an individual who has suffered injury, and who may or may not have a good cause of action against the Council for compensation for that injury. The public interest in not wasting funds levied from the Council's ratepayers is not entitled to paramountcy over the public interest in ensuring that the Council fairly compensates any person to whom it has incurred a legal liability. The greater public interest lies in ensuring that individuals receive fair treatment in accordance with the law in their dealings with government (see Re Pemberton and The University of Queensland (1994) 2 QAR 293 at pp.376-377, paragraph 190). Like the public interest in safeguarding the privacy of individuals (which is the rationale for the exemption provision in s.44(1) of the FOI Act), the public interest in individuals receiving fair treatment in accordance with the law in their dealings with government is an interest common to all members of the community, and for their benefit, even though it ordinarily applies for the benefit of particular individuals in particular cases (cf. Re Little and Department of Natural Resources [1996] QICmr 2; (1996) 3 QAR 170 at p.186, paragraph 48; p.188, paragraph 52).27. I therefore consider that the Council's contention, set out at paragraph 20 above, is misconceived. It is correct that the Council has an obligation to its ratepayers and the people it serves to ensure that public monies are not wasted. But that does not mean that the public interest necessarily favours withholding of relevant information from a person who potentially has a legal entitlement to compensation from the Council. In such circumstances, the relevant duty of the Council would be more correctly described as a duty to ensure that a claimant receives no more than the claimant's proper entitlement (if any) to compensation under the applicable law. The principles stated in Re Willsford do, in my view, apply in the circumstances of this case, and give rise to a public interest consideration favouring disclosure of the matter in issue, which is to be weighed in the balance with other relevant public interest considerations telling for or against disclosure.28. It is possible that disclosure of some kinds of information created or collated by the Council to defend possible litigation could be contrary to the public interest; e.g., information evidencing the fraudulent nature of a claim, premature disclosure of which might negate a strategic or forensic advantage in deploying the information in the most appropriate manner to ensure that Council funds are not wasted. However, I am not satisfied that disclosure of the matter in issue in folios P13, P15, P17 and P18 would conflict with the Council's duties to the people it serves, or would otherwise, on balance, be contrary to the public interest, and I therefore find that it does not qualify for exemption under s.41(1) of the FOI Act.Application of s.43(1) of the FOI Act29. The Council claims that 30 folios (A7-A32 and E6-E9) are exempt under s.43(1) of the FOI Act, which provides: 43.(1) Matter is exempt matter if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.30. The s.43(1) exemption turns on the application of those principles of Australian common law which determine whether a document, or matter in a document, is subject to legal professional privilege.The grounds on which a document can attract legal professional privilege are fairly well settled in Australian common law. In brief terms, legal professional privilege attaches to confidential communications between lawyer and client for the sole purpose of seeking or giving legal advice or professional legal assistance, and to confidential communications made for the sole purpose of use, or obtaining material for use, in pending or anticipated legal proceedings (see Re Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 at pp.51-52 (paragraph 82), which sets out a summary of the principles established by the High Court authorities of Grant v Downs (1976) [1976] HCA 63; 135 CLR 674, Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500, Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, and Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54). There are qualifications and exceptions to that broad statement of principle, which may, in a particular case, affect the question of whether a document attracts the privilege, or remains subject to the privilege; for example, the principles with respect to waiver of privilege (see Re Hewitt and Queensland Law Society Inc (Information Commissioner Qld, Decision No. 98005, 24 June 1998, unreported) at paragraphs 19-20 and 29) and the principle that communications otherwise answering the description above do not attract privilege if they are made in furtherance of an illegal or improper purpose (see Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 71 ALJR 327; 141 ALR 545).However, none of those exceptions or qualifications requires any detailed consideration in the present case.31. Copies or originals of many of the documents in issue (folios A7-11, A16-18, A20, A28-29, A31 and E6-8) have already been disclosed to the applicant (in some instances, subject to deletion of matter which was claimed to be, but which I have found is not, exempt matter under s.41(1) of the FOI Act). Subject to the consideration addressed in paragraph 43 below, those documents lack the necessary element of confidentiality for a claim of legal professional privilege to be maintained as against the applicant. If any of those documents attracted legal professional privilege in the first place, the privilege would certainly have been waived by intentional disclosure to the applicant (see Re Hewitt at paragraph 19), but for reasons explained below, I am not satisfied that any of the documents in issue have ever attracted legal professional privilege.32. Some of the documents in issue are communications between Mr O'Leary and Councillor Pahlke (folios A20, A22, A29, E8). From my examination of those documents, it is clear that they were either -(a) created by Councillor Pahlke for the purpose of making representations on behalf of his constituents as to how the Council should deal with the applicant's claim; or(b) created by Mr O'Leary for the purpose of informing Councillor Pahlke of the progress made in dealing with the applicant's claim.They are not communications of a kind, or made for a purpose, which attracts legal professional privilege. The same is true of folios A7-11 and E6-7, which are duplicates of correspondence to the Council from the applicant's mother (who was writing on the applicant's behalf), and true also of folio A31, which is a copy of a letter from the insurer to the applicant's solicitor, denying liability to compensate the applicant.33. The balance of the documents in issue consists of correspondence between the Council and the insurer (or the loss assessor retained by the insurer to assist it), or of internal Council memoranda relating to the applicant's accident and claim for compensation. None of the documents is a communication between the Council, as client, and a professional legal adviser.In fact, there is no indication, on the material before me, that either the Council or the insurer has ever retained or instructed a professional legal adviser to provide legal advice or professional legal assistance in connection with the applicant's claim for compensation. Those documents all appear on their face to have come into existence for the initial purpose of notifying the insurers of a potential claim, and thereafter of enabling the Council and the insurer to assess whether to admit or deny liability for any injury suffered in the accident. The only established category of privilege into which the correspondence passing between the Council and the insurer (or its loss assessor) could conceivably fall is category (f) identified by Lockhart J in Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at p.246:(f) Communications passing between the party [in the circumstances of this case, the Council] and a third person (who is not the agent of the solicitor to receive the communication from a party) if they are made with reference to litigation either anticipated or commenced, and at the request or suggestion of the party's solicitor; or, even without any such request or suggestion, if they are made for the purpose of being put before the solicitor with the object of obtaining his advice or enabling him to prosecute or defend an action. ...(Case citations omitted)34. However, to attract legal professional privilege, the purpose referred to in the quoted passage must have been the sole purpose for which the relevant communications were made: see Grant v Downs at p.688; Nickmar Pty Ltd v Preservatrice Skandia Insurance Ltd (1985) 3 NSWLR 44 at p.52. Likewise, the documents in issue comprising internal Council memoranda relating to the applicant's accident and claim for compensation would attract legal professional privilege only if they were brought into existence for the sole purpose of submission to legal advisers for obtaining advice or professional legal assistance, or for use in pending or anticipated legal proceedings.35. On the material before me, the 'sole purpose' test is not satisfied. In his affidavit sworn 9 December 1997, Mr O'Leary said:...2. My duties ... include the responsibility for processing public liability insurance claims received by Council.3. Public liability insurance claims are, generally, received through normal mail delivery by Council's Records Section and are forwarded to me via my supervisor, the Financial Operations Manager, for processing.4. On receipt of a written claim (or written advice that could potentially lead to a claim):(a) the Financial Operations Manager calls for a report from a relevant officer, the report forms part of Council's litigation strategy, to assist in defence of a possible litigation;(b) receipt of the claim is acknowledged to the claimant;(c) a notification form is completed and forwarded to Council's insurers.5. Officer's reports of incidents are forwarded to Council's insurers.6. In all matters involving insurance claims, or possible claims, documentation relating to the claim is prepared and collated on the assumption that the matter could proceed to litigation.36. In a letter to me dated 12 December 1997, Mr Craswell stated:I advise that once a matter is referred to the insurers, further referral to solicitors is a decision for the insurers, but as indicated in the affidavit [of Mr O'Leary], documentation in these matters is prepared on the assumption that the matter could proceed to litigation.37. Both Mr Craswell's statement and Mr O'Leary's affidavit confirm what is apparent on the face of the documents themselves, i.e., that the primary purpose for the creation of the documents now under consideration was to enable the Council and its insurer to assess whether they should accept or deny liability in respect of the applicant's claim for compensation, and that possible submission of the documents to a solicitor for use in respect of anticipated litigation (which was a choice for the insurer rather than the Council itself) was at best a secondary or contingent purpose, but certainly not the sole purpose for the creation of the documents. 38. Indeed, it is not clear on the material before me that matters had proceeded so far as to justify a finding that, at the time the documents now under consideration were created, litigation was reasonably anticipated. (The test is an objective one, to be judged according to the circumstances shown to exist at the time the document in issue was created: see Grant v Downs at p.682, Nickmar at p.55.) Mrs Hobden's letter did not expressly threaten litigation.It merely asked what the Council was going to do in respect of the injuries suffered by theapplicant. If the Council had responded in a fashion acceptable to the applicant, there would probably have been no question of litigation arising. Presumably, the Council would contend that any claim for compensation carries an implicit threat of litigation if the claim is rejected, and that this is sufficient to warrant a finding that litigation was reasonably anticipated at the time the Council and the insurer were investigating the accident and assessing whether to accept or deny liability. I do not need to express a concluded view on that issue because, even if litigation was reasonably anticipated at the time of their creation, the documents in issue do not satisfy the 'sole purpose' test.39. Some of the documents (in particular folios A15-19, which have about them the flavour of routine reports such as would be made by any institution or corporation relating to an occurrence of the kind that befell the applicant so as to inform itself, and/or its insurer, of the circumstances in which it occurred) are analogous in their general character to the ones considered by the High Court of Australia in Grant v Downs (see paragraph 42 below), and the rest are analogous to those considered by the High Court in National Employers Mutual General Insurance Association Ltd v Waind & Anor [1979] HCA 11; (1979) 24 ALR 86.40. In my letter to the Council dated 11 March 1998, I adapted segments of the following passages from the judgment of Mason J in Waind's case (at pp.90-92), to illustrate how the 'sole purpose' test applies to the documents which are now under consideration (the square brackets signify my paraphrasing):The appellant says that the business of a [public liability] insurer stands in a very special category.... The appellant submits that ... the written claim is to be likened to a summons or originating process. The comparison cannot be sustained. It is the [originating process filed in court] that commences proceedings for an award of [damages in negligence]. Accordingly, on receipt of the written claim it is necessary for the [Council], and consequently the insurer, to decide whether it will pay compensation or deny liability. Ordinarily that decision will be made before the [injured person] commences proceedings by filing an [originating process]....... In this instance again, documents are brought into existence to enable the appellant to decide what it will do. In this situation, if the appellant decides to [deny liability], litigation is likely to ensue. Although there is a greater likelihood that documents of this class will be submitted to solicitors for use in litigation, the primary function for which they are called into existence is, as the trial judge said, to enable the appellant to make a decision in the ordinary course of its business.... the appellant contends ... [that, if], on the facts, the documents are brought into existence for the dual purpose of deciding what it will do and for use in litigation by legal advisers when appropriate, that purpose should be considered as one purpose which, including as it does submission to legal advisers, would attract the relevant head of privilege. That is the argument.Unfortunately for the appellant, it is an argument which runs headlong into Grant v Downs. As Glass JA observed in the Court of Appeal when he applied the remarks of Stephen, Mason and Murphy JJ in Grant v Downs ...: "If the purpose which actuates the party who commissions documents is not single butmultiple each must be identified. Unless all of them fall within the protected group of purposes, namely submission to legal advisers or use in litigation, no privilege attaches." The argument ... [also] fails to satisfy the test proposed by Jacobs J (CLR at 692; ALR at 591): Does the purpose of supplying the material to the legal adviser account for its existence?41. I should, for the sake of completeness, deal with two further arguments raised by Mr Craswell in his written submission on behalf of the Council dated 25 March 1998:(a) If these documents are released Council would be forced to place itself in the difficult situation where we could not call for reports to assist in defence of a possible future litigation for fear of such a report being accessible to the other side in litigation. Such matters are often drawn out and Council's position may be compromised if adequate reporting of the situation at the time of the event had not occurred.(b) I still contend that documents prefixed A & E listed in the schedule ... were created or collated for the sole purpose of defending a litigation. ...I request that, regardless of duplicates of the same documents as those in the A & E series of documents existing elsewhere and possibly being released, you consider a principle that the documents in those series were created for the sole purpose of defending a litigation and should not be released ...42. The first argument refers to an allegedly difficult situation faced by the Council, but, with respect, it is one with which any body corporate, whether in the private or public sectors, has had to deal since the High Court's 1976 decision in Grant v Downs. In that case, Stephen, Mason and Murphy JJ described (at p.689) the documents they were considering as having about them "a flavour of routine reports such as would be made by any institution or corporation relating to an occurrence of the kind that took place [the death of a psychiatric patient after admission to a government institution] so as to inform itself of the circumstances in which the death of the patient occurred and with a view to disciplinary action and the reform of any procedures that might be found to be defective." Those documents did not satisfy the 'sole purpose' test to attract legal professional privilege, which test was explained by Stephen, Mason and Murphy JJ in these terms (at pp.686-688):... These difficulties are magnified in cases when privilege is claimed by a corporation, whether it be a statutory authority or a company, because the corporation conducts its business through servants, brings into existence voluminous records and institutes systematic standing procedures calling for the preparation of reports and other documents which may serve a variety of purposes, included in which is the submission of documents to a solicitor for the purpose of obtaining legal advice, or for use in existing or anticipated litigation.With the advent of large corporations, documents necessarily proliferate; the knowledge of servants of the corporation is, in legal theory, the knowledge of the corporation itself but will only become so in fact when communicated to that corporation. It is in the course of converting legal theory into fact that corporations require their servants to furnish to management reports of activities known only, in the first instance, to the servants. Hence the proliferation of documents.An individual seeking legal advice cannot be required to disclose the information he communicated to his legal adviser nor the nature of the advice received; nor may the legal adviser disclose it. However, a litigant is, of course, bound to disclose his own knowledge of relevant facts. It would be curious if, because the litigant happens to be a corporation, the rule was for that reason different. Yet it is said that a corporation, necessarily having recourse to documents in the form of reports for the purpose of informing its management of the knowledge of its agents, may claim privilege if one of the purposes of management was to make available such reports to its legal advisers should litigation ensue, the probability or possibility of litigation being anticipated at the time. ...It is difficult to see why the principle which lies behind legal professional privilege should justify its extension to material obtained by a corporation from its agents with a double purpose. The second purpose, that of arming central management of the corporation with actual knowledge of what its agents have done, is quite unconnected with legal professional privilege; it is but a manifestation of the need of a corporation to acquire in actuality the knowledge that it is always deemed to possess and which lies initially in the minds of its agents. That cannot itself be privileged; quite the contrary. If the party were a natural person or, more accurately, an individual not acting through servants or agents, it would be precisely that knowledge which would be discoverable and the party cannot be better off by being a corporation.The fact that a second purpose may also be being served, a purpose to which the privilege would extend, does not cover with that privilege information which would otherwise be discoverable....All that we have said so far indicates that unless the law confines legal professional privilege to those documents which are brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings the privilege will travel beyond the underlying rationale to which it is intended to give expression and will confer an advantage and immunity on a corporation which is not enjoyed by the ordinary individual. It is not right that the privilege can attach to documents which, quite apart from the purpose of submission to a solicitor, would have been brought into existence for other purposes in any event, and then without attracting any attendant privilege. It is true that the requirement that documents be brought into existence in anticipation of litigation diminishes to some extent the risk that documents brought into existence for non-privileged purposes will attract the privilege but it certainly does not eliminate that risk. For this and the reasons which we have expressed earlier we consider that the sole purpose test should now be adopted as the criterion of legal professional privilege.43. The second argument quoted in paragraph 41 above may have been intended to invoke reliance on one of the principles established by the decision of the High Court of Australia in the Propend Finance case, i.e., that legal professional privilege may attach to a copy document, the original of which does not itself attract legal professional privilege, provided the copy was brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending or reasonably anticipated. It seems to me that there is limited utility for an agency in invoking exemption on that ground, since the agency would be obliged to grant access to the non-privileged originals (and any other non-privileged copies of them) provided they were (a) in the possession or control of the agency, (b) covered by the terms of the relevant FOI access application, and (c) not exempt from disclosure on other grounds. However, it is possible that an agency may wish to avoid disclosing the contents of a file (or perhaps attachments to a brief to counsel) comprising copies of non-privileged documents that have been copied solely for a privileged purpose, because to do so would disclose its process of selection of material considered relevant for the purpose of submission to legal advisers. In such circumstances, the agency can avail itself of the principle established in the Propend Finance case, and I expect that most reasonable applicants would not even wish to challenge a claim for exemption made on that basis, provided the applicant was assured that access had been granted to all non-privileged originals, and non-privileged copies thereof, covered by the terms of the relevant FOI access application.44. However, the Council's argument fails in the present case because it has not discharged the onus which it carries, under s.81 of the FOI Act, of satisfying me that the documents prefixed A and E in the schedule set out at paragraph 10 above are copy documents that were brought into existence solely for the purpose of obtaining legal advice, or solely for use in litigation that was pending or reasonably anticipated. The documents prefixed A and E were contained on Council files respectively referred to by the Council itself as "Council's Insurance file", and "District Engineer's file". Neither description suggests that the contents of the respective files were created or collated solely for the purpose of submission (by the Council as client) to legal advisers for advice or for use in legal proceedings. Even if I were to accept the assertion in paragraph 6 of Mr O'Leary's statutory declaration (see paragraph 35 above), it would not establish that copy documents on those two files were brought into existence solely for a purpose or purposes which attract legal professional privilege. I remain satisfied that the documents on those two files were brought into existence for multiple purposes, one or more of which were not purposes which attract legal professional privilege, as explained at paragraphs 32-40 above.45. On the material before me, I am not satisfied that any of the documents claimed by the Council to be exempt under s.43(1) of the FOI Act qualify for exemption under that provision.Conclusion46. For the foregoing reasons, I set aside the decision under review. In substitution for it, I decide that the matter remaining in issue (which is identified in paragraph 10 above) is not exempt from disclosure to the applicant under the FOI Act...............................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Cacciola and Queensland Ombudsman [2004] QICmr 9 (20 December 2004)

Cacciola and Queensland Ombudsman [2004] QICmr 9 (20 December 2004) OFFICE OF THE INFORMATION COMMISSIONER (QLD) Application 83/04 Participants: CHARLIE CACCIOLA Applicant QUEENSLAND OMBUDSMAN Respondent DECISION AND REASONS FOR DECISION CONTENTS Background 2 Steps taken in the external review process 2 Matter in issue 4 4. Application of s.43(1) of the FOI Act 4 (a) General principles 4 (b) Application of s.43(1) to the matter in issue 5 (c) The applicant's submissions 5 (d) Waiver 6 (e) Conclusion 7 Decision 7 REASONS FOR DECISION 1. Background 1.1 The applicant seeks review of a decision of the Office of the Queensland Ombudsman (the Ombudsman's Office) to refuse him access, under the Freedom of Information Act 1992 Qld (the FOI Act), to documents concerning a complaint which the applicant made to the Ombudsman's Office. The complaint involved the applicant's son and the Department of Education and the Arts (as it is now known; the Department). 1.2 By letter dated 7 October 2003, the applicant applied to the Ombudsman's Office for access, under the FOI Act, to documents in the following terms: I request under the FOI Act copies of all documents that you received or sent (including E-mails) relating to my complaint to your office since 10 April 2000 with the exception of the documents referred to in the schedule to your letter 23/9/2003 and those documents which were forwarded to your office by me or on my behalf. 1.3 By letter dated 24 December 2003, Mr Greg Woodbury of the Ombudsman's Office advised the applicant that he had identified 58 documents which were responsive to the terms of the applicant's FOI access application. Mr Woobury decided to grant the applicant full access to 30 documents, but to refuse him access, either in whole or in part, to the remainder of the documents under s.43(1) (folios 6, 7, 10, 21, 25-39 and 41) or s.44(1) (folios 45-49 and 54-56) of the FOI Act. 1.4 By letter dated 1 January 2004, the applicant applied for internal review of Mr Woodbury's decision, and also contended that there existed, in the Ombudsman's possession or control, additional documents which the Office had failed to identify. Mr Craig Allen of the Ombudsman's Office conducted the internal review. By letter dated 10 February 2004, Mr Allen advised the applicant that he had decided to affirm Mr Woodbury's decision that the relevant documents were exempt from disclosure under s.43(1) or s.44(1) of the FOI Act. In response to the applicant's contention that the Ombudsman's Office had failed to identify all responsive documents, an additional 7 documents were identified and disclosed in full to the applicant. 1.5 By letter dated 14 February 2004, the applicant applied to the Information Commissioner for review, under Part 5 of the FOI Act, of Mr Allen's decision in terms of the exemptions claimed, and of the "sufficiency of search" by the Ombudsman's Office for documents which fell within the terms of his FOI access application. Steps taken in the external review process 2.1 Copies of the documents in issue were obtained and examined. 2.2 Initially, the focus of this external review was in determining the scope of the applicant's FOI access application. This was confirmed with both participants by letter dated 21 April 2004 from Assistant Commissioner (AC) Moss. Clarification of the scope of the applicant's FOI access application was necessary, as a narrow or broad interpretation would affect the extent of the inquiries to be pursued regarding the "sufficiency of search" issue. However, as the sufficiency of search issue has been finalised, it is not necessary for the purposes of my decision to set out the steps taken or the results obtained in any detail. I will summarise them briefly below. 2.3 Following inquiries with the Ombudsman's Office some additional documents were identified and, on 20 August 2004, I authorised the release of those documents to the applicant. The applicant still contended, however, that the Ombudsman's Office had in its possession, or under its control, further documents which it had not yet identified. I subsequently agreed to make direct inquiries with the Ombudsman, the Deputy Ombudsman, and another staff member of that office, the results of which were conveyed to the applicant by letters dated 24 September 2004 and 14 October 2004. As a result of my office's inquiries, I advised the applicant that it was my preliminary view that there were no reasonable grounds for believing that additional documents existed in the possession, or under the control, of the Ombudsman's Office. I also expressed the preliminary view that the searches and inquiries conducted in an effort to locate any further responsive documents had been reasonable in the circumstances of the case. In the event the applicant did not agree with my preliminary view, I invited him to make a written submission specifying the searches and inquiries which he contended the Ombudsman's Office should reasonably be required to undertake. I advised the applicant that if I did not receive any submissions from him, I would proceed on the basis that he accepted my preliminary view. No further submissions have been made by the applicant in respect to this issue, and I have not considered it further. 2.4 As the documents containing the matter in issue in this review were provided to the Ombudsman's Office by the Department, I consulted with the Department in accordance with s.74(1) of the FOI Act, and invited it to be a participant in the review. At the same time, I asked the Department to consider whether it objected to the disclosure of the segments of matter in issue in folios 7, 45-49 and 54-56, on the basis that those folios were either provided to the Department by solicitors who, at the relevant time, represented the applicant's son in a grievance lodged with the Department (there being no suggestion that the applicant was acting other than on behalf of his son), or duplicated in another folio to which the applicant had been granted full access. By email received on 14 July 2004, Ms Stephannie Kalas of the Department advised my office that the Department withdrew its objection in relation to that matter. The Ombudsman's Office subsequently withdrew its objection and, by letter dated 28 July 2004, I authorised the release of those segments of matter. Those documents are no longer in issue in this review. 2.5 As regards the remaining documents (folios 6, 10, 21, 25-39 and 41), by letter dated 14 May 2004, AC Moss expressed to the applicant her preliminary view that the matter in issue in those documents qualified for exemption under s.43(1) of the FOI Act. The applicant did not accept that preliminary view and, by letter dated 30 May 2004, provided submissions in support of his case for disclosure. 2.6 By letter dated 17 June 2004, I wrote to the applicant confirming what I understood to be the basis of his objection to the preliminary view expressed by AC Moss. Having regard to his submissions, I extended the time for the applicant to lodge evidence in support of his case for disclosure of the matter in issue. Nothing further has been received from the applicant in that regard. 2.7 In making my decision, I have taken into account the following: • the matter in issue; • the applicant's FOI access application dated 7 October 2003, application for internal review dated 1 January 2004, and application for external review dated 14 February 2004; • the initial and internal review decisions of the Ombudsman's Office, dated 14 November 2003 and 10 February 2004, respectively; • the applicant's letters dated 30 May 2004 and 1 September 2004; and • the letter from the Ombudsman's Office dated 9 March 2004. Matter in issue 3.1 The matter remaining in issue can be categorised as follows: • Category 1 - correspondence between Crown Law and the Department (folios 25-39 and 41) • Category 2 - discussion or summary of professional legal advice provided to the Department by its solicitors, Crown Law (parts of folios 6, 10 21). Application of s.43(1) of the FOI Act (a) General Principles 4.1 Section 43(1) of the FOI Act provides: 43(1) Matter is exempt matter if it would be privileged from production in a legal proceeding on the ground of legal professional privilege. 4.2 Following the judgments of the High Court of Australia in Esso Australia Resources Ltd v Commission of Taxation [1999] HCA 67; (1999) 74 ALJR 339, the basic legal tests for whether a communication attracts legal professional privilege under Australian common law can be summarised as follows. Legal professional privilege attaches to confidential communications between a lawyer and client (including communications through their respective servants or agents) made for the dominant purpose of: (a) seeking or giving legal advice or professional legal assistance; or (b) use, or obtaining material for use, in legal proceedings that had commenced, or were reasonably anticipated, at the time of the relevant communication. 4.3 Legal professional privilege also attaches to confidential communications between the client or the client's lawyers (including communications through their respective servants or agents) and third parties, provided the communications were made for the dominant purpose of use, or obtaining material for use, in legal proceedings that had commenced, or were reasonably anticipated, at the time of the relevant communication. 4.4 There are qualifications and exceptions to this statement of the basic tests, which may, in a particular case, affect the question of whether a document attracts the privilege, or remains subject to the privilege; for example, the principles with respect to waiver of privilege (see Re Hewitt and Queensland Law Society Inc [1998] QICmr 23; (1998) 4 QAR 328 at paragraphs 19-20 and 29), and the principle that communications otherwise answering the description above do not attract privilege if they are made in furtherance of an illegal or improper purpose (see Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501). 4.5 Legal professional privilege will apply to communications between officers of the Crown Solicitor's Office and their clients, or with third parties, which satisfy the tests summarised above: see Re Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 at p.54 (paragraphs 88-90). (b) Application of s.43(1) to the matter in issue • Category 1 4.6 Based upon my examination of the contents of the category 1 documents, I am satisfied that they comprise confidential communications between lawyer (Crown Law) and client (the Department), which were made for the dominant purpose of obtaining or giving legal advice or professional legal assistance, or for the dominant purpose of use, or obtaining material for use, in pending or anticipated legal proceedings. I am therefore satisfied that the category 1 documents would be privileged from production in a legal proceeding, and are exempt from disclosure under s.43(1) of the FOI Act. • Category 2 4.7 Based upon my examination of the contents of the category 2 documents, I am satisfied that the matter in issue in those documents either discusses, or summarises, professional legal advice provided to the Department by its solicitors, which advice would, of itself, attract legal professional privilege. I am therefore satisfied that the matter in issue in the category 2 documents attracts legal professional privilege and is exempt from disclosure under s.43(1) of the FOI Act. (c) The applicant's submissions 4.8 The applicant has argued that any legal professional privilege that might have existed in the matter in issue was waived by the Department when it produced the folios to the Ombudsman's Office, or by giving the applicant access to the matter in issue as part of a previous FOI access application lodged with the Department. 4.9 In her letter to the applicant dated 14 May 2004, AC Moss considered whether, by providing the documents to the Ombudsman's Office, the Department had waived any privilege attaching to the matter in issue. It was AC Moss' view that as the matter in issue was provided in confidence, and for the limited purpose of assisting the Ombudsman's Office in its assessment of the applicant's complaint, the Department had not waived the privilege attaching to those folios. 4.10 In his letter dated 30 May 2004, the applicant stated: • ... in a 1999 FOI application the agency gave me 2 versions of the documents. One version with numerous blackouts and the other without any blackouts. As I indicated the documents I received from the agency FOI sweep are stored by the agency would have records. The agency has a history of luring my documents so it can update and 'fix' its own records. I believe that as recent as 2003 part of these documents were given to EQ and his local member, by my son. I believe one version of documents given to me included blacked out advice from Crown Law that the agency could withstand any judicial review and the other version could be clearly read. • Other documents regarding natural justice were provided by Crown Law to my son via his solicitors. • I disagree that the documents were released by the agency in confidence for the limited purpose of assisting the Ombudsman in his assessment and therefore all information should be made available to me. The Ombudsman did not notify me within a reasonably practicable time as he is obliged to of his reason not to investigate. In fact all along I was lead to believe that an investigation was being conducted hence my providing additional information during the 2 year 10 month process. The Ombudsman's response in 2003 referred to assessment but a further letter from Ombudsman's office April 2003 clearly refers to S57 in the Ombudsman's office is only required to advise complainants of the outcome of investigations (not assessment) in the way the Ombudsman considers appropriate. I state that the agency has waived privilege by making documents available under FOI and can't hide behind the fact that it can't find records. It is reasonable that the agency finds the records. As your office knows the agency has been caught out before with documents 'reappearing' after 12 months – refer to my 2001 report to Ombudsman. 4.11 By letter dated 17 June 2004, I wrote to the applicant confirming what I understood to be the basis of his objection: I understand that objection is based on the premise that the [Department] has waived the privilege attaching to the matter in issue by: (a) providing copies of the matter in issue to the [Ombudsman's Office]; and (b) giving you access to the matter in issue following an application you made, under Part 3 of the FOI Act, to the Department in 1999. 4.12 In that letter, I invited the applicant to provide evidence in support of his statements that he (or his son) had previously been given access to the matter in issue. Despite that request, the applicant did not put any material before me, or refer me to any material, which suggests or indicates that he (or his son) had previously been given access to the matter in issue. (d) Waiver 4.13 The Information Commissioner discussed the circumstances in which legal professional privilege will be waived in Re Hewitt and Re Noosa Shire Council and Department of Communication and Information, Local Government and Planning (2000) 5 QAR 428. The leading High Court authorities on waiver of legal professional privilege are Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, and Mann v Carnell [1999] HCA 66; (1999) 74 ALJR 378. There are two kinds of waiver - express or intentional waiver, and waiver imputed by operation of law (also referred to in the cases as implied waiver). As to express or intentional waiver, the Information Commissioner made the following observations in Re Hewitt at p.338 (paragraph 19): ... A person entitled to the benefit of legal professional privilege can waive the privilege through intentionally disclosing protected material (see Maurice at p.487, per Mason and Brennan JJ). If disclosure is incompatible with retention of the confidentiality which is necessary for maintenance of the privilege, there will ordinarily be a general waiver of privilege: see Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 per Deane, Dawson and Gaudron JJ at p.95, per Toohey J at p.106. However, the courts will allow an exception for a limited intentional disclosure of privileged material, if the disclosure is compatible with the retention of confidentiality. Thus, disclosure of privileged information by the beneficiary of the privilege to another person for a limited and specific purpose, on the clear understanding that the recipient is not to use or disclose the information for any other purpose, will not involve a general waiver of privilege, and, subject to questions of imputed waiver, may not disentitle the beneficiary of the privilege from asserting the privilege against other persons: see Goldberg v Ng per Deane, Dawson and Gaudron JJ at p.96, per Toohey J at pp.106-109, and per Gummow J at p.116. 4.14 In this case, the Ombudsman's Office assessed a complaint the applicant made to it concerning the Department. I am satisfied that the matter in issue which was sent to the Ombudsman's Office by the Department was provided in confidence, and for the limited purpose of assisting the Ombudsman's Office in its assessment of that complaint. Based on the material before me, there is nothing to suggest that the Ombudsman's Office disclosed the matter in issue to any person, or made any other use of that matter contrary to the use for which it was provided. Nor is there any material before me to suggest that the Department previously disclosed the matter in issue to the applicant, or his son. (e) Conclusion 4.15 I find that the matter in issue satisfies the test for legal professional privilege set out at paragraph 4.2 above, and the privilege attaching to the matter in issue has not been waived by, or on behalf of the Department. DECISION 5.1 I affirm the decision under review (being the decision dated 10 February 2004 made by Mr Allen on behalf of the Ombudsman's Office) by finding that the matter in issue, as identified at paragraph 3.1 above, is exempt from disclosure to the applicant under s.43(1) of the FOI Act. 5.2 I have made this decision as a delegate of the Information Commissioner's powers, under s.90 of the FOI Act. ....................... SUSAN BARKERASSISTANT INFORMATION COMMISSIONER Date: 20 December 2004

queensland

court_judgement

Queensland Information Commissioner 1993-

E70 and Hon Dr Steven Miles MP, Minister for Health and Minister for Ambulance Services [2019] QICmr 58 (11 December 2019)

E70 and Hon Dr Steven Miles MP, Minister for Health and Minister for Ambulance Services [2019] QICmr 58 (11 December 2019) Last Updated: 9 January 2020 Decision and Reasons for Decision Citation: E70 and Hon Dr Steven Miles MP, Minister for Health and Minister for Ambulance Services [2019] QICmr 58 (11 December 2019) Application Number: 314562 Applicant: E70 Respondent: Hon Dr Steven Miles MP, Minister for Health and Minister for Ambulance Services Decision Date: 11 December 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - documents about the applicant and their interactions with the agency - whether disclosing particular information could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment - section 47(3)(a) and schedule 3, section 10(1)(i) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - UNLOCATABLE DOCUMENTS - applicant contends additional documents exist - whether all reasonable steps have been taken to locate the documents but the documents either cannot be found or do not exist - section 67(1) of the Information Privacy Act 2009 (Qld) - sections 47(3)(e) and 52(1) or the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to an agency under the Information Privacy Act 2009 (Qld) (IP Act) for access to various documents about themselves and their interactions with the agency and the Minister for Health. In accordance with section 57 of the IP Act, the agency transferred part of the applicant’s request relating to documents held by the Minister for Health to the Hon Dr Steven Miles MP, Minister for Health and Minister for Ambulance Services (the Minister).[1] The portion of the application transferred to the Minister covers the period 1 January 2008 to 14 February 2019 and seeks access to: ALL DOCUMENTS ABOUT ME INCLUDING EMAILS TO AND FROM MINISTERY OF HEALTH. INCLUDE PERSONS BLIND COPIED. INCLUDED GOOGLE SEARCHES AND DOWNLOADS ABOUT ME. [sic] Queensland Health, under delegation from the Minister:[2] advised the applicant that the current Minister’s office did not have access to emails of former Ministers and their staff and, as the Minister was sworn in as Minister for Health and Minister for Ambulance Services on 12 December 2017, it had conducted searches for the period from 12 December 2017 to 14 February 2019; and located 337 pages and decided[3] to release this information, except for part of one page, which it refused on the ground that it is exempt information, namely information the disclosure of which could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment. The applicant applied[4] to the Office of the Information Commissioner (OIC) for external review of the decision refusing access to part of one page and raised concerns about the sufficiency of the searches conducted by Queensland Health for documents relevant to the application. For the reasons set out below, I vary the decision and find that: part of one page can be refused on the ground that it is exempt information on the basis that its disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment; and access to further documents may be refused on the ground that they are nonexistent or unlocatable. Background Significant procedural steps taken during the external review are set out in the Appendix to this decision. Reviewable decision The decision under review is the decision dated 4 April 2019 made by an officer of Queensland Health under delegation from the Minister. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). The applicant provided extensive submissions during the review. I have considered all of this material and have only extracted those parts which I consider have relevance to the issues to be determined in this external review. Information in issue The Information in Issue comprises part of page 276 of the 337 pages located and considered in the decision under review. Issues for determination The issues arising for determination are whether the Minister can refuse access to: the Information in Issue on the ground that it is exempt information on the basis that its disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment; and further documents responsive to the transferred application on the ground that they are nonexistent or unlocatable. Preliminary matter The applicant submitted:[5] ...please remove [Assistant Information Commissioner] Rickard from all decisions regarding me because she has a history of bias and Prejudice and malice towards me... [sic] The test for assessing apprehended bias for a decision maker, as described by the High Court, is ‘if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide’.[6] The High Court has also noted that ‘[t]he question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made’.[7] I have carefully considered the applicant’s allegation of bias. There is nothing before me to suggest that the applicant’s assertions are possessed of any substance. I have not, to my knowledge, dealt with the applicant in any capacity prior to this review and the applicant’s other external reviews which have been received by OIC since January 2018. Further, I cannot identify any conflict of interest in my dealing with the application for review of Queensland Health’s decision on behalf of the Minister. During this review, when the position that the Information in Issue and the further documents sought may be refused was put to the applicant in the form of a preliminary view, the applicant was expressly advised that the purpose of the preliminary view was to give them the opportunity to put forward their views, and if the applicant provided additional information supporting their case, this would be considered and may influence the outcome.[8] I consider that this process demonstrates that I was not so committed to the position that the further documents sought and the Information in Issue may be refused that my conclusion was already formed and incapable of alteration, whatever evidence or arguments may be presented by the applicant.[9] In these circumstances, paraphrasing the High Court’s test, I am unable to identify any basis for finding that a fair-minded lay observer might reasonably apprehend that I[10] might not bring an impartial and unprejudiced mind to the resolution of this matter. Refusal of access In seeking an external review of Queensland Health’s decision to refuse access to the Information in Issue, the applicant submitted:[11] A page withheld is relevant to explain why my matters were ignored and I was treated with prejudice. Ministerial systems resulting in disability abuse and rape should be transparent. Relevant law Under the IP Act, an individual has the right to be given access to documents of an agency to the extent they contain the individual’s personal information.[12] However, the right to access documents is subject to certain limitations, including grounds for refusing access.[13] One ground for refusing access to a document is if it comprises exempt information.[14] The various types of exempt information are set out in schedule 3 of the RTI Act. Relevantly, one type of exempt information is information the disclosure of which could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment.[15] For information to qualify as this type of exempt information, the Information Commissioner has previously found that the following three elements must be satisfied:[16] there exists an identifiable system or procedure it is a system or procedure for the protection of persons, property or the environment; and disclosure could reasonably be expected to prejudice that system or procedure. Findings The Queensland Fixated Threat Assessment Centre (QFTAC) was implemented in 2013 and is based at the Queensland Police Service (QPS) Headquarters in Brisbane. QFTAC is a joint initiative between the QPS and the Queensland Forensic Mental Health Service that identifies fixated individuals through their abnormal communications with public office holders. QFTAC seeks to mitigate the risk posed by these individuals by linking them with mental health interventions and addressing other identified risk factors.[17] I am satisfied that the evaluation of concerns regarding potentially fixated individuals by QPS and QFTAC comprises an identifiable system. This system is designed to ensure the safety and security of the subject individuals, the broader community and, in some instances, publicly/privately-owned property. It includes the identification of particular communications and referral of concerned individuals, as well as intelligence gathering exercises in order to anticipate and mitigate the risks posed by fixated behavior. On this basis, I consider that requirements a) and b) at paragraph 21 above are met. In relation to the Information in Issue, the applicant submitted:[18] ...the health minister Mr Miles and his office secretly referred me to Queensland fixated threat assessment unit and also refused to respond to my complaints based on [an] imputed mental illness which was unreasonable for them [to do]... [sic] and: ...you cannot tell a person how their information is being used in the system or otherwise the person will understand the system that is a ridiculous argument because every organisation has a system and there is nothing secretive about Queensland fixated persons unit... [sic] It is my understanding that the applicant’s submissions contend that there is nothing secretive about QFTAC, therefore disclosure of the Information in Issue could not prejudice QFTAC’s system and, accordingly, requirement c) is not satisfied. However, on careful consideration of the QFTAC system, I am satisfied that revealing communications between agencies and QFTAC could reasonably be expected to allow individuals to use information contained within those communications to modify their behavior in such a way so as to avoid detection by the QFTAC system. Further, I consider it reasonable to expect that this would compromise the ongoing effectiveness of the QFTAC system as vulnerable individuals in need of mental health intervention and support may not be identified by the system. There is nothing before me, in the applicant’s submissions or elsewhere, to suggest that these conclusions do not apply with respect to the Information in Issue in this matter. In these circumstances, I consider that disclosure of the Information in Issue could reasonably be expected to prejudice the ongoing effectiveness of QFTAC’s system. Therefore, I am satisfied that requirement c) at paragraph 21 above is also met. For these reasons, I find that access to the Information in Issue may be refused on the basis that its disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment.[19] Where information is found to be exempt, there is no scope under the legislation to take into account public interest arguments because Parliament has decided that it would be contrary to the public interest to disclose exempt information. In addition, the Information Commissioner does not have the power to direct that access be given to information that is found to be exempt.[20] Nonexistent or unlocatable documents Relevant law Under the IP Act, another ground for refusing access to a document is if the document is nonexistent or unlocatable.[21] A document is nonexistent[22] if there are reasonable grounds to be satisfied that the document does not exist. A document is unlocatable[23] if it has been or should be in the agency’s possession and all reasonable steps have been taken to find it, but it cannot be found. Where circumstances that account for nonexistent and unlocatable documents are adequately explained by an agency, it will not be necessary for the agency to conduct additional searches. On external review, if an applicant contends that all relevant documents have not been located, there is a practical onus on the applicant to provide reasonable grounds to believe that the agency or Minister has not discharged the obligation to locate all relevant documents. A mere assertion that more documents should have been created and/or located without any independent evidence pointing to the existence of further documents is not sufficient to found a reasonable belief as to the existence of further relevant documents. Findings In response to the application, the Minister’s Chief of Staff conducted searches of the [email protected] email account and the Records Manager System for documents falling within the date range of 12 December 2017 to 14 February 2019. The Chief of Staff’s record of searches[24] explains that ‘[all] items for “health” email address are registered, tracked within the department Records Manager System and where appropriate responses provided’. As a result of these searches, the Minister’s Office located 337 pages which were released to the applicant with the exception of part of one page.[25] In seeking an external review, the applicant contended that further documents exist, stating:[26] Briefings were requested of OHO and GCUH in the release by Health Minister yet there are no responses from either party in corresponding IP requests, especially OHO review ... Insufficient searches of minister responses explaining internally why my complaints were disregarded for rapes and torture at GCUH. [sic] and: Oho was asked to brief the health minister as [set out at page 135 of the documents located]. [sic] and: OIC, I sent an IP Review to you today. It was for health minister emails. [The Minister’s Chief of Staff’s] emails and drafts are missing. Also the person who blocked my email address is missing. Please ensure any comment from the Health Minister alluding to mental health and psychiatric illness or poor character is disclosed as I will file a legal claim against Minister Steven Miles for disability abuse. [sic] In response to the applicant’s specific concerns, Queensland Health submitted:[27] In preparing this response I sought advice from the Office of the Minister for Health and Minister for Ambulance Services, specifically the Chief of Staff ... [who has] advised that [they are] satisfied that no further documents exist that match the parameters of the application, including the date range specified by the applicant, accordingly, no further searches were undertaken. In the applicant’s review [they] note... that briefings were requested from both OHO and GCUH, I reviewed those documents in light of whether there was a [requirement] to undertake further searches and note that the correspondence was marked as ‘no response required (Note and file)’. I note that the applicant also appears to refer to matters that postdate [their] application, specifically where [they] refer... to the person who allegedly blocked her... In relation to the alleged blocking of the applicant, Queensland Health further submits:[28] the Minister’s Office has not blocked receipt of email communications from the applicant; and rather, the Minister’s Office will only action email communications from the applicant which raise new complaints. All other email communications are marked as ‘no response required’. In response to the above findings, the applicant submitted:[29] ...I would like you to find out why the health minister decided all of my Whistleblower complaints were requiring no further action... It is my understanding that the decision of the Minister’s Office to mark correspondence from the applicant as ‘no response required (Note and File)’ is a source of significant concern for the applicant. Further, it is my understanding that the applicant considers that the reasons for the Minister’s inaction regarding their complaints about rape and torture would have been documented, and could be based on adverse views held by the Minister about the applicant’s mental health and character. Beyond the applicant’s assertions, there is nothing before me to suggest that such matters are the subject of further records held by the Minister’s office. The applicant was advised that, as the current Minister was sworn in as Minister for Health and Minister for Ambulance Services on 12 December 2017, it had conducted searches for the period from 12 December 2017 to 14 February 2019. The applicant has not, in the course of the external review, questioned Queensland Health’s advice to them that the current Minister’s office did not have access to emails of former Ministers and their staff. However, for sake of completeness, I note that documents of former ministers are not in the possession or control of the current Minister and are therefore no longer ‘documents of a Minister’ for the purpose of an access application under the IP Act.[30] I also note that OIC’s role in this external review is confined to determining whether Queensland Health, in making the decision on behalf of the Minister, has, as set out at paragraph 12 above, correctly applied the provisions of the IP Act to the Information in Issue and conducted all reasonable searches for the further documents sought. OIC does not have jurisdiction to investigate complaints about the conduct of agencies or Ministers or actions taken, or not taken, by their officers, or to answer questions about the content of released documents. Rather, OIC’s role in this review is limited to reviewing the decision made by the Minister in relation to access to documents that were, or may have been, in existence on the day the application was received. Given the practices and procedures of the Minister’s Office relating to information management and in the absence of any material other than the applicant’s assertions pointing to the existence of further documents, I am unable to identify any further searches that could be conducted for documents falling within the scope of the application to the Minister. In these circumstances, I am satisfied that all reasonable searches for these documents have been conducted, and that it is not necessary for any further searches to be conducted. On the basis of the above, I find that access to further documents responsive to the application may be refused on the basis that the documents sought are nonexistent or unlocatable.[31]DECISION I vary the decision under review and find that the Minister can refuse access to: the part of one page comprising the Information in Issue on the ground that it is exempt information on the basis that disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment;[32] and further documents on the basis that they are nonexistent or unlocatable.[33] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.A RickardAssistant Information CommissionerDate: 11 December 2019 APPENDIX Significant procedural steps Date Event 4 April 2019 OIC received the applicant’s application for external review and three emailed submissions. 15 April 2019 OIC notified Queensland Health, as delegate of the Minister, and the applicant that the application for external review had been received and requested procedural documents from Queensland Health. 16 April 2019 OIC received the requested documents. 15 May 2019 OIC notified Queensland Health and the applicant that the application for external review had been accepted and requested copies of the documents located and any records of the searches conducted from Queensland Health. 20 May 2019 OIC received emailed submissions from the applicant. 29 May 2019 OIC received copies of the documents located, redacted in accordance with the decision, and records of the searches conducted from Queensland Health. 1 July 2019 OIC wrote to Queensland Health and requested: a marked-up copy of page 276 of the documents located copies of any correspondence with a consulted third party completed search certifications for officers of the Minister who conducted searches for documents; and a submission about the searches. 24 July 2019 OIC received the requested documents and a written submission from Queensland Health. 8 August 2019 OIC received emailed submissions from the applicant. 27 August 2019 OIC received emailed submissions from the applicant. 28 August 2019 OIC received two emailed submissions from the applicant. 3 September 2019 OIC received a written submission from Queensland Health. 4 September 2019 OIC received an oral submission from Queensland Health. 5 September 2019 OIC conveyed a written preliminary view to the applicant. OIC received three emailed submissions from the applicant. 11 September 2019 OIC received emailed submissions from the applicant. 13 September 2019 OIC received emailed submissions from the applicant. 19 September 2019 OIC received emailed submissions from the applicant. 25 September 2019 OIC wrote to the applicant about their external reviews. 26 September 2019 OIC received emailed submissions from the applicant. [1] The transferred part of the application was received by the Minister on 14 February 2019.[2] Section 51(1) of the IP Act provides ‘An access or amendment application to a Minister may be dealt with by the person the Minister directs, either generally or in a particular case.’ The decision-maker states at page 1 of the decision ‘My position of Manager, Privacy and Right to Information Unit holds delegation from the Minister for Health and Minister for Ambulance Services to undertake certain decisions...’[3] On 4 April 2019.[4] On 4 April 2019 at 5:55 pm.[5] Email dated 5 September 2019 at 12:21 pm. [6] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. See also Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [31] per Gummow ACJ, Hayne, Crennan and Bell JJ.[7] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [20] per Kiefel, Bell, Keane and Nettle JJ. [8] Footnote 2 of OIC’s letter to the applicant dated 5 September 2019.[9] With reference to the test for prejudgment noted in Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] per Gleeson CJ and Gummow J.[10] As a delegate of the Information Commissioner under section 139 of the IP Act.[11] Dated 4 April 2019 at 5:55pm.[12] Section 43 of the IP Act. [13] Section 67(1) of the IP Act and section 47 of the Right to Information Act 2009 (Qld) (RTI Act). [14] Section 67(1) of the IP Act and section 47(3)(a) of the RTI Act.[15] Schedule 3, section 10(1)(i) of the RTI Act. [16] SQD and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 2 September 2010) at [9] applying Ferrier and Queensland Police Service [1996] QICmr 16; (1996) 3 QAR 350.[17] See the Police Communications Centre Mental Health Liaison Service Evaluation Report (May 2016) at page 12 for further discussion: https://www.qmhc.qld.gov.au/sites/default/files/evaluation_report_police_communications_centre_mental_health_liaison_service.pdf accessed on 6 December 2019.[18] Emails dated 5 September 2019 at 12:21 pm and 12:55 pm.[19] Section 67(1) of the IP Act and section 47(3)(a) and schedule 3, section 10(1)(i) of the RTI Act. For sake of completeness, I confirm that I have had regard to the exceptions listed in schedule 3, section 10(2) of the RTI Act and am satisfied that there is no evidence in the Information in Issue to establish that any of the stated exceptions apply. [20] Section 118(2) of the IP Act. [21] Sections 47(3)(e) and 52(1) of the RTI Act.[22] Section 52(1)(a) of the RTI Act.[23] Section 52(1)(b) of the RTI Act.[24] Provided to OIC on 24 July 2019.[25] Being the Information in Issue contained within page 276. Refusal of this part page is discussed under the heading Refusal of access above.[26] Emails to OIC dated 4 April 2019 at 5:55 pm, 5:57 pm and 6:12 pm.[27] Dated 24 July 2019.[28] On 4 September 2019.[29] Dated 5 September 2019 at 12:21 pm.[30] See 2.2 Ministerial Records of the Queensland Ministerial Handbook: https://www.premiers.qld.gov.au/publications/categories/policies-and-codes/handbooks/ministerial-handbook/information/records.aspx accessed on 6 December 2019. See also Philip Morris Ltd and Treasurer [2013] AICmr 88 and Thomas and Prime Minister [2014] AICmr 18. [31] Section 67(1) of the IP Act and sections 47(3)(e) and 52(1) of the RTI Act.[32] Under section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 10(1)(i) of the RTI Act.[33] Under section 67(1) of the IP Act and sections 47(3)(e) 52(1) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Young and Department of Police [2006] QICmr 12 (28 February 2007)

Young and Department of Police [2006] QICmr 12 (28 February 2007) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210117 Applicant: Mr R Young Respondent: Queensland Police Service Decision Date: 28 February 2007 Catchwords: Arrangements made by an agency – section 22(a) Freedom of Information Act 1992 (Qld) – access to documents refused by the Queensland Police Service (QPS) Contents Background 2 Steps taken in the external review process 3 Matter in issue 4 Findings 4 Decision 5 Reasons for Decision Background The applicant seeks review of a decision of the Queensland Police Service (QPS) to refuse him access, under the Freedom of Information Act 1992 (Qld) (FOI Act), to documents relating to a traffic accident in which he sustained personal injuries. By letter dated 13 September 2006, Mr King, of Shine Lawyers, applied on behalf of the applicant to the QPS for documents relating to a traffic accident by stating: ... we request that you forward to us any documents that you may hold in relation to the accident including - Photographs; Statements; Reports; Police Notebook entries; All documents relating to any traffic incidents since 2000 which have occurred on the stretch of Wynnum Road, Wynnum, which is highlighted in blue on the attached map. In a decision dated 23 October 2006, P J Robinson, Senior Sergeant, FOI & Privacy Unit, QPS, determined: that there were twelve documents which were responsive to the applicant’s FOI application; that documents numbered 1 to 12 would be released pursuant to section 27(3) of the FOI Act; and to refuse access to all documents that are available through another scheme, pursuant to section 22(a) of the FOI Act. Senior Sergeant Robinson indicated that in respect of the documents to which access was refused pursuant to section 22(a) of the FOI Act: CITEC operates a scheme for the supply of traffic incident information to members of the public, pursuant to section 94 of the Transport Operations (Road Use Management) Act 1995. The check of the computerised TIRS (TIN: 05/16004), indicated that the investigation into this incident has been finalised. It is the policy of the QPS: to forward all documentation (including sketch plans, TAIS reports and statements) to CITEC on finalisation of the police investigation or enforcement action, with the exception of photographic negatives which are retained by the QPS; and not to retain copies of such documentation ... ... With regard to point 5 of your letter please note the requested information can be obtained from the Road Crash Data Group, Queensland Transport ... By letter dated 6 November 2006, Mr King sought internal review of Senior Sergeant Robinson’s decision, on behalf of the applicant. In a decision dated 27 November 2006, K Rynders, Assistant Commissioner, Metropolitan South Region, decided to uphold Senior Sergeant Robinson’s decision, and reiterated that ‘the information you request can be obtained through the Road Crash Data Group, Queensland’. By letter dated 4 December 2006, Mr King sought external review of Assistant Commissioner Rynder’s decision, on behalf of the applicant. Steps taken in the external review process On 18 December 2006, a staff member of this office confirmed with Mr King that the scope of the external review is limited to item 5 of the FOI access application (as set out at paragraph 2 above). On 19 December 2006, a staff member of this office made inquiries with staff at Queensland Transport regarding the information available through the Crash Data Unit of Queensland Transport (Administrative Scheme). A staff member of the Administrative Scheme indicated that applications to the Administrative Scheme were processed within five working days. This information was conveyed to the applicant’s solicitor. On 12 January 2007, a staff member of this office contacted Mr King to determine whether or not the applicant’s application pursuant to the Administrative Scheme had been finalised. Mr King indicated that the application was yet to be lodged. By letter dated 17 January 2007, I conveyed to the applicant my preliminary view that the documents sought could be accessed under arrangements made by the QPS and that consequently, the QPS was justified in refusing access to the requested documents, pursuant to section 22(a) of the FOI Act. I indicated that if the applicant contested my preliminary view, he should provide submissions in support of his case by 29 January 2007. By facsimile dated 29 January 2007, Mr King: indicated that his client wished to contest my preliminary view; and sought an extension of time in which to provide submissions in support of his case. In a telephone discussion between myself and Mr King on 30 January 2007, Mr King indicated that: the applicant was primarily seeking traffic incident numbers, which it appeared would be available through the Administrative Scheme; he had encountered difficulties in having his client’s application processed under the Administrative Scheme; and any additional information required by his client could be accessed from CITEC. I also indicated to Mr King that the applicant was required to provide written submissions in support of his request for an extension of time by no later than close of business on 31 January 2007. No submissions were provided to this office. On 30 January 2007, a staff member of this office had discussions with staff of the Queensland Transport Legal Department (QTLD) and the Crash Data Unit (CDU). Later on 30 January 2007, a staff member of the QTLD indicated to this office that: she had facilitated discussions between Mr King and the CDU; and the applicant’s request for documents through the Administrative Scheme was currently being processed. In a letter to Mr King dated 8 February 2007, I indicated that as there had been no further communication from him to this office, I would assume that this matter was satisfactorily resolved, unless I heard otherwise from him by 14 February 2007. By facsimile dated 14 February 2007, Mr King indicated that: this matter had not been resolved to the applicant’s satisfaction; and he would be providing submissions in support of the applicant’s case by 16 February 2007. By letter to Mr King dated 22 February 2007, I advised that I had not received any submissions and provided the applicant with a final opportunity to provide submissions in support of his case by 26 February 2006. I have not received any further correspondence from Mr King or the applicant. In making my decision in this matter, I have taken into account: the applicant’s FOI access application dated 13 September 2006, application for internal review dated 6 November 2006 and application for external review dated 4 December 2006; Senior Sergeant Robinson’s decision dated 23 October 2006 and Assistant Commissioner Rynders’ internal review decision dated 27 November 2006; and file notes of telephone conversations between staff of this office and: Mr King; and staff of the QTLD, the CDU and CITEC. Matter in issue The matter in issue in this review concerns documents relating to any traffic accidents which have occurred on a particular stretch of Wynnum Road at Wynnum, between 1 January 2000 and 13 September 2006. Findings Section 22(a) of the FOI Act Section 22 of the FOI Act provides that an agency may refuse access to a document in a number of circumstances, including as follows: Documents to which access may be refused An agency or Minister may refuse access under this Act to— (a) a document the applicant can reasonably get access to under another enactment, or under arrangements made by an agency, whether or not the access is subject to a fee or charge... Arrangements made by the QPS As noted above, the QPS has indicated that its policy is to forward all documentation (including sketch plans, TAIS reports and statements) to CITEC on finalisation of the police investigation or enforcement action, with the exception of photographic negatives which are retained by the QPS and not to retain copies of such documentation. A staff member of this office has contacted CITEC to confirm that documents relating to traffic incidents are available from CITEC, for a fee. A CDU staff member has indicated to a staff member of this office that the CDU offers administrative access to de-identified traffic incident statistics, which can be reported in respect of a particular section of a road and time period, such as those sought at item 5 of the applicant’s FOI Access application (see paragraph 2 above). Mr King has indicated to me that the applicant is seeking the information described at paragraph 25 above. As indicated at paragraph 16 above, a staff member of Queensland Transport indicated to this office on 30 January 2007 that Queensland Transport had facilitated processing of the applicant’s application for administrative access. I have no information before to indicate that the documents sought by the applicant are not available under an arrangement made by the QPS. Conclusion I am satisfied that the documents sought by the applicant are available through an arrangement made by the QPS with the CDU. Decision I affirm the decision of Assistant Commissioner K Rynders, dated 27 November 2006, by finding that the documents to which access is sought are available through another scheme, pursuant to section 22(a) of the FOI Act. I have made this decision as a delegate of the Information Commissioner, under section 90 of the Freedom of Information Act 1992 (Qld). ________________________ M Gittins Assistant Information Commissioner Date: 28 February 2007

queensland

court_judgement

Queensland Information Commissioner 1993-

D and Department of Tourism, Small Business and Industry [1998] QICmr 22 (23 June 1998)

D and Department of Tourism, Small Business and Industry [1998] QICmr 22 (23 June 1998) "D" and Department of Tourism, Small Business and Industry (S 11/97; 23 June 1998, Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) REASONS FOR DECISION Background The applicant in this external review was the author of a letter of complaint dated 6 August 1996 to the Liquor Licensing Division (the LLD) of the respondent. I will refer to the author as "the complainant". The complainant is pursuing this 'reverse FOI' application because the complainant objects to the respondent's decision to disclose to the access applicant, Mr R Modin, the bulk of the information contained in the complaint letter. By letter dated 28 August 1996, Mr Modin, the Nominee of the Rainbow Beach Sports, Recreation and Memorial Club (the Club), applied to the respondent for access to: any information you can supply me regarding any liquor licensing complaints made against this Club in particular those received recently to Dominic TENNISON from your Sunshine Coast Regional Office. ... Our committee is in the process of taking legal action against any person found defaming any members of this committee. In accordance with its obligations under s.51 of the FOI Act, the respondent consulted with a number of persons who had made complaints against the Club, including the complainant. By letter dated 14 October 1996, Power & Cartwright, Solicitors, on behalf of the complainant and other persons, objected to the disclosure to Mr Modin of their clients' complaints to the LLD. Power & Cartwright submitted that the documents were exempt under s.42(1)(b), s.42(1)(c), s.42(1)(e), s.44(1), s.45(1)(c), and s.46(1) of the FOI Act. The respondent also sought the views of the Queensland Police Service (the QPS) as to whether the documents, some of which referred to physical assaults at the Club, might be exempt under s.42(1)(a), on the basis that their disclosure could prejudice any police investigations into those matters. The QPS advised that it had no objection to the disclosure of the documents to the access applicant. By letter dated 18 November 1996, Mr M Jones of the respondent informed the complainant of his decision that small parts of the complaint letter dated 6 August 1996 were exempt under s.44(1), but that the balance of the letter was not exempt matter under the FOI Act. The complainant then sought internal review of Mr Jones' decision to give access to parts of the letter (the "matter in issue"). That decision was upheld on internal review by Mr S Chapman in a decision dated 6 January 1997. By letter dated 22 January 1997, the complainant applied to me for review, under Part 5 of the FOI Act, of Mr Chapman's decision. External review process I obtained from the respondent copies of the complaint letter dated 6 August 1996, and the respondent's internal records of its consultations in accordance with s.51 of the FOI Act. Mr Modin has not sought to challenge the respondent's decision that parts of the complaint letter are exempt matter, and hence the status of those parts of the complaint letter is not in issue in this external review. On the question for determination in this review, i.e., whether the balance of the complaint letter is exempt matter under the FOI Act, Mr Modin applied for, and was granted, status as a participant in this review, in accordance with s.78 of the FOI Act. Members of my staff interviewed Mr Jones of the respondent and Mr John Roscarel, an investigator employed by the LLD. At that conference, Mr Roscarel explained the process by which investigations are conducted by the LLD, and the particulars of his investigation of a series of complaints made about the Club, including those to which the letter in issue relates. Mr Roscarel subsequently provided this office with a statutory declaration dated 3 March 1998, and a draft Report in respect of the investigation of the various complaints against the Club. The Information Commissioner then wrote to the complainant advising of his preliminary view that the matter remaining in issue is not exempt matter under the FOI Act. The complainant was invited to lodge a written submission and/or evidence, if the complainant wished to contend that the matter in issue was exempt under the FOI Act. The complainant responded by letter dated 22 April 1998, rejecting the Information Commissioner's preliminary view and making brief submissions as to why the letter should not be disclosed. The complainant also provided a copy of a letter dated 30 January 1998 from Power & Cartwright, Solicitors, to the Licensing Commission, regarding complaints to the LLD. I will deal with each of the exemption provisions which have been referred to by Power & Cartwright or the complainant. I should note that, because the identity of the complainant is in issue, I am constrained from including in my reasons for decision, information which would enable the complainant's identity to be ascertained. This necessarily means that discussion of certain aspects of my reasons for decision must be limited. Application of s.46(1) of the FOI Act Section 46(1) of the FOI Act provides: 46.(1) Matter is exempt if— (a) its disclosure would found an action for breach of confidence; or (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest. I discussed the requirements for exemption under s.46(1)(a) and s.46(1)(b) in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279. As to s.46(1)(a), there is no question of any contractual obligation of confidence arising in the circumstances of this case. To establish an equitable duty of confidence owed by the respondent to the complainant, which would be breached by disclosure of the matter in issue (thus founding an action for breach of confidence), each of the following five criteria must be satisfied: (a) it must be possible to specifically identify the information in issue, in order to establish that it is secret, rather than generally available information (see Re "B" at pp.303-304, paragraphs 60-63); (b) the information in issue must possess "the necessary quality of confidence"; i.e., the information must not be trivial or useless information, and it must possess a degree of secrecy sufficient for it to be the subject of an obligation of conscience, arising from the circumstances in or through which the information was communicated or obtained (see Re "B" at pp.304-310, paragraphs 64-75); (c) the information in issue must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it (see Re "B" at pp.311-322, paragraphs 76-102); (d) it must be established that disclosure to the applicant for access under the FOI Act would constitute a misuse, or unauthorised use, of the confidential information in issue (see Re "B" at pp.322-324, paragraphs 103-106); and (e) it must be established that detriment is likely to be occasioned to the original confider of the confidential information in issue if that information were to be disclosed (see Re "B" at pp.325-330, paragraphs 107-118). For s.46(1)(b) of the FOI Act to be made out, each of the following criteria must be satisfied: (a) the information in issue is information of a confidential nature; (b) the information was communicated in confidence; (c) disclosure of the information could reasonably be expected to prejudice the future supply of such information to the LLD; and (d) disclosure of the information would not, on balance, be in the public interest. In his statutory declaration dated 3 March 1998, Mr Roscarel explained the circumstances of the investigation he conducted for the LLD: I became involved in the investigation of complaints against the Club when letters were received by the Liquor Licensing Branch from [the complainant] and other persons concerning a number of perceived problems at the Club which the complainants requested this Branch to investigate. On 24 September 1996, in the company of Ms Patrice Costello, I had a meeting with some of the complainants concerning their complaints. [The complainant] was among those present. I wrote down a list of their complaints, a number of which were not liquor licensing complaints. I then explained to the complainants which complaints were within my jurisdiction to investigate and which were not. I informed the complainants that because of the very specific allegations raised, in the interests of fairness, I would need to put their names and the specific facts to the Club management if I were to investigate the various complaints. None of the complainants, at the meeting raised any objection to my disclosing the allegations they had made or their names to the Club for the purposes of my investigation. Following that meeting, I attended the Club and met with Club committee members, including Rick Modin. The committee provided me with its version of the incident involving [the complainant] about which the latter had complained. I do not recall specifically to what extent I disclosed the contents of [the complainant's] letter of complaint in my contact with the Club committee but, in order to be fair, I would have had to have given an outline of [the complainant's] allegations about the incident to see if the committee agreed with [the complainant's] version. It is required by the Code of Conduct which applies to investigators under the Liquor Act 1992 that investigators, such as myself, ensure fairness in our official dealings with the public. None of the letters which are sent to complainants from the Liquor Licensing Division indicate that their identities and their complaint will be kept confidential. I do not believe that there was anything in my dealings with [the complainant], or other complainants, from which they could have understood that what they told me would be kept confidential from Rick Modin. The second and third requirements for exemption under s.46(1)(a) involve similar considerations to the first two requirements for exemption under s.46(1)(b). Necessary quality of confidence/information of a confidential nature In Re "B" at pp.337-338 (paragraph 148), I said: In my opinion, [the first criterion for exemption under s.46(1)(b)] calls for a consideration of the same matters that would be taken into account by a court in determining whether, for the purpose of satisfying the second element of the equitable action for breach of confidence, the information in issue has the requisite degree of relative secrecy or inaccessibility. The matters referred to in paragraphs 71 to 72 above will also therefore be relevant to the question of whether this first criterion for the application of s.46(1)(b) is satisfied. It follows that, although it is not a specific statutory requirement, it will for practical purposes be necessary to specifically identify the information claimed to be of a confidential nature, in order to establish that it is secret, rather than generally available, information. The question of whether the information in issue is of a confidential nature is to be judged as at the time the application of s.46(1)(b) is considered. Thus if information was confidential when first communicated to a government agency, but has since lost the requisite degree of secrecy or inaccessibility, it will not satisfy the test for exemption under s.46(1)(b). (See also Re McMahon and Department of Consumer Affairs [1994] QICmr 3; (1994) 1 QAR 377, at p.383, paragraph 21.) In his initial decision, Mr Jones found that because most of the information remaining in issue had been conveyed to the Club management and was common knowledge within the district, it did not have the requisite degree of secrecy or inaccessibility to make it information "of a confidential nature." I agree with that conclusion. It is clear from Mr Roscarel's declaration, and from his draft Report regarding the investigation, that members of the Club committee, including Mr Modin, have been advised by Mr Roscarel that the complainant has made a complaint, and have been advised of the nature of the complaint. The identity of the complainant cannot be said to retain any element of confidentiality as against Mr Modin. The material before me (including one of the annexures to the complaint letter in issue) shows that the detail of the complainant's main complaint, along with other complaints, has been revealed to members of the Club committee, both by Mr Roscarel (in order to allow them to respond, for the purposes of his investigation) and by the complainant. While the entire text of the complaint letter to the respondent dated 6 August 1996 may not have been made available to Mr Modin, there is no information of substance in that letter of which Mr Modin is not already aware. I find that the matter in issue does not have the necessary quality of confidence to satisfy the second requirement for exemption under s.46(1)(a), or the first requirement for exemption under s.46(1)(b), as set out above. Equitable obligation of confidence/Communicated in confidence There is no evidence that any express assurances of confidential treatment were given to the complainant, either prior to the forwarding of the letter containing the matter in issue, or at the meeting with Mr Roscarel. However, in Re "B" at p.318 (paragraph 90), I said (in respect of the third requirement for exemption under s.46(1)(a) of the FOI Act): It is not necessary therefore that there be any express consensus between confider and confidant as to preserving the confidentiality of the information imparted. In fact, though one looks to determine whether there must or ought to have been a common implicit understanding, actual consensus is not necessary: a confidant who honestly believes that no confidence was intended may still be fixed with an enforceable obligation of confidence if that is what equity requires following an objective evaluation of all the circumstances relevant to the receipt by the confidant of the confidential information. In its letter dated 14 October 1996, Power & Cartwright stated: When our clients initially made contact with [the respondent] they were advised that, for the matter to be investigated, they would need all complaints in writing. For reasons set out below, our clients were hesitant to do so for fear of their identity being disclosed at a later date. However, they did feel that the matters being complained of were of such a serious nature that they co-operated with the respondent in this regard. They believed that whilst those concerned would discover the nature of the complaints, they did not at any time believe that the actual documents of complaint would be revealed. In relation to confidentiality of identity, the complainant has submitted: ...nor did we say [at the meeting, that Mr Roscarel] could give our names as he was going to ask about the incidents then make a decision on investigating them. Instead he meets with the committee gave our names outlined the complaints and naturally they told him they were trying to do the right thing and I was at fault. ... After reading your letter I thought we were a confidential source of information and that disclosure of identity was confidential and that disclosure of the letter could prejudice the future supply of information. In Re McEniery and the Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349, at pp.359-364 (paragraphs 24-34) and at p.371 (paragraph 50), I considered the factors relevant to determining whether information has been supplied to an agency on the implicit mutual understanding that the identity of the supplier of the information would remain confidential. In particular, I said, at p.361 (paragraph 26) that a relevant issue is whether the supplier and the recipient of the information could reasonably have expected that the supplier's identity would remain confidential given the procedures that must be undertaken if appropriate action is to be taken by the recipient, in respect of the information, for the purposes of the enforcement or administration of the law. Further (at pp.361-362 (paragraph 28)), I said that the legal requirement that government agencies observe the rules of procedural fairness, or the duty to act fairly, will affect the question of whether a supplier of information to a government agency, and the agency itself, could reasonably expect the confidentiality of the supplier's identity to be preserved while taking appropriate action in respect of the information conveyed. The situation in the present case is similar in many ways to that which I dealt with in Re McMahon. In Re McMahon, a complaint was made by the applicant to a regulatory authority about a specific incident that had transpired between the applicant and the subject of the complaint, and it was impossible for the applicant's identity to be treated in confidence if the complaint were to be investigated. At p.364 (paragraph 23), I said that neither the applicant nor the respondent agency in that case could reasonably have expected that the applicant's identity, and the substance of his complaint, could remain confidential from the subject of the complaint, if appropriate action was to be taken in respect of that complaint. Where a person is the subject of an investigation by a government agency, particularly a regulatory body such as the LLD, the duty of fairness will at least require that a person, against whom specific adverse allegations are made, be given an effective opportunity to know the substance of the case against the person (so that he/she can answer it). Sometimes it is possible for a person to be given an effective opportunity to know the substance of adverse allegations, without revealing the identity of the source of information. Re McEniery was a case of that kind, and other examples are given in Re McEniery at p.361, paragraph 27. However, as I said in Re McEniery at pp.363-364 (paragraph 32): Where the substance of the case against a person is dependent on the direct observation and testimony of a source of information, or on the disclosure of the identity of a source of information as the person against whom a wrong is alleged to have been committed, then the source and the government agency could not reasonably expect that the source's identity could remain confidential, if appropriate action is to be taken on the information conveyed by the source ... It is clear from the letter in issue (in particular the third paragraph and the concluding paragraphs) that the complainant wished the LLD to take action in respect of the complaints raised in the letter. I do not consider that the complainant could reasonably have expected that the complaints could be acted on by the LLD without the substance of the complaints being disclosed to Mr Modin. The nature of those complaints is such that their disclosure would have made obvious the identity of the complainant. In fact the third paragraph of the letter includes what seems to be a call for public vindication of the complainant in relation to the incidents complained of. The complainant must have been aware that procedural fairness would require the complaints to be put to the Club management before any action was taken. Solicitors for the complainant contend that, while it was expected that the nature of the complaints would be made known, the complainant did not believe that the actual documents of complaint would be disclosed. However, I consider that in order to properly investigate the complaints, the LLD would have had to explain the detail of the complaints to the Club. Mr Roscarel has stated (at paragraphs 3-4 of his statutory declaration) that he made it clear that if the complaints were to be pursued, the identities of the complainants and the detail of their complaints would be made known to the Club. Even if the complainant had been under some misapprehension as to confidentiality up to that time, there could have been no doubt thereafter, that there was no understanding, on the part of the respondent, that the complainant's identity, and the detail of the complaints, were to be treated in confidence. The complainant still had the opportunity at that stage, before Mr Roscarel commenced his investigation, to withdraw the complaints, but did not do so. The material before me does not support a finding that there existed any express or implicit mutual understanding that the complainant's identity, or the contents of the complaint letter dated 6 August 1996, would be treated in confidence by the respondent agency. Nor are the circumstances of their communication such as to warrant a finding that there is an equitable obligation of confidence binding the respondent not to disclose to Mr Modin the complainant's identity, or the contents of the complaint letter dated 6 August 1996. Findings on s.46(1) I therefore find that the matter in issue does not qualify for exemption under s.46(1)(a) or s.46(1)(b) of the FOI Act. Application of s.42(1)(b) of the FOI Act Section 42(1)(b) of the FOI Act provides: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to— ... (b) enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained; ... In Re McEniery at pp.356-357 (paragraph 16), I said that matter will be eligible for exemption under s.42(1)(b) if the following three requirements are satisfied: (a) there exists a confidential source of information; (b) the information which the confidential source has supplied (or is intending to supply) is in relation to the enforcement or administration of the law; and (c) disclosure of the matter in issue could reasonably be expected to - (i) enable the existence of a confidential source of information to be ascertained; or (ii) enable the identity of a confidential source of information to be ascertained. At pp.358-359 (paragraphs 20-35) of Re McEniery, I considered the concept of a "confidential source of information" for the purposes of s.42(1)(b) of the FOI Act, and found that it referred to a person who supplies information on the express or implied understanding that the person's identity will remain confidential (citing Keely J in Department of Health v Jephcott [1985] FCA 370; (1985) 62 ALR 421 at p.426). For the reasons stated at paragraphs 27-33 above, I find that the complainant is not a confidential source of information, for the purposes of s.42(1)(b) of the FOI Act. I do not consider that there was ever an understanding, on the part of the respondent (nor could there reasonably have been, in the relevant circumstances), that the complainant's identity would be kept confidential. The identity of the complainant has now been made known to Mr Modin. The matter in issue does not qualify for exemption under s.42(1)(b) of the FOI Act. Application for s.42(1)(a) of the FOI Act Section 42(1)(a) of the FOI Act provides: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to— (a) prejudice the investigation of a contravention or possible contravention of the law (including revenue law) in a particular case; or In Re "B" at pp.339-341, (paragraphs 154-160), I analysed the meaning of the phrase "could reasonably be expected to", by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth. Those observations are also relevant here. In particular, I said in Re "B" at pp.340-341 (paragraph 160): The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e., expectations for the occurrence of which real and substantial grounds exist. The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Dictionary, 2nd ed); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993). In Power & Cartwright's letter dated 14 October 1996, it was stated: ...Our clients believe that the investigation into the activities of the club may be prejudiced by the disclosure of the documents at this point. They feel that if the details of the complaint are revealed, then the relevant parties shall have sufficient notice to be able to "cover their tracks". In his initial decision, Mr Jones said: I have discussed this issue with licensing investigators and am satisfied that given the investigations are close to finalisation and the fact the club has been made aware of the allegations, this exemption cannot be relied upon in this particular case. Mr Roscarel's statutory declaration states that he and another Investigator met with a number of the complainants to discuss their complaints, and to determine what their main concerns were. Mr Roscarel then attended at the Club and met with members of the Club Committee. One of the matters raised with the Club was the circumstances surrounding the main incident raised by the complainant. The Club's version of those events was obtained. Having perused those documents, I wrote to the complainant on 30 March 1998, conveying my preliminary view that it appeared that the investigations into the complaints at the Club had been concluded and that any concerns about prejudice to the LLD's investigations were no longer relevant. In response, the complainant stated: In another paragraph on page two you state investigations by [the LLD] have concluded. This isn't true as we have met with Mr Ross Bearkley from [the LLD] in February and he is investigating the matter further. ... He was going to take this and other complaints up with the Committee upon return from holidays. Subsequently, a member of my staff contacted Mr Bearkley, the manager of the LLD. Mr Bearkley said that he had regarded the investigations of the Club as having been finalised after Mr Roscarel's investigations. However, one of the complainants had written to the responsible Minister who then asked for the matters to be further investigated. The Club was, according to Mr Bearkley, "warned and briefed" as to the correct procedure in respect of particular matters and the investigations were finalised, apart from a minor procedural matter that does not require actual investigation. From my examination of Mr Roscarel's statutory declaration, his draft Report, and the record of conversation with Mr Bearkley, it is clear that the Club management was made aware of the various complaints made against it. Even if an investigation was still under way, I do not consider that disclosure of the matter in issue could reasonably be expected to prejudice such an investigation. I find that the matter in issue does not qualify for exemption under s.42(1)(a) of the FOI Act. Application of s.42(1)(c) of the FOI Act Section 42(1)(c) of the FOI Act provides: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to— ... (c) endanger a person's life or physical safety; ... In Re Murphy and Queensland Treasury & Ors [1995] QICmr 23; (1995) 2 QAR 744 at p.760 and p.761 (paragraphs 45 and 47), I said that the question of whether disclosure of information could reasonably be expected to endanger a person's life or physical safety is to be examined objectively by the decision-maker authorised to determine questions of access under the FOI Act, in light of the relevant evidence, including any evidence obtained from or about the claimed source of danger, and not simply on the basis of what evidence is known to persons claiming to be at risk of endangerment. In Re Murphy, at pp.767-777 (paragraphs 86-91), I expressed the view that evidence of intemperate verbal abuse does not necessarily mean that the person guilty of such conduct would commit acts that would endanger the life or physical safety of another person. I also observed that harassment does not fall within the terms of s.42(1)(c), unless it is harassment which endangers a person's life or physical safety. In the internal review application, the complainant stated that if the information the complainant supplied to the LLD was disclosed it was "highly likely that ... I will be subject to harassment and possible physical bodily harm". The complainant stated that the complainant had already been assaulted inside the Club and that "the management took no action to either prevent this assault nor did they take any disciplinary action against the offender". The complainant claimed to have been "harassed and bashed for asking questions internally", and that it was "worrying to me what could happen if written information were released". However, in their initial and internal review decisions, the respondent's authorised decision-makers did not consider that the circumstances of this case warranted a finding that endangerment to life or physical safety could reasonably be expected to follow from disclosure of the matter in issue. In its letter dated 14 October 1996, Power & Cartwright asserted that the complainants all feared for their physical safety if the documents in issue were disclosed. Amongst correspondence on the respondent's internal review file is a record of conversation between Mr Jones of the respondent and a solicitor from Power & Cartwright during which the solicitor said that there was a real and serious risk that the complainants would be harmed if the information was released. He told Mr Jones that the clientele of the Club were noted for their aggressive nature and the Club had a history of fights. On the other hand, the draft Report by the Investigation and Complaints Unit of the LLD states that, on making contact with the local police regarding complaints at the Club, Mr Roscarel was informed that the Club had not posed a real problem to the police, but there had been an incident of assault that same year to which the police were called and charges were laid. In my letter to the complainant dated 30 March 1998, I expressed the preliminary view that there was insufficient evidence to make out a claim for exemption under s.42(1)(c) of the FOI Act. The complainant did not offer any further evidence to establish a reasonably based expectation of physical harm. A great deal of the information in the letter has already been investigated by the LLD and, in the course of such investigations, been put to the Club management. There is no evidence of physical violence against any person because of that disclosure. On an objective evaluation of all of the circumstances of the case, including the information remaining in issue, I am not satisfied that disclosure of the matter remaining in issue, or the identity of the complainant could reasonably be expected to endanger any person's life or physical safety. I therefore find that the matter in issue does not qualify for exemption under s.42(1)(c) of the FOI Act. Application of s.42(1)(e) of the FOI Act In its letter dated 14 October 1996, Power & Cartwright referred to s.42(1)(e), but in a context which suggested it was discussing s.42(1)(a). For the sake of completeness, I record my finding that the matter in issue is not exempt under s.42(1)(e). Section 42(1)(e) of the FOI Act provides: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to— ... (e) prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law); ... The correct approach to the interpretation and application of s.42(1)(e) was explained in Re "T" and Queensland Health [1994] QICmr 4; (1994) 1 QAR 386. I discussed the submission by Power & Cartwright in dealing with s.42(1)(a). The matter in issue does not disclose any secret or unusual investigative method or procedure of the LLD. It is merely a letter of complaint. The material before me does not afford a reasonable basis for an expectation that disclosure of the matter in issue could prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. Application of s.44(1) of the FOI Act Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. In applying s.44(1) of the FOI Act, one must first consider whether disclosure of the matter in issue would disclose information that is properly to be characterised as information concerning the personal affairs of a person. If that requirement is satisfied, a prima facie public interest favouring non-disclosure is established, and the matter in issue will be exempt, unless there exist public interest considerations favouring disclosure which outweigh all identifiable public interest considerations favouring non-disclosure, so as to warrant a finding that disclosure of the matter in issue would, on balance, be in the public interest. In Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, I identified the various provisions of the FOI Act which employ the term "personal affairs", and discussed in detail the meaning of the phrase "personal affairs of a person" (and relevant variations thereof) as it appears in the FOI Act (see pp.256-257, paragraphs 79-114, of Re Stewart). In particular, I said that information concerns the "personal affairs of a person" if it concerns the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase "personal affairs", that phrase has a well accepted core meaning which includes: family and marital relationships; health or ill health; relationships and emotional ties with other people; and domestic responsibilities or financial obligations. Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, to be determined according to the proper characterisation of the information in question. In Re Byrne and Gold Coast City Council [1994] QICmr 8; (1994) 1 QAR 477, I held that the fact that a person made a complaint to an elected representative about a matter of concern was information concerning that person's personal affairs, for the purposes of s.44(1) (see, in particular, at p.487, paragraphs 26-27, and pp.488-490, paragraphs 33-38). I consider that the fact that the complainant made complaints to the LLD is information which concerns the complainant's personal affairs. I also consider that much of the information contained in the complaint letter is information which concerns the personal affairs of the complainant. The matter in issue therefore satisfies the test for prima facie exemption under s.44(1) of the FOI Act, subject to the application of the public interest balancing test incorporated in s.44(1). I have previously held that there may be a public interest in a person having access to information which involves or concerns the person to such a degree as to give rise to a justifiable 'need to know' which is more compelling than for other members of the public, and that the public interest in fair treatment of an individual may favour an applicant being given the opportunity to see and to answer any allegations that are adverse to him or her (see Re Pemberton and The University of Queensland (1994) 2 QAR 293 at pp.368-377, (paragraphs 164-193). Although it appears that the investigations of the Club by the LLD are all but complete, the complaints are still retained on the files of the respondent as information adverse to Mr Modin and the Club management in general. I consider that there is a public interest consideration which favours a subject of adverse information held on government records, having access to the information in order to know what has been said about him and enable him to respond to it, if necessary. I do not consider that the public interest in non-disclosure of the identity of the complainant as a complainant can be given any substantial weight, since the applicant is already aware of the complainant's identity. Similarly, it is clear from one of the annexures to the complaint letter that the substance of the information in the complaint letter which concerns the complainant's personal affairs has been made known to the Club committee by the complainant. The complainant's own conduct with respect to disclosure of this personal affairs information to the Club committee (which includes Mr Modin) indicates that no substantial weight should be accorded, in all the relevant circumstances, to the public interest consideration which tells against disclosure of information concerning the personal affairs of a person other than the applicant for access. I am satisfied that disclosure to Mr Modin of the complaint letter to the respondent dated 6 August 1996 would, on balance, be in the public interest, and I find that the letter is not exempt from disclosure to Mr Modin under s.44(1) of the FOI Act. Application of s.45(1)(c) of the FOI Act Section 45(1)(c) of the FOI Act provides: 45.(1) Matter is exempt matter if— ... (c) its disclosure— (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government; unless its disclosure would, on balance, be in the public interest. The correct approach to the interpretation and application of s.45(1)(c) is explained in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491, at pp.516-523 (paragraphs 66-88). In summary, matter will be exempt under s.45(1)(c) of the FOI Act if I am satisfied that: (a) the matter in issue is properly to be characterised as information concerning the business, professional, commercial or financial affairs of an agency or another person (s.45(1)(c)(i)); and (b) disclosure of the matter in issue could reasonably be expected to have either of the prejudicial effects contemplated by s.45(1)(c)(ii), namely: (i) an adverse effect on the business, professional, commercial or financial affairs of the agency or other person, which the information in issue concerns; or (ii) prejudice to the future supply of such information to government; unless I am also satisfied that disclosure of the matter in issue would, on balance, be in the public interest. In Re Cannon at p.516 (paragraph 67), I said that the word "concerning", as it is used in the context of s.45(1)(c), means "about, regarding". It is not sufficient for the matter in issue merely to have some connection with the business, commercial or financial affairs of (in this case) the complainant. The matter in issue must itself comprise information about the complainant's business, commercial or financial affairs. The complainant contends that disclosure of the letter may prejudice the complainant's business affairs. However, even if there was sufficient evidence to support a finding that disclosure could reasonably be expected to prejudice the complainant's business affairs (which there is not) the matter in issue does not concern the complainant's business affairs. The information in issue concerns personal aspects of the complainant's life and the management of the Club. It has nothing whatsoever to do with the complainant's business affairs. I find that neither criterion (a) nor criterion (b) above is satisfied, and that the matter in issue does not qualify for exemption under s.45(1)(c) of the FOI Act. DECISION For the foregoing reasons, I affirm the decision under review (being the decision made by Mr Chapman on behalf of the respondent dated 6 January 1997).

queensland

court_judgement

Queensland Information Commissioner 1993-

TRO08G and Department of Health [2011] QICmr 46 (13 December 2011)

TRO08G and Department of Health [2011] QICmr 46 (13 December 2011) Last Updated: 1 February 2012 Decision and Reasons for Decision Application Number: 310590 Applicant: TSO08G Respondent: Department of Health Decision Date: 13 December 2011 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - EXEMPT INFORMATION - BREACH OF CONFIDENCE - applicant requested access to report of investigation into his complaint about medical treatment - agency refused access to information which had been provided by other individual/s to the applicant’s treating doctors - whether disclosure of the information would found an action for breach of confidence - whether information is exempt under schedule 3, section 8 of the Right to Information Act 2009 (Qld) - whether access may be refused under section 67 of the Information Privacy Act 2009 (Qld) Contents REASONS FOR DECISION Summary In 2005, the applicant was hospitalised for a period of time, part of which was involuntary. The applicant subsequently complained to the Department of Health (Department)[1] about his treatment. In 2009, the Department conducted an investigation into the applicant’s complaint. The applicant applied under the Information Privacy Act 2009 (Qld) (IP Act) for access to a copy of the investigation report regarding his complaint. The Department decided[2] to grant the applicant full access to 141 pages and partial access to 10 pages, and to refuse access to two pages.[3] The grounds for the Department’s refusal of access decision were as follows: (i) disclosure of the information would, on balance, be contrary to the public interest, primarily for reasons of personal privacy;[4] and (ii) the information was exempt on the basis that disclosure would found an action for breach of confidence.[5] The Department’s refusal of access decision was affirmed on internal review.[6] The applicant then applied to the Office of the Information Commissioner (OIC) for external review of the Department’s internal review decision. During the external review, the applicant confirmed that he did not wish to pursue access to the personal information of other people. Accordingly, the only information which is the subject of this decision is the information subject to the breach of confidence claim. The applicant submits that he has a right to know what other people have said about him to the Department. He has emphasised to OIC that he believes incorrect and false information was provided to the Department about him. He also submits that disclosure will help him to further understand the treatment he received. The Department submits that the information was provided by individual/s in circumstances importing an obligation of confidence and is of a nature which is treated as confidential by health care providers. The Department considers that disclosure would cause significant concern to the individual/s who provided the information and would constitute an unauthorised use of the confidential information. Having reviewed the relevant evidence in this review, I am satisfied that disclosure of the information remaining in issue would found an action for breach of confidence[7] and that therefore, access to the information may be refused on the basis that it is exempt.[8] Background Significant procedural steps relating to the application and external review are set out in the Appendix. Reviewable decision The decision under review is the Department’s internal review decision dated 7 March 2011. Information in issue The Information in Issue in this review appears in parts of five pages[9] and two whole pages[10] of progress notes relating to the applicant’s hospital treatment. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching my decision is as disclosed in these reasons (including the appendix and all footnotes). Relevant law Under the IP Act, a person has a right to be given access to documents of an agency to the extent they contain the applicant’s personal information.[11] This right is subject to other provisions of the IP Act including grounds on which access may be refused.[12] Where information is considered to be exempt, access to it may be refused.[13] Breach of confidence Information will be exempt if its disclosure would found an action for breach of confidence.[14] The words of the section refer to an action based in equity for breach of an equitable obligation of confidence.[15] The following must be established to give rise to an equitable obligation of confidence: information must be capable of being specifically identifiable as information that is secret, rather than generally available; information must have the necessary quality of confidence; circumstances of the communication must create an equitable obligation of confidence; and disclosure to the applicant for access must constitute an unauthorised use of the confidential information.[16] An additional requirement of detriment to the plaintiff as a result of disclosure has also been found to exist.[17] In view of the authorities on this point[18], I consider that detriment is a necessary fifth requirement of the breach of confidence exemption, and that it can be easily established by a non-government plaintiff.[19] The detriment suffered by the plaintiff need not be of a financial nature and may include embarrassment, loss of privacy, or fear, or an indirect detriment, for example, disclosure of the confidential information may injure some relation or friend.[20] The issue of whether defences to a breach of confidence action should be considered in applying the exemption is also subject to different views. Recently, in Callejo the Administrative Appeals Tribunal of Australia decided it was not necessary to consider defences on the basis that the section[21] only requires that disclosure would “found” an action for breach of confidence.[22] While the Information Commissioner has previously considered defences to be relevant in applying the breach of confidence exemption[23], the Information Commissioner has acknowledged that if defences cannot be considered, evidence of an iniquity may still be relevant in determining whether information has the necessary quality of confidence.[24] Having considered the relevant authorities, I am satisfied that the availability of defences is not a separate requirement when applying the breach of confidence exemption in schedule 3, section 8 of the RTI Act. In the particular circumstances of this case, I have assessed whether evidence of an iniquity is present in the context of requirement (b), that is, whether the Information in Issue has the necessary quality of confidence. Findings I am satisfied that disclosure of the Information in Issue would found an action for breach of an equitable obligation of confidence. Reasons relevant to each requirement are set out below. (a) specifically identifiable information It must be possible to identify with specificity, and not merely in general terms, the information in question.[25] The Information in Issue is contained within seven pages of progress notes recording communications between individual/s and health professionals. I am satisfied that all instances of communication are specifically identifiable from the Information in Issue and that this requirement is therefore satisfied. (b) necessary quality of confidence An equitable obligation of confidence will only protect information with the necessary quality of confidence—it will not extend to information that is generally known, useless or trivial.[26] As medical records are not publicly available, I am satisfied the Information in Issue is not generally known. I also do not consider that information provided by individual/s to health care professionals during a patient’s medical treatment could be considered trivial or useless. For the Information in Issue to have the necessary quality of confidence, it must not comprise evidence of an iniquity (eg. a crime, civil wrong or serious misdeed of public importance).[27] The applicant contends that the Information in Issue will assist him in proving that medical professionals engaged in misconduct in administering incorrect medication to him during his treatment. Having carefully examined the Information in Issue, I am satisfied that it does not disclose evidence of an iniquity. On the basis of the above, I am satisfied that the Information in Issue has the necessary quality of confidence. (c) circumstances of communication All the relevant circumstances in which information was received must be considered to determine whether the party who received the information is bound with an obligation of confidence. The Information Commissioner has previously indicated[28] that the relevant circumstances to consider include, but are not limited to: nature of the relationship between the parties; nature and sensitivity of the information; purpose/s for which the information was communicated; nature and extent of any detriment to the interests of the information-supplier that would follow from an unauthorised disclosure of the information; and circumstances relating to the communication. The Department submits that people have an expectation that information they provide to health care professionals will be treated with confidence. Additionally, the Department has provided OIC with details about the particular circumstances of this matter, including the Department’s conversation/s with the relevant individual/s regarding the understanding that the information would be treated confidentially. On the information available to me, I am satisfied that the Information in Issue: is highly sensitive information which was communicated solely for the purpose of aiding in the applicant’s care and treatment; and was communicated on the understanding that it would be kept confidential and would not be communicated to another person, including the applicant, for any other purpose. On the basis of the above, I am satisfied that the Information in Issue was communicated to the Department in circumstances which give rise to an equitable obligation of confidence. (d) unauthorised use The Department has submitted that the relevant individual/s have strongly objected to the disclosure of the Information in Issue. On this basis, I am satisfied that disclosure would be an unauthorised use of the information. (e) detriment The Department submits that release of the Information in Issue in this matter would cause significant concern to the individual/s who provided such information. In the circumstances of this case, I accept that disclosure of the Information in Issue would cause detriment to the individual/s concerned. Conclusion On the basis of the above, I find that the requirements to found an action for breach of an equitable obligation of confidence are established, and that therefore, the Information in Issue is exempt under schedule 3, section 8 of the RTI Act. DECISION I affirm the decision under review and find that access to the Information in Issue can be refused under section 67(1) of the IP Act and section 47(3)(a) of the RTI Act on the basis that it is exempt information under schedule 3, section 8 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the Information Privacy Act 2009 (Qld). ________________________ Jenny Mead Right to Information Commissioner Date: 13 December 2011 APPENDIX Significant procedural steps Date Step taken 26 September 2010 The Department received the access application from the applicant 6 January 2011 The Department issued a decision to the applicant 4 February 2011 The applicant applied to the Department for internal review 7 March 2011 The Department issued the internal review decision to the applicant 1 April 2011 The applicant applied to OIC for external review 15 April 2011 OIC accepted the application for external review and requested copies of the documents to which full and partial access had been refused from the Department 21 April 2011 The Department provided OIC with copies of documents relevant to the review, including the Information in Issue 5 July 2011 OIC received written submissions from the applicant 5 July 2011 and 15 July 2011 OIC contacted the Department to obtain further information in relation to its decision, the Information in Issue and discussion/s with relevant third party/s 11 August 2011 OIC conveyed a written preliminary view to the applicant affirming the Department’s internal review decision 15 August 2011 The applicant contacted OIC by telephone to discuss the preliminary view 23 August 2011 The applicant provided OIC with written submissions in response to the preliminary view. The applicant confirmed that he did not wish to pursue access the personal information of other people but contested that information was subject to the breach of confidence exemption 23 August 2011 OIC emailed the Department to seek its consent to providing the applicant with a more detailed description of the Information in Issue (ie. confirming the type of information which it did not contain) 25 August to 9 September 2011 OIC received further written submissions from the applicant (eight letters) 8 September 2011 OIC wrote to the applicant confirming that OIC would consider his submissions and information provided by the Department in reaching its decision 1 September 2011 The Department provided OIC with a description of the Information in Issue which it consented to OIC using in further correspondence with the applicant 6 October 2011 OIC wrote to the applicant including the additional description of the Information in Issue, as approved by the Department, and confirming the preliminary view 13 October 2011 OIC spoke with the applicant by telephone. He confirmed that he would be providing further submissions to OIC in writing in support of his case 18 October 2011 to 24 October 2011 The applicant provided OIC with further submissions in support of his application (four letters) 25 October 2011 OIC wrote to the applicant confirming receipt of his further submissions 7 November 2011 and 21 November 2011 OIC received further written submissions from the applicant 1 December 2011 OIC wrote to the applicant confirming receipt of his further submissions [1] Also known as Queensland Health. [2] Decision dated 6 January 2011. [3] The investigation report comprised 153 pages in total. [4] Under section 49 and schedule 4 of the Right to Information Act 2009 (Qld) (RTI Act).[5] Under section 48 and schedule 3, section 8 of the RTI Act. [6] Decision dated 7 March 2011. [7] See schedule 3, section 8 of the RTI Act. [8] Under section 67 of the IP Act and section 47(3)(a) and 48 of the RTI Act. Section 67 of the IP Act provides that access may be refused on the same grounds as set out in section 47 of the RTI Act. [9] Pages 136, 144-146 and 149.[10] Pages 150-151.[11] Section 40 of the IP Act.[12] Section 67 of the IP Act. [13] Section 47(3)(a) and section 48 of the RTI Act. Schedule 3 of the RTI Act sets out the categories of exempt information. [14] Schedule 3, section 8 of the RTI Act. [15] In cases concerning disclosure of information that is claimed to be confidential, the facts may give rise to both an action for breach of contract and in equity, for breach of confidence. At general law, these are separate and distinct causes of action. An action for breach of confidence will only be established where particular requirements (discussed at paragraphs 13-15 of these reasons) are present. However, where a contractual term requiring confidentiality exists, disclosure (or threatened disclosure) of information may, in itself, only found an action for breach of contract. See Callejo and Department of Immigration and Citizenship [2010] AATA 244 (Callejo) at paragraphs 163-166. [16] The Queensland Information Commissioner identified these requirements in B and Brisbane North Regional Health Authority [1994] QICmr 1 (B and BNRHA) in applying the equivalent exemption under the repealed Freedom of Information Act 1992 (Qld). See also Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) and Another [1987] FCA 266; (1987) 14 FCR 434 (Corrs Pavey) at 437 per Gummow J. [17] Commonwealth of Australia v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 per Mason J at 51. [18] This requirement has been questioned by two State appellate court decisions NP Generations Pty Ltd v Fenely [2001] SASC 185; (2001) 80 SASR 151, per Debelle J at 580 and National Roads and Motorists Association Ltd v Geeson [2001] NSWCA 343; (2001) 40 ACSR 1. However, the judgment of Mason J in Commonwealth of Australia v John Fairfax & Sons Ltd is that of a single judge of the High Court and is therefore binding on the Information Commissioner. See also B and BNRHA at paragraph 109.[19] B and BNRHA at paragraph 111. [20] Dean, R., (1990) The Law of Trade Secrets, Law Book Company, pp. 177-8.[21] The equivalent breach of confidence exemption in section 45 of the Freedom of Information Act 1982 (Cth).[22] Callejo at paragraph 180. [23] B and BNRHA at paragraphs 119-134. [24] B and BNRHA at paragraphs 121-131. The Information Commissioner referred to the reasoning of Gummow J in Corrs Pavey where his Honour stated that: “...information will lack the necessary attribute of confidence if the subject matter is the existence or real likelihood of the existence of an iniquity in the sense of a crime, civil wrong or serious misdeed of public importance, and the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed.” [25] B and BNRHA at paragraphs 60-63.[26] B and BNRHA at paragraph 43; Callejo at paragraph 139. [27] Corrs Pavey at paragraph 456. [28] B and BNRHA at paragraph 84.

queensland

court_judgement

Queensland Information Commissioner 1993-

Ainsworth and Criminal Justice Commission; A and B (third parties) [1999] QICmr 10 (17 December 1999)

Ainsworth and Criminal Justice Commission; A and B (third parties) [1999] QICmr 10 (17 December 1999) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 99010Application S 87/94 Participants: LEONARD HASTINGS AINSWORTH AINSWORTH NOMINEES PTY LTD Applicants CRIMINAL JUSTICE COMMISSION Respondent 'A' Third Party 'B' Third Party DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - applicants challenging sufficiency of search for documents falling within the terms of the applicants' FOI access application - whether there are reasonable grounds for believing that additional responsive documents exist in the possession, or under the control, of the respondent - whether the searches and inquiries made by the respondent in an effort to locate all requested documents have been reasonable in all the circumstances of the case.FREEDOM OF INFORMATION - refusal of access - documents prepared by the respondent for presentation to a Parliamentary committee - whether disclosure would infringe the privileges of Parliament - application of s.50(c)(i) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - refusal of access - matter which identifies sources of information provided to the respondent - whether sources qualify as confidential sources of information - application of s.42(1)(b) of the Freedom of Information Act 1992 Qld. ii FREEDOM OF INFORMATION - refusal of access - criminal intelligence information provided to respondent by law enforcement agencies of other governments - application of s.38(b) of the Freedom of Information Act 1992 Qld - observations on the overlap between the tests for exemption under s.46(1)(b) and s.38(b) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - refusal of access - record of a request for information made to the respondent by a law enforcement agency of another government - whether disclosure could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for dealing with a possible contravention of the law - application of s.42(1)(e) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - refusal of access - report prepared by the respondent's Intelligence Division - whether s.48(1) of the Freedom of Information Act 1992 Qld is to be applied in its present form or in the form in which it was enacted at the commencement of the review - application of s.20 of the Acts Interpretation Act 1954 Qld.FREEDOM OF INFORMATION - refusal of access - opinions expressed by officers of the respondent in reports concerning intelligence data - whether matter of a kind which falls within the terms of s.41(1)(a) of the Freedom of Information Act 1992 Qld - whether disclosure would, on balance, be contrary to the public interest - application of s.41(1) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - refusal of access - criminal intelligence data comprising unsubstantiated suggestions of criminal activity or other wrongdoing on the part of identifiable individuals - whether information concerning the personal affairs of those persons - whether disclosure would, on balance, be in the public interest - application of s.44(1) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - refusal of access - criminal intelligence data comprising unsubstantiated suggestions of criminal activity or other wrongdoing on the part of identifiable businessmen and business organisations - whether disclosure could reasonably be expected to have an adverse effect on their business affairs - whether disclosure would, on balance, be in the public interest - application of s.45(1)(c) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.22(c), s.27(3), s.28(1), s.38(a), s.38(b), s.41(1), s.42(1)(b), s.42(1)(e), s.44(1), s.45(1)(c), s.46(1)(b), s.48(1), s.50(c)(i), s.78, s.80, s.85, s.87(1), s.88(1)(b), s.88(2), s.102, s.103, s.104Freedom of Information Act 1982 Cth s.36Freedom of Information Act 1989 NSWFreedom of Information Act 1982 Vic s.31(3)Freedom of Information (Review of Secrecy Provision Exemption) Amendment Act 1994 QldActs Interpretation Act 1954 Qld s.4, s.20 iii Bill of Rights 1688 Article 9Constitution Act 1867 Qld s.8, s.40ACriminal Justice Act 1989 Qld s.58(2)(a), s.58(2)(c)Parliamentary Papers Act 1992 Qld s.3Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Bartlett and Department of Prime Minister and Cabinet, Re (1987) 12 ALD 659, 7 AAR 355Bayliss and Queensland Health, Re [1997] QICmr 7; (1997) 4 QAR 1Boyle and Australian Broadcasting Corporation, Re (Commonwealth AAT, No. 92/322, McMahon DP, 5 March 1993, unreported)Cairns Port Authority and Department of Lands, Re [1994] QICmr 17; (1994) 1 QAR 663Cannon and Australian Quality Egg Farms Limited, Re [1994] QICmr 9; (1994) 1 QAR 491Commissioner of Police v The District Court of New South Wales and Perrin (1993) 31 NSWLR 606Criminal Justice Commission and Director of Public Prosecutions, Re [1996] QICmr 12; (1996) 3 QAR 299Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re [1993] QICmr 2; (1993) 1 QAR 60Ferrier and Queensland Police Service, Re [1996] QICmr 16; (1996) 3 QAR 350Gordon and Commissioner for Corporate Affairs, Re (1985) 1 VAR 114Griffith and Queensland Police Service, Re (1997) 4 QAR 109Holt and Education Queensland, Re [1998] QICmr 4; (1998) 4 QAR 310Howard and Treasurer of Commonwealth of Australia, Re (1985) 3 AAR 169"JM" and Queensland Police Service, Re [1995] QICmr 8; (1995) 2 QAR 516Kahn and Australian Federal Police, Re (1985) 7 ALN N190McEniery and Medical Board of Queensland, Re [1994] QICmr 2; (1994) 1 QAR 349Morris and Queensland Treasury, Re [1995] QICmr 25; (1995) 3 QAR 1Murphy and Queensland Treasury (No. 2), Re (Information Commissioner Qld, Decision No. 98009, 24 July 1998, unreported)Norman and Mulgrave Shire Council, Re [1994] QICmr 13; (1994) 1 QAR 574Pearce and Queensland Rural Adjustment Authority and Others, Re (Information Commissioner Qld, Decision 99008, 4 November 1999, unreported)Pope and Queensland Health, Re [1994] QICmr 16; (1994) 1 QAR 616Price and Nominal Defendant, Re (Information Commissioner Qld, Decision No. 99003, 30 June 1999, unreported)Robbins and Brisbane North Regional Health Authority, Re [1994] QICmr 19; (1994) 2 QAR 30Shepherd and Department of Housing, Local Government & Planning, Re [1994] QICmr 7; (1994) 1 QAR 464State of Queensland v Albietz [1996] 1 Qd R 215Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227"T" and Queensland Health, Re [1994] QICmr 4; (1994) 1 QAR 386Trustees of the De La Salle Brothers and Queensland Corrective Services Commission, Re [1996] QICmr 4; (1996) 3 QAR 206University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177Wong and Department of Immigration and Ethnic Affairs, Re (1984) 2 AAR 208Woodyatt and Minister for Corrective Services, Re [1995] QICmr 1; (1995) 2 QAR 383 DECISION I decide to vary the decision under review (which is identified in paragraph 5 of my accompanying reasons for decision), by finding that -(a) having regard to the additional searches and inquiries made by the respondent (and the additional documents thereby located and dealt with) during the course of my review,I am satisfied that - (i) there are no reasonable grounds for believing that additional documents, responsive to the terms of the applicants' FOI access application dated 2 November 1993, exist in the possession or under the control of the respondent; and (ii) the searches and inquiries made by the respondent in an effort to locate all documents in its possession or under its control, which are responsive to the terms of the applicants' FOI access application dated 2 November 1993, have been reasonable in all the circumstances of this case;(b) the matter in issue identified in paragraph 63 of my accompanying reasons for decision is exempt matter under s.50(c)(i) of the Freedom of Information Act 1992 Qld;(c) the matter in issue identified in paragraph 98 of my accompanying reasons for decision is exempt matter under s.38(b) of the Freedom of Information Act 1992 Qld;(d) the matter in issue identified in paragraphs 138 and 150 of my accompanying reasons for decision is exempt matter under s.44(1) and/or s.45(1)(c) of the Freedom of Information Act 1992 Qld; and(e) the balance of the matter remaining in issue does not qualify for exemption from disclosure to the applicants under the Freedom of Information Act 1992 Qld.Date of decision: 17 December 1999.........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background 1External review process 2Scope of the applicants' FOI access application 3'Sufficiency of search' issues 5 Specific issues 6 General 'sufficiency of search' issue 12Claims for exemption under s.50(c)(i) of the FOI Act - Parliamentary privilege 16Claims for exemption under s.42(1)(b) of the FOI Act - confidential source ofinformation 18Matter communicated in confidence/disclosure prejudicial to the effectiveness of law enforcement methods or procedures - claims for exemption under s.46(1)(b),s.38(b) and s.42(1)(e) of the FOI Act 22Claims for exemption under the former s.48(1) of the FOI Act 30Claims for exemption under s.41(1) of the FOI Act 34Claims for exemption under s.44(1) and/or s.45(1)(c) of the FOI Act 38Conclusion 44 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 99010Application S 87/94 Participants: LEONARD HASTINGS AINSWORTH AINSWORTH NOMINEES PTY LTD Applicants CRIMINAL JUSTICE COMMISSION Respondent 'A' Third Party 'B' Third Party REASONS FOR DECISION Background1. The applicants seek review of the respondent’s decision to refuse them access, under the Freedom of Information Act 1992 Qld (the FOI Act), to certain documents, or parts of documents, falling within the terms of an FOI access application dated 2 November 1993 which (so far as relevant for present purposes) stated:I request that your Commission provide me with access to all documents pertaining to Leonard Hastings Ainsworth and/or Ainsworth Nominees Pty.Ltd. pursuant to s.25 of the Freedom of Information Act 1992.In particular, I wish to review all documents pertaining to the 1990 Criminal Justice Commission Report on gaming machines and concerns.2. By way of background, it will be useful if I refer to the history of events following the publication on or about 30 May 1990 of the Criminal Justice Commission (CJC) "Report on Gaming Machine Concerns and Regulations" (hereinafter referred to as "the GM Report").The GM Report recommended that the Ainsworth group of companies should not be allowed to participate in the gaming machine industry in Queensland. It appears that neither applicant was aware of the adverse comments in the GM Report until it had been tabled in the Queensland Parliament and publicised. The applicants commenced legal action against the CJC, with an appeal ultimately reaching the High Court of Australia, which found that the CJC had failed to observe the requirements of procedural fairness in adversely referring to the applicants (and harming their business or commercial reputation) in the GM Report without giving them an adequate opportunity to be heard in relation to the proposed adverse comments before their publication (see Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564).3. I note also that Mr John Perrin (an employee legal consultant for the Ainsworth group of companies) had, on 4 December 1991, lodged with the New South Wales (NSW) Commissioner of Police an access application under the Freedom of Information Act 1989 NSW (the NSW FOI Act) seeking documents relating to information supplied by the NSW Police Service, or officers thereof, to the CJC (for the purposes of the inquiry which culminated in the publication of the GM Report), and access to the names of police officers responsible for the supply or preparation of that information. An appeal by Mr Perrin against one aspect of the decision made on behalf of the NSW Commissioner of Police (i.e., the deletion from documents supplied of all names and identifying particulars of the individual police officers and public servants involved in the preparation of the documents forwarded to the CJC) was successful in the NSW District Court, and upheld by the NSW Court of Appeal: see Commissioner of Police v The District Court of New South Wales and Perrin (Perrin's case) (1993) 31 NSWLR 606.4. The initial decision in response to the FOI access application set out in paragraph 1 above was made on behalf of the CJC by Mr K B George on 28 January 1994, and notified to the applicants' solicitor in a letter dated 31 January 1994. Mr George decided to grant access in full to more than 200 documents, but granted access to some documents subject to the deletion of exempt matter, and refused access to other documents in their entirety.5. By letter dated 15 February 1994, the applicants' solicitor, Mr Lawrence Diercke (then of Barker Gosling, Solicitors, now of O'Shea Corser and Wadley, Solicitors) sought internal review of Mr George's decision in respect of more than 80 documents which were individually specified by reference to the Schedule number and document number used by Mr George to identify the documents dealt with in his decision. The internal review decision on behalf of the CJC was made by Ms B L Springer on 18 March 1994.Ms Springer varied Mr George's internal review decision by deciding to give access to some documents which had been claimed to be exempt, and by finding that some documents were exempt on grounds other than, or additional to, those relied upon by Mr George.6. By letter dated 10 May 1994, the applicants' solicitor applied to me for review, under Part 5 of the FOI Act, of Ms Springer's decision in respect of 62 specified documents, and also asserted that (and requested me to investigate whether) the CJC held additional documents, falling within the terms of the relevant FOI access application, which had not been identified and dealt with by the CJC under the FOI Act.External review process7. The documents in issue were obtained and examined. Assistant Information Commissioner Sammon was instructed to conduct a mediation process with the participants (as contemplated by s.80 of the FOI Act) to try to effect a settlement, or at least to narrow as far as possible the issues requiring determination. The issues raised by this external review were complex, and the documents in issue were voluminous, which has caused numerous practical difficulties and protracted the review process. However, each participant did make some concessions to reduce the number of issues requiring a formal decision. The CJC agreed to provide access to additional documents, and the applicants indicated (in a letter from their solicitor dated 9 October 1995) that they did not wish to pursue access to documents claimed by the CJC to be exempt on the ground of legal professional privilege (and which, I was satisfied, from my examination of them, clearly qualified for legal professional privilege) or to documents relating to the CASPALP investigation (an investigation into donations made by Mr Ainsworth to the Queensland Branch of the Australian Labor Party in 1980 - see Appendix 2 to the GM Report).8. I have referred to the two third parties as 'A' and 'B', since their identities are claimed to be exempt matter. Each objected to the disclosure of the information in issue which concerned them, and each was granted status as a participant in this review, in accordance with s.78 of the FOI Act.9. Ultimately, each participant was given the opportunity to lodge formal evidence and written submissions in support of their respective cases in this review. The CJC lodged evidence consisting of a number of statutory declarations. The applicants did not lodge sworn affidavits or statutory declarations, but through their solicitor, Mr Diercke, the applicants lodged a number of documents which are evidentiary in nature. Each participant lodged written submissions. The submissions and evidence lodged on behalf of each participant were exchanged, and opportunities were given for reply. I will refer to relevant parts of the evidence and submissions, where appropriate, in the reasons for decision which follow.Scope of the applicants' FOI access application10. In a letter dated 27 July 1994, which set out the applicants' contentions in respect of 'sufficiency of search' issues, the solicitor for the applicants asserted:Moreover, it should be noted that Ainsworth Nominees Pty Ltd (commonly referred to as such in the CJC material) changed its name to Aristocrat Leisure Industries Pty Ltd on 18 December 1992. The adequacy search should therefore extend to any documents or information under or referable to that changed name.11. The CJC responded, by letter dated 19 August 1994, as follows:... as you are aware from the request for access, .. there was no mention of Aristocrat Leisure Industries Pty Ltd. In the absence of that name being mentioned in the request, it is unreasonable to expect the searches conducted by the [CJC] to have covered any document involving that name. The person undertaking the searches should not be expected to have knowledge about the persons or entities in respect of whom access to documents is sought beyond that which is contained in the request. In particular, that person should not be required to undertake corporate searches to ascertain whether the person or other entity referred to in the request operated under another name or has changed its name... if access is sought to documents pertaining to Aristocrat Leisure Industries Pty Ltd, that should be the subject of a separate application.12. I consider that the CJC's stance in respect of this issue is correct. The terms of the relevant FOI access application (see paragraph 1 above), which was prepared and lodged by a legal adviser to the applicants, were quite specific in seeking access to "all documents pertaining to Leonard Hastings Ainsworth and/or Ainsworth Nominees Pty Ltd", even though the name of the latter company had apparently been changed to Aristocrat Leisure Industries Pty Ltd approximately a year before the lodgment of the relevant FOI access application. In my view, that was unlikely to have been an oversight. The legal adviser to the applicants understood that the applicants were primarily seeking access to the information (and the sources thereof) acquired by the CJC prior to the publication of the GM Report in May 1990, and which formed a basis for the adverse comments about the applicants contained in the GM Report. 13. However, if the applicants wished to obtain any documents held by the CJC pertaining to Aristocrat Leisure Industries Pty Ltd, it was incumbent on the applicants to make a clear and specific access application in those terms. As I observed in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 at pp.497-498 (paragraph 8):8. The terms in which an FOI access application is framed set the parameters for an agency's response under Part 3 of the FOI Act, and in particular set the direction of the agency's search efforts to locate all documents of the agency which fall within the terms of the FOI access request. The search for relevant documents is frequently difficult, and has to be conducted under tight time constraints. Applicants should assist the process by describing with precision the document or documents to which they seek access. Indeed the FOI Act itself makes provision in this regard with s.25(2) not only requiring that an FOI access application must be in writing, but that it must provide such information concerning the document to which access is sought as is reasonably necessary to enable a responsible officer of the agency to identify the document.14. Moreover, an applicant cannot unilaterally extend the terms of an FOI access application at the stage of external review: see Re Robbins and Brisbane North Regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30 at p.36, paragraph 17. I find that the scope of the applicants' FOI access application did not extend to documents pertaining to Aristocrat Leisure Industries Pty Ltd, and that the CJC was under no obligation to locate and deal with any documents in its possession or control which answered that description.15. A second issue arose as to the scope of the applicants' FOI access application. It concerned several documents which contain reference to the applicants in discrete segments of the documents, while the balance of the documents deal with other unrelated persons or corporations. For example, one lengthy document in issue is entitled "Diversification of Criminal Interests Within the N.S.W. Gaming Industry" and was prepared in March 1984 by investigative staff attached to the Superintendent of Licenses Office, NSW (according to the document identification system used by the CJC in dealing with the applicants' FOI access application, it is document 10 in Schedule 17, i.e., document 17/10). The report is essentially a collection of intelligence data on a number of individuals and corporations.The applicants have been given access to the segments of document 17/10 which concern or refer to them. The balance of the document consists of intelligence data on persons or corporations which are unrelated to the applicants.16. The CJC has taken the position that discrete segments of documents which deal with persons or corporations unrelated to the applicants fall outside the scope of the applicants' FOI access application, or, alternatively, are exempt from disclosure to the applicants under s.44(1), s.45(1)(c), s.46(1)(b) and (in some instances) s.38 of the FOI Act. On 26 June 1996, the Deputy Information Commissioner wrote to the applicants' solicitor seeking:... your clients' response to a proposal that they consent to the reframing of the relevant FOI access application so that there is no doubt that the words "access to all documents pertaining to Leonard Hastings Ainsworth and/or Ainsworth Nominees Pty. Ltd ..." are able to be interpreted as "all documents in so far as they pertain to Leonard Hastings Ainsworth and/or Ainsworth Nominees Pty Ltd ...".Such an interpretation will have the effect that matter which is clearly extraneous to your clients, such as matter that refers to other persons unrelated to your client, will not have to be dealt with by the Information Commissioner in his reasons for decision. If the Information Commissioner must deal with that extraneous matter in his reasons for decision, then this will involve consideration of the application of a broader range of exemption provisions under the [FOI Act] than are presently in issue, and delay even further the finalisation of the Information Commissioner's reasons for decision.17. By letter dated 8 August 1996, the applicants' solicitor informed me that one of his clients, Mr L H Ainsworth, was prepared to consent to the reframing of the FOI access application as proposed, but that his other client, Ainsworth Nominees Pty Ltd (now Aristocrat Leisure Industries Pty Ltd), was not prepared to so consent. I consider that the natural and ordinary meaning of the words used in the relevant FOI access application (see paragraph 1 above) is apt to embrace the whole of a document that contains information pertaining to the applicants only in respect of a discrete segment or segments of the document, and that, given the stance taken by one of the applicants (cf. s.27(3) of the FOI Act), I am obliged to treat documents of that kind as falling within the scope of the relevant FOI access application.That stance by one of the applicants has necessitated careful consideration of a substantial amount of information that is unrelated to the applicants, so as to satisfy myself whether or not it qualifies for exemption. My findings in respect of that information are set out at paragraphs 139-151 below.'Sufficiency of search' issues18. During the course of this external review, the applicants have contended that the CJC failed to locate, and deal with, all documents in its possession, or under its control, which fall within the terms of their FOI access application dated 2 November 1993. That contention was not without justification since, as a result of further searches and inquiries undertaken during the course of the review, the CJC has located further responsive documents, and, where no claim for exemption has been made by the CJC or by third parties, the applicants have been given access to those documents. However, the applicants assert that they are still not satisfied that all responsive documents in the possession or control of the CJC have been identified and dealt with.19. I explained the principles applicable to 'sufficiency of search' issues in Re Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7; (1994) 1 QAR 464 at pp.469-470 (paragraphs 18 and 19):18. It is my view that in an external review application involving 'sufficiency of search' issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act) to which access has been requested. It is provided in s.7 of the FOI Act that:"'document of an agency' or 'document of the agency' means a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes -(a) a document to which the agency is entitled to access; and(b) a document in the possession or under the control of an officer of the agency in the officer's official capacity;"19. In dealing with the basic issue referred to in paragraph 18, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.20. The applicants have raised specific issues about the sufficiency of search by the CJC for particular documents, and have persisted with a general complaint about the sufficiency of search by the CJC for documents responsive to their FOI access application. I will deal first with the specific issues raised by the applicants.Specific issues(1) Documents prepared by the principal author of the GM Report.21. Following the mediation conference conducted with the participants in July 1994, the applicants' solicitor forwarded a letter dated 27 July 1994 setting out some of the grounds which the applicants had for believing that there must be further documents, falling within the scope of the applicants' FOI access application, in the possession or control of the CJC.That letter stated that: "... our clients would find it highly surprising if no diary notes, telephone or other internal memoranda, or other record existed of and/or concerning the CJC's investigations and inquiries into our clients which may have led up to and formed part of the [GM Report], or consequently."22. The person primarily responsible for the research and drafting of the GM Report was Mr Phillip Dickie. By the commencement of this external review, Mr Dickie had ceased to be employed as an officer of the CJC. When my staff made contact with him to request his attendance at a conference to make inquiries as to the existence and location of any further documents falling within the terms of the applicants' FOI access application, Mr Dickie indicated that he would respond to a formal requirement for his attendance. Accordingly, I issued a notice to Mr Dickie under s.85 of the FOI Act, requiring him to attend at my office to answer questions relevant to the 'sufficiency of search' issues which I was required to investigate.23. Mr Dickie attended at my office in September 1994, when he was interviewed at length regarding the existence and location of documents responsive to the terms of the applicants' FOI access application, which had been obtained or created in the course of preparation of the GM Report. The searches undertaken by the CJC to that point in an effort to locate documents responsive to the applicants' FOI access application, and the description of the documents already located, were discussed with Mr Dickie. Mr Dickie recalled visits to a number of agencies during the course of his preparation of the GM Report. He referred to the existence of documents, consisting of notes made during those visits, which were held in what he described as "suspended" or "hanging" files - so described because of their physical appearance as being a series of manilla folders suspended from a drawer in a desk in the office which Mr Dickie occupied at the CJC. Mr Dickie was certain that all documents located in his office were removed at the time of his departure from the CJC, and this was confirmed by Mr George (who then held the position of Executive Officer, Corporate Services Division, at the CJC, and who was principally responsible for conducting the searches for documents falling within the scope of the applicants' FOI access application).24. I required the CJC to undertake further searches in an effort to locate the "hanging" files, and identify any documents contained in them which refer to the applicants. The CJC subsequently reported on those investigations in its letter to me dated 28 November 1994 (a copy of which was provided to the applicants' solicitor, subject to the deletion of references to matter claimed to be exempt). The CJC reported that, while a considerable amount of material was collated in the "hanging" files, very little of it pertained to the applicants (noting that Mr Dickie's inquiries dealt with the gaming machine industry generally, not merely with the applicants). The CJC identified additional documents, responsive to the terms of the applicants' FOI access application, in a schedule (numbered as Schedule 21) attached to the CJC's letter dated 28 November 1994. A number of documents, including copies of newspaper and magazine articles, results of searches conducted through the former National Companies and Securities Commission, and some handwritten notes, were disclosed to the applicants. Claims for exemption were made by the CJC in respect of the balance of the documents described in Schedule 21, and those documents that are still in issue are dealt with later in these reasons for decision.25. Prior to his employment by the CJC, Mr Dickie had, through his work as an investigative journalist, acquired various books and reports dealing with the gaming machine industry in Australia and overseas (and, more generally, with organised crime), which, although referred to in the preparation of the GM Report (several are cited in the GM Report), remained his personal property which he took with him on his departure from the CJC. Whether or not those books and reports ever became documents of an agency while being used by Mr Dickie when he was employed as an officer of the CJC (cf. Re Holt and Education Queensland [1998] QICmr 4; (1998) 4 QAR 310 at pp.316-317, paragraphs 21-22), there is no doubt that, once Mr Dickie ceased his employment with the CJC, the books and reports comprising his personal property, which he took away with him, did not fall within the definition of "document of an agency" in s.7 of the FOI Act, and were not subject to the application of the FOI Act: see Re Holt at pp.317-318, paragraphs 24-27.26. I am satisfied that, apart from the documents described by the CJC in schedule 21, no additional documents of the kind suggested by the applicants (in the passage set out in paragraph 21 above) now exist in the possession, or under the control, of the CJC. I am also satisfied that the searches and inquiries made by the CJC in that regard (including those undertaken at the behest of my office during this review) have been reasonable in all the circumstances of this case.(2) Research volumes on the gaming industry obtained from other authorities27. By letter dated 11 October 1994, the applicants' solicitor asserted that the CJC had failed to identify the following documents (the first five of which, he asserted, a NSW police officer had delivered to Mr Dickie, or posted to the CJC, in March 1990):(1) "The Organisation and Overlapping of Legal and Illegal Gaming Industries - a Licensing and Economic Analysis" (being a document comprising four volumes);(2) "An Overview of Gaming in Nevada, USA";(3) "Annual Report of the Licensing Investigation Section, 1984-1985, Superintendent of Licences Office NSW"; (4) "Diversification of Criminal Interests Within the NSW Gaming Industry, Interim Report, 1984";(5) "A Bundle of Documents Relating to Gambling in Queensland and a Background to Gaming Procedures in Nevada, USA, Licensing Investigative Unit, NSW";(6) "Report of the Board of Inquiry into Poker Machines, Victoria, November 1983 (Mr M. Wilcox, QC)"; and(7) "Allegations by Messrs. L.H. Ainsworth and E.P. Vibert re Conduct of Police, NSW Ombudsman's Report No. 2, 14 October, 1986".28. The CJC responded in a letter dated 8 November 1994 (a copy of the relevant parts of that letter was provided to the applicants' solicitor under cover of my letter dated 14 December 1994) which explained that documents (3), (4) and (7) above had in fact been identified and dealt with in the CJC's decision under review as documents 14/18, 17/10 and 17/4, respectively. I am satisfied that that is correct.29. In the last three paragraphs on p.4 of a letter to me dated 10 January 1995, the applicants' solicitor argued that document (6) above (the Wilcox Report), and any other document referred to in the bibliography to the GM Report which contained a reference to his clients -(a) must of necessity have merged with and become an integral part of the GM Report; or(b) should be at least under the control, if not in the possession, of the CJC.30. I do not accept that contention (a) correctly states the effect of including, in a bibliography, reference to the publications, or documentary sources, consulted in the course of preparing a report. Furthermore, contention (b) is too broad an assertion to be correct. In the course of researching a publication, an officer of the CJC may examine a particular book or report held in a public or private library, or held by an interstate agency, and make an accurate citation of that particular book or report, without that book or report ever becoming a "document of the agency" (i.e., of the CJC) for the purposes of the FOI Act. To be subject to the application of the FOI Act, a document must be in the possession, or under the control, of an agency, in the sense explained in Re Price and Nominal Defendant (Information Commissioner Qld, Decision No. 99003, 30 June 1999, unreported) at paragraph 18.31. In its letter dated 8 November 1994, the CJC referred to the fact that Mr Dickie owned his own copy of the Wilcox Report, which he took with him when he ceased employment with the CJC. I am satisfied (for the reasons indicated in paragraph 25 above) that Mr Dickie's copy of the Wilcox Report is not a document of the CJC, and is not subject to the application of the FOI Act. In its written submission dated 5 June 1995, the CJC acknowledged that it held a copy of the Wilcox Report in the CJC Library. The CJC explained that it did not have a practice of registering publicly available reports, such as the Wilcox Report, on its computerised records management system (Recfind), or of including Library reference material in its document search processes for freedom of information applications, and hence the Wilcox Report was not identified and dealt with in the CJC's decisions in response to the relevant FOI access application. I am sure that the applicants have ready access to a copy of the Wilcox Report. I consider that their purpose in raising a specific 'sufficiency of search' issue in respect of it, was to make a point about the adequacy of the CJC's efforts to identify and deal with all documents responsive to the terms of the applicants' FOI access application, given that the CJC did not identify and deal with the Wilcox Report, which was one of the primary sources relied upon for the GM Report, and for the material adverse to the applicants that appears in the GM Report.32. I am satisfied that the CJC's library copy of the Wilcox Report is a "document of the agency", and subject to the application of the FOI Act. However, I am also satisfied that the Wilcox Report is a document that is reasonably available for public inspection at the State Library of Queensland (I have made specific inquiries to confirm that fact), and probably in several other public libraries. I consider that the CJC is entitled to refuse access, under the FOI Act, to its copy of the Wilcox Report, pursuant to s.22(c) of the FOI Act, which provides: 22. An agency or Minister may refuse access under this Act to-- ... (c) a document that is reasonably available for public inspection in the Queensland State Archives or a public library; ... However, the CJC has indicated that it is prepared to make its library copy of the Wilcox Report available for inspection by the applicants, if they so desire. 33. The CJC also explained (in its letters dated 8 November 1994 and 17 March 1995) that the documents numbered (1) (at least in respect of Volumes 3 and 4 thereof), (2) and (5) in paragraph 27 above, were returned to the NSW Police Service, at the request of the NSW Police Service, on 28 January 1994. The applicants' solicitor queried the coincidence of this timing, since 28 January 1994 was also the date on which the initial decision in response to the relevant FOI access application was made on behalf of the CJC by Mr George.I consider that the coincidence of timing was satisfactorily explained in the statutory declaration of Mr George (whose evidence I accept) that was attached to the CJC's letter to my office dated 19 June 1996. In summary, Mr George explained that an officer of the NSW Police Service contacted the CJC on 6 and 7 January 1994 seeking the return of documents which the NSW Police Service had provided to the CJC in March 1990 (for its assistance in the preparation of the GM Report). The NSW Police Service required the documents to assist it in respect of an investigation being undertaken into a complaint lodged with the NSW Ombudsman by solicitors acting for Mr Leonard Ainsworth. The documents in question had not been registered on Recfind, but were located in Mr Dickie's office. However, volumes 1 and 2 of document (1) (identified in paragraph 27 above) could not be found despite extensive searches, and the CJC was unable to return those volumes to the NSW Police Service.34. The CJC also asserts that documents (1), (2) and (5) identified in paragraph 27 above fall outside the scope of the relevant FOI access application because they do not mention either of the applicants. Mr George travelled to Sydney on 2 June 1995 and arranged with the NSW Police Service to examine documents (2) and (5), together with volume 4 of document (1) (volume 3 being unavailable). In its written submission dated 5 June 1995, the CJC asserted that "Mr George's examination of these documents did not reveal any reference to Leonard Hastings Ainsworth or Ainsworth Nominees Pty Ltd, or, for that matter, to the name Ainsworth in any of the documents", and hence that the documents fell outside the scope of the relevant FOI access application. Mr George was unable to verify that volumes 1, 2 and 3 of document (1) contained no mention of either of the applicants.35. I consider it unnecessary to rule on this issue. I am satisfied on the material before me that documents (1), (2) and (5) identified in paragraph 27 above remained the property of the NSW Police Service, which had been provided to the CJC on long-term loan to assist the CJC in its preparation of the GM Report (and which were probably retained for some years thereafter for reference purposes, in respect of the litigation that followed the publication of the GM Report), and which the CJC was obliged to return to the NSW Police Service on request. Having been returned to their lawful owner prior to the CJC giving its decision in response to the applicants' FOI access application, those documents were not "documents of the agency" (i.e., of the CJC) for the purposes of the application of the FOI Act (see Re Holt at pp.317-318, paragraphs 24-26).36. It is arguable that there are some grounds for believing that volumes 1 and 2 of document (1) still exist in the possession of the CJC (since there is evidence to indicate that they were provided to the CJC, and the CJC has been unable to locate them and return them to the NSW Police Services, as requested). However, I am satisfied that the CJC has made all the searches it could reasonably be required to make in an effort to locate those volumes. If the volumes were to be located, they remain the subject of an unsatisfied request for their return to the NSW Police Service, and the CJC would be obliged to comply with that request rather than dealing with the volumes under the FOI Act.(3) "Notes of interview, Dickie and Detectives Hanrahan and Clark..."37. In his letter to my office dated 11 October 1994, the applicants' solicitor asserted that:... on 10 May 1990, Sir Max Bingham QC [the then Chairman of the CJC] wrote to the then NSW Commissioner of Police, Mr Avery, seeking a copy of a transcript of interview taken by NSW Police Task Force "II". A copy of that transcript was sent to the CJC by facsimile transmission on 14 May 1990 by then Sergeant P Favret of the NSW Commissioner's Office....The documents in question are listed in the References of the [GM Report] as "Notes of Interview, Dickie and Detectives Hanrahan and Clark, undated ... .38. I have examined the GM Report and it contains no such reference. The only reference in the GM Report with similar wording appears as reference/footnote (110) on p.103, which is in these terms: "Notes of interview, Casey and Detectives Hanrahan and Clark, undated, p.3.".Reference/footnote (110) is cited in Appendix Two of the GM Report which deals with the CASPALP investigation (the name "Casey" is that of the Leader of the Australian Labor Party in Queensland's Legislative Assembly in 1980). Moreover, the text of document 2/4 (which has been disclosed to the applicants subject to the deletion of some matter claimed to be exempt) makes it quite clear that the document requested by Sir Max Bingham QC on 10 May 1990, and faxed to the CJC by Sergeant Favret on 14 May 1990, was a transcript of interview between Detectives Hanrahan and Clark of NSW Police Task Force Two, and Mr Edmund Casey, concerning the CASPALP investigation. In a letter to me dated 9 October 1995, the applicants' solicitor advised that the applicants no longer wished to pursue access to documents relating solely to the CASPALP investigation.39. By letter dated 8 November 1994, the applicants' solicitor provided me with a list describing some 26 documents obtained by his clients under the NSW FOI Act following the decision of the NSW Court of Appeal in Perrin's case. The list was provided to me on the basis that neither the list itself, nor its contents, were to be disclosed to the CJC. Despite requests from me or my staff, the applicants have declined to provide me with copies of any documents on that list, apart from the two documents referred to in paragraph 51 below.40. In a letter to me dated 10 January 1995, the applicants' solicitor asserted that one of the documents on the aforementioned list (being a report by a NSW police officer) makes reference to the CJC's request for a copy of "a transcript of interview" and goes on to conclude in the terminology referred to in his letter dated 11 October 1994 (which was "Notes of Interview, Dickie and Detectives Hanrahan and Clark, undated ..."). The applicants' solicitor has not provided me with a copy of the relevant document from the aforementioned list, to enable me to verify the wording used. If it did refer to a transcript of interview between Dickie (rather than Casey) and Detectives Hanrahan and Clark, then I consider that, on the balance of the probabilities, it did so in error. Detectives Hanrahan and Clark would have had no occasion to compile a transcript of interview with Mr Dickie, and if Mr Dickie ever did take notes of an interview conducted jointly with Detectives Hanrahan and Clark (there is no material before me which suggests that such an interview ever took place), then it is inherently unlikely that the CJC would be asking the NSW Police Service for a copy of Mr Dickie's notes of the interview. The second last paragraph on page 2 of the letter from the applicants' solicitor dated 10 January 1995 suggests that the transcript that is sought is of an interview held in 1982. If so, the reference must be to the interview in 1982 with Mr Casey. The CJC did not exist in 1982, and Mr Dickie would not have been interviewing Detectives Hanrahan and Clark, for the purposes of the GM Report, in 1982.41. I find that there are no reasonable grounds for believing that the CJC has possession or control of a document answering the description "Notes of interview, Dickie and Detectives Hanrahan and Clark, ..", as set out in letters from the applicants' solicitor dated 11 October 1994 and 10 January 1995.42. I also note that, in his letter dated 11 October 1994, the applicants' solicitor asserted that:It is well known, including in some cases publicly, that other documents have been acquired by or provided to the CJC of and concerning our clients - for example, reference is made to then media coverage in late 1990 concerning considerable volumes of material sent by "the Phantom Faxer".We have been unable to identify this material from the information provided to us by the CJC to date under the current FOI application.However, I am satisfied that all documents in the possession or control of the CJC relating to the "Phantom Faxer" episode were identified in Schedule 7 to Mr George's initial decision on behalf of the CJC (and indeed no claim for exemption was made in respect of them).General 'sufficiency of search' issue43. When 'sufficiency of search' issues were raised in the first conference between the participants, the CJC was requested (by a letter from me dated 1 August 1994) to provide a detailed written account of the searches and inquiries undertaken to locate documents falling within the terms of the relevant FOI access application. The CJC's response dated 9 September 1994 was provided to the applicants' solicitor. The search processes undertaken by the CJC have been scrutinised by my staff, and cross-checked by a careful examination of the contents of the documents in issue (including new documents located by the CJC during the course of the review) for the purpose of identifying any references to documents, or CJC files, that had not been identified and dealt with in the CJC's responses to the relevant FOI access application. A number of additional responsive documents were located during the course of the review. Any specific 'sufficiency of search' issues raised by the applicants' solicitor have been followed up, as outlined above.44. Notwithstanding the efforts of my staff and staff of the CJC, the applicants have persisted in a general complaint that they are not satisfied that the CJC has identified and dealt with all documents in its possession or control that fall within the terms of the relevant FOI access application. Correspondence from the applicants' solicitor hinted at the existence of documents obtained by the applicants under the NSW FOI Act, or otherwise, which indicated that the CJC had further documents, responsive to the terms of the applicants' FOI access application dated 2 November 1993, which had not been identified and dealt with.However, the applicants were not prepared to provide me with copies of those documents (see paragraph 39 above), or particulars of the additional documents they claimed must exist in the possession or control of the CJC, or particulars of the evidence which afforded a reasonable basis for their belief in that regard. The attitude of the applicants to the'sufficiency of search' issue was exemplified in this passage of a letter from the applicants' solicitor dated 27 March 1995:... our clients (and quite reasonably in our view) do not consider it is for them to identify the documents/information held by the CJC; nor does it behove the CJC, or anyone else for that matter, to require our clients to continue to "show their hand" on the issue as to whether the CJC has made full and proper disclosure as it is obliged to do under the FOI legislation.45. In a letter to me dated 4 May 1995, the applicants' solicitor asserted:Our detailed references to various documents and material in our clients' possession in the past have simply drawn the CJC's response (where we get any response) to each such illustration; this process has failed to adequately address the wider issue of the sufficiency/adequacy of the CJC's disclosure to date. Our clients continue to remain of the belief that any further disclosure of specific documents to the CJC will do nothing more than draw piecemeal responses to each such disclosure ... .... It is pernicious to our clients entire understanding and appreciation of the FOI process, including this review that, somehow, they are the ones who are charged with the obligation for a full and unfettered disclosure in their own application.46. I consider that the applicants' understanding and appreciation of the FOI process may be deficient so far as concerns the practical exigencies of the pursuit of 'sufficiency of search' issues. It is true that, in accordance with s.81 of the FOI Act, the CJC carries the onus of establishing that the Information Commissioner should give a decision adverse to the applicants. However, s.25(2) of the FOI Act requires an applicant for access to provide such information concerning a document sought in an access application as is reasonably necessary to enable the agency to identify the document. In a 'sufficiency of search' case, where an applicant asserts that the respondent agency has failed to identify a requested document, and the applicant has information that will enable the agency to identify the document so that it can conduct appropriate searches, it is incumbent on the applicant to provide that information to the authorised decision-maker (be it an agency decision-maker on internal review, or the Information Commissioner on external review). Moreover, it is a practical consequence of the issues to be determined in 'sufficiency of search' cases (see paragraph 19 of Re Shepherd - quoted at paragraph 19 above) that applicants will ordinarily need to explain fully their grounds for believing that the respondent agency holds additional responsive documents, and to disclose any relevant documentary or other evidence which tends to support the existence of reasonable grounds for such a belief. If the information provided to me by the respondent agency supports a finding that the questions posed in paragraph 19 of Re Shepherd should be answered in favour of the agency, and I am unable, independently, to identify any further relevant avenues of search or inquiry that an agency could reasonably be required to undertake, then, in the absence of evidence to the contrary from the applicant, there will be only one course open to me - to answer the aforementioned questions in favour of the agency. (Moreover, there is arguably a moral obligation on a person who is making a claim on the resources of two publicly-funded agencies (the CJC and the Office of the Information Commissioner) to undertake extensive searches and inquiries to locate requested documents, to provide as much assistance as possible to ensure that such searches and inquiries are as well directed as possible, and that resources that could be available to serve the needs of other citizens are not inefficiently diverted.)47. On one level, a request for all documents pertaining to two named applicants seems reasonably precise. However, the practical reality is that, given--(a) the fact that the applicants intended to seek access to documents which pertained to them only in the sense of containing some segments referring to them in the course of dealing with a broad subject matter, and a broad range of other individuals and corporations; and(b) the inherent limitations of most records management, or document tracking, systems;a good deal more information was probably necessary to enable the identification of all responsive documents. While there was an element of the speculative in the relevant FOI access application (i.e., the applicants were anticipating the disclosure of documents about them, the existence of which they suspected, but of which they had no actual knowledge), any specific documents which the applicants believed to be in the possession or control of the CJC should have been described in as much detail as possible, to assist the CJC's search efforts. 48. The limitations of the CJC's records management/document tracking system were outlined in the CJC's letter to me dated 19 June 1996 (a copy of which was provided to the applicants' solicitor under cover of a letter from the Deputy Information Commissioner dated 26 June 1996). As at that time, the Recfind database comprised information on nearly 330,000 documents on 65,000 files. Recfind was not a text retrieval system. A precis only of pertinent information was recorded in document abstracts, which permitted a summary of a document limited to five lines each of 65 characters, i.e., a maximum of 325 characters.Document abstracts usually comprised such details as to whom a document was directed and its general subject matter. Thus, a document might contain reference to the name Ainsworth, but if the document did not relate specifically to Ainsworth, or the person who prepared the abstract did not consider the reference(s) to Ainsworth to be an essential part of the subject matter, the name Ainsworth may not be mentioned in the relevant document abstract or file title (as was found to be the case with several documents located during the course of this review), and hence the document or file would not be caught by text searches available in Recfind using the name "Ainsworth". As a backup to a records management system of that kind, an agency can also make inquiries of relevant personnel who might recall the type of files on which responsive documents might be located, and also check the contents of files whose titles indicate that their general subject matter is such that they might contain documents responsive to a particular access application. I am satisfied that the CJC has now made all searches and inquiries of that kind which could reasonably be expected of it, in an effort to locate documents responsive to the terms of the applicants' relevant FOI access application.49. In a letter to the applicants' solicitor dated 4 April 1995, the Deputy Information Commissioner had requested that Mr Diercke obtain his clients' instructions on:1. Whether your clients are prepared to provide me with copies of the documents referred to in your letter of 8 November 1994. To date, you have only provided me with a list describing those documents.2. Whether or not your clients are prepared to provide copies of those documents, I request an indication as to how my office is expected to progress the 'sufficiency of search' issue without providing the CJC withparticulars of documents in respect of which further searches and inquiries are considered to be warranted. I am presently unable to see any practicable way to progress this issue, without providing such particulars. The CJC claims to have now made further searches with a view to locating all documents responsive to the terms of your clients' FOI access application. I have no power to unilaterally search the CJC's premises, and if the CJC permitted me to undertake a supervised search, I would have to explain what I was looking for, so I could be guided through the CJC's record-keeping systems. Nor is it practicable to question the CJC on this issue without providing particulars of documents which are alleged to be in the possession or control of the CJC, but which have not been identified and dealt with in the CJC's response to your clients' FOI access application. Your clients do not seem to appreciate just how frustratingly impractical is the stance which they are presently adopting on this issue.50. While, in his response dated 5 April 1995, the applicants' solicitor said that his clients rejected the proposition that they were adopting a stance which was "frustratingly impractical", he continued:They [the applicants] accept the Information Commissioner's limitations and/or the impracticality of searching the CJC's premises. However, all our clients are endeavouring to do is put on record that they do not believe the CJC has made full and adequate disclosure of all relevant documentation and material which are or may have been in its possession at the time of or subsequent to the subject application.51. The applicants' solicitor later provided me with two documents from the list referred to in paragraph 39 above, which were able to be provided to the CJC; however, those documents were provided in support of the applicants' final submissions in relation to certain exemptions claimed by the CJC, and they do not assist with respect to 'sufficiency of search' issues. Without assistance of the kind requested in the Deputy Information Commissioner's letter dated 4 April 1996, I am unable to take the applicants' generalised complaint about the 'sufficiency of search' by the CJC any further.52. On the material before me, I am not satisfied that there are reasonable grounds to believe that any further documents (i.e., other than the documents which have been identified and dealt with in the decisions made on behalf of the CJC, and during the course of this external review), which are responsive to the terms of the relevant FOI access application, now exist in the possession or control of the CJC.53. Moreover, in respect of the second question posed in paragraph 19 of Re Shepherd (see paragraph 19 above), I am satisfied that the searches and inquiries made by the CJC (including those made at the request of my office during the course of this review) in an effort to locate all documents in the possession or control of the CJC, which fall within the terms of the relevant FOI access application, have been reasonable in all the circumstances of this case.Claims for exemption under s.50(c)(i) of the FOI Act - Parliamentary privilege54. The CJC claims that some matter in issue is subject to Parliamentary privilege and therefore qualifies for exemption under s.50(c)(i) of the FOI Act, which provides: 50. Matter is exempt matter if its public disclosure would, apart from this Act and any immunity of the Crown-- ... (c) infringe the privileges of-- (i) Parliament; ... .55. The following matter is claimed to be exempt under s.50(c)(i) of the FOI Act: document 14/7 - titled "Response to [Parliamentary Criminal Justice] Committee [PCJC] Queries of 19 July 1990"; document 22/6 - a letter dated 17 August 1990 from the Chairman of the CJC to the Chairman of the PCJC; document 8/49 - a letter dated 7 January 1991 from the Chairman of the CJC to the Chairman of the PCJC; parts of document 18/1 - an internal memorandum dated 7 July 1993 from the CJC's Director of Intelligence to the CJC's Chairman, together with a report (and annexure) titled "Report on Criminal Justice Commission's Holdings on Leonard Hastings Ainsworth". (The claim for exemption under s.50(c)(i) is confined to the last sentence of the second full paragraph on page 2 of the report, and to the last paragraph on page 6 of the annexure to the report). 56. It appears that the Parliamentary Criminal Justice Committee (PCJC) conducted a review of the circumstances surrounding the production by the CJC of the GM Report. The matter claimed to be exempt from disclosure under s.50(c)(i) of the FOI Act, as described above, relates to communications between the CJC and the PCJC in respect of that review. 57. Article 9 of the Bill of Rights 1688 provides "that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament". By virtue of s.40A of the Constitution Act 1867 Qld, the privilege in Article 9 is a privilege of the Queensland Legislative Assembly, its members and committees. The PCJC is a Committee of Parliament and is therefore entitled to all of the privileges enjoyed by Parliament. 58. Standing Order 206 of the Legislative Assembly, made pursuant to s.8 of the Constitution Act, provides:The evidence taken by a Select Committee and documents presented to such Committee which have not been reported to the House shall not, unless authorised by the House, be disclosed, published or referred to in the House.59. An unauthorised disclosure of 'proceedings in Parliament' will constitute an infringement of the privileges of Parliament, and hence, if the matter in issue can properly be characterised as a 'proceeding in Parliament', it will be exempt matter under s.50(c)(i) of the FOI Act, unless its public disclosure has been authorised by Parliament or by the PCJC. 60. Section 3 of the Parliamentary Papers Act 1992 Qld defines 'proceedings in Parliament' as follows: 3.(1) This section applies for the purposes of--(a) article 9 of the Bill of Rights (1688) as applying to the Queensland Parliament; and (b) this Act. (2) All words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the House or a committee are "proceedings in Parliament". (3) Without limiting subsection (2), "proceedings in Parliament" include-- (a) giving evidence before the House, a committee or an inquiry; and (b) evidence given before the House, a committee or an inquiry; and (c) presenting or submitting a document to the House, a committee or an inquiry; and (d) a document laid before, or presented or submitted to, the House, a committee or an inquiry; and (e) preparing a document for the purposes of, or incidental to, transacting business mentioned in paragraph (a) or (c); and (f) preparing, making or publishing a document (including a report) under the authority of the House or a committee; and (g) a document (including a report) prepared, made or published under the authority of the House or a committee. (4) If a document is dealt with in a way that, under an Act or the rules, orders, directions or practices of the House, the document is treated or accepted as having been laid before the House for any purpose, then, for the purposes of this Act, the document is taken to be laid before the House. 61. On the basis of my examination of documents 14/7, 22/6 and 8/49, I am satisfied that each was prepared for presentation or submission to the PCJC by the CJC. Further, the PCJC has confirmed that it received those documents. I am therefore satisfied that each document is a 'proceeding in Parliament' for the purposes of s.3(3)(c) of the Parliamentary Papers Act, and that the disclosure or publication of each, without the authority of Parliament or the PCJC,would infringe the privileges of Parliament. The PCJC has confirmed (in a letter to me dated 12 August 1994, and in a letter exhibited to the statutory declaration of Bronwyn Springer dated 5 June 1995) that it has not authorised the disclosure or publication of those documents, and that the documents have not been tabled in Parliament. Accordingly, I am satisfied that documents 14/7, 22/6 and 8/49 are subject to parliamentary privilege, and qualify for exemption under s.50(c)(i) of the FOI Act.62. The claim for exemption under s.50(c)(i) in respect of parts of document 18/1 arises not on the basis that document 18/1 itself has been presented or submitted to the PCJC, but on the basis that it contains references to the contents of document 14/7 (which document has been presented or submitted to the PCJC). I have reviewed the information contained in document 18/1 which is claimed to be subject to Parliamentary privilege. I am satisfied that disclosure of that information would not only disclose information that is contained in document 14/7, but would also disclose the fact that that information has been extracted from document 14/7 (which is a document subject to Parliamentary privilege, the publication or disclosure of which has not been authorised by Parliament or the PCJC).Accordingly, I am satisfied that the relevant parts of document 18/1 qualify for exemption under s.50(c)(i) of the FOI Act.63. I find that documents 14/7, 22/6 and 8/49, and the parts of document 18/1 described in parentheses in paragraph 55(d) above, are subject to Parliamentary privilege and have not been publicly disclosed, and that they therefore comprise exempt matter under s.50(c)(i) of the FOI Act. Claims for exemption under s.42(1)(b) of the FOI Act - confidential source of information64. Section 42(1)(b) of the FOI Act provides: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to-- ... (b) enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained; ...65. The matter remaining in issue which is claimed by the CJC (and by one of the third parties) to be exempt matter under s.42(1)(b) of the FOI Act consists of identifying references to one of the third parties which have been deleted from the following documents (that have been disclosed in part to the applicants): document 2/1A - a memorandum dated 10 January 1990 from the General Counsel of the CJC to the Director, Research and Co-ordination Division, of the CJC; document 2/1B - a letter dated 8 February 1990 from the Chairman of the CJC to the Chairman of the State Drug Crime Commission of NSW; document 2/1C - a letter dated 16 February 1990 from the Chairman of the State Drug Crime Commission of NSW to the Chairman of the CJC; document 2/3 - a memorandum dated 13 May 1991 from Mr P. Dickie, Special Advisor, of the CJC to the General Counsel of the CJC - re information supplied by NSW Police; document 2/4 - a letter dated 21 May 1991 (and attachments) from the General Counsel of the CJC to Superintendent W S Molloy (NSW Police) - response to facsimile message of 2/4/91; and document 14/11 - a memorandum dated 8 February 1990 from Mr P Dickie to the Chairman of the CJC - re poker machines.Likewise, identifying references to the relevant third party which appear in the following parts of document 18/1 (described at paragraph 55(d) above) are claimed to be exempt under s.42(1)(b): the ninth and tenth lines, and the first three words in the eleventh line, of the second full paragraph on p.2 of the report; and the name of the relevant third party where it appears in lines 3, 6, 7, 9 and 14 of the second paragraph on page 5 of the annexure to the report.66. In Re McEniery and Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349, at pp.356-357, paragraph 16, I identified the following requirements which must be satisfied in order to establish that matter is exempt under s.42(1)(b) of the FOI Act:(a) there must exist a confidential source of information;(b) the information which the confidential source has supplied (or is intended to supply) must relate to the enforcement or administration of the law; and(c) disclosure of the matter in issue could reasonably be expected to-- (i) enable the existence of a confidential source of information to be ascertained; or(ii) enable the identity of the confidential source of information to be ascertained.67. A "confidential source of information", for the purposes of s.42(1)(b), is a person who supplies information on the understanding, express or implied, that his or her identity will remain confidential: see Re McEniery at p.358, paragraphs 20-21. Relevant factors in determining whether there was an implied understanding of confidentiality are discussed at p.371, paragraph 50, of Re McEniery. 68. In a letter to me dated 7 February 1997, the relevant third party asserted:I would like to record my strongest opposition to any release of my name in any capacity. The information given was given in confidence and I was told that under no circumstances would that become known to persons outside the CJC. Any disclosure would not only reveal this to be a major ethical inconsistency of the Commission but also provide a major area of concern to any person or organisation wishing to provide information to that organisation in the future.69. However, even assuming in the third party's favour that he was a confidential source at the time he supplied information, confidentiality may be lost with the passage of time, as I explained in Re McEniery at p.357:17. ... some obvious points are worth making at the outset. In Re Croom and Accident Compensation Commission (1989) 3 VAR 441 at p.459, Jones J (President) of the Victorian Administrative Appeals Tribunal (the Victorian AAT) said of s.31(1)(c) of the Victorian FOI Act (which corresponds, though not precisely, to s.42(1)(b) of the Queensland FOI Act):"It is designed to protect the identity of the informer and has no application where that identity is known or can easily be ascertained independently of the document in question. ..." ...18. The question of whether the identity of a source of information is confidential is to be judged as at the time the application of s.42(1)(b) is considered. Thus, if the identity of a source of information was confidential when the information was first communicated to a government agency, but the confidentiality has since been lost or abandoned, the test for exemption under s.42(1)(b) will not be satisfied. (See Re Anderson and Department of Special Minister for State (No. 2), Commonwealth AAT, Deputy President Hall, No. N83/817, 21 March 1986, at p.36, paragraph 77; Re Chandra and Department of Immigration and Ethnic Affairs, Commonwealth AAT, Deputy President Hall, No V84/39, 5 October 1984, at p.21, paragraph 47).70. On the other hand, a mere assertion by an applicant for access that he/she knows the identity of the confidential source of information is not enough to undermine an otherwise legitimate claim for confidentiality. It is not the role of the Information Commissioner to confirm or dispel an applicant's suspicions or guesswork. Ordinarily, the applicant would need to demonstrate that confirmation of the identity of the alleged confidential source of information has been, or can readily be, obtained from an authoritative source (cf. Re Bayliss and Queensland Health [1997] QICmr 7; (1997) 4 QAR 1 at pp.10-11, paragraph 32).71. The applicants were able to demonstrate that the identity of the relevant third party was disclosed in the version of document 2/3 which was released to them (subject to deletions) by the CJC under the FOI Act. I am satisfied that that disclosure was unintentional on the part of the CJC, and occurred as a result of a clerical error. The CJC submitted that the inadvertent disclosure should be disregarded for the purpose of applying s.42(1)(b), relying upon the finding made by Deputy President McMahon of the Commonwealth Administrative Appeals Tribunal in Re Boyle and Australian Broadcasting Corporation (No. 92/322, 5 March 1993) at paragraph 23.72. I find it unnecessary to rule on that issue, since I am satisfied that, quite apart from the inadvertent disclosure by the CJC, the identity of the relevant third party as a source of information supplied to the CJC to assist it in the preparation of the GM Report, has long ceased to be confidential vis-à-vis the applicants. Paragraph 2.16 of the CJC's submissions dated 5 June 1995 contains an admission that this source is named in public documents of the CJC. I am satisfied that the identity of the relevant third party, as a source of information provided to the CJC, has been disclosed in documents obtained by the applicants under the NSW FOI Act following the decision of the NSW Court of Appeal in Perrin's case. The matter in issue in Perrin's case was the name(s) of the person(s) who provided information to the CJC (see Perrin's case at p.611 and p.628). The decision in Perrin's case was that this information was not exempt. In particular, I note that, by that means, the applicants have obtained a materially unedited copy of the document which is document 2/4 in the present review. 73. Accordingly, the relevant third party can no longer qualify as a confidential source of information, and I find that none of the matter identified in paragraph 65 above qualifies for exemption under s.42(1)(b) of the FOI Act. For like reasons, the identity of the source is not information of a confidential nature, and hence cannot satisfy the first element of the test for exemption under s.46(1)(b) of the FOI Act (which was an alternative claim for exemption put by the CJC in some instances).74. The CJC has also claimed that the last sentence on p.2 of document 18/1 is exempt matter under s.42(1)(b). I am not satisfied that this exemption claim can be sustained. One of the sources is identified in the CJC's own evidence given in this review (which has been provided to the applicants) and the other falls within a group of sources described generally in the evidence reproduced at paragraph 87 below. In Re Ferrier and Queensland Police Service [1996] QICmr 16; (1996) 3 QAR 350 at p.365 (paragraph 42), I said:42. The QPS contends that organisations which communicated information to the Special Branch qualify for protection under s.42(1)(b) of the FOI Act, in that they are confidential sources of information. However, I consider it well known that law enforcement organisations co-operate in the exchange of information for law enforcement purposes. For example, I have already quoted above a passage from the Fitzgerald Report which publicly acknowledged the fact that the Special Branch was the usual QPS point of contact with ASIO (see paragraph 12 above). The CTS Charter also lists numerous law enforcement agencies to which dissemination of information is authorised. It is only reasonable to expect that reciprocal arrangements apply. I do not rule out the possibility that an organisation not normally expected to provide information to the QPS could be protected under this provision, or that (having regard to the circumstances of a particular investigation) extreme sensitivity could attach to the fact that a particular law enforcement agency was the source of particular information. However, I am not satisfied that s.42(1)(b) extends to the protection from disclosure of routine interchanges of information between law enforcement agencies of the kind evident in folios 25-26 and 34-37. I cannot see anything in the nature of the very general information recorded in the last sentence on p.2 of document 18/1 that might be sufficient to warrant a finding that the sources of information there referred to qualified as confidential sources of information for the purposes of s.42(1)(b) of the FOI Act.Matter communicated in confidence/disclosure prejudicial to the effectiveness of law enforcement methods or procedures - claims for exemption under s.46(1)(b), s.38(b) and s.42(1)(e) of the FOI Act75. This case has exemplified the difficulties that can arise in the application of the FOI Act when (even after significant concessions by both sides have reduced the number of documents in issue) hundreds of folios remain in issue, frequently with different segments of matter in issue on individual folios, and multiple exemption claims being made for each segment of matter in issue. In several instances, the CJC has added, or substituted, alternative exemption claims as the review has progressed. To save time and space in these reasons for decision, once I have found a particular document or segment of matter to be exempt, I have not addressed alternative exemption claims made in respect of it. I have also endeavoured, as far as practical, to make findings under the exemption provision which most clearly and straightforwardly applies to a particular document, or segment of matter, in issue.76. The CJC has claimed exemption for intelligence information under both s.46(1)(b) and s.42(1)(e) of the FOI Act, and on a basis which seems essentially interchangeable.Moreover, in respect of intelligence information provided by law enforcement agencies of another government, the CJC's case could have been more straightforwardly put under s.38(b) of the FOI Act. (I note that some other documents obtained from interstate law enforcement agencies were found to be exempt under s.38(b) in the CJC's internal review decision, and that the applicants' written submissions briefly addressed s.38(a) and s.38(b) of the FOI Act. However, in respect of the documents found in the internal review decision to be exempt under s.38(b), the CJC subsequently agreed to disclose to the applicants the segments of information which pertained to the applicants. In its written submission dated 5 June 1995, the CJC abandoned reliance on the s.38(b) exemption in respect of those documents, and made alternative exemption claims under s.44(1) and s.45(1)(c) for the balance of the information in those documents, being information which does not pertain to the applicants.)77. Section 46(1)(b) of the FOI Act provides: 46.(1) Matter is exempt if-- ... (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest.78. The elements of s.46(1)(b) are discussed in some detail in my reasons for decision in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at pp.337-342 (paragraphs 144-162, 167). In order to establish the prima facie ground of exemption under s.46(1)(b) of the FOI Act, three cumulative requirements must be satisfied:(a) the matter in issue must consist of information of a confidential nature (see Re "B" at pp.337-338, paragraph 148, and at pp.306-310, paragraphs 71-73);(b) that was communicated in confidence (see Re "B" at pp.338-339, paragraphs 149-153); and(c) the disclosure of which could reasonably be expected to prejudice the future supply of such information (see Re "B" at pp.339-341, paragraphs 154-161).If the prima facie ground of exemption is established, it must then be determined whether the prima facie ground is displaced by the weight of identifiable public interest considerations which favour the disclosure of the particular information in issue (see Re "B" at p.342, paragraph 167). 79. Section 38(b) of the FOI Act provides: 38. Matter is exempt matter if its disclosure could reasonably be expected to-- ... (b) divulge information of a confidential nature that was communicated in confidence by or on behalf of another government;unless its disclosure would, on balance, be in the public interest.80. As I explained in Re Morris and Queensland Treasury [1995] QICmr 25; (1995) 3 QAR 1 at p.20 (paragraph 61):61. When s.38(b) is contrasted with s.46(1)(b), it can be seen that its key elements, i.e., that the information in issue is of a confidential nature and that it was communicated in confidence, are in essence identical to the first and second requirements of s.46(1)(b) (save that the relevant communication must be made by or on behalf of another government). Section 38(b) contains no equivalent to the third requirement of s.46(1)(b) (i.e. that disclosure could reasonably be expected to prejudice the future supply of like information), but, like s.46(1)(b), s.38(b) is qualified by a public interest balancing test.81. The elements of s.46(1)(b) (three of which correspond to the elements that must be satisfied for matter to be exempt under s.38(b)) were fully addressed in the written submissions lodged on behalf of the applicants and the CJC, so I can see no basis on which the applicants might be disadvantaged if I consider the application of s.38(b). There is no doubt that I have power to do so (see s.88(1)(b) of the FOI Act) and the terms of s.88(2) of the FOI Act indicate that if it is established during the course of a review that a document is an exempt document, I have no power to direct that access to the document is to be granted. In practical terms, this means that, if I am satisfied on the material before me (including the contents of the matter in issue, which of course cannot be disclosed to the applicant for access during the course of a review: see s.87(1) of the FOI Act) that a document is an exempt document, I must make a finding to that effect, even if the particular claim for exemption made by the respondent agency could not be established.82. The matter I am about to deal with was claimed by the CJC to be exempt under both s.46(1)(b) and s.42(1)(e) (and in one instance, under s.42(1)(b)). Section 42(1)(e) of the FOI Act provides: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to-- ... (e) prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law); 83. The correct approach to the interpretation and application of s.42(1)(e) was explained in Re "T" and Queensland Health [1994] QICmr 4; (1994) 1 QAR 386. The lawful method or procedure which the CJC asserts would be prejudiced by disclosure of matter in issue is identified in the CJC's evidence and submissions as co-operative sharing of information with law enforcement agencies of other governments.84. It is well known that law enforcement agencies co-operate in the exchange of information for law enforcement purposes (cf. my comments in Re Ferrier at p.365, paragraphs 42-43).The apprehended prejudice to this method or procedure asserted in the CJC's submission would be occasioned by disclosure of information in contravention of the obligation of confidence imposed on the CJC in respect of sensitive law enforcement information communicated to it by a law enforcement agency of another government. Thus, the CJC's case for the application of s.42(1)(e) is in substance identical to its case for the application of s.46(1)(b) which, as I have explained above, transposes more straightforwardly to a case under s.38(b) of the FOI Act.85. The documents, and segments of matter, in issue that are identified in paragraph 98 below were all communicated to the CJC by or on behalf of a law enforcement agency of another government. I am satisfied that each comprises information of a confidential nature. The information was not published or referred to in the GM Report. I am satisfied that it has the requisite degree of secrecy/inaccessibility to answer the description 'information of a confidential nature'.86. The nature of the test for exemption posed by the words "communicated in confidence" was explained in Re "B" at pp.338-339 (paragraphs 149-153). The test inherent in the phrase "communicated in confidence" requires an authorised decision-maker under the FOI Act to be satisfied that a communication of confidential information has occurred in such a manner, and/or in such circumstances, that a need or desire, on the part of the supplier of the information, for confidential treatment (of the supplier's identity, or information supplied, or both) has been expressly or implicitly conveyed (or must otherwise have been apparent to the recipient) and has been understood and accepted by the recipient, thereby giving rise to an express or implicit mutual understanding that the relevant information would be treated in confidence.87. In a statutory declaration dated 16 December 1994, Mr Paul Roger, Director of the Intelligence Division of the CJC, stated:7. [The CJC] has expended substantial effort and resources in painstakingly building a network of contacts and persons or bodies who co-operate with the CJC, from whom intelligence information is drawn. The linchpin of that is the CJC being prepared, and being perceived as being prepared, to protect both the confidentiality of its sources (where appropriate) and of the information provided....10. ... Continued access to those databases [i.e., of law enforcement agencies of other governments] is on the basis of Memoranda of Understanding between the Commission and the respective agencies. Those arrangements require that all information provided between the respective agencies will be subject to various caveats upon release of the information. ... The disclosure of the information without the consent of the agency which controls the database will contravene the caveats which apply in respect of access to the database.88. In a statutory declaration dated 16 December 1994, Mr L J Wellings, an officer of the Queensland Police Service on secondment to the CJC, identified document 21/5 as a document obtained from the database of the Australian Bureau of Criminal Intelligence (ABCI). Mr Wellings stated that it is a condition of the CJC's access to the ABCI database that information from that database is not authorised to be released from the CJC without the prior written consent of the Director of ABCI. (In a later statutory declaration dated 5 June 1995, Mr Wellings annexed a copy of the standard caveat setting out the terms - as to confidential treatment and other matters - on which information is released from ABCI.) In paragraphs 6 and 7 of his statutory declaration dated 16 December 1994, Mr Wellings stated that the CJC had written to ABCI to ascertain whether ABCI had any objection to disclosure of document 21/5. The Chairman of ABCI had replied in writing refusing consent to the disclosure of the document.89. I am satisfied that document 21/5 was communicated to the CJC pursuant to an express mutual understanding that it would be treated in confidence.90. Documents 21/1 and 21/2 were obtained by the CJC from the Victoria Police (VP). The documents are not primarily concerned with either of the applicants, who receive only passing mention in the documents. Evidence has been given about these documents in the statutory declarations of Bronwyn Springer dated 16 December 1994, and of Keith George dated 5 June 1995. The documents were created by the Bureau of Criminal Intelligence of the VP. Documents of that kind are accorded exemption as a class under s.31(3) of the Freedom of Information Act 1982 Vic. It does not follow that a document of that kind, in the hands of an agency subject to the Qld FOI Act, automatically qualifies for exemption under the FOI Act. However, it is a factor which indicates the expectation of confidential treatment that the VP would have in respect of such documents. The nature and sensitivity of the information contained in documents 21/1 and 21/2 leads me to conclude that the documents were supplied to the CJC pursuant to an implicit mutual understanding that they would be treated in confidence. The VP has refused consent to the disclosure of the documents.91. Other segments of matter in issue described in paragraph 98 below comprise information communicated to the CJC by law enforcement agencies of other governments, the sensitivity of which (e.g., information concerning subjects of investigation) is such as to satisfy me that the information was communicated pursuant to an implicit mutual understanding that it would be treated in confidence.92. I am satisfied that disclosure of the matter in issue described in paragraph 98 below could reasonably be expected to divulge information of a confidential nature that was communicated in confidence by or on behalf of another government, and hence that it is prima facie exempt under s.38(b) of the FOI Act, subject to the application of the public interest balancing test incorporated in s.38(b).93. In the written submissions lodged on behalf of the applicants, the following arguments were made as to why disclosure of the matter in issue to the applicants would, on balance, be in the public interest:16. Disclosure of such information to the Applicants is, on balance, in the public interest because it will:(a) permit the Applicants to examine the source documents upon which the CJC acted in compiling and publishing its 1990 report;(b) permit the Applicants to seek to correct information which is inaccurate, incomplete, out of date, or misleading;(c) demonstrate that the CJC acted, not only unfairly in publishing its 1990 report, but in reliance upon information which was false and defamatory.17. To deprive the Applicants of the opportunity of pursuing such remedies and to vindicate their reputations is against the public interest.18. The public interest considerations which may apply in respect of information and reports communicated to a law enforcement agency in the conduct of its investigations (see Re Bryant, per Helman A/J, Supreme Court of Queensland, unreported, 1 September 1992 relied upon by the CJC in appendix "B") do not apply since information was communicated to the Commission in the conduct of a law reform function. In any event, the public interest that information supplied to the Commission in the course of its investigations remain confidential only applies until the Commission makes the information public. There is no suggestion that the information in question is the subject of an ongoing investigation which would be "irreparably prejudiced" (cf. Bryant).19. Instead, the information supplied to the Commission was publicly released without any prior opportunity to the Applicants to correct it or comment upon it prior to its public release. The Applicants having been damaged in their reputations should, in the public interest, be granted access to the information which formed the basis for the Commission's report and be able to demonstrate its falsity, establish that the information was supplied with a malicious or improper intent, and thereby correct the public record....31. ... Clearly, there is little public interest in the non-disclosure of documents which contain information which has already been released, information which is dated or discredited, or of no value to current investigations.32. There is a public interest in the disclosure of information which formed the basis of a widely-publicised report which blasted the Applicants' reputation. There is a public interest in the release of information upon which such a widely-publicised report was based in order to enable the public to assess whether the assertions made about the Applicants were well-founded. Absent disclosure, such an assessment cannot be made, and sections of the public may act on the assumption that the CJC had a reliable basis in fact for the allegations which it made concerning the Applicants. An informed public debate in relation to this matter may subject the officers responsible for the writing and release of the report to criticism, but this is an indispensable element in a representative democracy. Moreover, the accountability which such an informed public debate may bring to the activities of the CJC and similar bodies may operate to prevent the repetition of such an episode whereby innocent reputations can be damaged by the public release of unreliable information.33. Apart from the general public interest in disclosure, there is a public interest in remedying the injustice perpetrated by the CJC against the Applicants. See Re Eccleston (supra), paras.54-57. The public interest necessarily comprehends an element of justice to the individual and there is a public interest that individuals, such as the Applicants, receive fair treatment in accordance with the law in their dealings with government. This is an interest common to all members of the community. Justice will be denied to the Applicants unless they are able to make a fully informed assessment of whether the CJC had information in its possession which entitled it to make the damning allegations which it did in its June 1990 report. As a matter of justice, the Applicants have a need to know whether the CJC acted in reliance upon malicious information from one or two sources.34. In resisting the Applicants' claims the CJC invokes arguments and assertions more appropriate to high level intelligence in relation to current operational activities, than documents which are now of a largely historical interest only. The Applicants submit that little reliance should be placed upon general assertions by the CJC in relation to its reliance upon confidential information from other law enforcement agencies in assessing where the public interest lies in relation to these particular documents. This is not a case in which a target of an ongoing operation seeks to obtain information which may imperil a current investigation or cause other law enforcement agencies to be reluctant to provide information in the future.35. In assessing the public interest, regard should be had to the prejudice caused to the Applicants by the CJCs unfair treatment in the publication of the 1990 report, and the Applicants' ongoing need to vindicate its reputation by verifying that those allegations were untrue and made without a proper foundation. It is contrary to the public interest that a powerful government agency, such as the CJC, should blast the reputations of individuals and companies, but then, years later, invoke a variety of exceptions to prevent access by those individuals to information which will permit them to establish whether or not the allegations were based on inaccurate, incomplete, and maliciously-inspired information.36. Generally, if the information is not disclosed, the Applicant will be prevented from making an informed assessment about:(i) whether the CJC acted in good faith in making the allegations which it did; (ii) whether the CJC's allegations were supported by reliable information in its possession.37. Without disclosure the public record will be incomplete, and sections of the public will be unable to form any proper assessment on whether the allegations made by the CJC were well-founded. This leaves the Applicant open to suspicion that the allegations made against it had a reliable basis in fact.38. It is contrary to the public interest that individuals should not be permitted to redress the damage which has been done to their reputations by a powerful state instrumentality such as the CJC. Further, there is a powerful public interest in the activities of the CJC being the subject of public examination and discussion.94. The CJC submitted that:The ability to obtain information from other agencies is a necessary part of the [CJC's] functions and responsibilities to enable it to prepare reports. Without co-operation from other agencies, the [CJC] will not be able to effectively perform its functions, whether in relation to research reports, investigations or intelligence gathering.95. The nub of the applicants' case is that fairness requires that they be given the opportunity to demonstrate that their reputations have been damaged in a way that was not only procedurally unfair (as declared by the High Court), but substantively unfair because the slurs to their reputations were based on information that was inaccurate, incomplete, misleading et cetera.96. None of the information identified in paragraph 98 below was disclosed or referred to in the GM Report. As I found above, it remains information that is confidential in nature. Some of it is principally about persons other than the applicants, and contains only incidental references to the applicants. The information relied on as a basis for the adverse comments about the applicants in the GM Report has nearly all been disclosed to the applicants (to the extent that it remains in the possession or control of the CJC) during the course of this review. Two of the principal sources of that information were reports well known to the applicants - the Wilcox Report and the NSW Ombudsman Report No. 2 into Allegations made by Mr Ainsworth, and a business associate Mr E P Vibert, about the conduct of NSW police officers (14 October 1986).97. I consider that the balance of public interest tells against disclosure of the matter in issue identified in paragraph 98 below. It is in the nature of criminal intelligence gathering that information may be collected about suspected illegal activity that turns out to involve no illegality, or in respect of which insufficient evidence can be adduced to prove the commission of criminal offences. It remains strongly in the public interest that information about suspected illegal activity and its participants be collected and exchanged between law enforcement agencies, whose efforts to adduce sufficient evidence to secure convictions are more likely to prove fruitful if the information is kept confidential to law enforcement officers. It may seem a superficially attractive argument that a person whose reputation has been maligned in a procedurally unfair manner should have the right to know and correct all the information held about them by a law enforcement agency. But a similar argument could be made by a person heavily engaged in illegal activity (although never convicted and still entitled to the presumption of innocence) who would be significantly advantaged by the opportunity to ascertain the extent of information held by law enforcement authorities about his/her activities.98. I am not satisfied that the public interest considerations favouring disclosure which have been raised by the applicants are sufficiently strong (when weighed against the public interest consideration inherent in the satisfaction of the test for prima facie exemption under s.38(b), and other public interest considerations telling against disclosure, as outlined above) to warrant a finding that disclosure to the applicants would, on balance, be in the public interest. Accordingly, I find that the matter in issue specified below is exempt matter under s.38(b) of the FOI Act:(a) documents 21/1, 21/2 and 21/5;(b) in document 14/11, the sixth and eighth paragraphs on page two of the notes attached to the memorandum by Mr Dickie dated 8 February 1990 (this matter also qualifies for exemption under s.44(1) of the FOI Act on the same basis explained below at paragraphs 141-142);(c) in document 18/1, the last three sentences of the second last paragraph on page three of the report.99. Document 18/2, which cannot qualify for exemption under s.38(b) or s.46(1)(b) (because it is not a record of information communicated to the CJC in confidence; rather it is a record of an inquiry made of the CJC by an interstate law enforcement agency, and the CJC's response), was claimed to be exempt under s.42(1)(e) of the FOI Act. The terms of s.42(1)(e) are set out at paragraph 82 above. I note that a key element of the test for exemption under s.42(1)(e) is that imposed by the phrase "could reasonably be expected to".In Re "B" at pp.339-341, paragraphs 154-160, I analysed the meaning of the phrase "could reasonably be expected to", by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act). Those observations are also relevant here. In particular, I said in Re "B" (at pp.340-341, paragraph 160):The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Dictionary, 2nd ed); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993). 100. The lawful method or procedure apprehended as liable to be prejudiced is, again, the co-operative exchange of information between law enforcement agencies. The CJC has argued that another agency ought to be entitled to assume that the CJC will not disclose the fact that the other agency, or a certain officer of the other agency, has made inquires about a particular matter.101. I accept that instances could occur where the disclosure of the fact that a particular law enforcement agency (or officer thereof) has sought information about a particular matter could reasonably be expected to have prejudicial consequences. However, the inquiry recorded in document 18/2 is so patently ordinary and routine in character (seeking the identity of a contact person in another organisation to whom a request could be made as to whether certain information was available for disclosure), and the interest of that interstate agency in obtaining information of the kind indicated in document 18/2 is so obvious and predictable from the standpoint of the applicants, that I cannot accept that disclosure of document 18/2 could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. I find that document 18/2 does not qualify for exemption under s.42(1)(e) of the FOI Act.Claims for exemption under the former s.48(1) of the FOI Act102. The CJC has argued that documents 18/1 and 18/2 are exempt matter under s.48(1) of the FOI Act in the form that provision took before its amendment in 1994, and that it is entitled to have s.48(1) applied in its pre-amendment form. The general nature of document 18/2 was indicated in paragraph 99 above. Document 18/1 was described in the statutory declaration of Mr Roger, Director of the Intelligence Division of the CJC, as follows:4. The memorandum and report (with attached annexure) comprising [document 18/1] were prepared pursuant to a direction by me to an Intelligence Analyst within the Intelligence Division. That direction was given as a consequence of an oral request of the (then recently appointed) Chairperson, to enable him to familiarise himself with the information held for the purpose of preparation of the Report on Gaming Machine Concerns and Regulations (May 1990) as that Report had given rise to the legal proceedings instituted by Mr Ainsworth.5. [Document 18/1], is a summary and analysis of information compiled from other documents held by the [CJC], the existence of which documents has otherwise been disclosed in the response to the access request. The document was intended solely for internal CJC use.103. Prior to its amendment on 20 August 1994, s.48 of the FOI Act was in the following terms: 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 or qualifications); and (b) its disclosure would, on balance, be contrary to the public interest. (2) Matter is not exempt under subsection (1) 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 2 years from the date of assent.104. The correct approach to the interpretation and application of that provision was explained (by reference to relevant decisions of the Federal Court of Australia) in Re Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663 at pp.727-730 (paragraphs 161-170).105. The secrecy provisions which the CJC relies upon as a basis for the application of the former s.48(1) of the FOI Act are s.58(2)(a) and s.58(2)(c) of the Criminal Justice Act 1989 Qld, which provide: (2) It is the function of the Intelligence Division-- (a) to build up a data base of intelligence information concerning criminal activities and persons concerned in criminal activities, using for the purpose information acquired by it from-- (i) its own operations; (ii) the Official Misconduct Division of the Commission; (iii) the Police Service; (iv) sources of the Commonwealth or any State or Territory which supplies such information to it; and to disseminate such information to such persons, authorities and agencies, and in such manner, as the Commission considers appropriate to the discharge of its functions and responsibilities; ... (c) to secure such data base and records in its possession and control so that only persons who satisfy the director of the Intelligence Division or the chairperson that they have a legitimate need of access to the same are able to have access to them.106. Following a report by the Queensland Law Reform Commission, the Freedom of Information (Review of Secrecy Provision Exemption) Amendment Act 1994 Qld amended the FOI Act so as to list in a Schedule to the FOI Act those specific statutory secrecy provisions whose effect was to be preserved by an amended s.48 of the FOI Act. The provisions from the Criminal Justice Act 1989 that are set out above were not included in Schedule 1 of the FOI Act, and I note that there is no possible basis on which the arguments put by the CJC could be sustained under s.48 of the FOI Act in its current form. However, the CJC contends that, because this review commenced prior to the date on which s.48 was amended, it is entitled to have s.48 applied in its pre-amendment form, by virtue of s.20 of the Acts Interpretation Act 1954 Qld which (so far as relevant for present purposes) provides: (2) The repeal or amendment of an Act does not-- ... (b) affect the previous operation of the Act or anything suffered, done or begun under the Act; or (c) affect a right, privilege or liability acquired, accrued or incurred under the Act; or (d) affect a penalty incurred in relation to an offence arising under the Act; or (e) affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d). (3) The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened.107. Also relevant is s.4 of the Acts Interpretation Act which provides: (4) The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in any Act.108. In Re Woodyatt and Minister for Corrective Services [1995] QICmr 1; (1995) 2 QAR 383 at pp.398-406 (paragraphs 35-58), I explained in some detail the application of s.20 of the Acts Interpretation Act, as it affected the rights of an applicant for access to documents under the FOI Act. The CJC contends that if s.48(1) did not continue to operate as it existed at the commencement of this review, the previous operation of the FOI Act would have been affected, and a right or privilege would have been withdrawn.109. I consider that the reliance on s.20 of the Acts Interpretation Act by the CJC (as an agency which is subject to the obligations imposed on agencies by the FOI Act) is misconceived. The FOI Act confers no relevant rights or privileges on agencies subject to its application (the protections conferred by ss.102, 103 and 104 of the FOI Act are not relevant for present purposes). The FOI Act confers certain rights on citizens (which rights are subject to exceptions provided for in the FOI Act itself: see Re Woodyatt at pp.402-403, paragraphs 46-48), but it predominantly imposes duties and obligations on agencies subject to the application of the FOI Act. Agencies are conferred with discretionary powers to refuse access to requestedinformation, provided that the requested information satisfies certain criteria specified in relevant provisions of the FOI Act (see, for example, s.28(1) of the FOI Act, the meaning and effect of which was explained in Re Norman and Mulgrave Shire Council [1994] QICmr 13; (1994) 1 QAR 574 at p.577, paragraph 13; and s.22 of the FOI Act, the meaning and effect of which was explained in Re "JM" and Queensland Police Service [1995] QICmr 8; (1995) 2 QAR 516 at p.524, paragraph 21 and following). Having regard to the manner in which those discretionary powers conferred on agencies are intended to operate in the scheme of the FOI Act (see Re Murphy and Queensland Treasury (No. 2) (Information Commissioner Qld, Decision No. 98009, 24 July 1998, unreported) at paragraphs 61-62), I do not accept that they qualify as "rights" or "privileges", of the kind that s.20 of the Acts Interpretation Act was designed to protect against unjust interference occasioned by a subsequent legislative amendment.110. I am satisfied that the relevant law to be applied is the law in force at the time of making my decision, there being no applicable legislative provision that warrants a conclusion to the contrary: see Re Woodyatt at p.398 (paragraph 35) and the authorities there cited. Therefore, s.48(1) in its pre-amendment form has no application, and s.48(1) in its current form affords no basis for the CJC's case. As I remarked in Re Woodyatt at p.406 (paragraph 58), an applicant will ordinarily be entitled to any benefit from a change in the law, unless the statute effecting the amendment makes provision to the contrary, and no such provision to the contrary has been made.111. Even if my conclusion in paragraph 109 above were mistaken, I consider that the scheme of the FOI Act manifests a contrary intention (as contemplated by s.4 of the Acts Interpretation Act) sufficient to displace any application of s.20 of the Acts Interpretation Act for the benefit of the CJC in the circumstances under consideration. The scheme of the FOI Act places no prohibition on an applicant for access applying again for access to a document to which access has previously been refused. Provided it is not abused through excessive and unwarranted use by an applicant for access, this aspect of the scheme of the FOI Act is logical and fair, since information may cease to qualify for exemption with the passage of time or due to a material change of circumstances, and a fortiori where the legislature has seen fit to amend an exemption provision so as to narrow its sphere of operation (as occurred with s.48 of the FOI Act).112. If s.48 in its pre-amendment form had been the only basis for refusal of access to documents 18/1 and 18/2 before 20 August 1994, there would have been nothing to prevent the applicants from making a fresh access application for those documents after s.48 was amended. If a review was in progress when s.48 was amended, I consider that the necessary implication to be drawn from the scheme of the FOI Act is that the amended provisions, designed to narrow the sphere of operation of the prior exemption, should be the applicable law for the benefit of an applicant for access.113. In the circumstances, it is unnecessary for me to decide whether s.58(2)(a) and s.58(2)(c) are secrecy provisions that satisfied the requirements of s.48(1) of the FOI Act in its pre-amendment form (a proposition that I consider to have been attended by considerable doubt, having regard to the principles set out in Re Cairns Port Authority at pp.729-730, paragraph 168).114. I find that documents 18/1 and 18/2 do not qualify for exemption under s.48 of the FOI Act.I note that the CJC has made alternative claims for exemption in respect of those documents, (or for segments of the document in the case of document 18/1, much of which comprises summaries of the information contained in documents already disclosed to the applicants underthe FOI Act), which I have dealt with under other headings in these reasons for decision.However, this is an appropriate point to note that document 18/1 contains discrete segments of matter which solely concern the CASPALP investigation. Consistently with the concession made in the letter from the applicants' solicitor dated 9 October 1995 (see paragraph 7 above), I have proceeded on the basis that those segments of matter in document 18/1 which solely concern the CASPALP investigation are no longer in issue in this review. They comprise:(a) the segment of matter which commences on p.12 of the annexure to the report, under the heading "Matters involving the payment of political donations by Ainsworth - CASPALP promotion fund", through to the sentence "These matters were referred to in Appendix Two of the Commission's Report on Gaming Machine Concerns and Regulations"; and(b) the two paragraphs under the heading "Ainsworth and CASPALP" on page 19 of the annexure to the report.Claims for exemption under s.41(1) of the FOI Act115. The only matter remaining in issue which has been claimed by the CJC to be exempt under s.41(1) consists of the third paragraph on page one of document 18/1, and the balance of the already partially-disclosed third paragraph on the second page of document 14/11.116. Section 41(1) of the FOI Act provides: 41.(1) Matter is exempt matter if its disclosure-- (a) would disclose-- (i) an opinion, advice or recommendation that has been obtained, prepared or recorded; or (ii) a consultation or deliberation that has taken place; in the course of, or for the purposes of, the deliberative processes involved in the functions of government; and (b) would, on balance, be contrary to the public interest.117. A detailed analysis of s.41 of the FOI Act can be found in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at pp.66-72, where, at p.68 (paragraphs 21-22), I said:21. Thus, for matter in a document to fall within s.41(1), there must be a positive answer to two questions:(a) would disclosure of the matter disclose any opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, (in either case) in the course of, or for the purposes of, the deliberative processes involved in the functions of government? and (b) would disclosure on balance be contrary to the public interest?22. The fact that a document falls within s.41(1)(a) (i.e., that it is a deliberative process document) carries no presumption that its disclosure would be contrary to the public interest. ...118. An applicant for access is not required to demonstrate that disclosure of deliberative process matter would be in the public interest; an applicant is entitled to access unless an agency can establish that disclosure of the relevant deliberative process matter would be contrary to the public interest. In Re Trustees of the De La Salle Brothers and Queensland Corrective Services Commission [1996] QICmr 4; (1996) 3 QAR 206, I said (at p.218, paragraph 34):The correct approach to the application of s.41(1)(b) of the FOI Act was analysed at length in my reasons for decision in Re Eccleston, where I indicated (see p.110, paragraph 140) that an agency or minister seeking to rely on s.41(1)(a) needs to establish that specific and tangible harm to an identifiable public interest (or interests) could result from disclosure of the particular deliberative process matter in issue. It must further be established that the harm is of sufficient gravity that, when weighed against competing public interest considerations which favour disclosure of the matter in issue, it would nevertheless be proper to find that disclosure of the matter in issue would, on balance, be contrary to the public interest.119. One argument put by the CJC, in respect of the first question posed in paragraph 21 of Re Eccleston (see above), was, in my view, misconceived. In paragraph 9 of his statutory declaration, Mr Roger stated:9. The memorandum comprising part of 18/1, contains assumptions made and opinions based on the documents referred to in the report attached to the memorandum. Those assumptions and opinions were made or formed in the course of a deliberative process, namely a decision being made as to what ought to be included in a document designed to brief the Chairperson of the [CJC].I do not accept that it is sufficient to satisfy the requirements of s.41(1)(a) to rely on the deliberative process involved in selecting information for inclusion in a briefing paper. The preparation of any document ordinarily requires some thought as to its contents. If this argument were to be accepted, virtually every document created by a public servant would qualify as a deliberative process document.120. In the case of a briefing paper prepared for information purposes only, it may not be possible to identify any deliberative process involved in the functions of government, in the course of, or for the purposes of which, any advice or opinion contained in the briefing paper was prepared or recorded. However, I am satisfied from reading the contents of documents 14/11 and 18/1 that each of them was prepared not only for information purposes, but to seek a decision or direction from the Chairman of the CJC on recommendations put forward in them. Moreover, I consider that the evaluation by the Chairman of the CJC of reports regarding intelligence information obtained by CJC officers would ordinarily constitute a deliberative process involved in the functions of that government agency, since the Chairman would usually make decisions or issue directions as to whether (and what) follow-up action was required. I am satisfied that the specific passages identified in paragraph 115 above consist of opinion prepared for the purposes of a deliberative process involved in the functions of the CJC, and hence that they fall within the terms of s.41(1)(a) of the FOI Act. Accordingly, it is necessary to determine whether disclosure of the two passages in issue would, on balance, be contrary to the public interest.121. In its submission dated 5 June 1995, the CJC raised a number of arguments favouring non-disclosure (e.g., that there is a public interest in maintaining confidence in the administration of criminal justice, and that the interests of the CJC can equate to the public interest) which I have since addressed in Re Criminal Justice Commission and Director of Public Prosecutions [1996] QICmr 12; (1996) 3 QAR 299 at p.308 (paragraph 30) ff. The general comments I made in that decision are equally relevant here. Other public interest considerations relied on by the CJC as favouring non-disclosure correspond broadly to the third and fourth criteria from Re Howard and Treasurer of Commonwealth of Australia (1985) 3 AAR 169, about which I expressed my views in Re Eccleston at pp.103-108.122. The CJC argued (at page 8 of its submissions dated 5 June 1995):Release of information, such as opinions given, advices and recommendations made at a stage in the deliberative process, can lead to public confusion and unnecessary debate, and thus harm to the public interest. This is because the context in which the opinion, advice or recommendation was given may not be understood by those to whom it is disclosed.I am not satisfied that there would be any confusion or misunderstanding, to an extent that would be contrary to the public interest, if the passages in issue were disclosed. The tenor of the passage in issue from document 18/1 substantially accords with the tenor of comments about the applicants published in the GM Report. The passage in issue from document 14/11 expresses an opinion by a former CJC officer about an investigation (that occurred some 17 years ago) into incidents that occurred some 19 years ago, in respect of which there is no real likelihood of further investigation or action. In my opinion, the comments are now merely of historical interest, and their disclosure is incapable of causing harm to the public interest.123. As to the 'candour and frankness' argument raised by the CJC, the views I expressed in Re Eccleston at pp.106-107 (paragraphs 132-135) remain relevant. However, the CJC argued that there was a specific basis for upholding a 'candour and frankness' argument, setting out (at p.9 of its written submission dated 5 June 1995) the following four step argument:1. The CJC submits that it is public knowledge that the CJC, perhaps more than many other Government Department or agency, is subject to constant media scrutiny.2. The CJC submits that there is ample evidence in the public arena of the willingness of the media, and others, to subject the CJC and a number of its officers to speculation about the propriety of decisions, to ridicule, and even to vilification.3. The CJC submits that such public questioning of decisions made by officers of the CJC, who have often been publicly named is at the least embarrassing and potentially harmful to their personal and professional reputation.4. Finally, the CJC submits that if the numerous officers of the CJC who take part in the many deliberative processes of the CJC cannot be assured that their opinions, advices and recommendations will remain confidential, there is a very real basis for them to believe that they themselves may become the subject of public speculation, ridicule or vilification. Such expectation will inevitably result in the officers being inhibited, subconsciously or otherwise, in expressing their opinions, advice or recommendations.A lack of candour and frankness by officers advising the CJC throughout its deliberative processes will adversely affect the proper and effective conduct of its functions and responsibilities by the CJC.124. This argument is not based on the particular contents of the passages in issue. Rather it amounts to a class claim for exemption of opinions, advice and recommendations expressed by officers of the CJC for the purpose of the CJC's deliberative processes. I am not prepared to accept class claims in the application of s.41(1), as I explained in Re Eccleston at p.111, paragraph 149, where I noted that the Commonwealth Administrative Appeals Tribunal in Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659, at p.662, had affirmed that "disguised class claims" would not be permitted under s.36 of the Freedom of Information Act 1982 Cth (which broadly corresponds to s.41(1) of the Queensland FOI Act).125. I am not satisfied that disclosure of the passages in issue would cause investigators and intelligence analysts of the calibre employed at the CJC to refrain from expressing (or vary their manner of expressing) relevant opinions, advice or recommendations, to such an extent as to adversely affect the efficiency and effectiveness of the CJC's operations, and thereby harm the public interest. Existing law recognises the sensitivity that may attach to opinions and recommendations of criminal investigators and intelligence analysts. In Re Gordon and Commissioner for Corporate Affairs (1985) 1 VAR 114 at p.117, Higgins J, sitting as the Presiding Member of the Victorian Administrative Appeals Tribunal, said:I believe that there is a public interest in allowing investigators to canvass fully, issues particularly where there are breaches of the law involved. Where an agency is charged with the prosecution and investigation of serious breaches of the law, there is an important public interest which should protect documents which are used as the basis of that decision making process. The officers ought to be given the freedom to canvass all possibilities and to make what are in fact subjective evaluations of individuals and fact situations, without fear that such comments, assessments and recommendations will go beyond the office or the agency itself. I do wish to stress the view that each case must depend upon its own facts but that where a law enforcement agency is involved, then I believe that a closer examination of the public interest is required than would otherwise be the case.I note that Higgins J was not describing a class of documents which ought to qualify for exemption from disclosure, and appropriate emphasis must be given to Higgins J's qualification that each case must depend on its own facts. The passage in issue in document 18/1 contains opinion of a kind that might qualify for protection from disclosure if expressed in respect of a current or recent investigation that had received no public attention.However, that passage expresses an opinion that substantially accords with the tenor of comments about the applicants published in the GM Report, and by reference to largely the same material on which the comments in the GM Report were based. I am not satisfied that disclosure of that passage (or of the passage from document 14/11, which I consider to be merely of historical interest at this time) would be contrary to the public interest.126. I find that the matter in issue identified in paragraph 115 above does not qualify for exemption under s.41(1) of the FOI Act.Claims for exemption under s.44(1) and/or s.45(1)(c) of the FOI Act127. Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest.I note that this provision clearly extends the scope of its protection to information concerning the personal affairs of deceased persons. 128. In applying s.44(1) of the FOI Act, one must first consider whether disclosure of the matter in issue would disclose information that is properly to be characterised as information concerning the personal affairs of a person. If that requirement is satisfied, a prima facie public interest favouring non-disclosure is established, and the matter in issue will be exempt, unless there exist public interest considerations favouring disclosure which outweigh all identifiable public interest considerations favouring non-disclosure, so as to warrant a finding that disclosure of the matter in issue would, on balance, be in the public interest.129. In my reasons for decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227,I identified the various provisions of the FOI Act which employ the term "personal affairs", and discussed in detail the meaning of the phrase "personal affairs of a person" (and relevant variations thereof) as it appears in the FOI Act. In particular, I said that information concerns the "personal affairs of a person" if it relates to the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase "personal affairs", that phrase has a well accepted core meaning which includes: family and marital relationships; health or ill-health; relationships and emotional ties with other people; and domestic responsibilities or financial obligations.Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, to be determined according to the proper characterisation of the information in question.130. Four documents comprising copies of correspondence from the NSW Ombudsman are claimed to be exempt under s.44(1) of the FOI Act. Documents 17/4A and 17/5 are copies of letters from the office of the NSW Ombudsman to third party 'A' relating to complaints made by Mr L H Ainsworth and Mr E P Vibert about the conduct of NSW police officers. Documents 17/8 and 17/9 are copies of letters from the office of the NSW Ombudsman to third party 'B' relating to a subsequent set of complaints made by Mr Ainsworth and Mr Vibert about the conduct of NSW police officers.131. In January 1997, I wrote to third parties 'A' and 'B' informing them of my preliminary view that the information in these documents concerned their employment affairs, rather than their personal affairs, and did not qualify for exemption under s.44(1) of the FOI Act. I also asked a number of specific questions of third party B. A solicitor acting for third party B responded by letter dated 24 February 1997 asserting that documents 17/8 and 17/9 did qualify for exemption under s.44(1), and asserting in particular that his client's former residential address, appearing on those letters, was exempt matter under s.44(1). The solicitor also providedanswers to my specific questions. Third party A responded personally, communicating his objection to disclosure. Subsequently, a letter was received from the aforementioned solicitor stating that he also acted on behalf of third party A, who objected to disclosure on grounds previously communicated.132. In my decision in Re Pope and Queensland Health [1994] QICmr 16; (1994) 1 QAR 616, after reviewing relevant authorities (at pp.658-660), I expressed the following conclusion at p.660 (paragraph 116):Based on the authorities to which I have referred, I consider that it should now be accepted in Queensland that information which merely concerns the performance by a government employee of his or her employment duties (i.e., which does not stray into the realm of personal affairs in the manner contemplated in the Dyrenfurth case) is ordinarily incapable of being properly characterised as information concerning the employee's "personal affairs" for the purposes of the FOI Act.The general approach evidenced in this passage was endorsed by de Jersey J (as he then was) of the Supreme Court of Queensland in State of Queensland v Albietz [1996] 1 Qd R 215, at pp.221-222.133. In reviewing relevant authorities in Re Pope, I had specifically endorsed the following observations, concerning s.33(1) (the personal affairs exemption) of the Freedom of Information Act 1982 Vic, made by Eames J of the Supreme Court of Victoria in University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177 at p.187:The reference to the "personal affairs of any person" suggests to me that a distinction has been drawn by the legislature between those aspects of an individual's life which might be said to be of a private character and those relating to or arising from any position, office or public activity with which the person occupies his or her time [emphasis added].134. I am satisfied from my examination of documents 17/4A, 17/5, 17/8 and 17/9 that they comprise information concerning the performance by the third parties of their duties as police officers, which must properly be characterised as information concerning their employment affairs, not their personal affairs. The fact that the NSW Ombudsman was investigating allegations of misconduct in the performance of their duties as police officers does not alter this characterisation, for the reasons I explained in Re Griffith and Queensland Police Service (1997) 4 QAR 109 at pp.126-127 (paragraphs 50-53). Apart from the information dealt with in paragraph 138 below, I find that documents 17/4A 17/5, 17/8 and 17/9 do not qualify for exemption under s.44(1) of the FOI Act. (I should note the answers to my specific questions provided in the letter dated 24 February 1997 from the solicitor acting for third party 'B' confirmed that the substantive information appearing in documents 17/8 and 17/9 was known to the applicants, and I consider that the same must be true in respect of documents 17/4A and 17/5. The procedural steps involved in an Ombudsman's investigation would have required that similar letters be sent to the complainants, one of whom was Mr L H Ainsworth.)135. In Re Stewart at p.261 (paragraph 88), I said:The address at which a person chooses to reside and make their home seems to me to fall within that zone of domestic affairs which is clearly central to the concept of "personal affairs". A business address would be materially different.136. Likewise, in Re Pearce and Queensland Rural Adjustment Authority and Others (Information Commissioner Qld, Decision 99008, 4 November 1999, unreported) at paragraph 38, I held that: Information concerning an individual's residential address is information the dissemination of which (whether by publication in a telephone directory or otherwise) that individual should be entitled to control.137. I am satisfied that the address which appears on documents 17/8 and 17/9, being a former residential address of third party 'B', must properly be characterised as information concerning the personal affairs of third party B, which is therefore prima facie exempt under s.44(1) of the FOI Act, subject to the application of the public interest balancing test incorporated in s.44(1).In a brief submission on behalf of the applicants dated 24 April 1997, it was suggested that: A person's name and former residential address are justified in certain circumstances to be disclosed on the grounds of public interest - e.g., in assisting parties to criminal or civil proceedings against that person on issues which may be relevant to the then domicile of that person.138. However, I am not satisfied of the existence of any public interest considerations which would warrant a finding that disclosure of the former residential address of third party 'B' would, on balance, be in the public interest. I find that the address appearing under the name of the addressee on documents 17/8 and 17/9 is exempt matter under s.44(1) of the FOI Act.139. At paragraph 15 above, I explained that several documents in issue contain discrete segments of information relating to the applicants, with the rest of the documents dealing with other unrelated persons or corporations. There are also some documents (e.g., document 18/1) that deal predominantly with the applicants, but contain a discrete segment or segments of information (usually dealing with the activities of business competitors of the applicants) that do not relate to the applicants at all. Following concessions made by the CJC during the course of this review, the applicants have been given access to all those segments of information in documents 14/11, 14/15, 14/18, 14/20, and 17/10 which relate to the applicants (including all information which, although primarily relating to other persons or corporations, refers to the applicants), or which are general in nature.140. The CJC has claimed that segments of information which only relate to the activities of persons or corporations other than the applicants are exempt matter under s.44(1) or s.45(1)(c) of the FOI Act. (The CJC's primary submission was that information of that kind fell outside the scope of the relevant FOI access application, but because of the stance taken by one of the applicants - see paragraphs 16-17 above - I am obliged to consider the exemption claims on which the CJC relies in the alternative.)141. Information that indicates or suggests that an identifiable individual has been involved in some alleged (but unproven) criminal activity or other wrongdoing is properly to be characterised as information concerning the personal affairs of that individual: see Re Stewart at p.257, paragraph 80; Re Wong and Department of Immigration and Ethnic Affairs (1984) 2 AAR 208; Re Kahn and Australian Federal Police (1985) 7 ALN N190. Moreover the weight of the privacy interest attaching to information of that kind is ordinarily strong. Intelligence data compiled by law enforcement agencies of the kind now under consideration does not frequently consist of admissible evidence that demonstrates the commission of criminal offences. As explained by Mr Paul Roger, Director of the Intelligence Division of the CJC, in paragraph 6 of his statutory declaration dated 16 December 1994: Intelligence information, by its nature, often consists of unsubstantiated allegations, innuendo and rumour, which may not have been substantiated. It is open to a number of interpretations. To make information of that nature public, may result in unfairness to persons referred to directly or indirectly in the information. I consider that significant weight attaches to the public interest in the protection of an individual's reputation against suggestions of criminal activity or wrongdoing, that is unable to be proven in court proceedings.142. While there is a general public interest in accountability of law enforcement agencies for the performance of their functions, I am unable to discern any other public interest considerations that favour disclosure to the applicants of the matter in question. The public interest considerations stressed in the applicants' written submission (see paragraph 93 above) are not apt to apply to the information now under consideration, which, as I have observed, is unrelated to the applicants. I am not satisfied that there are any public interest considerations favouring disclosure of the matter in question that are strong enough to outweigh the privacy interests of the relevant individuals and warrant a finding that disclosure would, on balance, be in the public interest. I therefore find that the matter in question (see paragraph 150 below) is exempt matter under s.44(1) of the FOI Act.143. Corporations are incapable of having personal affairs, as that term is used in the context of the FOI Act: see Re Stewart at p.237, paragraphs 20-21. However, I am satisfied that the information now under consideration concerns the business affairs of the corporations that are referred to. Section 45(1)(c) of the FOI Act provides: 45.(1) Matter is exempt matter if-- ... (c) its disclosure-- (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government; unless its disclosure would, on balance, be in the public interest.144. The correct approach to the interpretation and application of s.45(1)(c) was explained in Re Cannon at pp.516-523 (paragraphs 66-88). Matter will be exempt from disclosure under s.45(1)(c) of the FOI Act if:(a) the matter in issue is properly to be characterised as information concerning the business, professional, commercial or financial affairs of an agency or another person (s.45(1)(c)(i)) (see paragraphs 67-77 of Re Cannon pp.516-520); and(b) disclosure of the matter in issue could reasonably be expected to have either of the prejudicial effects contemplated by s.45(1)(c)(ii), namely: (i) an adverse effect on those business, professional, commercial or financial affairs of the agency or other person, which the information in issue concerns; or (ii) prejudice to the future supply of such information to government (see paragraphs 78-86 of Re Cannon, pp.520-522);unless disclosure of the matter in issue would, on balance, be in the public interest (see paragraphs 87-88 of Re Cannon, pp.522-523).145. The meaning of the phrase "could reasonably be expected to", in the context of s.45(1)(c), is the same as I have explained at paragraph 99 above.146. For similar considerations to those set out at paragraph 141 above, I am satisfied that disclosure of information that indicates or suggests that a businessman or business organisation has been involved in some alleged (but unproven) criminal activity or other wrongdoing, which has attracted the attention of law enforcement agencies, would have such an adverse impact on business reputation and goodwill as to warrant a finding that disclosure could reasonably be expected to have an adverse effect on the business affairs of the relevant businessman or business organisation. As to the application of the public interest balancing test incorporated in s.45(1)(c), the matters referred to in paragraph 142 above are also relevant.Again given that the information in question consists of unsubstantiated intelligence data, I am not satisfied that its disclosure would, on balance, be in the public interest.147. Some exceptions to my findings in respect of s.44(1) and s.45(1)(c) should be noted. There are some passages in the matter in issue which substantially correspond to information published on page 50 of the GM Report. I am not satisfied that those passages qualify for exemption under s.44(1) or s.45(1)(c). They are -(a) the matter deleted from pages 6, 7 and 14 of document 14/15;(b) the first sentence deleted from page 12 of document 14/15;(c) the second last sentence of paragraph 25.1 in document 17/10;(d) the matter deleted from paragraphs 25.6, 26.1, 26.4 and 26.8 of document 17/10.148. There is some matter in issue which is unrelated to the applicants, but in respect of which there is no adverse comment made against another person or corporation, for example, the last two paragraphs of document 14/11, which simply contain a general and (non-critical) comment.Also, there are six paragraphs on page four of the notes attached to the memorandum by Mr Dickie (which together comprise document 14/11) which refer to a gaming machine manufacturer named Universal Australia, and which contain no adverse comment about that organisation. Moreover, virtually the same information was published on page 35 of the GM Report. I am not satisfied that the segments of document 14/11 identified in this paragraph qualify for exemption under s.44(1) or s.45(1)(c) of the FOI Act.149. There are other passages which were intended to convey a generalised adverse comment, but not one that can be related to an identifiable individual or organisation, e.g., the paragraph which spans pages 14-15 of document 14/18; the introductory part, plus subparagraph (a), of the paragraph which follows it on page 15; and subparagraph (d) on page 16. Some of that matter was directly quoted in the GM Report at p.50, and pp.51-52. I am not satisfied that information of that kind qualifies for exemption under s.44(1) or s.45(1)(c) of the FOI Act (and I consider that, as criminal intelligence information, it is too dated to require protection for operational purposes). Another segment of matter in issue, which I find does not qualify for exemption, for the same reason, is the first paragraph on page 3 of document 17/10.150. The nature of the intelligence data I have examined in making my findings at paragraphs 142 and 146 above is such that, in many places, information concerning individuals that qualifies for exemption under s.44(1) of the FOI Act is intermingled (or coincides) with information about businessmen or business organisations that qualifies for exemption under s.45(1)(c) of the FOI Act. While in many places, it will be clear enough from the context which exemption provision applies, I do not propose to attempt the exercise of delineating the matter which qualifies for exemption under s.44(1) from that which qualifies for exemption under s.45(1)(c) (or under both), in the many places referred to in the first sentence of this paragraph. The matter which I have found is exempt matter under s.44(1) and/or s.45(1)(c) of the FOI Act is as follows:(a) the seven paragraphs (and their associated headings) which appear on pages 4-5 of the notes comprising part of document 14/11, between the end of the segment dealing with Universal Australia and the heading "Other Manufacturers";(b) in document 14/15 - (i) the fourth last paragraph (numbered 2) on page 12; (ii) the matter deleted from the last paragraph on page 12; (iii) the second and third paragraphs on page 13; (iv) the matter deleted from the first paragraph on page 15;(c) in document 14/18 - (i) the fourth and fifth paragraphs on page 14; (ii) the subparagraphs marked (b) and (c) on pages 15-16;(d) all matter deleted from document 14/20 (as per the highlighted copy of that document provided to me under cover of a letter dated 8 November 1994 from the CJC);(e) all matter deleted from document 17/10 (as per the highlighted copy of that document provided to me under cover of a letter dated 8 November 1994 from the CJC), except for the passages specified in paragraphs 147 and 149 above which I have found do not comprise exempt matter;(f) in document 18/1 - (i) the first full paragraph (commencing with the words "In relation to ...") on page 10 of the annexure; (ii) the second full paragraph (commencing with the words "The subject ...") on page 11 of the annexure; and (iii) the last four sentences of the paragraph headed "Comment:" which spans pages 17-18 of the annexure.151. I note that, in respect of documents 22/1, 22/2, 22/3 and 22/4, the CJC agreed to disclose to the applicants the segments in which the applicants were mentioned, but claimed that the balance of the documents was not within the scope of the relevant FOI access application. Having regard to the stance taken by one of the applicants (see paragraphs 16-17 above), it is preferable that I deal with the balance of the information in those documents, even though I consider it highly unlikely that the applicants have any real interest in obtaining it. The four documents in question comprise lists of business organisations or businessmen who submitted expressions of interest in April/May 1990 for the supply, delivery, installation and/or repair or maintenance of gaming machines in licensed clubs and hotels throughout Queensland. Each of them was listed, and commented upon, at pages 71-80 of the GM Report. In the circumstances, I am not satisfied that disclosure of documents 22/1, 22/2, 22/3 and 22/4 could reasonably be expected to have either of the prejudicial effects contemplated in s.45(1)(c)(ii) of the FOI Act, and I find that they do not qualify for exemption under s.45(1)(c) of the FOI Act.Conclusion152. For the foregoing reasons, I vary the decision under review, by finding that -(a) having regard to the additional searches and inquiries made by the CJC (and the additional documents thereby located and dealt with under the FOI Act) during the course of my review, I am satisfied that - (i) there are no reasonable grounds for believing that additional documents, responsive to the terms of the applicants' FOI access application dated 2 November 1993, exist in the possession or under the control of the CJC; and (ii) the searches and inquiries made by the CJC in an effort to locate all documents in its possession or under its control, which are responsive to the terms of the applicants' FOI access application dated 2 November 1993, have been reasonable in all the circumstances of this case.(b) the matter in issue identified in paragraph 63 above is exempt matter under s.50(c)(i) of the FOI Act;(c) the matter in issue identified in paragraph 98 above is exempt matter under s.38(b) of the FOI Act;(d) the matter in issue identified in paragraphs 138 and 150 above is exempt matter under s.44(1) and/or s.45(1)(c) of the FOI Act; and(e) the balance of the matter remaining in issue does not qualify for exemption from disclosure to the applicants under the FOI Act.............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Devine and Department of Justice and Attorney-General [2000] QICmr 102; [2000] QICmr 7 (31 March 2000)

Devine and Department of Justice and Attorney-General [2000] QICmr 102; [2000] QICmr 7 (31 March 2000) Devine and Department of Justice (S 54/99, 31 March 2000, Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-4. These paragraphs deleted. REASONS FOR DECISION Background The applicant, Mr Devine, seeks review of a decision dated 23 March 1999, made on behalf of the Department of Justice (the Department) by Dr K S Levy, Deputy Director-General, who refused access to a number of e-mail communications in the possession of the Coroner, Mr Casey SM, on the basis that they were not subject to the application of the FOI Act. The subject e-mail communications were provided to Mr Casey SM, in his role as Coroner, by Detective Senior Sergeant Paton (of the Queensland Police Service) at a pre-inquest conference convened prior to the third coronial inquest into the death of [a relative of the applicant's]. The e-mail communications were sent and received by DSS Paton in the course of his investigation relevant to the third inquest. They were not ultimately tendered at the third inquest. By application dated 4 November 1998, the applicant applied to the Department for access, under the FOI Act, to: ... all e-mail documents provided by the Queensland Police Service to the Coroner Mr G Casey SM in the matter of the cause and circumstances surrounding the death of my [relative]. By letter dated 25 February 1999, Ms L Barratt, Manager, Freedom of Information, informed the applicant of her decision that the e-mails were not subject to the FOI Act by virtue of s.11(1)(e) of the FOI Act. By letter dated 2 March 1999, the applicant sought internal review of Ms Barratt's initial decision. By letter dated 23 March 1999, Dr K S Levy, Deputy Director-General, informed the applicant of his internal review decision which, in effect, affirmed Ms Barratt's initial decision. By letter dated 4 April 1999, the applicant applied to me for review, under Part 5 of the FOI Act, of Dr Levy's decision. External review process Mr Casey SM was consulted. He declined to give the applicant access to the documents in issue, outside the framework of the FOI Act. He did not seek to become a participant in this review. Following consideration of the questions in issue in this review, I informed the applicant (by letter dated 21 February 2000) of my preliminary view that the operation of s.11(1)(e) of the FOI Act meant that the documents in issue were not subject to the application of the FOI Act. The applicant lodged a submission in response by e-mail sent on 27 March 2000. The applicant stated that he had received advice that the distinction between administrative and judicial functions was "very grey", but did not otherwise address the issues that I must determine. He attacked government agencies which "brickwalled requests for information", and spoke of his and his wife's efforts to find information ----. I sympathise with the applicant. However, if s.11(1)(e) applies to the documents in issue, I have no power to direct that the applicant be given access to them. Any decision I made which ignored the effect of s.11(1)(e) would be readily open to challenge in the Supreme Court. I am bound to apply the law as enacted by the Parliament. I have considered the following material in making my decision in this review: the applicant's initial access application dated 4 November 1998, and his application for internal review dated 2 March 1999; the internal review decision dated 23 March 1999, made on behalf of the Department by Dr Levy; the applicant's application for external review dated 4 April 1999, together with enclosures; and the applicant's submission dated 27 March 2000. Application of s.11(1)(e) of the FOI Act Section 11(1)(e) and 11(2) of the FOI Act provide: 11.(1) This Act does not apply to— ... (e) the judicial functions of— (i) a court; or (ii) the holder of a judicial office or other office connected with a court; ... (2) In subsection (1), a reference to documents in relation to a particular function or activity is a reference to documents received or brought into existence in performing the function or carrying on the activity. In Re Christie and QIDC [1993] QICmr 1; (1993) 1 QAR 1 at p.8 (paragraphs 19-22), I explained that there is a drafting error in s.11(2) of the FOI Act, but that the legislature's clear intention can be given effect by reading s.11(2) as if it were in these terms: In subsection (1), a reference to a particular function or activity means that this Act does not apply to documents received or brought into existence in performing the function or carrying on the activity. Section 7, s.7A and s.7B of the Coroners Act 1958 (the Act) detail the jurisdiction of Coroners. Section 30 of the Act provides that a Coroners Court shall be a court of record. Section 49(2) of the Act provides that a Coroner has power to deal with and dispose of property which comes into the Coroner's custody or possession as a result of any inquiry or proceeding by or before the Coroner under the Act, and which has not been tendered as an exhibit at an inquest. Under the Act, the procedures adopted at an inquest such as conducting the hearing in public, the examination of witnesses on oath, and the reception of submissions on points of law, are indicative of the Coroner exercising a judicial function. Authority exists for the proposition that a Coroner, either undertaking inquiries or holding an inquest, is exercising judicial power: see Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540; Attorney-General (NSW) v Mirror Newspapers Ltd (1980) 1 NSWLR 374 and Abernethy v Deitz (Unreported, NSW Court of Appeal, No 40244 of 1996, 9 May 1996). Section 7 of the FOI Act defines "court" to include a justice and a Coroner. Bearing in mind the effect of s.11(2), it is my view that a document received, or brought into existence, by a Coroner in performing judicial functions as Coroner, falls within the exclusion provided for in s.11(1)(e) of the FOI Act, and hence is not subject to the application of the FOI Act. Although it is not clear from his submission, I will assume that the applicant seeks to contend that the relevant e-mail communications provided to Mr Casey, and indeed the conference convened prior to the third inquest, formed part of the administrative functions carried out by Mr Casey, rather than being part of his judicial functions. There are no doubt numerous functions undertaken by a magistrate which fall into the realm of "administrative" functions e.g., making travel arrangements to attend hearings in country centres, or dealing with personnel matters concerning court staff. However, in this case, the function being performed concerned a specific inquest with respect to which Mr Casey SM was Coroner. I do not consider that the fact that the conference was held outside a court setting, or prior to a formal court hearing, means that Mr Casey was not performing a judicial function. It was clearly aimed at preparation for the hearing of the inquest. I find that the documents in issue were received by the Coroner in performing his judicial functions, and hence they are excluded from the application of the FOI Act by the operation of s.11(1)(e) of the FOI Act. DECISION I decide to affirm the decision under review, that the documents sought in the applicant's FOI access application dated 4 November 1998 are excluded from the application of the FOI Act by s.11(1)(e) of the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Nine Network Australia Pty Ltd and Queensland Police Service [2013] QICmr 20 (31 July 2013)

Nine Network Australia Pty Ltd and Queensland Police Service [2013] QICmr 20 (31 July 2013) Last Updated: 7 August 2014 Decision and Reasons for Decision Application Number: 311210 Applicant: Nine Network Australia Pty Ltd Respondent: Queensland Police Service Decision Date: 31 July 2013 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION –applicant sought access to video records of interview, video reconstruction of crime, and audiotape of triple zero emergency telephone call – whether disclosure of information would, on balance, be contrary to the public interest – sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) – contributing to the administration of justice – contributing to informed debate on important issues – personal information and privacy REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS) to access specific documents under the Right to Information Act 2009 (Qld) (RTI Act). The documents constitute some of the evidence created or obtained by QPS during an investigation that led to the conviction by jury of Damian Sebo for manslaughter of Taryn Hunt on 30 June 2007.[1] QPS refused access to the documents on the ground that disclosure would, on balance, be contrary to the public interest.[2] The applicant applied to the Office of the Information Commissioner (OIC) for external review of QPS’s decision. During the course of the review, the applicant accepted that disclosure of one of the documents[3] would, on balance, be contrary to the public interest.[4] The Information in Issue in this review is the remaining documents – that is, the video records of interview with Mr Sebo, a video of a crime scene reconstruction, and audiotape of Mr Sebo’s triple zero emergency telephone call. For the reasons set out below, I am satisfied that QPS cannot refuse access to the Information in Issue on the ground that disclosure would, on balance, be contrary to the public interest. Background Significant procedural steps relating to the application and external review are set out in the appendix. Reviewable decision The decision under review is QPS’s decision dated 14 September 2012. Evidence considered Submissions made to OIC by QPS and to QPS by Mr Sebo, evidence, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and appendix). Relevant law The RTI Act provides that an agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[5] The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[6] and explains the steps that a decision-maker must take[7] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest.[8] Findings Would disclosure of the Information in Issue be contrary to the public interest? No, for the reasons that follow. Irrelevant factors It was submitted that the documents should not be disclosed because there are limits on the collection and use of personal information under the Information Privacy Act 2009 (Qld) (IP Act). However, the relevant privacy principles[9] do not prevent QPS’s collection and retention of the Information in Issue, and disclosure under the RTI Act comprises an exception[10] to limits on QPS’s use and disclosure of the documents.[11] Accordingly, I have disregarded this submission. Further, it was submitted that the documents constitute only part of a complex investigation, and may comprise or result in the broadcast of a misleading picture of it. However, the RTI Act provides that the prospect of the applicant misinterpreting or misunderstanding a document[12] or engaging in mischievous conduct[13] are irrelevant to deciding the public interest. Given this position, I have disregarded these submissions. Otherwise, no further irrelevant factors arise in this review. Factors favouring disclosure Contributing to the administration of justice Disclosing information that could reasonably be expected to contribute to the administration of justice generally gives rise to a factor favouring disclosure.[14] Two related aspects of this factor are considered in this review – enhancing open justice and allowing scrutiny of the administration of justice. Open justice One aspect of contributing to the administration of justice involves the principle of open justice – often referred to as ‘ensuring that justice should not only be done, but should manifestly and undoubtedly be seen to be done’.[15] This principle requires that justice should be administered publicly and transparently, and that community members should be entitled to see what takes place in open court, and to view fair and accurate reports of it.[16] In relation to the trial relevant to this review, the Brisbane Supreme and District Court Criminal Registry confirmed to OIC that the documents that comprise the Information in Issue were: tendered as exhibits in the relevant trial[17] but have since been returned to the party that tendered them; and the subject of an Order made by the trial judge on 29 June 2007 to allow specified media organisations[18] (including the access applicant[19]) access to them.[20] I acknowledge that open justice is advanced by open trials and the availability of transcripts for purchase. However, in my view, these facets of open justice do not diminish open justice considerations regarding access to actual exhibits tendered by the prosecution and considered by the relevant judge or jury before they reached a decision. Also, I note that it is generally possible to inspect exhibits tendered in open court at the Registry[21] until expiration of the relevant appeal period or (if an appeal is sought) completion of the appeal, when the exhibits are returned to the party that tendered them.[22] As mentioned above, the Registry confirmed that this occurred following the appeal involving Mr Sebo.[23] Further, as mentioned above, I note that non-parties may access particular exhibits by court order, and that media organisations accessed the Information in Issue in this way during the trial involving Mr Sebo. In this regard, the Chief Justice of the Supreme Court has since commented generally that: ... the media plays an important role in reporting on court proceedings and ensuring justice is seen to be done.[24] However, in my view, the abovementioned avenues for accessing exhibits relate only to the period in which proceedings are on foot, or appeal periods are yet to expire. They do not address access to exhibits after the finalisation of relevant judicial proceedings and return of the relevant material to the prosecution. However, in my view, the ability to read or view the exhibits themselves continues to be an important aspect of ensuring that justice is not only done, but seen to be done, although the proceedings are finalised. While demands on open justice are usually most intense during or soon after the particular proceedings, they may also be warranted in the longer term. Accordingly, I am satisfied that disclosure of the Information in Issue could reasonably be expected to contribute to the administration of justice in the sense of contributing to open justice. Scrutiny of the administration of justice Another aspect of contributing to the administration of justice,[25] which flows from ensuring open justice, involves allowing scrutiny of the administration of justice. In its access application, the applicant stated that: ... there is no criticism whatever of the police handling of this case, and indeed the investigation ... was exemplary. Consistent with the applicant’s comments, during this review, it was submitted that the integrity of the police investigation was open to scrutiny during judicial proceedings and was not in issue. In this regard, it was submitted that: ... the adequacy of the police investigation has not been in issue; it was the application of the [partial defence of provocation] (as it then applied) to the facts discovered during the course of the investigation which has been in issue. While scrutiny of the administration of justice relates to police action, it also relates to judicial proceedings, as acknowledged by the Chief Justice of the Supreme Court when he commented as follows regarding non-party access orders: Queensland courts have become even more open to public scrutiny with ... provisions allowing media organisations to copy and publish exhibits in criminal trials.[26] I acknowledge that there are no concerns regarding police or judicial conduct, and that the judicial proceedings are finalised. However, I consider that the possibility of scrutiny of any matter at any time – even when there are no concerns regarding police and/or judicial processes, and even when matters are finalised – enhances the prospect of proper conduct and accountability generally, and thereby contributes to the administration of justice. Further, in my view, scrutiny of the administration of justice extends beyond scrutiny of those applying the law, to scrutiny of the laws themselves, and accordingly involves examination of the application and operation of legislation. In this regard, I note the submissions set out at paragraph 25 identify the application of the then partial defence of provocation to the relevant circumstances as a key issue, and effectively raise scrutiny of the administration of justice insofar as it relates to laws themselves. In my view, release of the Information in Issue enhances scrutiny of the partial defence of provocation that applied in Queensland at the time of the relevant proceedings. Given that this partial defence has since been amended, the value of enabling such scrutiny is somewhat diminished. Nevertheless, some value remains, given that examination of the application and operation of the current defence is enhanced by full understanding of its predecessor. On these grounds, I am satisfied that disclosure of the Information in Issue could reasonably be expected to contribute to the administration of justice through allowing greater scrutiny of it. Weight of factor In this review, it was submitted that open justice considerations should be afforded little weight, because the trial was open, transcripts of proceedings can be purchased, the trial judge made the Order mentioned at paragraph 18 above, and no concerns about police or judicial impropriety had arisen. It was also submitted that it was unclear how further disclosure could contribute to open justice of a matter which has been finalised. However, for the reasons outlined above, I am satisfied that advancing open justice, through allowing ongoing access to exhibits tendered by the prosecution in open court plays a significant role in contributing to the administration of justice. This is particularly so when the proceedings have led to conviction of the defendant for a very serious offence. Also, it was submitted that limited weight should be attached to considerations regarding allowing scrutiny of the administration of justice, because the integrity of the police investigation was not in issue, Mr Sebo had been convicted and sentenced, and proceedings involving him were finalised. However, for the reasons outlined above, I am satisfied that ensuring scrutiny of police and judicial conduct at any time, regardless of whether or not concerns have been raised, also plays a significant role in contributing to the administration of justice. In contrast, in the circumstances of this review, the value of scrutinising the application and operation of the defence claimed by Mr Sebo is somewhat diminished, following subsequent law reform activity. Accordingly, I have reduced the overall weight that I would otherwise afford the public interest factor favouring disclosure of contributing to the administration of justice to reflect this position. In conclusion, I find that moderate weight should attach to this factor. Contributing to informed debate on an important issue The trial of Mr Sebo and subsequent appeal by the Attorney-General prompted substantial media coverage regarding the then partial defence of provocation in Queensland[27] as it applied to circumstances in issue. In the period between the trial and the appeal, the Attorney-General announced an audit of use of the partial defence in Queensland.[28] Following this process, law reform papers were published, some of which referred to the proceedings regarding Mr Sebo in some detail.[29] As a result of the ensuing discussion and debate, the legislative provision regarding the partial defence of provocation was amended in 2011.[30] It was submitted that it is unclear how disclosure of the Information in Issue could reasonably be expected to contribute to informed debate, given the already changed legal landscape in Queensland. In relation to the law reform processes in New South Wales, it was submitted that the opportunity for the public to make submissions had passed and, accordingly, disclosure could not inform debate in New South Wales. It was suggested that careful consideration should be given to whether the disclosure of the documents could reasonably be expected to further contribute to a debate on an issue which has already been the subject of extensive scrutiny, coverage and comment; or could reasonably be expected to merely result in public gratification[31] which would not materially enhance debate with respect to a defence already abolished in some states, modified in Queensland and subject to law reform review in NSW. Queensland is now one of a number of states that has engaged in law reform regarding provocation as a partial defence to murder. Provocation as a partial defence to murder has been abolished in Tasmania, Victoria and Western Australia.[32] Law reform is also currently being examined in New South Wales where a report was recently tabled in its parliament.[33] Given similarities between New South Wales law regarding provocation and that which applies in the Australian Capital Territory and Northern Territory, and given that a common law version of the partial defence continues to apply in South Australia, I am satisfied that debate regarding an important issue is ongoing in a significant number of Australia jurisdictions. While completion of the relevant inquiry and tabling of its report in New South Wales means that further submissions to the inquiry are no longer possible, law reform debate does not cease as a result. It is likely to continue as the tabled report’s recommendations are considered. More broadly, I also note that law reform is a cyclical process requiring monitoring and evaluation, and therefore the Information in Issue remains of some relevance to public debate even in jurisdictions where reform of the partial defence of provocation has already occurred in various guises. Further, I am satisfied that disclosure of the documents could reasonably be expected to contribute to the debate in the sense of reaching both a larger audience and a broader cross-section of the community. In this regard, I have noted that much of the information in the documents is already in the public domain in print form (via media reports and law reform documentation). Also, I have noted that it may be argued that the matters of serious interest arise from the way in which the law was applied to the evidence in the trial and appeal, rather than from the evidence itself. However, on careful consideration of the information before me, I am satisfied that presentation of the same information in audiovisual or audio format may broaden debate across more community members representing a broader cross-section of the community, and thereby contribute to more, and more informed, debate[34] by using evidence from the trial to prompt consideration of the law. For these reasons, I am satisfied that moderate weight should be afforded to the public interest factor favouring disclosure of contributing to informed debate on important issues. Relevant factors favouring nondisclosure Ms Hunt’s personal information A large portion of the Information in Issue comprises Ms Hunt’s personal information—specifically, Mr Sebo’s versions of events and opinions involving Ms Hunt. A factor favouring nondisclosure of Ms Hunt’s personal information is therefore relevant.[35] During this review, the applicant submitted that QPS should have, and OIC should, consult with a close relative of Ms Hunt. Given OIC’s view that the Information in Issue should be released, and that the close relative was a relevant third party under the RTI Act,[36] OIC made numerous attempts to consult about the information over an extended period of time; however, the attempts were unsuccessful. On careful consideration of all evidence before me, I consider that the accuracy of the information regarding Ms Hunt is relatively arguable, and the detriment caused by disclosure is correspondingly less. I have reached this view given that the information comprises Mr Sebo’s versions of events and opinions, rather than Ms Hunt’s, and given the circumstances in which it was provided. Also, the recordings that comprise the Information in Issue were previously released to media organisations pursuant to the trial judge’s Order made on 29 June 2007, and a large amount of the recorded information, or summaries thereof, are already in the public domain in print form. For these reasons, in the particular circumstances of this review I attribute limited weight to this factor. Mr Sebo’s personal information and privacy The entirety of the information in the documents comprises Mr Sebo’s personal information as recognised by the RTI Act. Further, disclosure of Mr Sebo’s personal information could—to the extent that such information is private information—reasonably be expected to prejudice Mr Sebo’s privacy as recognised by that Act and the IP Act. Considerations regarding personal information and privacy amount to factors favouring nondisclosure of the documents.[37] It was submitted that the information is extremely sensitive insofar as it impacts on Mr Sebo’s privacy interests. Specifically, it was submitted that, as Mr Sebo was convicted of manslaughter and sentenced to imprisonment, and as the partial defence that he successfully raised has now been amended, in the circumstances it is appropriate to attach substantial weight to his privacy interests. However, the Information in Issue has already been released to three media organisations including the applicant as a result of the trial judge’s Order, and much of the content of the recordings is available or summarised in print form, given the extensive amount and detailed nature of media and academic interest in the proceedings. In these particular circumstances, it is my view that although the information comprises Mr Sebo’s personal information, little privacy remains and practical obscurity is not possible. In these particular circumstances, I afford limited weight to these factors. Possible impact on Mr Sebo It was submitted that disclosure of the Information in Issue and subsequent broadcast of it could have a prejudicial effect on Mr Sebo in prison. I note that, regardless of the outcome of this review, broadcast of the parts of the Information in Issue that remain in the applicant’s archives can already occur, as can broadcast of the Information in Issue to the extent that it remains in the possession of the two other media organisations who accesed the information following the trial judge’s Order on 29 June 2007. However, I acknowledge that it is possible that if the Information in Issue is released, and if parts of it not already in the possession of the applicant are broadcast by it, Mr Sebo’s prison environment may be detrimentally affected as a result of disclosure of the information under the RTI Act. However, the submissions before me comprise brief assertions without supporting evidence[38] and consequently, I am not able to reach a view regarding the degree of any possible detriment, or whether the detriment could reasonably be expected, or remains a more remote possibility. In conclusion, while I accept the possibility that Mr Sebo’s actual or perceived physical safety may be detrimentally affected by disclosure, and that this possibility comprises a factor favouring nondisclosure, I am, on the information before me, only able to afford this factor very limited weight. Balancing the relevant public interest factors In summary, for the reasons set out above, in this particular review I afford: moderate weight to the public interest factors favouring disclosure of contributing to the administration of justice (through enhancing open justice and allowing scrutiny of it) and contributing to informed debate on an important issue; and limited weight to the public interest factors favouring nondisclosure relating to the personal information and privacy of relevant parties and very limited weight to factor favouring nondisclosure regarding the possible impact on Mr Sebo. Having weighed these factors I find that disclosing the Information in Issue would not, on balance, be contrary to the public interest; and access to the Information in Issue cannot be refused under sections 47(3)(b) and 49 of the RTI Act. DECISION I vary the decision under review and find that there is no ground on which QPS may refuse access to the Information in Issue. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. Jenny Mead Right to Information Commissioner Date: 31 July 2013 APPENDIX Significant procedural steps Date Event 27 June 2012 Applicant applies to QPS for access to four documents 23 August 2012 QPS consults with Mr Sebo pursuant to section 37 of the RTI Act 7 September 2012 Mr Sebo submits a response to the consultation via his solicitor 14 September 2012 QPS refuses access to the information in issue 10 October 2012 Applicant applies to OIC for external review 10 December 2012 OIC requests that QPS provide information regarding prior publication of the information in issue 17 December 2012 QPS advises OIC that, at the time of the trial, the Director of Public Prosecutions did not release any information and media organisations did not apply to publish any information 15 January 2013 Applicant advises OIC that the information was released previously, and it has a small amount of it on its internal data base 27 February 2013 OIC makes inquiries with Brisbane Supreme and District Court Criminal Registry regarding exhibits tendered in the trial R v Sebo (No. 977 of 2006) 28 February 2013 Brisbane Supreme and District Court Criminal Registry confirms that the four documents sought by the applicant were tendered as exhibits, and advises that the Supreme Court made an Order on 29 June 2007 allowing channels 7, 9 and 10 access to the exhibits that comprise the information in issue. 12 March 2013 OIC issues a preliminary view to QPS 12 March 2013 OIC consults with Mr Sebo via his solicitor pursuant to sections 37 and 89(2) of the RTI Act and asks that he provide any response by 2 April 2013 25 March 2013 Mr Sebo’s solicitor advises that he no longer holds instructions and has forwarded OIC’s consultation letter to Mr Sebo 27 March 2013 QPS makes submissions regarding OIC’s preliminary view 24 April 2013 OIC attempts to contact third party by telephone to consult under section 37 of the RTI Act 24 April 2013 OIC issues preliminary view to applicant that QPS may refuse access to one of the documents on the ground that release would be contrary to the public interest, and that no ground of refusal applied to the remaining documents 7 May 2013 OIC again attempts to consult with third party 7 May 2013 Applicant advises OIC that it accepts OIC’s preliminary view 15 May 2013 OIC again attempts to consult with third party 20 May 2013 OIC again attempts to consult with third party 21 May 2013 OIC again attempts to consult with third party 29 May 2013 OIC asks applicant to telephone third party and advise that OIC wishes to consult with the third party by telephone 24 June 2013 OIC again attempts to consult with third party 30 July 2013 OIC again attempts to consult with third party [1] R v Sebo (Indictment No. 977 of 2006), appeal of the Attorney-General dismissed in R v Sebo; ex parte A-G (Qld) [2007] QCA 426.[2] Section 47(3)(b) and 49 of the RTI Act.[3] CCTV footage of a public venue.[4] Given personal information and privacy factors. [5] Sections 47(3)(b) and 49 of the RTI Act. [6] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant in a particular case. [7] Section 49(3) of the RTI Act.[8] As to the correctness of this approach, see Gordon Resources Pty Ltd v State of Queensland [2012] QCATA 135.[9] In Schedule 3 of the IP Act.[10] IPP 10(1)(c) and IPP 11(1)(d) in schedule 3 of the IP Act.[11] IPP 10 and 11 in schedule 3 of the IP Act.[12] Schedule 4, part 1, item 2 of the RTI Act.[13] Schedule 4, part 1, item 3 of the RTI Act.[14] Schedule 4, part 2, item 16 of the RTI Act.[15] R v Sussex Justices; Ex parte Macarthy [1924] 1 KB 256 at 259.[16] As noted in John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 at 481, ‘[t]he publication of fair and accurate reports of court proceedings is ... vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice’.[17] They were exhibits 8, 9 and 11 in R v Sebo (Indictment No. 977 of 2006).[18] Television channels 7, 9 and 10.[19] The access applicant advised that inadvertently, only a small part of the Information in Issue appears to have been retained in its archives and consequently, it has sought the same information via a RTI Act access application.[20] At the time that the trial judge made the Order, orders regarding non-party access to exhibits were made on an ad hoc basis – see Comments of Chief Justice of the Supreme Court in ‘Media statement: Courts increase media access to criminal exhibits’ dated 14 March 2008 at <http://www.courts.qld.gov.au/__data/assets/pdf_file/0005/85091/PR-CJ-StatmentOnCriminalExhibits14Mar2008.pdf>. Since, rule 56A regarding non-party copying of exhibits for publication has been inserted into the Criminal Practice Rules 1999 (Qld) (CP Rules).[21] Rule 56 of the CP Rules. However, the trial judge may order that an exhibit not be inspected or opened unless allowed by further order of the court – rule 56(2) of the CP Rules.[22] Rule 100(2) of the CP Rules. [23] R v Sebo; ex parte A-G (Qld) [2007] QCA 426.[24] Again, see Comments of Chief Justice of the Supreme Court in ‘Media statement: Courts increase media access to criminal exhibits’ dated 14 March 2008 at <http://www.courts.qld.gov.au/__data/assets/pdf_file/0005/85091/PR-CJ-StatmentOnCriminalExhibits14Mar2008.pdf>.[25] Schedule 4, part 2, item 16 of the RTI Act.[26] Above n 24.[27] Section 304 of the Criminal Code 1899 (Qld), which provides that provocation is a partial defence to the crime of murder, enabling the lesser conviction of manslaughter. [28] See Attorney-General’s comments to Estimates Committee at page 49 of Hansard at <http://www.parliament.qld.gov.au/documents/hansard/2007/2007_07_18_EST_F.pdf>.[29] See: • Queensland Government Department of Justice and Attorney-General, Discussions paper – Audit on Defences to Homicide: Accident and Provocation, October 2007 at <http://www.justice.qld.gov.au/__data/ assets/pdf_file/0019/21628/review-of-homicide-defences-paper.pdf> • Queensland Law Reform Commission, A review of the defence of provocation – Discussion Paper, WP No. 63, August 2008 at <http://www.qlrc.qld.gov.au/accidentprovocation/docs/wp63.pdf> • Queensland Parliamentary Library, Status of the Partial Defence of Provocation in Queensland, Research Brief No. 2008/19 at <http://www.parliament.qld.gov.au/documents/explore/ResearchPublications/ ResearchBriefs/2008/RBR200819.pdf>. [30] Section 304 of the Criminal Code 1899 (Qld) was amended 4 April 2011 reversing the onus of proof so that it is borne by the defence, and limiting the circumstances in which verbal provocation alone will qualify.[31] In this regard, the submissions referred to the following comments in DPP v Smith [1991] VicRp 6; [1991] VR 63 at 73 and 75: The public interest ‘does not mean that which gratifies curiosity or merely provides information or amusement ..... Similarly it is necessary to distinguish between `what is in the public interest and what is of interest to know' .... [There is a ] distinction between the public interest and a matter of public interest. The public interest is a term embracing matters, amongst others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. ..... There are several and different features and facets of interest which form the public interest. On the other hand, in the daily affairs of the community events occur which attract public attention. Such events of interest to the public may or may not be ones which are for the benefit of the public; it follows that such form of interest per se is not a facet of the public interest".[32] In 2003, 2005 and 2008 respectively.[33] New South Wales Legislative Council Select Committee on the Partial Defence of Provocation, The Partial Defence of Provocation, 23 April 2013, <http://www.parliament.nsw.gov.au/Prod/parlment/committee.nsf/0/61173c421853420aca257b5500838b2e/$FILE/Partial%20defence%20of%20provocation_Final%20report.pdf>.[34] Schedule 4, part 2, item 2 of the RTI Act.[35] Schedule 4, part 4, item 6 of the RTI Act.[36] Under section 37 of the RTI Act.[37] Schedule 4, part 4, item 6 and arguably schedule 4, part 3, item 3 of the RTI Act.[38] Such as information regarding previous incidents of a similar nature.

queensland

court_judgement

Queensland Information Commissioner 1993-

A55 and Gold Coast Hospital and Health Service [2019] QICmr 51 (26 November 2019)

A55 and Gold Coast Hospital and Health Service [2019] QICmr 51 (26 November 2019) Last Updated: 6 December 2019 Decision and Reasons for Decision Citation: A55 and Gold Coast Hospital and Health Service [2019] QICmr 51 (26 November 2019) Application Number: 314410, 314478, 314508 and 314566 Applicant: A55 Respondent: Gold Coast Hospital and Health Service Decision Date: 26 November 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL WITH APPLICATION - SUBSTANTIAL AND UNREASONABLE DIVERSION OF RESOURCES - documents relating to the applicant and their interactions with the agency - whether dealing with each access application would substantially and unreasonably divert agency resources from their use in performing its functions - sections 60 and 61 of the Information Privacy Act 2009 (Qld) REASONS FOR DECISIONSummary The applicant applied,[1] by separate access applications, to the Gold Coast Hospital and Health Service (GCHHS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to various documents[2] relating to themselves and their interactions with GCHHS. In relation to external reviews 314410, 314508 and 314566, GCHHS decided[3] to refuse to deal with the applications on the basis that dealing with each of them would substantially and unreasonably divert GCHHS’s resources from their use in the performance of its functions. In relation to external review 314478, GCHHS decided[4] to refuse to deal with the access application on the basis that the applicant had made a previous access application for the same documents and that GCHHS’s decision on that access application was the subject of an external review by this Office (OIC), being external review 314410. The applicant applied to OIC for external review of each of GCHHS’s decisions.[5] On external review GCHHS submitted[6] that, given the different time periods of the access applications the subject of external reviews 314410 and 314478, GCHHS should have refused to deal with the access application the subject of external review 314478 on the basis that dealing with it would substantially and unreasonably divert GCHHS’s resources from their use in the performance of its functions. For the reasons set out below, I: affirm GCHHS’s decisions in external reviews 314410, 314508 and 314566 refusing to deal with the access applications on the basis that dealing with each of the access applications would substantially and unreasonably divert GCHHS’s resources from their use in the performance of its functions vary GCHHS’s decision in external review 314478 by finding that GCHHS was entitled to refuse to deal with the access application on the basis that dealing with the access application would substantially and unreasonably divert GCHHS’s resources from their use in the performance of its functions; and vary GCHHS’s decisions and find that dealing with the applications collectively would substantially and unreasonably divert GCHHS’s resources from their use in the performance of its functions.Background Significant procedural steps relating to these external reviews are set out in Appendix 1.Reviewable decision The decisions under review are GCHHS’s decisions dated 22 January 2019[7] (external review 314410), 27 February 2019[8] (external review 314478), 15 March 2019[9] (external review 314508) and 10 April 2019[10] (external review 314566).Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are set out in these reasons (including footnotes and Appendices). During the reviews the applicant provided extensive submissions. I have considered all of this material and have only extracted those parts which I consider to have relevance to the issues to be determined in these external reviews.Issues in these reviews The issues arising for determination in these external reviews are whether GCHHS: sufficiently complied with the requirement under section 61 of the IP Act to provide the applicant with an opportunity to narrow the scope of the access applications, so as to reframe them into a form able to be processed by GCHHS; and can refuse to deal with the access applications under section 61 of the IP Act on the basis that dealing with them would substantially and unreasonably divert GCHHS’s resources from the performance of its usual functions under section 60 of the IP Act.Relevant law Parliament intends that an agency receiving an access application will deal with that application unless dealing with the application would, on balance, be contrary to the public interest.[11] Relevantly, section 60(1) of the IP Act permits an agency to refuse to deal with an access application, or if dealing with two or more applications by the same applicant, all of the applications, if the agency considers the work involved in dealing with the application, or applications, would, if carried out, substantially and unreasonably divert the resources of the agency from their use by the agency in the performance of its functions. The term ‘substantially and unreasonably’ is not defined in either the IP Act or the Right to Information Act 2009 (Qld) (RTI Act). It is therefore appropriate to consider the ordinary meaning of these words. ‘Substantial’ is relevantly defined as meaning ‘considerable amount, quantity, size, etc.’[12] and ‘of a considerable size or value’.[13] ‘Unreasonable’ is relevantly defined as meaning ‘exceeding the bounds of reason; immoderate; exorbitant’[14] and ‘immoderate; excessive’.[15] In deciding whether an agency may refuse to deal with an application, or applications, on the basis that doing so would substantially and unreasonably divert the resources of the agency from their use by the agency in the performance of its functions, I must have regard to the resources that would be used for:[16] identifying, locating, or collating the documents marking copies, or edited copies of any documents deciding whether to give, refuse, or defer access to any documents, including resources that would to be used to examine any documents or conducting third party consultations; and notifying any final decision on the application. The power to refuse to deal with an application under section 60 of the IP Act can only be exercised if the precondition set out by section 61 of the IP Act has been met. Section 61 sets out a number of procedural steps that an agency must take before deciding to refuse to deal with an application on this basis, being to: give the applicant written notice[17] give the applicant a reasonable opportunity to consult with the agency;[18] and as far as reasonably practicable, give the applicant any information that would help the making of an application in a form that would remove the ground for refusal.[19] The written notice must:[20] state an intention to refuse to deal with the application advise that, for the prescribed consultation period[21] for the notice, the applicant may consult with the agency with a view to making an application in a form that would remove the ground for refusal; and state the effect of sections 61(2) to (6) of the IP Act, which is as follows: following any consultation, the applicant may give the agency written notice either confirming or narrowing the application if the application is narrowed, section 60 applies in relation to the changed application, but the procedural requirements in section 61 do not apply to it if the applicant fails to consult[22] after being given the notice, the applicant is taken to have withdrawn the application at the end of the prescribed consultation period. The access applications In external review 314410, for the period 2011 to 3 December 2018, the applicant seeks access to: (a) All emails about [the applicant] or referring to [the applicant]; (b) All documents relied on by or viewed or sent by [named individual] in relation to [the applicant] and [the applicant’s] complaints; (c) Review reports of [the applicant’s] CT scan; (d) List of every employee who looked at [the applicant’s] medical records and the date they accessed them; and (e) Communication between [named doctor] and the rheumatology department and between rheumatology and orthopedic department. In external review 314478, for the period 1 January 2012 to 21 January 2019, the applicant relevantly[23] seeks access to: (a) All correspondence, documents and emails referring to [the applicant], sent to or from the following departments: MAU, Emergency, Mental Health, Rheumatology, Radiology and Orthopaedics, and including [named doctors]; (b) All emails between [named doctor] and the Rheumatology Department, and [named doctor] and MAU nursing staff; (c) All communications and emails sent to and from the Physiotherapy Clinic from 1 January 2014 to 21 January 2019. In external review 314508, for the period 1 January 2010 to 18 February 2019, the applicant seeks access to: (a) All documents, records and communications including emails, relating to [the applicant’s] treatment in the [named] clinic and [the applicant’s] related rape and Patient Liaison Service complaints; (b) All documents, records and communications, including emails, relating to [the applicant’s] complaints about sexual assault by [named doctor] (including statements and reports by the nurse who was present and whom [the applicant] asked to report the incident), [the applicant’s] complaints about the multiple rapes of [named individual] and subsequent pressing of policy changes against [named individual]; (c) All documents and communications relating to holding [the applicant] under a EAO and [the applicant’s] related complaints; (d) All documents and emails about [the applicant] or [the applicant’s] matters which were drafted, influenced by or sent to or from [named individual] with corresponding page numbers; (e) A log of who accessed [the applicant’s] records and when; (f) Details pertaining to a Letter sent 12/04/18 and included in 3737 IP release at pages 84-85; (g) Documents substantiating claim of harassment referred in letter identified at [item (f)]; (h) All text messages and emails about [the applicant] authored by [named individuals]; (i) All text messages and emails about [the applicant] by any forensic medical officer or Southport Watch House nurse, and any records or documents created by such staff; (j) All radiologist opinions regarding [the applicant’s] ankle; (k) All documents and emails to or from police, including the 'Fixated Persons Unit'; (l) All documents written, forwarded or received by individuals identified by letter of 24/04/2018 at 10.49am included in the documents released under 3737 IP; and (m) All emails, documents and calendar entries relating to telephone consults and conferences with OHO about [the applicant], including the full names of officers involved. In external review 314566, for the period 1 January 2012 to 28 February 2019, the applicant seeks access to: All emails to and from ED, MAU, ophthalmology, rheumatology, physiotherapy, mental health, radiology, orthopedics and [named clinic]. Findings Requirement to consult In relation to external reviews 314410, 314508 and 314566, I have read GCHHS’s notices sent[24] to the applicant (separately, Notice, and collectively, Notices). The Notices stated an intention to refuse to deal with the access applications, and advised the applicant that they had until a specified date[25] to consult with a view to making their applications in a form that would remove this ground as a basis for refusing to deal with the applications. The Notices also stated that the applicant may give written notice confirming or narrowing the scope of the access applications and, if they did not respond, they would be taken to have withdrawn their applications. In light of the content of the Notices, I am satisfied that the Notices complied with the requirements of the IP Act. GCHHS’s Notices explained to the applicant ways that the applicant could change their access applications to make them manageable, including: providing clarifying details for items considered too vague significantly narrowing the date ranges in relation to all items/departments; and removing items/departments from the access applications. In addition, in relation to external review 314410: GCHHS’s Notice included estimates of the approximate number of documents responsive to item (a) of the access application and estimated time to complete the work involved in processing item (a) alone; and GCHHS provided the applicant with a table listing the departmental areas holding documents responsive to item (a).[26] On the basis of the above, I find that GCHHS, as far as was reasonably practicable, gave the applicant information that would help them to make an access application in a form that would remove the ground for refusal. In response to the Notices, during the consultation periods the applicant sent multiple emails[27] to GCHHS which either did not narrow or refine the scope of the access applications in any substantive way, or sought to expand the scope of the access applications. In relation to each of external reviews 314410, 314508 and 314566, I find that GCHHS complied with the requirement to give the applicant an opportunity to narrow the scope of the applications, so as to re-frame them into a form that it could process. In relation to external review 314478, the applicant was not given an opportunity to narrow the scope of the access application so as to re-frame it in into a form that can be processed by GCHHS. I acknowledge that this is because GCHHS decided to refuse to deal with the access application under section 62 of the IP Act on the basis that the documents sought had previously been requested in the access application the subject of external review 314410. In the circumstances of these matters, I do not consider it is necessary to provide the applicant with a further opportunity to consult in relation to external review 314478 when GCHHS had previously done so in relation to external reviews 314410, 314508 and 314566[28] and when I am satisfied that all the access applications together amount to a substantial diversion of GCHHS’s resources as set out below. Work required to process the access applications In relation to external review 314410, GCHHS’s Notice estimated that, following a preliminary search, it holds approximately 1272 emails, which equates to a minimum of 6360 pages, responsive to item (a) of the access application alone. GCHHS stated that this estimate is conservative as ‘it does not include documents responsive to [item (a)] of the Application that are contained in the inboxes of approximately 18 individual Executives and employees of GCHHS.’ GCHHS also estimated, on a conservative basis, that it would take approximately 469 hours, being 67 working days, to process and deal with the access application, calculated as follows:[29] (a) at least, approximately 30 hours to collate and copy all relevant documents, not including those archived; (b) at least, approximately 424 hours to review and process the documents before release (based on four minutes per page for at least 6,360 pages); (c) at least, approximately 15 hours to prepare documents necessary to undertake third party consultation; and (d) ...at least 20 hours to draft the decision notice and prepare the responsive documents for release. In addition to the above, GCHHS submitted[30] that within the Information & Access Services unit, it had one staff member to process the applicant’s access application. In response to the Notice, the applicant submitted[31] that ‘[the] date range from 2011 to 2013 should contain very few documents...’ and advised ‘I will not narrow the scope.’ While I note the applicant’s submission in this regard, as GCHHS’s preliminary searches identified that it holds approximately 1272 emails, equating to a minimum of 6360 pages, covering the whole date range sought, being a period of approximately 8 years from 2011 to 3 December 2018, I am satisfied that if there are ‘very few documents’ in the 2011 to 2013 date range, this would not reduce the work involved in processing the access application. In the applicant’s external review application, the applicant stated:[32] Please note that no consultation was sought in good faith from GCHHS ... ... GCHHS claimed the workload to do my IP request was too great for their ONE IP OFFICER. However, the IP officer being the only staff is irrelevant when GCHHS is using senior medical malpractice defence lawyers to prevent release of all my IP requests, and an IP officer is never allocated to my many IP applications... The applicant also submits:[33] These are medical records and I am entitled to 20 hours search on each application. They have a term and GCHHS did not need to use lawyers to do my application. The applicant’s submission concerning the use of lawyers was put to GCHHS.[34] In response, GCHHS submitted:[35] since the decision was made in relation to the applicant’s access application, three staff members within the Legal Services unit had been given RTI/IP delegations the Legal Services unit staff do not process the access applications or undertake the administrative tasks, rather, they provide an oversight role for the staff member within the Information & Access Services unit; and the staff member within the Information & Access Services unit has responsibility for the majority of the work involved in processing an access application, including conducting searches and preparing documents. While I acknowledge the applicant’s concerns about the reasons for GCHHS’s decisions to refuse to deal with the access applications, there is no evidence before me to suggest that GCHHS has provided its submissions to OIC ‘in bad faith’ or that GCHHS is ‘concealing evidence of crimes’. Further, it is unclear to me why the applicant states that they are ‘entitled to 20 hours search on each application’. In relation to external reviews 314508 and 314566, the GCHHS’s decisions stated: there ‘is considerable overlap’ between the scope of these requests and the scope of the request in relation to external review 314410[36] while the applicant had narrowed the date ranges for some items sought in relation to external review 314508, ‘the breadth of items remains extensive’;[37] and in relation to external review 314566, although the applicant submitted[38] that ‘there may only be one or two emails over that period ... It is rare for doctors and nurses to privately email about a patient’ and that the applicant was only seeking emails, GCHHS reached the conclusion that ‘it did not limit the scope of the Application...’[39] I have carefully considered the scope of each of the applications as set out at paragraphs 18 to 21 above. In my view, the request at item (a) in relation to external review 314410 for ‘all emails about me or referring to me’ would s[40]stantially encompass40 the applicant’s requests at: external review 314478: item (b) in full and items (a) and (c) to the extent the documents sought are emails external review 314508: items (a), (b), (d), (h), (i), (k) and (m) to the extent the documents sought are emails; and external review 314566: the entirety of the request, and therefore I have not taken these overlapping aspects of the applications into account when assessing whether processing the applications would amount to a substantial and unreasonable diversion of GCHHS’s resources. In relation to the remaining information sought in each of external reviews 314478, 314508 and 314566, OIC sought further submissions from GCHHS about its claims that processing each of the applications would substantially and unreasonably divert GCHHS’s resources from their use in performance of its functions.[41] In response, GCHHS has provided OIC with submissions[42] about: the searches required to process the applications the estimated length of processing time for each remaining search criteria in each review (which ranges from 4 weeks to 6 months depending on the searches required); and the estimated number of pages that may be located as a result of those searches. GCHHS attached to each submission a summary of that submission in table form. These are set out in Appendix 2.[43] GCHHS submitted in conclusion:[44] GCHHS estimates that there is minimal material responsive to the applicant’s requests, despite the applicant’s belief that correspondence about [their] treatment and complaints has occurred among staff and with external agencies. The applicant’s requests span all aspects of [their] treatment and the complaints process. GCHHS submits that such broad ranging searches over a six-year period ... are an unreasonable diversion of GCHHS resources in circumstances where considerable material has already been provided to the applicant in the past. Substantial In relation to the question of whether the work involved in processing the access applications would be substantial, I may consider the applications separately or collectively. A general statement of principle which is applicable to the type of merits review conducted by the Information Commissioner is that ‘the Information Commissioner must decide cases according to the material facts and circumstances which apply at the time the Information Commissioner comes to make the external review decision.’[45] As there are four applications before me for consideration, it is open to me to consider the impact that processing the applications together would have on GCHHS. I am satisfied that requiring GCHHS to commit at least 469 hours in relation to the access application the subject of external review 314410 and at least 72.5 hours in relation to each access application the subject of external reviews 314478, 314508 and 314566, or at least 686.5 hours for all four applications, would comprise a substantial, or ‘considerable’ and ‘telling’,[46] diversion of GCHHS’s resources. There is nothing before me to cause me to doubt that estimate, and I accept it as accurate. Processing the applications would, on these figures, take GCHHS’s sole Information & Access Services unit staff member 19 weeks - approximately four and a half months - of full time effort, diverting limited staffing resources, including the three staff members within the Legal Services unit who hold an RTI/IP delegation, from other RTI and IP access applications as well as from their other day to day work. This would place substantial strain on GCHHS’s resources - a burden that, in the circumstances of these matters, I consider would also be unreasonable. Unreasonable As for the question of “reasonableness”, there are a number of factors that may be relevant in determining reasonableness when assessing the potential resourcing burden imposed by an IP access application:[47] (a) whether the terms of the request offers a sufficiently precise description to permit the agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort (b) the public interest in disclosure of documents relating to the subject matter of the request (c) whether the request is a reasonably manageable one, giving due but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with access applications (d) the agency’s estimate as to the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost (e) the reasonableness or otherwise of the agency’s initial assessment and whether the applicant has taken a cooperative approach in redrawing the boundaries of the application (f) the timelines binding on the agency (g) the degree of certainty that can be attached to the estimate that is made as to the documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made; and (h) whether the applicant is a repeat applicant to that agency, and the extent to which the present application may have been adequately met by previous applications to the agency. In this case, the size and scope of the access applications, separately or collectively[48], is alone sufficient to justify a finding that processing the access applications would be an exorbitant and excessive,[49] and therefore unreasonable, diversion of GCHHS’s resources. DECISION For the reasons set out above, I: affirm GCHHS’s decisions in external reviews 314410, 314508 and 314566 refusing to deal with the access applications on the basis that dealing with each of the access applications would substantially and unreasonably divert GCHHS’s resources from their use in the performance of its functions vary GCHHS’s decision in external review 314478 by finding that GCHHS was entitled to refuse to deal with the access application on the basis that dealing with the access application would substantially and unreasonably divert GCHHS’s resources from their use in the performance of its functions; and vary GCHHS’s decisions and find that dealing with the applications collectively would substantially and unreasonably divert GCHHS’s resources from their use in the performance of its functions. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.Assistant Information Commissioner CorbyDate: 26 November 2019 APPENDIX 1 Significant procedural steps Date Event 22 January 2019 OIC received the applicant’s application for external review 314410. 23 January 2019 OIC received emailed submissions from the applicant. 24 January 2019 OIC notified GCHHS and the applicant that the application for external review 314410 had been received and requested procedural documents from GCHHS. OIC received the requested documents from GCHHS. 22 February 2019 OIC notified GCHHS and the applicant that the application for external review 314410 had been accepted. 27 February 2019 OIC received the applicant’s application for external review 314478. 1 March 2019 OIC received three emailed submissions from the applicant. 6 March 2019 OIC notified GCHHS and the applicant that the application for external review 314478 had been received and requested procedural documents from GCHHS. OIC received the requested documents from GCHHS. OIC received emailed submissions from the applicant. 7 March 2019 OIC requested further procedural documents from GCHHS for external review 314410 and application for external review 314478. OIC received emailed submissions from the applicant. 11 March 2019 OIC received the requested further procedural documents from GCHHS for the application for external review 314478. 13 March 2019 OIC received the requested further procedural documents from GCHHS for external review 314410. 15 March 2019 OIC received the applicant’s application for external review 314508. OIC received three emailed submissions from the applicant. 16 March 2019 OIC received emailed submissions from the applicant. 20 March 2019 OIC notified GCHHS and the applicant that the application for external review 314508 had been received and requested procedural documents from GCHHS. 21 March 2019 OIC received the requested procedural documents from GCHHS for the application for external review 314508. 22 March 2019 OIC received emailed submissions from the applicant. OIC notified GCHHS and the applicant that the application for external review 314478 had been accepted and requested a copy of the documents located from GCHHS. 26 March 2019 OIC received the requested copy of the documents located from GCHHS for external review 314478. 3 April 2019 OIC received a submission from GCHHS for external review 314478. OIC received emailed submissions from the applicant. 4 April 2019 OIC received two emailed submissions from the applicant. 10 April 2019 OIC received the applicant’s application for external review 314566. 15 April 2019 OIC received emailed submissions from the applicant. OIC received an oral submission from GCHHS. 16 April 2019 OIC notified GCHHS and the applicant that the application for external review 314566 had been received and requested procedural documents from GCHHS. OIC conveyed a preliminary view to the applicant in external review 314410. OIC received an emailed submission from the applicant. 18 April 2019 OIC notified GCHHS and the applicant that the application for external review 314508 had been accepted and requested further procedural documents from GCHHS. 23 April 2019 OIC received the requested procedural documents from GCHHS for external review 314508 and application for external 314566. 26 April 2019 OIC received two emailed submissions from the applicant. 29 April 2019 OIC notified GCHHS and the applicant that the application for external review 314566 had been accepted. 20 May 2019 OIC received emailed submissions from the applicant. 30 May 2019 OIC requested a submission from GCHHS for each external review regarding whether dealing with each application would substantially and unreasonably divert GCHHS’s resources from their use in performance of its functions. 18 June 2019 OIC received emailed submissions from the applicant. 27 June 2019 OIC received the requested submissions from GCHHS. 5 August 2019 OIC received emailed submissions from the applicant. 8 August 2019 OIC received emailed submissions from the applicant. 13 August 2019 OIC conveyed a preliminary view to the applicant. OIC received emailed submissions from the applicant. 26 August 2019 OIC received emailed submissions from the applicant. 27 August 2019 OIC received emailed submissions from the applicant. 28 August 2019 OIC received two emailed submissions from the applicant. 9 September 2019 OIC received emailed submissions from the applicant. 11 September 2019 OIC received emailed submissions from the applicant. 12 September 2019 OIC received emailed submissions from the applicant. 13 September 2019 OIC received emailed submissions from the applicant. 17 September 2019 OIC received emailed submissions from the applicant. 19 September 2019 OIC received emailed submissions from the applicant. 26 September 2019 OIC wrote to the applicant[50] about their external reviews. OIC received emailed submissions from the applicant. APPENDIX 2Overview of GCHHS Submissions – 314478 / 3744 IP Relevant Documents Location Search Types Estimated Pages Estimated Processing Time Third Party Consults All correspondence and documents, excluding emails, referring to [the applicant] or [their] matters or complaints, sent to any Minister, Ministerial Department or Parliamentary Committee from 1 January 2012 to 21 January 2019. Shared network drives, personal network drives, hard-copy archived correspondence files. Contacting all GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms; physical inspection and copying of archived material. 0-50 3 months Ministerial Departments All emails referring to [the applicant] or [their] matters or complaints, sent to or from any Minister, Ministerial Department or Parliamentary Committee from 4 December 2018 to 21 January 2019. Shared network drives, personal network drives, staff email accounts, generic email accounts. Contacting all GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms. At least 1 but less than 50 4-5 weeks Ministerial Departments All correspondence and documents, excluding emails, referring to [the applicant], sent to or from the following departments: MAU, Emergency, Mental Health, Rheumatology, Radiology and Orthopaedics, and including Drs [named] from 1 January 2012 to 21 January 2019. Shared network drives, personal network drives, hard-copy archived correspondence files, patient medical records. Contacting all GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms; physical inspection and copying of archived material. Unable to estimate 6 months Nil All communications, excluding emails, sent to and from the Physiotherapy Clinic from 1 January 2014 to 21 January 2019. Shared network drives, personal network drives, hard-copy archived correspondence files, patient medical records. Contacting all GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms; physical inspection and copying of archived material. 0-50 3 months Nil Overview of GCHHS Submissions – 314508 / 3749 IP and 3779 IP Relevant Documents Location Search Types Estimated Pages Estimated Processing Time Third Party Consults All documents, records and communications, excluding emails, relating to [the applicant’s] treatment in the [named] clinic and [their] related rape and Patient Liaison Service complaints from 1 January 2010 to 18 February 2019. Shared network drives, personal network drives, hard-copy archived correspondence files. Contacting all GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms; physical inspection and copying of archived material. 0-50 3 months Nil All documents, records and communications, excluding emails, from 1 January 2010 to 18 February 2019 relating to [the applicant’s] complaints about alleged sexual assault by Dr [named] (including statements and reports by a nurse who was present and whom [the applicant] asked to report the incident). Shared network drives, personal network drives, hard-copy archived correspondence files. Contacting all GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms; physical inspection and copying of archived material. 0-50 3 months Nil All documents, records and communications, excluding emails, from 1 January 2010 to 18 February 2019 relating to [the applicant’s] complaints about the alleged multiple rapes of [named individual]. Shared network drives, personal network drives, hard-copy archived correspondence files, patient medical records. Contacting all GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms; physical inspection and copying of archived material. 0-50 3 Months [Named individual] All documents, records and communications, excluding emails, from 1 January 2010 to 18 February 2019 relating to subsequent pressing of policy changes against [named individual]. Shared network drives, personal network drives, hard-copy archived correspondence files. Contacting all GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms; physical inspection and copying of archived material. 0-50 3 months [Named individual] All emails from 4 December 2018 to 18 February 2019 relating to the [four] matters ... above. Shared network drives, personal network drives, generic email accounts, personal email accounts. Contacting all GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms. Unable to estimate 3 months [Named individual] All documents and communications, excluding emails, relating to holding [the applicant] under an EAO and [their] related complaints from 1 January 2010 to 18 February 2019. Shared network drives, personal network drives, hard-copy archived correspondence files, patient medical records. Contacting all GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms; physical inspection and copying of archived material. 0-50 3 months Queensland Police Service All documents, excluding emails, about [the applicant] that were drafted, influenced by or sent to or from [named individual] with corresponding page numbers from 1 January 2010 to 18 February 2019. Shared network drives, personal network drives, hard-copy archived correspondence files. Contacting all GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms; physical inspection and copying of archived material. Unable to estimate 3 months Nil All emails about [the applicant] or [their] matters that were drafted, influenced by or sent to or from [named individual] with corresponding page numbers from 4 December 2018 to 18 February 2019. Shared network drives, personal network drives, generic email accounts, personal email accounts. Contacting all GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms. More than 1 but less than 50 4-5 weeks Nil A log of who has accessed [the applicant’s] records from 1 January 2010 to 18 February 2019. GCHHS and Queensland Health databases. Contacting area responsible for the database and requesting an audit trail 50-100 4-5 weeks Nil Details pertaining to a letter sent 12/04/2018 and included in 3737 IP release at pages 84-85. N/A N/A N/A N/A N/A Documents substantiating a claim of harassment referred to in the letter identified above at (j). N/A N/A N/A N/A N/A All text messages about [the applicant] authored by [named individuals] from 1 January 2010 to 18 February 2019. Work mobile telephones belonging to named individuals. Requesting, obtaining and search devices; sending devices away for expert analysis. 0-50 6 months Nil All text messages about [the applicant] by any forensic medical officer or Southport Watchouse nurse, and any records or documents created by such staff from 1 January 2010 to 18 February 2019. Work mobile telephones, shared network drives, personal network drives, hard-copy archived correspondence files, personal email accounts, generic email accounts. Requesting, obtaining and search devices; sending devices away for expert analysis; contacting all relevant GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms. 0-50 6 months Nil All radiologist opinions regarding [the applicant’s] ankle from 1 January 2010 to 18 February 2019. Patient medical records, shared network drives, personal network drives, hard-copy archived correspondence files, personal email accounts, generic email accounts. Contacting all relevant GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms. More than 1 but less than 50 3 months Nil All documents, excluding emails, to or from police, including the 'Fixated Persons Unit' from 1 January 2010 to 18 February 2019. Shared network drives, personal network drives, hard-copy archived correspondence files. Contacting all relevant GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms. 0-50 3 months Queensland Police Service All emails to or from police, including the 'Fixated Persons Unit' from 4 December 2018 to 18 February 2019. Shared network drives, personal network drives, generic email accounts, personal email accounts. Contacting all relevant GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms. 0-50 4-5 weeks Queensland Police Service All calendar entries and other documents, excluding emails, relating to telephone consults and conferences with OHO about [the applicant], including the full names of officers involved from 1 January 2010 to 18 February 2019. Shared network drives, personal network drives, hard-copy archived correspondence files. Contacting all relevant GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms. 0-50 3 months OHO All emails relating to telephone consults and conferences with OHO about [the applicant], including the full names of officers involved from 4 December 2018 to 18 February 2019. Shared network drives, personal network drives, generic email accounts, personal email accounts. Contacting all relevant GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms. 0-50 4-5 weeks OHO Overview of GCHHS Submissions – 314566 / 3784 IP Relevant Documents Location Search Types Estimated Pages Estimated Processing Time Third Party Consults All emails to and from ED, MAU, ophthalmology, rheumatology, physiotherapy, mental health, radiology, orthopaedics and [named clinic]. Shared network drives, personal network drives, generic email accounts, personal email accounts, hard-copy archived correspondence files. Contacting all GCHHS departments and staff employed within the time-period specified; Queensland Health IT data searches using designated search terms; physical inspection and copying of archived material. Unable to estimate 3 months Nil [1] Access applications dated 4 December 2018 (external review 314410), 21 January 2019 (external review 314478), 24 January 2019 and 18 February 2019 (external review 314508) and 27 February 2019 (external review 314566).[2] The scope of each access application is set out in full at paragraphs 18 to 21 below.[3] Decisions dated 22 January 2019 (external review 314410), 15 March 2019 (external review 314508), and 10 April 2019 (external review 314566).[4] Decision dated 26 February 2019. Footnote 23 below sets out the portion of the access application which is not in issue in external review 314478.[5] External review applications dated 22 January 2019 (external review 314410), 27 February 2019 (external review 314478), 15 March 2019 (external review 314508), and 10 April 2019 (external review 314566).[6] Submission dated 3 April 2019.[7] Access application dated 4 December 2018.[8] Access application dated 21 January 2019.[9] Access application dated 24 January 2019.[10] Access application dated 27 February 2019.[11] Section 58 of the IP Act.[12] Macquarie Dictionary, Seventh Edition.[13] Collins English Dictionary, Twelfth Edition.[14] Macquarie Dictionary, Seventh Edition.[15] Collins English Dictionary, Twelfth Edition.[16] Section 60(2) of the IP Act. [17] Section 61(1)(a) of the IP Act.[18] Section 61(1)(b) of the IP Act.[19] Section 61(1)(c) of the IP Act.[20] Section 61(1)(a) of the IP Act.[21] Under section 61(6) of the IP Act, the ‘prescribed consultation period’ for a written notice under section 61(1)(a) is ten business days after the date of the notice, or the longer period agreed by the agency and the applicant (whether before or after the end of the 10 business days).[22] Under section 61(5) of the RTI Act, failure to consult includes the applicant not giving written notice either confirming or narrowing the application under section 61(2) of the RTI Act.[23] I note that GCHHS dealt with the applicant’s request for access to ‘All correspondence, documents and emails referring to [the applicant], [the applicant’s] matters or complaints, sent to or from any Minister, Ministerial Department or Parliamentary Committee’. Accordingly, this portion of the access application is not in issue in external review 314478.[24] On 9 January 2019, 1 March 2019, and 3 April 2019 respectively.[25] Being 23 January 2019, 15 March 2019, and 17 April 2019 respectively.[26] By email to the applicant dated 15 January 2019.[27] On 10 January 2019 at 3:02am and 15 January 2019 at 10:51am in relation to external review 314410, on 1 March 2019 at 8.56am, 10.15am and 3.44pm, 4 March 2019 at 10.21am, 6 March 2019 at 11.52am, 8 March 2019 at 5.13pm and 14 March 2019 at 2.07pm in relation to external review 314508 and on 3 April 2019 at 1.28pm, and 11.16pm, 4 April 2019 at 9.18am and 7 April 2019 at 4.32pm in relation to external review 314566.[28] Particularly given I consider that the scope of the application the subject of 314478 is substantially encompassed by the applicant’s request in relation to external review 314410.[29] At page 5 of GCHHS’s Notice.[30] As set out in GCHHS’s Notice dated 9 January 2019.[31] Email dated 10 January 2019 at 3:02am.[32] Email dated 22 January 2019 at 5:26pm in relation to external review 314410.[33] Submission to OIC dated 13 August 2019.[34] During a conversation with an officer of OIC on 15 April 2019.[35] During the conversation with an officer of OIC on 15 April 2019.[36] At page 4 of the decision dated 15 March 2019 in relation to external review 314508 and page 3 of the decision dated 10 April 2019 in relation to external review 314566.[37] Page 2 of the reasons for the decision dated 15 March 2019.[38] As set out in the applicant’s email to GCHHS dated 4 April 2019.[39] Page 3 of the reasons for the decision dated 10 April 2019.[40] While I note that the date ranges for each application is slightly different, the date range sought in: • external review 314478 is almost entirely covered by the date range sought in external review 314410 • external review 314508 is greater than that sought for external review 314410; and • external review 314566 is almost entirely covered by the date range sought in external review 314410.[41] Excluding emails captured by item (a) of external review 314410 and, for the submissions regarding external reviews 314478 and 314508, emails captured by external review 314566.[42] Separate letters to OIC dated 27 June 2019 in relation to each external review.[43] As set out in Attachment A to the separate letters to OIC dated 27 June 2019 in relation to each external review.[44] Separate letters to OIC dated 27 June 2019 in relation to each external review.[45] Palmer and Townsville City Council (Palmer) [2019] QICmr 43 at [21]. See also Beanland and Department of Justice and Attorney-General [1995] QICmr 38; (1995) 3 QAR 26 at [58] and Woodyatt and Minister for Corrective Services [1995] QICmr 1; (1995) 2 QAR 383 at [35] which are discussed in Palmer at paragraphs [24]-[25]. [46] ‘Substantial’ is defined as meaning ‘considerable amount, quantity, size, etc.’ (Macquarie Dictionary, Seventh Edition) and ‘of a considerable size or value’ (Collins English Dictionary, Twelfth Edition).[47] Marigliano and Tablelands Regional Council [2018] QICmr 11 (15 March 2018), at [30] citing Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1550 (29 October 2012) at [39], adapting the factors listed in Cianfrano v Premier’s Department [2006] NSWADT 137 at [62] to [63], the latter cited in Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49 at [29]. The factors are not exhaustive.[48] As previously noted at paragraph 44 above, I may look at the facts as they stand at the time of making my decision. At the time of making my decision there are four applications to be decided. [49] ‘Unreasonable’ is relevantly defined as meaning ‘exceeding the bounds of reason; immoderate; exorbitant’ (Macquarie Dictionary, Seventh Edition) and ‘immoderate; exorbitant’ (Collins English Dictionary, Twelfth Edition). [50] Letter dated 25 September 2019.

queensland

court_judgement

Queensland Information Commissioner 1993-

York and Department of Police [1997] QICmr 29 (15 August 1997)

York and Department of Police [1997] QICmr 29 (15 August 1997) York and Queensland Police Service (S 79/95, 15 August 1997, Information Commissioner Albietz) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1. - 5. [These paragraphs removed.] REASONS FOR DECISION Background By letter dated 6 February 1995, the applicant requested access under the FOI Act to certain information held by the Queensland Police Service (the QPS). In that letter, the applicant relevantly stated: I request all information naming dates, time, and any other accusations involving [a third party] v myself. It is important that every time she has phoned or visited the police and named myself or other persons about the same problems be included in any type of copys. I am aware that what I request is a rather large file but every time I or others were accused is very important to help my case for compensation from the relevant partys involved. It should be noted that I had asked the [local] police at various times for information as to this case but was refused anything even though I have seen the file and some of its vast amount of complaints, all of which were never found true by anyone. Having received no response from the QPS within the time prescribed by the FOI Act, the applicant applied to me for review, under Part 5 of the FOI Act, of the QPS's deemed refusal of access to the information he had requested: see s.79 of the FOI Act. In his application for external review, dated 10 April 1995, he stated: The document/file contains dates and times, what happened, etc. from accusations made by [the third party] of [the third party's address]. The file also contains information of other people that have been accused of the same thing before I was accused and now further people which are now accused. It should be noted that I have been proven NOT guilty of anything with regards to [the third party]. ... As a result of [the third party] accusations, I have no choice but to commence legal action to recover costs incurred when losing the job, being evicted, moving expenses for the three moves, etc, plus I seek a public apology from her relieving (sic) myself from any past or present or future involvement from the whole matter. The file is necessary to substantially prove her and the [local] police harassment upon myself. There is a possibility that [the third party] will move from the area making the recovery of any costs very difficult indeed which is why I would appreciate the help to obtain the file and any other documents that "prove my innocence in writing”. I have been visited by the Superintendent of [the regional centre] Police at my request for an apology from the police, at this visit he had the file with him and although he gave a personal apology I was not able to copy any information, incidentally, these accusations would number around 400! ... External Review Process Upon receipt of Mr York's application for external review, I obtained copies of the documents which the QPS identified as the documents falling within the terms of Mr York's FOI access application dated 6 February 1995. Those documents (numbered 001-030 (inclusive)) have been examined in my office. By letter dated 31 May 1995, the QPS informed me that it was prepared to give the applicant access to the documents numbered 001-004 and 006-010. By letter dated 26 April 1996, I authorised the QPS to give the applicant access to those documents, subject to the deletion of segments of those documents which concerned entirely separate police matters (having nothing to do with Mr York) being matter which fell outside the terms of Mr York's FOI access application. By letter dated 7 May 1996, the QPS informed me of its revised position in respect of the balance of the matter in issue. In summary, the QPS was prepared to give the applicant access to the matter remaining in issue, except for certain matter which it considered fell outside the terms of the applicant's FOI access application and/or matter which it claimed to be exempt matter under s.44(1) of the FOI Act. That matter comprised the name of another person, and [the third party's] date of birth, where they appeared in the documents remaining in issue. As a result of the QPS's revised position on the documents remaining in issue, I consulted a third party concerning disclosure of the documents in issue to the applicant. Whilst the third party did not apply to become a participant in the review, the third party objected to the applicant being given access to the matter which the QPS was prepared to release to the applicant. The QPS was subsequently informed of the third party's objections and, by letter dated 3 October 1996, the QPS altered its position in respect of release of the documents to the applicant. By letter dated 18 March 1997, I informed the applicant of my preliminary view in relation to the matter remaining in issue and invited the applicant to provide me with any written submission and/or evidence on which he wished to rely in this external review. In that letter, I informed the applicant that certain of the information contained in the documents remaining in issue related to totally separate police investigations and as such was matter clearly falling outside the terms of his FOI access application. I indicated that I would proceed on the basis that this matter was no longer in issue in this external review. By letter to my office dated 20 March 1997, the applicant raised a 'sufficiency of search' issue, stating: The amount of incidents where the [local] Police came to me formally and said that "[the third party] has accused me of rocking her roof" was on dozens of occasions, plus on many of the Police visits, the Police had told me of many other complaints where [the third party] had named me. By letter to the applicant dated 2 April 1997, the Assistant Information Commissioner sought from the applicant more specific details of the 'many occasions' on which the applicant claims the local police spoke to him concerning complaints made by [the third party]. By letter dated 8 April 1997, the applicant purported to respond to the Assistant Information Commissioner's letter to him dated 2 April 1997, but failed to provide any information which would be of assistance to the QPS in identifying and locating any further documents which may exist and fall within the terms of his FOI access application. By letter dated 16 April 1997, the Assistant Information Commissioner sought further information from the applicant concerning the 'sufficiency of search' issue. The Assistant Information Commissioner confirmed that the applicant no longer wished to pursue access to [the third party's] date of birth and telephone number where that information appeared in the documents in issue, and gave the applicant a final opportunity to provide him with any written submission and/or evidence on which he wished to rely in this external review. The applicant was given until 30 April 1997 in which to respond. By letter dated 14 May 1997, the Assistant Information Commissioner provided the QPS with copies of the applicant's letters to this office dated 20 March 1997 and 8 April 1997 respectively. In that letter, the Assistant Information Commissioner drew the QPS's attention to the following excerpt from the applicant's FOI access application dated 10 April 1995: I have been visited by the Superintendent of [the regional centre] Police at my request for an apology from the police, at this visit he had the file with him and although he gave a personal apology I was not able to copy any information, incidentally, these accusations would number around 400! The Assistant Information Commissioner asked the QPS to respond in respect to the 'sufficiency of search' issue raised by the applicant. By letter dated 16 May 1997, the QPS provided its response indicating, inter alia, that it could not be of any further assistance in respect of locating additional documents without further probative information being provided by the applicant. By letter dated 27 May 1997, the Assistant Information Commissioner provided the applicant with a copy of the QPS's letter dated 16 May 1997 and informed the applicant that in the light of the QPS's response and the applicant's failure to provide any further details regarding the issue, he did not propose to ask the QPS to conduct further searches for documents falling within the terms of the applicant's FOI access application (a copy of this letter was provided to the QPS for its information). During a telephone conversation on 30 May 1997, the applicant informed a member of my staff that he would provide this office with the relevant details concerning the 'sufficiency of search' issue in the near future. By letter dated 18 June 1997, not having received anything further from the applicant, the Assistant Information Commissioner informed the applicant that if he did not receive any further information from the applicant, in writing, by 25 June 1997, I would proceed to determine the matter. Nothing further has been received from the applicant. I do not propose to deal further, in these reasons for decision, with the 'sufficiency of search' issue raised by the applicant. The position with respect to that issue was made clear to the participants by the Assistant Information Commissioner's letter dated 27 May 1997, and nothing has occurred since that time which would cause me to alter that position. Matter falling outside the scope of the applicant's FOI access application Documents numbered 005 and 019 It is my view that these documents do not fall within the terms of the applicant's FOI access application. Documents numbered 005 and 019 do not relate to a complaint made by [the third party]. Further, disclosure to the applicant of these documents would not assist the applicant in respect of his stated purpose in requesting access to the documents in issue, i.e., to obtain documentary evidence to support a legal action against certain persons to recover damages for the loss he claims he has suffered as a result of the complaints made by [the third party] to the local police. (In referring to the applicant's stated purpose for requesting the documents, I do not mean to suggest that any such legal action by Mr York would have any legal merits or prospects of success. That is not for me to determine.) Documents numbered 013, 015, 016, 017, 025, 026 These documents do not mention the applicant. Whilst the matter contained in documents numbered 013, 015, 017, 025 and 026 relate to complaints made by [the third party] to the police, such matter is not, in my view, matter falling within the terms of the applicant's FOI access application. Neither the applicant nor any other person is named in connection with the complaints made in these documents However, document 016 is somewhat different Whilst it does not refer to the applicant in any way, another person is named in connection with the complaint by [the third party]. I consider that this document falls within the terms of the applicant's FOI access application in that the applicant requested information concerning "...every time [the third party] has phoned or visited the police and named myself or other persons about the same problem...". I find that the documents numbered 005, 019, 013, 015, 017, 025 and 026 do not fall within the terms of the applicant's FOI access application, and hence are excluded from the scope of this application for review. Application of s.44(1) of the FOI Act Sections 44(1) and (2) of the FOI Act provide: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. (2) Matter is not exempt under subsection (1) merely because it relates to information concerning the personal affairs of the person by whom, or on whose behalf, an application for access to a document containing the matter is being made. In applying s.44(1) of the FOI Act, one must first consider whether disclosure of the matter in issue would disclose information that is properly to be characterised as information concerning the personal affairs of a person. If that requirement is satisfied, a prima facie public interest favouring non-disclosure is established, and the matter in issue will be exempt, unless there exist public interest considerations favouring disclosure which outweigh all identifiable public interest considerations favouring non-disclosure, so as to warrant a finding that disclosure of the matter in issue would, on balance, be in the public interest. In my reasons for decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, I identified the various provisions of the FOI Act which employ the term “personal affairs” and discussed in detail the meaning of the phrase “personal affairs of a person”, and relevant variations thereof, in the FOI Act (see pp.256-267, paragraphs 79-114, of Re Stewart). In particular, I said that information concerns the “personal affairs of a person” if it relates to the private aspects of a person’s life, and that, while there may be a substantial grey area within the ambit of the phrase “personal affairs”, that phrase has a well accepted core meaning which includes: affairs relating to family and marital relationships; health or ill-health; relationships with and emotional ties with other people; and domestic responsibilities or financial obligations. Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, to be determined according to the proper characterisation of the information in question. Document number 016 I consider that document 016 concerns the personal affairs of both [the third party] and another person, but contains no information concerning the applicant. Document 016 is therefore prima facie exempt from disclosure to the applicant under s.44(1) of the FOI Act. It is therefore necessary for me to consider if there are any public interest considerations of sufficient weight to displace the prima facie exempt status of that matter. The applicant has informed me that he requires the documents as requested from the QPS as evidence of [the third party's] harassment of him over a period of time. Given that this particular document does not mention him in any way, I do not consider that there are any public interest considerations favouring disclosure of document 016 which are of sufficient weight to displace the public interest in non-disclosure which is inherent in the satisfaction of the test for prima facie exemption under s.44(1) of the FOI Act. I find that the document is exempt from disclosure to the applicant under s.44(1) of the FOI Act. Documents numbered 011-012, 014, 018, 020-024, 027-030 I consider that the information contained in these documents is properly to be characterised as information concerning the 'shared' personal affairs of both the applicant and [the third party] (with the exception of a small amount of matter which I will deal with separately below). I considered the concept of 'shared personal affairs' in my decision in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279. At paragraph 176 of Re "B", I stated: Thus, if matter relates to information concerning the personal affairs of another person as well as the personal affairs of the applicant for access, then the s.44(2) exception to the s.44(1) exemption does not apply. The problem here arises where the information concerning the personal affairs of the applicant is inextricably interwoven with information concerning the personal affairs of another person. The problem does not arise where some document contains discrete segments of matter concerning the personal affairs of the applicant, and discrete segments of matter concerning the personal affairs of another person, for in those circumstances: (a) the former will fall within the s.44(2) exception; (b) the latter will be exempt under s.44(1) (unless the countervailing public interest test applies to negate the prima facie ground of exemption); and (c) s.32 of the FOI Act can be applied to allow the applicant to have access to the information concerning the applicant's personal affairs, by the provision of a copy of the document from which the exempt matter has been deleted. Where, however, the segment of matter in issue is comprised of information concerning the personal affairs of the applicant which is inextricably interwoven with information concerning the personal affairs of another person, then: (a) severance in accordance with s.32 is not practicable; (b) the s.44(2) exception does not apply; and (c) the matter in issue is prima facie exempt from disclosure to the applicant according to the terms of s.44(1), subject to the application of the countervailing public interest test contained within s.44(1). The majority of the matter in these documents which concerns the applicant's personal affairs is inextricably interwoven with information concerning the personal affairs of [the third party]. In accordance with my reasoning in Re "B" (see paragraph 111, page 344), such matter is prima facie exempt from disclosure to the applicant under s.44(1), subject to the application of the countervailing public interest balancing test contained within s.44(1). In this case, there are a number of elements which favour disclosure of the matter to the applicant. Since most of the matter in issue in these documents also concerns the applicant's personal affairs, he is entitled to rely on s.6 of the FOI Act, which provides: 6. If an application for access to a document is made under this Act, the fact that the document contains matter relating to the personal affairs of the applicant is an element to be taken into account in deciding - (a) whether it is in the public interest to grant access to the applicant; and (b) the effect that the disclosure of the matter might have. Further, it is clear from an examination of the matter in issue that the applicant is already clearly aware of much of the information contained in the documents, as on most of the occasions recorded in the documents, the police spoke to him regarding [the third party's] complaints. This also has the effect of reducing the weight to be accorded to protecting the privacy interests of [the third party] in respect of that information, at least in so far as disclosure to the applicant is concerned. In my view, these factors are sufficient in this case to displace the prima facie exempt status of those segments of the documents in issue which concern the personal affairs of both the applicant and [the third party]. However, there is some matter contained in the documents in issue which, in my view, concerns only the personal affairs of [the third party] and another person, and which can be easily severed from the information which concerns the applicant's personal affairs. The matter to which I refer comprises the name of another person, [the third party's] date of birth, and [the third party's] telephone number where that appears in the documents. The applicant has already indicated that he does not wish to pursue access to [the third party's] date of birth or her telephone number. Therefore, that matter is no longer in issue in this external review. In respect of the name of the other person which appears in the documents, I said in Re Stewart (at paragraph 80) that the mention of a person's name in police records in association with some possible wrongdoing is information which concerns that person's personal affairs. Such matter is, therefore, prima facie exempt matter under s.44(1) of the FOI Act. In considering the application of the public interest balancing test to such matter, I find that there are no public interest considerations favouring disclosure which are of sufficient weight to displace its status as matter which is prima facie exempt under s.44(1). I find that the references to the name of a person other than the applicant and [the third party], which appear in the document in issue, are exempt matter under s.44(1) of the FOI Act. General In respect of folio 024, I consider that I should mention that the third party claims that the information contained in this folio is inaccurate, in so far as it records the information provided to the police. Decision For the foregoing reasons, I vary the decision under review, by deciding that the applicant is entitled to be given access to documents numbered 001-030 (inclusive), with the exception of the following matter: matter falling outside the terms of his FOI access application (relating to separate police matters) on folios 007, 010, 014, 018, 020, 021, 022, 023, 024, 027, 028, 029, 030. [the third party's] date of birth on folios 018, 020, 021, 022, 023, 024, 027, 030. [the third party's] telephone number on folios 014. reference to another person on folios 011, 014. documents numbered 005, 013, 015, 017, 019, 025 and 026, which I determine to be documents falling outside the terms of the applicant's FOI access application. document 016 which I find to be exempt in its entirety under s.44(1) of the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Gerhardt and Brisbane City Council [2012] QICmr 62 (27 November 2012)

Gerhardt and Brisbane City Council [2012] QICmr 62 (27 November 2012) Last Updated: 27 August 2013 Decision and Reasons for Decision Application Number: 310766 Applicant: Gerhardt Respondent: Brisbane City Council Decision Date: 27 November 2012 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – GROUNDS ON WHICH ACCESS MAY BE REFUSED – EXEMPT INFORMATION – an agency may refuse access to a document to the extent the document comprises exempt information – information subject to legal professional privilege – whether the information would be privileged from production in a legal proceeding on the ground of legal professional privilege – sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION – GROUNDS ON WHICH ACCESS MAY BE REFUSED – NONEXISTENT DOCUMENTS – applicant contends additional documents exist – an agency may refuse access to a document because the document is nonexistent or unlocatable – whether the agency has taken all reasonable steps to locate the documents but the documents cannot be found – sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to Brisbane City Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for all documents relating to the applicant and his company, including documents relating to any investigation conducted by Council into the applicant. Council identified 1345 pages responsive to the access application and decided to grant access to 746 full pages and 30 part pages, and refuse access to the balance of the information. The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision to refuse access to information (refusal of access) and also contended that Council had not located all relevant documents (sufficiency of search). During the external review, additional responsive documents were located. Council also agreed to release some information to the applicant and several issues were informally resolved.[1] As a result, the information under consideration in this review has been narrowed to information which Council claims is exempt on the basis of legal professional privilege. In the circumstances of this review, Council is entitled to refuse access to the remaining information in issue as it would be privileged from production in a legal proceeding on the ground of legal professional privilege, and Council is entitled to refuse access to the documents which the applicant alleges have not been located, on the basis that they do not exist. Background Significant procedural steps relating to the application are set out in the appendix to this decision. Reviewable decision The decision under review is Council’s decision dated 23 August 2011. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). Information in issue As noted at paragraph 4, the information remaining in issue was reduced on external review and is located on 543 full pages and 8 part pages (Information in Issue). Issues in this review The remaining issues for determination in this review are whether: the Information in Issue is exempt under schedule 3, section 7 of the RTI Act; and access can be refused to additional documents on the basis that the documents do not exist. Is Council entitled to refuse access to the Information in Issue? Yes, for the reasons that follow. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[2] However, this right is subject to other provisions of the RTI Act including the grounds on which an agency may refuse access to documents.[3] Relevantly, the RTI Act provides that access may be refused to documents to the extent that they comprise exempt information.[4] Schedule 3 sets out categories of information the disclosure of which Parliament has deemed to be contrary to the public interest, and therefore exempt from disclosure.[5] Schedule 3, section 7 of the RTI Act provides that information will be exempt from disclosure if it would be privileged from production in a legal proceeding on the ground of legal professional privilege. This exemption reflects the requirements for establishing legal professional privilege at common law.[6] The general principles of legal professional privilege were summarised by the High Court of Australia in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission[7] as follows: It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. The dominant purpose is ‘the ruling, prevailing, paramount or most influential purpose’[8] and is to be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions.[9] Legal professional privilege is generally divided into two categories, advice and litigation privilege.[10] Advice privilege attaches to confidential communications between a legal adviser and client or third party which are made for the dominant purpose of obtaining or providing legal advice.[11] Litigation privilege attaches to confidential communications between a legal adviser and client in relation to current or reasonably anticipated litigation.[12] In some cases, communications may not be subject to legal professional privilege because privilege has been waived, either expressly or impliedly, or the improper purpose exception applies. Findings Section 108(3) of the RTI Act prohibits the Information Commissioner from including information that is claimed to be exempt in reasons for a decision on external review. This prevents me from describing the actual content of the Information in Issue in these reasons. However, the Information in Issue is generally made up of: correspondence between Council officers and Council’s legal advisors, including legal advisors in the Brisbane City Legal Practice and Council’s external legal advisors file notes and memoranda of advice prepared by Council’s legal advisors correspondence between potential witnesses and Council officers and/or Council’s legal advisors; and internal Council documents and correspondence which convey the substance of Council’s legal advice to other Council officers. Having carefully reviewed the Information in Issue, I am satisfied that the dominant purpose of the communications in the Information in Issue was: to seek or provide legal advice about various matters being undertaken by Council; and/or for use in existing or reasonably anticipated legal proceedings, including a prosecution in the Magistrates Court. I am satisfied that the relevant officers within Brisbane City Legal Practice[13] and Council’s external legal advisor have the necessary degree of independence required to attract legal professional privilege. The applicant submits that the Information in Issue: ... would contain pages that have been produced by other parties, third parties or have been circulated or read by other parties and or third parties whom were not bound by legal professional privilege and therefore those pages would not be considered legal professional privilege.[14] The applicant has not provided any evidence to support this submission. I am satisfied that Brisbane City Legal Practice was under a duty to keep communications on its legal files confidential. There is nothing before me indicating that the Information in Issue has not been treated in a confidential manner. As noted above, the Information in Issue includes internal Council documents and correspondence which conveys the substance of Council’s legal advice to other Council officers. Merely communicating privileged legal advice internally within a corporation or agency will not of itself deprive the agency or corporation of the benefit of that privilege.[15] I am satisfied that legal professional privilege has not been waived by circulating the legal advice to a small number of officers within Council. The Information in Issue includes some correspondence between Council’s legal advisors and/or Council officers and third parties outside of Council. Having carefully examined these communications, I am satisfied that they were for the dominant purpose of obtaining evidence from potential witnesses to a prosecution that had either commenced, or was reasonably anticipated, at the time of the communication. Accordingly, I am satisfied litigation privilege applies to these communications.[16] Based on the above, I find that the Information in Issue satisfies the requirements for legal professional privilege. There is no information before me that suggests that legal professional privilege has been waived or that the communications were made in furtherance of any illegal or improper purpose. Accordingly, I find that Council is entitled to refuse access to the Information in Issue as it is exempt under schedule 3, section 7 of the RTI Act. Is there a reasonable basis to be satisfied that no additional documents responding to the access application exist? Yes, for the reasons that follow. Relevant law The RTI Act provides that access to a document may be refused if the document is nonexistent or unlocatable.[17] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[18] The RTI Act is silent on how an agency or Minister can be satisfied that a document does not exist. However in PDE and the University of Queensland[19] (PDE), the Information Commissioner explained that, to be satisfied that a document does not exist, an agency must rely on its particular knowledge and experience, having regard to various key factors including: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including: the nature and age of the requested document/s; and the nature of the government activity the request relates to. When these factors are properly considered and a conclusion reached that the document does not exist, it may be unnecessary for searches to be conducted. Alternatively, an agency may rely on searches to justify a decision that the document sought does not exist. If an agency relies on searches, all reasonable steps must be taken to locate the requested document. In determining whether all reasonable steps have been taken, regard should be had to the factors listed in PDE. Findings In deciding that Council has taken all reasonable steps to locate any additional documents and that there is a reasonable basis to satisfied that no additional documents exist, I have had regard to: the information identified by Council in response to the access application—including both the information released to the applicant and the Information in Issue Council’s recordkeeping practices in relation to the types of documents the applicant sought the nature and extent of the searches conducted by Council in processing the access application and on external review; and the signed search certifications provided by Council officers. The applicant believes that additional documents relevant to his access application exist and submits[20] in summary that: specific categories of documents—such as reports, internal and external correspondence, evidence and investigation checklists—should exist in relation to various investigations carried out by Council and in relation to a prosecution commenced by Council additional documents should exist in relation to the eleven properties listed in his access application documents may have been created by ten named Council officers documents may be held by Council’s Office of Built Environment and Land Use, the Special Investigation Unit, Brisbane City Legal Practice and the Office of the Lord Mayor; and Council is ‘intentionally concealing and covering up/hiding documents’ relevant to his access application. During the processing of the access application, Council: searched its electronic record system for each of the property addresses listed in the access application searched its electronic record system for both the applicant’s name and the name of his business; and obtained and reviewed a considerable number of hard copy files, with 24 files ultimately found to be relevant to the application, along with miscellaneous emails provided by various Council officers. Council conducted the following additional searches on external review. Council located and provided OIC with the attachments to some emails contained in the Information in Issue, where those attachments had not been identified during the processing of the access application. At OIC’s request, relevant Council officers conducted further searches of their email accounts, and the G drive where applicable, for any additional emails relevant to the access application. A number of additional relevant emails were produced to OIC. Some of these were released to the applicant, while others form part of the Information in Issue. Council’s Right to Information Officer retrieved and re-examined all relevant Council hard copy files to check that all responsive documents had been identified. A number of additional documents were identified and produced to OIC as a result of these searches. Most were released to the applicant, while some form part of the Information in Issue. Relevant Council officers signed search certifications detailing the additional searches conducted. The search certifications indicate that Council officers spent over 26 hours searching for additional documents on external review. Council also made submissions about its recordkeeping practices over the period relevant to the access application. Council submits[21] that searches of its electronic email records were limited by the fact that Council transitioned its email management system in late 2010. As a result, unless emails were archived in a particular manner, Council submits that it is not possible to electronically search for earlier emails without restoring numerous email accounts at a significant cost. Council further submits that its usual practice for this type of process at the relevant time was ‘... to have a hard copy file registered for the issue/property in question. Documents, as they were created or received, would be printed out/placed on these files’.[22] As Council has conducted searches in response to the applicant’s submissions that additional documents exist, the issue is whether Council has taken all reasonable steps to locate the additional documents. In deciding this issue I do not consider it necessary to deal separately with each of the contentions raised by the applicant, nor Council’s individual responses as to why particular categories of documents do not exist. Based on Council’s knowledge of its recordkeeping practices at the relevant time covered by the access application, Council has extensively reviewed its hard copy files and conducted targeted searches of its electronic record management systems using appropriate search terms. Council identified relevant officers and units of Council which would be likely to hold documents which respond to the access application and conducted searches of their records. This included the areas of Council identified by the applicant in his access application and subsequently raised by the applicant on external review where they were within the scope of the access application. Based on my review of the information available to me, I find that there is no evidence to support the applicant’s claim that Council is ‘intentionally concealing and covering up/hiding documents’ relevant to his access application. I accept Council’s submission that the transitioning of its email management system has affected its ability to access electronic copies of emails during the relevant time period. In view of the information identified by Council in response to the access application and Council’s recordkeeping practices with respect to maintaining comprehensive hard copy files, I am satisfied there is no requirement for Council to search its back up systems for further documents.[23] Having reviewed all of the material before me—including the information released to the applicant in response to his access application, the Information in Issue and the submissions made by Council and the applicant—I am satisfied Council has taken all reasonable steps to locate relevant documents, and that there is a reasonable basis to be satisfied that no additional documents responding to the access application exist.[24] DECISION I vary the decision under review and find, for the reasons set out above, that: Council is entitled to refuse access to the Information in Issue under sections 47(3)(a) and 48 of the RTI Act; and as Council has taken all reasonable steps to locate relevant documents, access to further documents the applicant contends exist can be refused under sections 47(3)(e) and 52(1)(a) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ Lisa Meagher Acting Assistant Information Commissioner Date: 27 November 2012APPENDIX Significant procedural steps Date Event 10 May 2011 Council received the access application from the applicant’s legal representative. 23 August 2011 Council issued its decision to the applicant (Council’s decision). 20 September 2011 The applicant applied to OIC for external review of Council’s decision. 23 September 2011 The applicant made oral submissions about the sufficiency of search issue. 30 September 2011 OIC notified the applicant in writing that the external review application had been accepted and clarified the scope of the review. The applicant made further oral submissions about the sufficiency of search issue. 30 September 2011 OIC notified Council the external review application had been accepted and requested a copy of the documents to which access was refused. 14 October 2011 Council provided OIC with a copy of the documents to which access was refused. 3 November 2011 Council provided OIC with a further copy of documents to which access was refused. 8 February 2012 The applicant made oral submissions to OIC about the sufficiency of search issue. 2 March 2012 The applicant made oral submissions to OIC about the sufficiency of search issue. 6 March 2012 The applicant made submissions to OIC about the sufficiency of search issue and OIC’s processes. 8 March 2012 OIC responded to the applicant’s correspondence about the sufficiency of search issue and OIC’s processes. 9 March 2012 The applicant made submissions to OIC in relation to the sufficiency of search issue. 20 March 2012 Council provided OIC with a further copy of the documents to which access was refused. 21 March 2012 OIC asked Council for submissions about the refusal of access issue and the sufficiency of search issue. 5 April 2012 Council provided OIC with a submission on the refusal of access issue and advised it did not object to disclosing some information. 20 April 2012 Council provided OIC with a further submission on the refusal of access issue and the sufficiency of search issue. 26 April 2012 OIC asked Council to conduct further searches. 14 May 2012 OIC provided the applicant with an update on the review. 18 May 2012 OIC contacted the Building Services Authority (BSA) to request information about certain documents that Council claimed were exempt on the basis that disclosure would found a breach of confidence (BSA documents). BSA advised OIC that it did not object to disclosure of the BSA documents. 23 May 2012 Council provided OIC with additional documents responsive to the access application. 28 June 2012 OIC asked Council to release some information on the basis that Council did not object to its disclosure. OIC conveyed a preliminary view to Council that the BSA documents were not exempt. 28 June 2012 OIC wrote to the applicant conveying Council’s submissions about its searches and invited the applicant to make further submissions about the sufficiency of search issue. The applicant contacted OIC by telephone to discuss OIC’s letter. 2 July 2012 Council advised it had released some information to the applicant, and further advised that it accepted OIC’s view about the BSA documents. 3 July 2012 The applicant asked OIC to clarify the status of the review. 3 July 2012 OIC asked Council to release the BSA documents on the basis that it no longer objects to disclosing these documents. 4 July 2012 OIC provided further information on the status of the review to the applicant. 5 July 2012 Council released the BSA documents to the applicant. 5 July 2012 OIC requested Council provide a copy of the documents which were released to the applicant as part of Council’s decision. 10 July 2012 The applicant provided OIC with oral submissions about the sufficiency of search issue and the refusal of access issue. 10 July 2012 Council provided OIC with a copy of the documents which were released to the applicant as part of Council’s decision. 11 July 2012 OIC asked Council to provide further submissions about the sufficiency of search issue. 12 July 2012 Council provided OIC with further submissions about the sufficiency of search issue. 19 July 2012 The applicant provided OIC with written submissions about the sufficiency of search issue. 26 July 2012 The applicant made oral submissions about the sufficiency of search issue and OIC’s processes. 27 July 2012 OIC wrote to the applicant about OIC’s processes. 13 August 2012 OIC conveyed a preliminary view to Council on the sufficiency of search issue and asked Council to conduct further searches for documents which responded to the access application and have relevant officers complete search certifications. 23 August 2012 OIC asked Council to release further information on the basis that Council no longer objected to disclosure. 27 August 2012 OIC wrote to the applicant to provide an update on the external review and to provide information about the sufficiency of search issue. The applicant made oral submissions to OIC about the sufficiency of search issue. 28 August 2012 Council released further information to the applicant. 30 August 2012 OIC conveyed a preliminary view to Council that Council was not entitled to refuse access to certain information and invited Council to make submissions if it did not agree with the view. 11 September 2012 The applicant made oral submissions to OIC about the sufficiency of search issue and the external review process. 18 September 2012 The applicant made written submissions to OIC about the sufficiency of search issue and the external review process. 19 September 2012 OIC responded to the applicant’s written submissions about the sufficiency of search issue. 24 September 2012 Council provided OIC with a submission about the sufficiency of search issue, including signed search certifications from relevant Council officers, and copies of additional responsive documents which were located as a result of further searches. Council advised it did not object to disclosure of some of the additional documents located on external review. 25 September 2012 Council provided submissions about the refusal of access issue and advised it no longer objected to disclosing some information. 12 October 2012 OIC asked Council to release further information to the applicant on the basis that Council no longer objected to its disclosure. 12 October 2012 OIC conveyed a preliminary view to the applicant and invited the applicant to make submissions if he did not agree with the view. 15 October 2012 Council released further information to the applicant. 24 October 2012 The applicant made oral submissions to OIC on the sufficiency of search issue. 2 November 2012 The applicant advised OIC he did not accept the preliminary view and provided submissions on the sufficiency of search issue and the documents which Council claimed were exempt on the basis of legal professional privilege. 5 November 2012 OIC made further enquiries with Council in relation to the sufficiency of search issue. 8 November 2012 Council provided OIC with a submission on the sufficiency of search issue. [1] On 12 October 2012, OIC conveyed to the applicant the preliminary view that Council was entitled to refuse access to information on 33 part pages as it is either exempt because it would disclose the identity of a confidential source of information or because its disclosure would, on balance, be contrary to the public interest. The applicant accepted the view in relation to this information by not providing submissions on these aspects of the preliminary view. Accordingly, I have not considered this information in this decision.[2] Section 23 of the RTI Act.[3] As set out in section 47 of the RTI Act.[4] Section 47(3)(a) of the RTI Act. [5] Section 48(2) of the RTI Act. [6] Ozcare and Department of Justice and Attorney-General (Unreported, Information Commissioner of Queensland, 13 May 2011) at [12].[7] [2002] HCA 49; (2002) 213 CLR 543 at [9].[8] Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 at [416].[9] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at [692].[10] Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 322 (Mitsubishi) at [8]-[9]. [11] AWB v Cole (No.5) [2006] FCA 1234; (2006) 155 FCR 30 at [41]; Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [95]; Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357. [12] Mitsubishi. [13] The Information Commissioner considered the position of Council lawyers in Potter and Brisbane City Council [1994] QICmr 18; (1994) 2 QAR 37 and found that they have the necessary degree of independence to give independent legal advice which attracts legal professional privilege. [14] Submission to OIC dated 2 November 2012.[15] N55WLN and Department of Health [2012] QICmr 19 at [29].[16] Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at [246].[17] Sections 47(3)(e) and 52 of the RTI Act.[18] Section 52(1)(a) of the RTI Act.[19] [2009] QICmr 7. Although PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are replicated in section 52 of the RTI Act. [20] In the applicant’s external review application dated 20 September 2011 and various submissions made to OIC, including most recently in the submission dated 2 November 2012.[21] In its submission to OIC dated 24 September 2012.[22] In its submission to OIC dated 8 November 2012.[23] Section 52(3) of the RTI Act. [24] Sections 47(3)(e) and 52(1)(a) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Coventry and Cairns City Council [1996] QICmr 3; (1996) 3 QAR 191 (3 April 1996)

Coventry and Cairns City Council [1996] QICmr 3; (1996) 3 QAR 191 (3 April 1996) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96003Application L 19/94 Participants: DONALD COVENTRY Applicant CAIRNS CITY COUNCIL Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - letter in issue forwarded in confidence to the respondent by a third party - letter contained adverse comments on aspects of the applicant's performance of his employment duties - applicant's employment subsequently terminated by the respondent - whether disclosure of the letter to the applicant would found an action in equity for breach of confidence - whether disclosure of the letter to the applicant would be an unconscionable use of the letter by the respondent - application of s.46(1)(a) of the Freedom of Information Act 1992 Qld - whether the supplier of the letter had impliedly authorised its disclosure to the applicant if that were necessary to take appropriate action on the information conveyed in the letter - whether disclosure of the letter could reasonably be expected to prejudice the future supply of like information - application of s.46(1)(b) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.46(1)(a), s.46(1)(b), s.52, s.78, s.81Local Government Act 1936 Qld s.17, s17BAinsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; 66 ALJR 271Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596Attorney-General (NSW) v Quin (1990) 170 CLR 1; 64 ALJR 327Attorney-General's Department and Australian Iron and Steel Pty Ltd v Cockroft (1986) 10 FCR 180; 64 ALR 97; 12 ALD 468"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Coutts v Commonwealth of Australia [1985] HCA 40; (1985) 59 ALR 699Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re [1993] QICmr 2; (1993) 1 QAR 60 Hamilton and Queensland Police Service, Re (Information Commissioner Qld, Decision No. 94021, 26 August 1994, unreported)Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 60 ALJR 113; 62 ALR 321McEniery and Medical Board of Queensland, Re [1994] QICmr 2; (1994) 1 QAR 349Pemberton and The University of Queensland, Re (Information Commissioner Qld, Decision No. 94032, 5 December 1994, unreported) DECISION I set aside the decision under review (being the internal review decision made on behalf of the respondent by Mr N P Briggs on 23 May 1994). In substitution for it, I find that the matter in issue is not exempt from disclosure to the applicant under s.46(1) of the Freedom of Information Act 1992 Qld, and that the applicant has a right to be given access to the matter withheld from him pursuant to the decision under review.Date of decision: 3 April 1996............................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background .............................................................................................................. 1The external review process ..................................................................................... 2Application of s.46(1) of the FOI Act ....................................................................... 2 Application of s.46(1)(a) ........................................................................................ 3 Application of s.46(1)(b) ........................................................................................ 11Conclusion ................................................................................................................. 12 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96003Application L 19/94 Participants: DONALD COVENTRY Applicant CAIRNS CITY COUNCIL Respondent REASONS FOR DECISION Background1. The applicant seeks review of the respondent's decision to refuse him access under the Freedom of Information Act 1992 Qld (the FOI Act) to a letter which refers to aspects of the applicant's performance of his duties in his former employment as Director of the Cairns Regional Gallery.2. The applicant contends, in his application for external review, that the letter was used by the then Mayor of Cairns to influence the Board of Directors of the Cairns Regional Gallery, at its meeting on 17 January 1994, when the Board decided to recommend that the office of Gallery Director be made redundant. The Board's recommendation was given effect by a decision of the Cairns City Council, at its meeting on 18 January 1994, and the applicant's employment as Director of the Cairns Regional Gallery was terminated accordingly.3. The letter in question is dated 7 January 1994 and was written by a Mr Don Hall, Joint Managing Director of Professionally Directed Fundraising Associates Pty Ltd, a firm which had just completed a feasibility study report assessing the potential fundraising capacity of the Cairns Regional Gallery. The letter was addressed to the then Mayor of Cairns, Alderman Kevin Byrne, who was ex officio a member of the Board of the Cairns Regional Gallery, and was at that time the Chairman of the Board.4. In an FOI access application forwarded to the respondent on 7 February 1994, Mr Coventry specifically requested access to the letter described above, as well as a number of other specified files and documents. The letter is, however, the only document which remains in issue. The decision now under review is that of the respondent's then Chief Executive Officer, Mr N P Briggs, made on 23 May 1994 (on internal review pursuant to s.52 of the FOI Act). Mr Briggs decided that the letter in issue comprised exempt matter under s.46(1)(a) and s.46(1)(b) of the FOI Act.5. By letter dated 30 June 1994, Mr Coventry applied for review by the Information Commissioner, under Part 5 of the FOI Act, of Mr Briggs' decision.The external review process6. At my request, the respondent provided me with a copy of the letter in issue, plus (under cover of the respondent's letter to my office dated 8 December 1994) other background documents and information relevant to the termination of Mr Coventry's employment as Director of the Cairns Regional Gallery. On 18 November 1994, I wrote to Mr Don Hall inquiring whether he continued to object to the disclosure to Mr Coventry of the letter in issue (or any particular parts thereof), and drawing his attention to s.78 of the FOI Act. Mr Hall responded by letter dated 28 November 1994, stating that he maintained a strong objection to the disclosure to Mr Coventry of the letter in issue. Mr Hall did not apply under s.78 of the FOI Act to be a participant in this review, but he has sworn an affidavit that was lodged by the respondent in support of its case.7. It was clear that there were no prospects for a negotiated resolution of this case, and the participants were invited to lodge formal evidence and written submissions in support of their respective cases (and to reply to each other's submissions). The respondent relies on -- an affidavit of Noel Patrick Briggs sworn 9 May 1995 an affidavit of Mr Kevin Selwyn (Don) Hall sworn 10 May 1995 an affidavit of Gerald Anthony Anakin sworn 6 June 1995 a written submission dated 21 February 1995 a submission in reply dated 6 June 1995 a supplementary submission dated 19 July 1995.8. The applicant relies on -- an affidavit of Donald Coventry sworn 29 June 1995 an affidavit of Susan Cutler sworn 29 June 1995 a written submission dated 17 March 1995 a submission in reply dated 30 June 1995 a supplementary submission dated 4 August 1995.9. Relevant parts of the evidence and submissions lodged by the participants are referred to below.Application of s.46(1) of the FOI Act10. The respondent contends that the letter in issue is exempt matter under s.46(1)(a) and s.46(1)(b) of the FOI Act. Section 46(1) of the FOI Act provides: 46.(1) Matter is exempt if--(a) its disclosure would found an action for breach of confidence; or(b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest.Application of s.46(1)(a)11. In Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, I considered in detail the elements which must be established in order for matter to qualify for exemption under s.46(1)(a) of the FOI Act. The test for exemption is to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff, in respect of information in the possession or control of the agency or Minister faced with an application, under s.25 of the FOI Act, for access to the information in issue (see Re "B" at pp.296-7; paragraph 44). In this instance, there are identifiable plaintiffs who would have standing to bring an action for breach of confidence, namely, Mr Don Hall and/or Professionally Directed Fundraising Associates Pty Ltd (being the corporation on behalf of which Mr Hall wrote the letter in issue).12. I can see no basis, in the present case, for any suggestion of the existence of a contractual obligation of confidence applying to the letter in issue. Therefore, the test of exemption under s.46(1)(a) must be evaluated in terms of the requirements for an action in equity for breach of confidence, there being five cumulative criteria which must be established:(a) it must be possible to specifically identify the information in issue, in order to establish that it is secret, rather than generally available information (see Re "B" at pp.303-304; paragraphs 60-63);(b) the information in issue must possess "the necessary quality of confidence"; i.e., the information must not be trivial or useless information, and it must possess a degree of secrecy sufficient for it to be the subject of an obligation of conscience, arising from the circumstances in or through which the information was communicated or obtained (see Re "B" at pp.304-310; paragraphs 64-75);(c) the information in issue must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it (see Re "B" at pp.311-322; paragraphs 76-102);(d) it must be established that disclosure to the applicant for access under the FOI Act would constitute a misuse, or unauthorised use, of the confidential information in issue (see Re "B" at pp.322-324; paragraphs 103-106); and(e) it must be established that detriment is likely to be occasioned to the original confider of the confidential information in issue if that information were to be disclosed (see Re "B" at pp.325-330; paragraphs 107-118).13. With respect to the first criterion, I am satisfied that the information which is claimed by the respondent to be confidential can be identified with specificity.14. With respect to the second criterion, it is either admitted in the respondent's submissions, or is clearly established by other material before me, that the letter in issue:(i) was read to a closed meeting of the Board of Directors of the Cairns Regional Gallery (the Gallery Board) on 17 January 1994, at which those present were requested to keep the information confidential, and the Gallery Board decided to recommend that the office of Gallery Director be made redundant (paragraphs 12 and 16 of the respondent's submission dated 21 February 1995);(ii) was discussed during a confidential meeting of Cairns City Council on 18 January 1994, in connection with the Council's consideration of the recommendation of the Gallery Board that the office of Gallery Director be made redundant (paragraphs 13 and 16 of the respondent's submission dated 21 February 1995); and(iii) was referred to by the then Mayor of Cairns (in response to concerns raised about the action taken against Mr Coventry) at a meeting on 2 February 1994 of the Far North Queensland Regional Art Gallery Inc (the FNQRAG), a voluntary association of supporters of the Regional Gallery (paragraph 6(a) of the applicant's submission dated 17 March 1995; affidavit of Susan Cutler sworn 29 June 1995; paragraph 5 of the respondent's submission dated 19 July 1995).15. As to incident (iii), I am satisfied on the material before me that the letter in issue was not read out at the 2 February 1994 meeting of the FNQRAG, nor tabled for those present to read for themselves. I consider that the then Mayor's reference to the letter did not reveal the detail of the letter's content to an extent which would justify a finding that the matter in issue lacked the "necessary quality of confidence". (Incident (iii) is, however, of some significance for the application of the third criterion referred to above: see paragraphs 28-29 and 36 below).16. Nor, in my opinion, have incidents (i) and (ii) deprived the letter in issue of the "necessary quality of confidence". As I noted at paragraph 71(b) and (c) of my reasons for decision in Re "B", publication of confidential information to a limited number of persons on a confidential basis will not necessarily, of itself, destroy the confidential nature of the information: see also Attorney-General's Department and Australian Iron & Steel Pty Ltd v Cockcroft (1986) 64 ALR 97 at p.108. Disclosure to closed meetings of the Gallery Board, and the Cairns City Council, for the limited purpose of considering a recommendation to make Mr Coventry's office as Director of the Regional Gallery redundant, did not, in my opinion, result in the loss of the necessary degree of secrecy or inaccessibility which information must possess if its unauthorised use or disclosure by a confidant is to found an action for breach of confidence.17. The applicant claims that he has read the letter in issue, and that, since its contents are not confidential vis-à-vis himself, disclosure to him of the letter in issue would not found an action for breach of confidence. The applicant's account of the relevant incident appears on p.2 of his written submission dated 17 March 1995:The Applicant is aware of the contents of the letter as the result of seeing the letter on top of a file titled "Donald Coventry" or "Gallery Director". The file was present on the coffee table at which the parties were seated during the course of a meeting at which the Applicant was informed by the Town Clerk, Mr Briggs, that the Applicant's position as Gallery Director would be made redundant. The Applicant was, at this time, still an employee of the Cairns City Council and thus entitled to view the file. Annexed hereto and marked with the letter "A" is a true copy of the Applicant's handwritten notes made in his 1994 desk diary upon reading the letter. ...18. Mr Briggs' account of the incident, in paragraphs 2 and 3 of his affidavit, is as follows:... I refute entirely Mr Coventry's assertion (whether express or implied) that he innocently took the advantage of making a note in his desk diary of the contents of Mr Hall's letter of 7th January, 1994 because the file was present on a coffee table in my office during the course of a meeting at which I informed Mr Coventry that his position as Art Gallery Director was to be made redundant. The file (and the letter) were on my desk and not intended for Mr Coventry's viewing.3. When I informed Mr Coventry of his redundancy he became emotionally upset and I found it necessary to leave my office for a short while in order to give him time to compose himself; it was upon returning to my office that I found him behind my desk going through the file relating to himself. I had not given him any authority to do this.19. I consider it clear, even on the applicant's own account, that the applicant looked at the letter in issue without the prior knowledge or consent of the respondent, and that there was no intention on the respondent's part to permit him to inspect the letter. In such circumstances, there may be a real question as to whether the applicant's knowledge of the information in issue was improperly obtained, so that an action in equity for breach of confidence could not be defeated solely by reason of knowledge of the information in issue that had been improperly obtained (although the factors referred to in paragraph 36 below might complicate that issue even further).20. However, I am satisfied on the material before me that the applicant does not know the detail of the contents of the letter in issue, as demonstrated by a fundamental misunderstanding of the nature of the information in issue which has been maintained in his assertions, in material lodged for the purposes of this review, about what he read. I consider that the applicant was clearly (and understandably) in a highly emotional state at the time of the incident described in the evidence set out above, and that his examination of the letter in issue was too hasty for him to properly absorb and understand its contents. He has consistently maintained in the course of this review that he wants access to Mr Hall's comments on his (the applicant's) professional abilities or personal traits. For instance, in paragraphs 6(a) and 9(b) of his submission dated 17 March 1995, and in paragraphs 2-3 of his submission dated 30 June 1995, the applicant asserts that the information contained in the letter is Mr Hall's opinion. In fact, the letter in issue records opinions conveyed by others to Mr Hall in response to a survey questionnaire used in compiling the feasibility study report referred to in paragraph 2 above. Moreover, the notes in exhibit "A" to Mr Coventry's affidavit appear to be hasty and abbreviated notes of a small part only of the letter in issue.21. On the material before me, I am prepared to make a finding of fact that the matter in issue remains confidential information vis-à-vis the applicant. I consider that the respondent is able to establish the second criterion set out at paragraph 12 above.22. With respect to the third criterion set out at paragraph 12 above, the following parts of Mr Hall's affidavit are relevant:2. ... I was retained by the Board of the Cairns Regional Gallery to advise on - and facilitate - fundraising for the conversion and establishment of a new Art Gallery for the City and region of Cairns and, specifically, to implement my firm's Feasibility Study Report and Observations and Recommendations, by proceeding to conduct interviews with prospective sponsors of the project.3. On 7th January, 1994, I wrote a letter, marked "strictly confidential", to the then Mayor of Cairns, Alderman Kevin Byrne, in his ex officio capacity as Chairman of the Cairns Regional Gallery Board and exhibited to this Affidavit is a copy, marked "A", of my said letter.4. As is apparent from the terms of that letter, the opinions concerning the then Art Gallery Director, Mr Donald Coventry, were not in any respect of my own origin, but were specific reiteration of opinions - unsolicited by me -which had been expressed to me in the course of such interviews of prospective sponsors. Now exhibited to this Affidavit, marked "B", is a copy of my firm's standard form of questionnaire used in those interviews, in particular Question 11 thereof.5. The views expressed to me - and passed on in my said letter of 7th January, 1994 - were set down by the interviewees in answer to this question and were before me when I wrote that letter. In view of the disengagement of my firm from the fundraising project on 3rd September 1994, all originals and (if any) copies of such questionnaire forms in my firm's possession were destroyed.23. The matter in issue was conveyed to the then Mayor of the Cairns City Council in a letter marked "Strictly Confidential", and was thereafter disclosed by the Mayor only to a limited number of persons for the specific purpose referred to in paragraph 16 above. This indicates that the respondent treated the matter in issue as having been communicated in confidence.24. However, as I stated in Re "B" (at p.316, paragraph 84), the fundamental issue in applying the third criterion (stated at paragraph 12 above) is whether, on an evaluation of the whole of the relevant circumstances, the recipient of the information ought to be bound by an equitable obligation of conscience not to use the information in a way that was not authorised by the confider of it. In the present case, there appears to have been a mutual understanding between the supplier and recipient of the information in issue that the information was to be treated in confidence. But, having regard to all the relevant circumstances, would equity require that that mutual understanding be enforced as an equitable obligation of confidence, restraining disclosure of the letter in issue to Mr Coventry? In my view, it would not.25. The closing words of the letter in issue exhorted the then Mayor to use the information conveyed in the letter with the utmost discretion. Equal attention should be paid to the word "use" as to the words "utmost discretion" (or to the words "Strictly Confidential" which appear at the head of the letter). Having regard to all of the relevant circumstances, I do not think there is any doubt that Mr Hall intended, and hoped or expected, that the respondent would take some appropriate action on the basis of the information conveyed in the letter in issue. Mr Hall had recently furnished his firm's feasibility study report on fundraising for the Cairns Regional Gallery. His firm hoped to be (and was, in fact) retained to provide further assistance with the fundraising project. Responses to his survey had indicated that the fund-raising project may be handicapped by attitudes towards Mr Coventry which had been expressed by potential sponsors and donors. Although the letter in issue did not specify what use should be made of the information conveyed in it (it did not, for instance, suggest a specific course of action in respect of Mr Coventry), I consider that Mr Hall's purposes in writing the letter were to acquaint the Mayor with an apparent obstacle to the success of the fundraising project, and to prompt the Mayor to take some appropriate action with respect to the apparent obstacle. 26. It is difficult to envisage any meaningful action which Mr Hall could have contemplated the Mayor and the respondent taking in respect of Mr Coventry which would not have necessitated disclosure of the letter in issue, or its substance, to Mr Coventry. It is possible that counselling Mr Coventry and requiring him to address any behaviour that gave rise to the concerns recorded in the letter in issue, might have been considered appropriate action. In that event, the substance of the information in the letter in issue would have to have been disclosed to Mr Coventry. It would have been entirely appropriate that the letter still be treated in confidence as against the world at large, but not as against Mr Coventry.27. In my view, Mr Hall intended to prompt the then Mayor of Cairns to take whatever action was considered appropriate in the light of the information conveyed in the letter in issue, and implicitly authorised the then Mayor to make whatever limited disclosure of the letter in issue was necessary for that purpose, but otherwise expected the letter to be treated in confidence. I think the relevant circumstances support a finding that there was a mutual understanding that the letter was generally to be treated in confidence (with limited exceptions for the purpose I have indicated above). The contents of the letter were damaging to Mr Coventry's professional reputation, and any unnecessary disclosure of them ought properly to have been avoided. Moreover, in the event that the respondent had decided to take no action against Mr Coventry, Mr Hall may have desired the preservation of the letter's confidentiality for the sake of a co-operative working relationship in respect of the fundraising project for the Gallery. However, the crucial issue in this case, in my view, is whether equity required that the letter in issue not be disclosed by the respondent to Mr Coventry, once the receipt of the letter in issue had prompted the respondent to embark on a course of action with such serious consequences for Mr Coventry.28. Within a fortnight of the receipt of the letter in issue, the position of Director of the Cairns Regional Gallery had been made redundant, and Mr Coventry's employment in that position had been terminated. At a meeting of the FNQRAG some two weeks later (2 February 1994), the then Mayor of Cairns referred in general terms to the concerns raised in the letter in issue (and the fact that it had been considered by the Gallery Board) in the course of justifying the action taken against Mr Coventry. (I note that upon the position of Gallery Director being made redundant, the applicant received some financial compensation by way of a redundancy package, but no offer of alternative employment. No opportunity was given to the applicant to address either the adverse comments made against him personally, or the more general proposition that the position of Gallery Director was no longer necessary for the conduct of the affairs of the Gallery. In that regard, I also note that, after the applicant's departure, a gallery administrator was appointed, that the position of Gallery Director was subsequently advertised by the respondent, and that the program of exhibitions set up by the applicant was continued.)29. Given these circumstances, I consider that the scope of the equitable obligation of confidence binding the uses to which the respondent could put the letter in issue did not extend to restraining the disclosure to Mr Coventry of the letter in issue. Once the respondent commenced action adverse to Mr Coventry's interests, which action was based at least in part on the information contained in the letter in issue, equity would not have restrained disclosure to Mr Coventry as an unconscionable use by the respondent of the letter in issue. 30. In Re Hamilton and Queensland Police Service (Information Commissioner Qld, Decision No. 94021, 26 August 1994, unreported), a case in which the circumstances disclosed a conflict between a legal duty to accord procedural fairness by disclosing certain information, and an equitable obligation of confidence said to restrain disclosure of the same information, I made the following remarks:41. In paragraph 139 of my decision in Re "B", I stated as follows:139. There will be cases where the seeking and giving of an express assurance as to confidentiality will not be sufficient to constitute a binding obligation, for example if the stipulation for confidentiality is unreasonable in the circumstances, or, having regard to all of the circumstances equity would not bind the recipient's conscience with an enforceable obligation of confidence (see paragraphs 84 and 85 above). ...42. In paragraph 85 of Re "B", I had referred in particular to Lord Denning MR's statement in Dunford & Elliott Ltd v Johnson & Firth Brown Ltd [1978] FSR 143 at p.148, which bears repeating in this context:If the stipulation for confidence was unreasonable at the time of making it; or if it was reasonable at the beginning, but afterwards, in the course of subsequent happenings, it becomes unreasonable that it should be enforced; then the courts will decline to enforce it; just as in the case of a covenant in restraint of trade.I remarked in Re "B" that, despite the different wording, this dictum probably equates in substance, and in practical effect, to the emphasis in the judgments of the Federal Court of Australia in Smith Kline & French Laboratories (Aust) Ltd and Others v Secretary, Department of Community Services & Health [1989] FCA 384; (1990) 22 FCR 73 (Gummow J)[1991] FCA 150; , (1991) 28 FCR 291 (Full Court), that the whole of the relevant circumstances must be taken into account before a court determines that a defendant should be fixed with an enforceable obligation of confidence. 43. I also referred in Re "B" to the suggestion by McHugh JA in Attorney-General (UK) v Heinemann Publishers (1987) 75 ALR 353 at p.454 that special considerations apply where persons outside government seek to repose confidences in a government agency:... when ... a question arises as to whether a government or one of its departments or agencies owes an obligation of confidentiality to a citizen or employee, the equitable rules worked out in cases concerned with private relationships must be used with caution. ...44. An illustration of this is afforded by the result in Smith Kline & French where Gummow J refused to find that the first respondent was bound by an equitable obligation not to use confidential information in a particular way, because the imposition of such an obligation on the first respondent would or might clash with, or restrict, the performance of the first respondent's functions under a relevant legislative scheme. (The relevant passages are set out at paragraphs 80 and 81 of Re "B", and see also my remarks at paragraph 92 of Re "B".)45. Another illustration of this principle, in my opinion, is the fact that government officials empowered to make decisions which may adversely affect the rights, interests or legitimate expectations of citizens are ordinarily subject to the common law duty to act fairly, in the sense of according procedural fairness, in the exercise of such decision-making powers (see, for example, Kioa v West [1985] HCA 81; (1985) 159 CLR 550; 60 ALJR 113, relevant extracts from which are reproduced at paragraph 28 of my reasons for decision in Re McEniery and the Medical Board of Queensland [(1994) [1994] QICmr 2; 1 QAR 349]). Circumstances may be encountered where the duty to accord procedural fairness clashes with an apparent duty to respect the confidentiality of information obtained in confidence, for example, where a government decision-maker proposes to make a decision which is adverse to the rights or interests of a citizen, on the basis of information obtained in confidence from a third party.31. The last-quoted sentence also fairly describes the situation of the respondent in this case, when taking action to terminate the applicant's employment, after having regard to the information contained in the letter in issue.32. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Mason J said (at p.584):The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.And in Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, Deane J said (at p.653) that the law seemed to him:... to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making.(Both passages set out in this paragraph were quoted with approval in the majority judgment (Mason CJ, Deane and McHugh JJ) of the High Court of Australia in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at p.598.)33. The applicant was not a servant of the Crown whose service could be terminated at the pleasure of the Crown (cf. Coutts v Commonwealth of Australia [1985] HCA 40; (1985) 59 ALR 699 at p.704, p.707). The respondent was at the relevant time a statutory authority established under the Local Government Act 1936 Qld, and its power to appoint officers was conferred by s.17 of that Act. The applicant was appointed by the respondent to the office of Director, Gallery of Fine Art (later changed in title to Director, Cairns Regional Gallery) with effect from 1 October 1991. The action which the respondent decided to take against the applicant, after the receipt by the then Mayor of the letter in issue, was clearly adverse to the applicant's interest in having the benefits of continued employment in the office to which he had been appointed. (It may also be the case that the applicant had a legitimate expectation of continued employment in the office to which he had been appointed, in the absence of any conduct on his part which would afford a ground for dismissal; cf. Attorney-General (NSW) v Quin (1990) 170 CLR 1 per Mason CJ at pp.20-22). Moreover, reputation (including personal, business or commercial reputation) is an interest that attracts the protection of the rules of natural justice (and may require that procedural fairness be accorded before the making of "an adverse recommendation based on the reports of other bodies or authorities"): Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at p.578. The respondent's action in moving to declare the applicant's position redundant (especially in circumstances where it was clear that the respondent intended to persevere with its plans for the Gallery, and sufficient work remained to justify the appointment of an interim gallery administrator: see paragraph 28 above), was, in my view, clearly liable to adversely affect the applicant's professional reputation, especially in circles where he might be expected to seek alternative employment.34. In my opinion, once it was decided to embark on a course of action that would be adverse to the applicant's interests, the respondent came under a legal duty to accord procedural fairness to the applicant. There is no indication in any relevant statute of a necessary intention to exclude the application of the rules of natural justice; such an intention is not to be inferred from the presence in a relevant statute of rights which are commensurate with some of the rules of natural justice: see Annetts v McCann at p.598 (and cf. s.17B of the Local Government Act 1936).35. In Re McEniery and Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349, I said (at p.363, paragraph 31): 31. What constitutes the observance of fair procedures will vary according to the exigencies of particular cases, but ordinarily the duty to act fairly requires that a person be given an effective opportunity to know the substance of the case against the person, including in particular the critical issues or factors on which the case is likely to turn (cf. Kioa per Mason J at p.128-9) so that the person is given an effective opportunity of dealing with the case against him or her.36. If action prejudicial to a person's interests is proposed to be taken by reference to adverse comments from third parties, the common law duty to accord procedural fairness would ordinarily require that the person be informed of the substance of those adverse comments and be given an opportunity of responding to them. On the material before me (in particular the events described in paragraphs 14 and 28 above, and the timing of those events), I am satisfied that the information conveyed in the letter in issue was a substantial factor in prompting the action taken against Mr Coventry. When the respondent decided to take action to declare the applicant's office redundant, at least in part on the basis of factors personal to the applicant disclosed in information obtained from a third party, procedural fairness required, in my opinion, that the substance of the adverse material be conveyed to the applicant and that he be given a reasonable opportunity to respond to it. I consider that the scope of the equitable obligation of confidence owed by the respondent in respect of the letter in issue could not have extended to prevent disclosure of the letter in issue to the applicant, at least from the time at which it was decided on behalf of the respondent to take action that might result in the applicant's office being declared redundant. 37 While a relevant obligation of confidence should be respected as far as possible (see Re Hamilton at paragraphs 51-52), editing of the letter in issue (so as to convey the substance of the adverse material while respecting an obligation of confidence as far as possible) is neither practical nor necessary in this case. Mr Hall (it appears from the material before me) considered himself under an obligation not to betray the confidence of those persons who volunteered comments adverse to Mr Coventry, and he more than adequately discharged that obligation by recording the adverse comments in such a way as to make them anonymous and untraceable. I consider that disclosure to Mr Coventry of the whole of the letter in issue would not be an unconscionable use by the respondent of that document.38. I find that the third criterion set out at paragraph 12 above has not been established because, having regard to all the relevant circumstances, disclosure of the letter in issue to the applicant by the respondent would not be an unconscionable use by the respondent of the letter in issue. I therefore find that the letter in issue is not exempt from disclosure to the applicant under s.46(1)(a) of the FOI Act.Application of s.46(1)(b)39. The respondent also submits that the letter in issue is exempt matter under s.46(1)(b) of the FOI Act, the terms of which are set out at paragraph 10 above.40. In Re "B" at p.337 (paragraph 146), I indicated, that, in order to establish the prima facie ground of exemption under s.46(1)(b) of the FOI Act, three cumulative requirements must be satisfied:(a) the matter in issue must consist of information of a confidential nature;(b) that was communicated in confidence;(c) the disclosure of which could reasonably be expected to prejudice the future supply of such information. If the prima facie ground of exemption is established, it must then be determined whether the prima facie ground is displaced by the weight of identifiable public interest considerations which favour the disclosure of the particular information in issue.41. As indicated at paragraph 16 above, I am satisfied that the matter in issue is information of a confidential nature. 42. I discussed the requirements to establish the second element of s.46(1)(b) in Re "B" at pp.338-339 (paragraphs 149-153). Although there was, in general terms, a mutual understanding between the supplier and the recipient of the letter in issue that the letter was communicated in confidence, I consider (for the reasons given at paragraph 25 above) that Mr Hall intended and hoped that the respondent would take some appropriate action in response to the information conveyed in the letter, and that there was an implicit mutual understanding that there could be further limited disclosure of the letter to the extent necessary to permit appropriate action to be taken. If, for example, the respondent had informed Mr Hall that it had decided to take action to make Mr Coventry's position redundant, but had received legal advice that this could only be done if the contents of the letter in issue were conveyed to Mr Coventry so that Mr Coventry had an adequate opportunity to respond to them, Mr Hall may well have consented to that course of action. Construing the precise scope of the implicit mutual understanding of confidence that attended the initial communication of the letter in issue is, however, a task I need not pursue in view of the finding I have reached on the third element of s.46(1)(b).43. The respondent (which bears the onus, under s.81 of the FOI Act, of establishing that its decision was justified or that I should give a decision adverse to the applicant) has not lodged any evidence which goes to the third element of s.46(1)(b), i.e., whether disclosure of the information in issue could reasonably be expected to prejudice the future supply of such information. In its brief written submission on this point, the respondent did not suggest that a consultant, like Mr Hall, might not in future furnish a report like the letter in issue, if the letter in issue were to be disclosed. Rather it focused on the persons surveyed by Mr Hall, who volunteered comments adverse to Mr Coventry. The respondent submitted that: "Persons questioned in such a survey, which is a matter of importance, in a case such as this would not ... venture frank and honest opinions necessary to the proper functioning of the gallery if such information were not to be treated confidentially."44. The correct approach to the application of the phrase "could reasonably be expected to" in s.46(1)(b) is explained in Re "B" at pp.334-341, paragraphs 154-160. Those words call for the decision-maker to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g., merely speculative/conjectural "expectations") and expectations which are reasonably based, that is, expectations for the occurrence of which real and substantial grounds exist.45. As I noted above at paragraph 37, Mr Hall has taken appropriate steps to record the adverse comments on Mr Coventry, as contained in the letter in issue, in such a way that the comments are anonymous and untraceable. I am not satisfied that there is a reasonable basis for expecting that disclosure of the letter in issue would prejudice the future supply of like information by persons responding to a similar confidential survey.46. Similarly, although the respondent did not put its case in this way, I do not consider that there is any reasonable basis for expecting that disclosure of the letter in issue would prejudice the future supply of reports by consultants who, like Mr Hall, had taken appropriate steps in a report to ensure the anonymity of confidential sources of information.47. I find that the respondent has not established the third element of the test for prima facie exemption under s.46(1)(b) of the FOI Act. It is therefore unnecessary for me to consider the public interest balancing test incorporated in s.46(1)(b). I am prepared to venture the opinion, however, that had that been necessary, the public interest in the fair treatment of an individual according to law (see Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at p.80, paragraph 55; Re Pemberton and The University of Queensland (Information Commissioner Qld, Decision No. 94032, 5 December 1994, unreported) at paragraph 190) would, in all the circumstances of this case, have carried determinative weight against the competing public interest considerations identified in the respondent's submissions, so as to favour disclosure to the applicant of the letter in issue.48. I find that the letter in issue is not exempt matter under s.46(1)(b) of the FOI Act.Conclusion49. For the foregoing reasons, I set aside the decision under review. In substitution for it, I find that the matter in issue is not exempt from disclosure to the applicant under the FOI Act, and that the applicant has a right to be given access to the matter withheld from him pursuant to the decision under review...............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

BOJ and WorkCover Queensland [2009] QICmr 46 (16 September 2009)

BOJ and WorkCover Queensland [2009] QICmr 46 (16 September 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210653 Applicant: BOJ Respondent: WorkCover Queensland Decision Date: 16 September 2009 Catchwords: FREEDOM OF INFORMATION – section 54E of the Freedom of Information Act 1992 (Qld) – amendment of WorkCover Queensland file – whether information is inaccurate, incomplete, out-of-date or misleading – whether documents should be added to the file. Contents REASONS FOR DECISION Summary 1. I vary the decision under review and find that: • the applicant’s WorkCover Queensland (WorkCover) file is not inaccurate, incomplete, out-of-date or misleading for the purpose of section 54E of the FOI Act; • no further amendments should be made to the applicant’s WorkCover file. Background 2. By letter dated 21 April 2008, the applicant sought access to her WorkCover file and noted that a number of documents may have been lost or destroyed (FOI Application).[1] 3. By letter dated 24 June 2008, WorkCover decided to release the documents in full by making the documents available for the applicant to inspect (Original Decision). 4. By application dated 25 September 2008, the applicant sought internal review of the Original Decision and noted that there were a number of documents missing from the file (Internal Review Application). 5. By letter dated 3 October 2008, WorkCover affirmed the Original Decision (Internal Review Decision). 6. By email dated 27 October 2008, the applicant applied to this Office for an external review of the Internal Review Decision (External Review Application). Decision under review 7. The decision under review is the Internal Review Decision. Steps taken in the external review process 8. By facsimile dated 31 October 2008, WorkCover provided this Office with a copy of the Internal Review Decision. 9. By letter dated 5 November 2008, this Office informed WorkCover Queensland that the External Review Application had been accepted. 10. In a telephone conversation on 17 November 2008, a member of this Office spoke with the applicant in relation to her FOI Application. 11. In November 2008, the applicant provided submissions to this Office by email correspondence. 12. By letter dated 21 November 2008, this Office: • asked the applicant to provide a schedule of contemporaneous documents held in her personal records which she considered should be included in the WorkCover file, together with copies of the documents by 5 December 2008. • confirmed that the Office did not have jurisdiction to review the record keeping and management practices of government agencies. 13. During the period November 2008 to January 2009 the applicant provided further submissions, information and supporting documents by email correspondence. 14. By email dated 29 January 2009, I asked the applicant to provide any final material that she considered should be added to the WorkCover file by no later than 11 February 2009. 15. During the period February to March 2009, the applicant continued to provide further submissions, information and supporting documents by email correspondence. 16. On 2 February 2009, a staff member of this Office spoke with a representative of WorkCover to discuss the inclusion of documents on the applicant’s WorkCover file. 17. By letter dated 18 February 2009, I: • provided a disc to WorkCover containing copies of the documents provided to this Office by the applicant for inclusion on her file; and • asked WorkCover to consider which documents it was prepared to add to its file for the purpose of informal resolution. 18. On 23 February 2009, a member of staff from the Office spoke with a representative of WorkCover to clarify an issue in my letter dated 18 February 2009. 19. By facsimile dated 3 March 2009, WorkCover advised that it was: • prepared to add 27 documents to the applicant’s WorkCover file • not prepared to add the remaining documents as they were either duplicates, documents already held on the file or documents that are not relevant to the WorkCover file. 20. In April and July 2009, the applicant provided information by email correspondence. 21. By letter dated 8 July 2009, I wrote to the applicant to confirm that I was in the process of drafting a preliminary view letter with respect to the documents in issue and the relevant matters in the review. 22. On 22 July 2009, a member of staff from the Office confirmed with WorkCover that a copy of its letter dated 3 March 2009 could be provided to the applicant. 23. By letter dated 22 July 2009 (preliminary view letter), I advised the applicant of my preliminary view that: • apart from the documents that are duplicates or copies of documents already held by WorkCover, there is no evidence before me to suggest that the remaining documents which WorkCover declined to add to its file (the matter in issue): ○ were generated or received by WorkCover and should be on the applicant’s WorkCover file ○ were once included on the WorkCover file but are no longer part of the record ○ are required to be placed on the file to make the file ‘complete’ • accordingly, the information contained on the WorkCover file is not inaccurate, incomplete, out-of-date or misleading and it is not necessary to add the matter in issue to the WorkCover file. 24. By email dated 24 July 2009, I provided a copy of the preliminary view letter to WorkCover for their information. 25. On 4 August 2009, a staff member of this Office was advised by Australia Post that delivery of the preliminary view letter had been unsuccessful and it remained at the Maroochydore post office for collection. 26. By email dated 5 August 2009 to the applicant, I: • attached a copy of the preliminary view letter, WorkCover letter dated 3 March 2009 and a copy of those documents WorkCover was prepared to add to its file • asked the applicant to provide a new address to which notices may be sent • asked the applicant to confirm that the preliminary view letter had been collected from the post office. 27. By email dated 6 August 2009, the applicant provided a new mailing address. 28. By further email dated 6 August 2009, the applicant enquired about the content of the WorkCover letter dated 3 March 2009. 29. By emails dated 6 and 16 August 2009, the applicant made submissions in response to the preliminary view letter. 30. By letter dated 2 September 2009, I: • sent the applicant a copy of the original preliminary view letter and attachments, copies of which had been returned to this Office after they remained uncollected at the Maroochydore Post Office • gave the applicant a further opportunity to make additional submissions in response to the preliminary view letter. 31. In making my decision in this matter, I have taken the following into consideration: • the Internal Review Application and External Review Application • the Original Decision and Internal Review Decision • file notes of telephone conversations between staff members of this Office and the applicant • file notes of telephone conversations between staff members of this Office and WorkCover • written correspondence (including attached documents) and submissions provided to this Office by the applicant throughout the course of the review • written correspondence provided to this Office by WorkCover throughout the course of the review • relevant sections of the FOI Act • previous decisions of the Information Commissioner of Queensland and decisions and case law from other Australian jurisdictions as identified in this decision. Issue in this review 32. The applicant: • submits that a number of documents are missing from her WorkCover file; • has provided copies of documents to this Office which she says should be included in her WorkCover file.[2] 33. WorkCover has agreed to add 27 of these documents to the applicant’s file.[3] Accordingly, these documents do not form part of the matter in issue in this review. 34. In respect of the remaining documents, WorkCover submits that it is not prepared to add these to the applicant’s file as these documents are either duplicates, documents already held on the file, or documents that are not relevant to the WorkCover file. 35. In this review, the issue to be determined is: • whether the applicant’s WorkCover file is inaccurate, incomplete, out-of-date or misleading; and • should be amended. Findings Burden of proof 36. In her correspondence to this Office the applicant has indicated that deficient record keeping practices and management processes and procedures have resulted, among other things, in a large number of documents missing from her file. 37. The Information Commissioner has previously found that during an external review, an applicant is burdened with a practical and evidentiary onus to provide evidence to support their entitlement to relief under Part 4 of the FOI Act.[4] This means that the applicant must provide evidence to support her belief that the WorkCover file is incomplete. 38. The role of this Office in the current review is therefore limited to determining whether the applicant’s WorkCover file should be amended in accordance with the provisions of Part 4 of the FOI Act. 39. Accordingly, this Office does not have jurisdiction to: • conduct a review of the record keeping and management practices, current or historic, of government agencies; • comment or otherwise deal with issues of WorkCover’s workplace practice and management in handling the applicant’s claim. Sections 53 and 54E of the FOI Act 40. Part 4 of the FOI Act provides for the amendment of information held by government departments and agencies. Section 53(1) of FOI Act provides: 53 Person may apply for amendment of information (1) A person who has had access to a document from an agency or Minister (whether or not under this Act) containing information relating to the person’s personal affairs is entitled to apply to the agency or Minister for amendment of any part of the information that the person claims is inaccurate, incomplete, out-of-date or misleading. 41. Section 54E of the FOI Act gives an agency discretion to amend information and sets out a non-exhaustive list of the grounds under which the agency may refuse to amend relevant information, including that: 54E Discretion to amend information ... (2) ... (a) the agency or Minister is not satisfied – (i) the information is inaccurate, incomplete, out-of-date or misleading ... 42. Section 54E of the FOI Act provides that an agency may refuse to amend information if it is not ‘satisfied’ that the information is inaccurate, incomplete, out of date or misleading. 43. Section 55 of the FOI Act allows an amendment to be made by one of two methods, that is, by: a) altering the information; or b) adding an appropriate notation to the information. Application of sections 53 and 54E of the FOI Act 44. The effect of sections 53 and 54E[5] is that for WorkCover to be required to amend the applicant’s file, the following elements must be satisfied: a) the applicant has previously obtained access to her file from WorkCover; b) the information which the applicant seeks to amend is information which relates to her personal affairs; c) the information which the applicant seeks to amend is inaccurate, incomplete, out of-date or misleading. Entitlement to apply to amend the information 45. On the basis of information available to me in this review, I am satisfied that the first two of the above three elements of section 53 of the FOI Act have been met because the: • applicant has previously accessed her WorkCover file; • applicant’s file contains information relating to her personal affairs.[6] 46. As to whether the third element has been met, I have considered below whether the WorkCover file is incomplete as claimed by the applicant. Is the information the applicant seeks to amend inaccurate, incomplete, out-of-date or misleading? 47. The terms ‘inaccurate, incomplete, out-of-date or misleading’ are not defined in the FOI Act and are accordingly to be understood in terms of their usual or ordinary meaning. 48. In Re Buhagiar and Victoria Police,[7] Jones J endorsed the approach taken in G v Health Commission of Victoria, where Rendit J indicated that the purpose of the amendment provisions concern: ... ensuring that personal information concerning an applicant and read by third persons, does not unfairly harm the applicant or misrepresent personal facts about the applicant. It is concerned that the third persons reading the personal information do not get the wrong impression ... 49. It is noted that the following criteria may ‘usefully be borne in mind ... when considering whether the discretion should be exercised ...’:[8] (a) the character of the record, in particular whether it purports to be an objective recording of purely factual material or whether it merely purports to be the record of an opinion/report of one person; (b) whether the record serves a continuing purpose; (c) whether retention of the record in unamended form may serve a historic purpose; (d) whether the record is dated; (e) whether amendment is being sought as a de facto means of reviewing another administrative decision; (f) the extent to which access to the record is restricted; (g) whether creation of the record or any of its contents was induced by malice. (h) whether the record is part of a group of records and, if so, whether the other records modify the impact of the record in dispute. 50. I also note that it is not the purpose of amendment provisions such as those contained in Part 4 of the FOI Act to: • re-write history[9], as this destroys the integrity of the record-keeping process; • determine disputed questions of opinion (including expert opinion), when that opinion was actually held and accurately entered in the official record;[10] • re-write a document in words other than the author’s;[11] • review the merits or validity of official action;[12] • correct any perceived deficiencies in the work undertaken by agencies or re-investigating matters.[13] Applicant’s submissions 51. In response to the preliminary view letter, the applicant submits that: To add to my previous concerns in relation to the Workcover letter [dated 3 March 2009] and your decision. On page three it states that documents to a number of Government offices and my union will not be accepted and that only direct contact will be accepted but the Premier of Queensland is a direct Government source of contact when the staff of Workcover do not respond to the content of correspondence which is why the office of the Premier was contacted about Workcover. Workcover staff not only refused to reply to written correspondence but also blocked email ability at one point and staff were always unavailable to talk to me. If I am not allowed access through the Workcover office I am allowed to progress through the Government channels which this correspondence relates to. For this reason it is what my only ability to direct Workcover contact was a lot of the time. The Premiers office and other offices did reply where Workcover did not ... They are relevant to the facts. There would be no contact to these offices if Workcover had followed their due process and procedures for injured workers in my instance as well. They did not. I have a Q Comp video that was only provided to me in 2008 that shows the process and procedure made available to other injured workers. I was not provided with the equal opportunity of this process and procedure. My union were directly involved with Workcover from 1997 and were and are a source of contact as well so this also needs to be included. My union support and state their involvement on my behalf ... This letter also denotes that they have no control over the content within a doctor report yet they read the reports and decide for themselves a medical decision. On this basis I believe that they do have control over what is wrote in the report as they would be required by Government Act to act immediately upon reading anything of a discriminative content. Their own doctor whose report was used to wrongly cease my claim writes that I refuse to turn my neck. This is an obvious discrimination to Government official administration staff who are allowed to read a doctor report in an insurance capacity. No doctor has the right or the ability to write what I think or what choice I make. I have no choice to my physical disabilities caused by the Queensland Transport accident injuries ... Any email content by Cindy or other family members who had contact with my workplace and Workcover are relevant facts of the injuries and I request remain. ... These emails and affidavit contain content that was reported to my workplace management staff and to the Premier, Workcover and other Government offices by my mother, sister and other family members who did not hearsay but were involved in what was taking place. Workcover staff themselves are involved in the hearsay part, not my family as my family were present during facts taking place. I request that these relevant documents stay as they support facts and are facts. ... WorkCover submissions 52. In considering the documents the applicant seeks to add to her file, WorkCover submits that: i. Duplicate documents Some of the documents are duplicated in the list of 159 documents provided [by the applicant]. I do not consider it is necessary to hold more than one (1) identical copy of a document on file. I do not determine there are any reasonable grounds for duplicate information. ii. Information contained elsewhere Even though they are not exact duplicates of another document, there are some documents which contain information already included in other documents provided. For example, where [the applicant] sends an email to WorkCover and WorkCover then replies to [the applicant]. There are two documents relating to this exchange. One document contains only [the applicant’s] original email. The other document contains WorkCover’s response, which includes [the applicant’s] original email. In instances like the above example, I do not consider it necessary to have a copy of [the applicant’s] original email, when the same email can clearly be identified within another document. I do not determine there are any reasonable grounds for duplicate information. iii. Documents not relevant to WorkCover There are a number of documents that I do not consider are relevant to WorkCover as part of [the applicant’s] statutory file. There are several reasons why I consider the documents are not relevant. The majority of documents, whilst they may contain information about WorkCover and how [the applicant] considers WorkCover has treated her, relate to correspondence with other departments and/or organisations in an attempt to resolve her issues. I do not consider it is relevant for WorkCover to hold copies of emails and/or documents [the applicant] has sent to other organisations simply because the information contained is about WorkCover. Some of the other organisations include – • QPSU • Queensland Council of Unions • Premiers Office • Various Electorate Offices • Various Queensland Parliamentary Offices • Parliament of Australia • Q-Comp • The Prime Minister [The applicant] is able to make complaint to whomever she wishes. However, WorkCover will not add these complaints to her file, unless the complaint is made specifically to WorkCover. These documents have no bearing or direct relevance to [the applicant’s] statutory claim and the management of her injury. WorkCover will not act on complaints made to other departments. There are also a number of emails where [the applicant] is corresponding with Cindy. These emails detail what information Cindy and or other members of [the applicant’s] family have or will be providing to various organisations to assist [the applicant’s] case. I do not consider these relevant to WorkCover for the same reasons as outlined above. Some documents relate to correspondence between [the applicant] and doctors that she had seen and/or their representatives. These correspondences relate to the inaccuracies [the applicant] believes occurred in their reports. For the same reasons above, I do not consider these to be relevant to WorkCover. WorkCover is aware of [the applicant’s] views with regards to the medical reports on her file, however any action she requests directly from the doctors is not relevant to WorkCover. WorkCover does not have authority to discipline doctors or instruct them as to how to do their job. Other documents relate to workplace issues between [the applicant] and her employer. These are not matters relevant to WorkCover or [the applicant’s] claim and if [the applicant] has any concerns regarding these matters I would suggest she contact Industrial Relations. For example, the employer retiring [the applicant] on medical grounds as per their policies after [the applicant’s] WorkCover claim was closed is not a matter for WorkCover. Lastly, there is an affidavit of Ms...Peel on file. I do not consider this is relevant as the majority of the information contained in the affidavit is hearsay. Ms Peel is confirming what [the applicant] has said to her, and is not ‘fact’. The above reasons are not exhaustive reasons for refusing the documents. There may be other documents that do not fall into the above categories but that have been refused, as I do not see any relevance for adding them to [the applicant’s] statutory claim file. iv. Documents already held on or added to statutory claim file ... Some of the documents provided are already part of the original statutory claim file (converted to microfiche) or have since been added to the file. v. Documents already held by WorkCover Some of the documents provided are already held by WorkCover. Findings 53. The type of documents/information which the applicant seeks to add to her WorkCover file can be generally categorised as follows: • documents to and from the applicant, government agencies and elected representatives (other than WorkCover); • documents to and from the applicant and union/s; • medical reports and information already contained on the WorkCover file and additional reports and information sought to be added by the applicant; • documents to and from the applicant and friends/family members (including emails, statements and affidavits); • other miscellaneous documents. 54. I confirm that the relevant amendment provisions of the FOI Act are not intended to facilitate the re-writing of history (in an attempt to correct perceived deficiencies in the work undertaken by an agency or review the merits or validity of action taken by an agency) as this would destroy the integrity of the record-keeping process and introduce an artificial historical concept in the record. Nor are they intended to allow opinions (including medical reports) to be altered, when those opinions were actually held and accurately entered into the official record. 55. After carefully considering all of the information available to me, I am satisfied that there is no evidence before me: • to suggest that the documents which the applicant seeks to add to the WorkCover file were generated or received by WorkCover and should be on the file • that the information which is the subject of this amendment request is required to be added to the WorkCover file on account of the file being inaccurate, incomplete, out-of-date or misleading. 56. Accordingly, on the information available to me, I am satisfied that the information which is the subject of this amendment request: • is not inaccurate, incomplete, out-of-date or misleading; • should not be amended. DECISION 57. For the reasons stated above, I vary the decision under review and find that: • the applicant’s WorkCover file is not inaccurate, incomplete, out-of-date or misleading for the purpose of section 54E of the FOI Act; • no further amendments should be made to the applicant’s WorkCover file. 58. I have made this decision as a delegate of the Information Commissioner, under section 90 of the Freedom of Information Act 1992 (Qld). ______________________ Assistant Commissioner Henry Date: 16 September 2009[1] I note that the FOI Application does not contain the particulars required by section 54(d) and (e) of the Freedom of Information Act 1992 (Qld). Although I do not consider this adversely affects the external review, I will rely on the applicant’s FOI Application, Internal Review Application and External Review Application for the required details for the purpose of the review.[2] I have numbered these documents 1-96 (there are also a number of attachments to these documents which I have numbered alphabetically). [3] These are documents 1(a), 2(a), 20 (page 19), 31, 34(a), 35, 37, 43, 45, 51, 57(a), 58(a), 72(a), 74(a), 74(b), 74(c), 78(a), 80(a), 80(c), 80(e), 80(f), 80(g), 80(h), 80(i), 84(a), 93(a), 95(c).[4] Doelle and Legal Aid Office (Queensland) [1993] QICmr 5; (1993) 1 QAR 207 at paragraph 18.[5] as explained in Dimitrijev and Education Queensland (Unreported, Queensland Information Commissioner, 31 May 2000).[6] See paragraphs 16-17 of LTR and WorkCover Queensland (Unreported, Queensland Information Commissioner, 28 March 2007) where the former Information Commissioner found in a similar case that ‘Although a WorkCover claim relates to some extent to the claimant’s employment affairs, I consider that it primarily concerns the health or ill health of the claimant and as such falls into one of the accepted areas of what constitutes personal affairs.’[7] (1989) 2 VAR 530; in respect of similar amendment provisions under Victorian FOI legislation.[8] Cox and Department of Defence (Cox) (1990) 20 ALD 499 at page 502.[9] DenHollander and Department of Defence [2002] AATA 866 at paragraph 96.[10] Crewdson v Central Sydney AHS [2002] NSWCA 345 at paragraph 34.[11] Re Traynor and Melbourne & Metropolitan Board of Works (1987) 2 VAR 186, 190. In this decision of the Administrative Appeals Tribunal (Vic), Member Galvin considered the requirements of section 39 of the Freedom of Information Act 1982 (Cth), which at that time was substantially similar to section 53 of the FOI Act. [12] Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at paragraph 24.[13] Shaw and Medical Board of Queensland (Unreported, Queensland Information Commissioner, 3 July 2008) at paragraph 57.

queensland

court_judgement

Queensland Information Commissioner 1993-

Conde and Queensland Police Service [2012] QICmr 48 (4 October 2012)

Conde and Queensland Police Service [2012] QICmr 48 (4 October 2012) Last Updated: 28 May 2013 Decision and Reasons for Decision Application Number: 310829 Applicant: Conde Respondent: Queensland Police Service Decision Date: 4 October 2012 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - application for access to information about assault complaints involving applicant and third party - whether disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation - section 47(3)(a) of the Right to Information Act 2009 (Qld) - section 48 of the Right to Information Act 2009 (Qld) - schedule 3, section 10(1)(d) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for information regarding assault complaints involving the applicant and a third party. The applicant has known the third party since 2008 and been involved in numerous court matters involving the third party since then.[2] QPS identified 48 pages responsive to the access application and decided[3] to: grant full access to 4 pages[4] refuse access to certain information on 40 pages[5] on the basis that its disclosure would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act; and delete certain information from 5 pages[6] on the basis that the information was irrelevant to the access application under section 73 of the RTI Act. The applicant sought internal review[7] of QPS’s decision. On internal review, QPS affirmed[8] its original decision. The applicant applied to the Office of the Information Commissioner (OIC) for external review of QPS’s internal review decision.[9] In the circumstances, QPS is entitled to refuse access to the information which remains relevant in this review on the basis that it is exempt under sections 47(3)(a) and 48 of the RTI Act, because its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation under schedule 3, section 10(1)(d) of the RTI Act. Background Significant procedural steps relating to the external review are set out in the appendix to this decision. Reviewable decision The decision under review is QPS’s internal review decision dated 10 October 2011. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). Information in Issue During the course of the external review: QPS identified an additional 9 pages of relevant information; and the applicant confirmed he did not seek access to certain information on 13 pages.[10] Accordingly, the information remaining in issue (Information in Issue) is located across 40 pages.[11] Issues in this review QPS decided not to release the remaining Information in Issue on the grounds that disclosure would, on balance, be contrary to the public interest. After careful consideration of the Information in Issue, the relevant law, QPS’s decision and the applicant’s submissions,[12] I am satisfied that it is more appropriate to consider the application of schedule 3, section 10(1)(d) of the RTI Act. I explain my reasons below. Relevant law Under section 23 of the RTI Act a person has a right to be given access to documents of an agency. However, this right is subject to a number of exclusions and limitations, including grounds for refusal of access.[13] Access can be refused under the RTI Act where the information sought in an access application comprises exempt information.[14] Schedule 3 of the RTI Act specifies the types of information the disclosure of which Parliament has determined is exempt because its release would be contrary to the public interest. Relevantly, information is exempt if its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.[15] Could disclosing the Information in Issue reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation? Yes, for the reasons set out below.[16] The expected harassment and/or intimidation must be serious in nature The RTI Act does not define ‘a serious act of harassment or intimidation’ therefore the terms should be given their ordinary meanings. The Information Commissioner has previously accepted the following dictionary definitions:[17] 'harass' includes 'to trouble by repeated attacks, ... to disturb persistently; torment’; and 'intimidate' includes ‘to make timid, or inspire with fear; overawe; cow ... to force into or deter from some action by inducing fear.’ Further, the Information Commissioner has noted that some degree of harassment or intimidation is permissible before this exemption will apply.[18] Therefore, the expected harassment or intimidation must be 'serious' in nature for schedule 3, section 10(1)(d) to apply. Relevant dictionary definitions of ‘serious’ include: ‘weighty or important’[19] ‘giving cause for apprehension; critical’[20] ‘having (potentially) important, esp. undesired, consequences; giving cause for concern’.[21] The applicant refers to the Criminal Code Act 1899 (Qld) and submits that this exemption does not apply in the current circumstance because: QPS has investigated numerous and frequent complaints for ‘Stalking, ‘Harassment’, ‘Assaults’, etc., made by (the third party) and (another individual), after the investigations Police always (have) found such complaints totally unsubstantiated and unfounded, meaning that they are malicious, deliberate(ly) false, frivolous and vexatious.[22] As I explained above, the Information Commissioner has found that the ordinary meaning of the words ‘serious act of harassment or intimidation’ should be adopted in applying the RTI Act. Therefore the type of behaviour anticipated by schedule 3, section 10(1)(d) of the RTI Act need not involve behaviour that would be considered ‘assault’ or ‘unlawful stalking’ or would otherwise satisfy a criminal standard in order for the exemption to apply. I therefore do not accept the applicant’s submission on this point. What is the basis of the expectation in this case? The Information in Issue and the information released to the applicant by QPS in its decision include details of an assault complaint in which the applicant and the third party were involved. Documents provided to QPS by the applicant also provide information about previous court matters which involved the applicant and the third party. The applicant hosts a website in which he targets individuals against whom he holds grievances, including the third party. On this site, the applicant: identifies the third party’s full name and former name gives information about the third party’s family and employment history; and makes unsubstantiated criminal allegations against the third party and states that ‘Full details of (the third party’s) corruption, criminal mind, acts, behaviour and actions... will be given later.’ I have also had regard to a record of relevant court proceedings involving the applicant and the third party in which the applicant’s claims against the third party (and other parties) were stayed under the Vexatious Proceedings Act 2005 (Qld). Further details of the Information in Issue cannot be set out in these reasons because to do so would reveal information which is claimed to be exempt.[23] I am also restrained in the extent to which I can describe the balance of the information before me, as to do so may reveal the identity of the third party. I am satisfied that the described past behaviour of the applicant listed above constitutes harassment, as the applicant’s actions consist of repeated attacks that trouble, torment and disturb the third party. I am also satisfied that the applicant’s past actions are acts of intimidation, as the information before me outlines specific incidents which demonstrate that his behaviour has forced into or deterred the third party from action by inducing fear. Further, I am satisfied on the information before me that the applicant’s conduct constitutes serious acts of harassment and intimidation because his actions give cause for concern or apprehension and have resulted in distressing and undesired consequences for the third party. I am also mindful that the applicant’s website, in addition to demonstrating past acts of harassment, constitutes an ongoing act of harassment. Is the expectation reasonably based and does it arise from disclosing the Information in Issue? Yes, for the reasons that follow. In Sheridan the Information Commissioner considered the phrase ‘could reasonably be expected to’ and found that depending on the circumstances of the particular review, a range of factors may be relevant in determining whether an expectation is reasonably based. These factors may include, but are not limited to:[24] past conduct or a pattern of previous conduct the nature of the relevant matter in issue the nature of the relationship between the parties and/or relevant third parties; and relevant contextual and/or cultural factors. The applicant has submitted that he has been the subject of ‘malicious, deliberate(ly) false, frivolous and vexatious’[25] complaints made by the third party and another individual. I note that the evidence about the applicant’s conduct which I rely upon in the reasons for this decision includes information authored by QPS, the applicant, the third party and other parties. There is nothing before me to suggest the information I have relied upon is ‘malicious, deliberate(ly) false, frivolous and vexatious’ as described by the applicant. I consider that the past occurrences of serious acts of harassment and intimidation detailed in this decision alone provide a reasonable basis for the individual/s named in the Information in Issue to expect to be subjected to further serious acts of harassment or intimidation should disclosure of the Information in Issue occur. The Information in Issue is directly related to the applicant’s relationship and ongoing issues with the third party. In order for this exemption to apply, the expectation of harassment or intimidation must arise as a result of disclosure of the Information in Issue, rather than independently or from any other circumstance.[26] The information before me demonstrates a propensity for the kind of behaviour this exemption guards against and reveals the existence of previous and ongoing acts of serious harassment. Given the nature and content of the Information in Issue, I am satisfied that it is reasonable to expect that disclosure of the Information in Issue could result in the third party being subjected to a further act of serious harassment or intimidation. For the reasons set out above, I find that there is a reasonably based expectation that disclosing the Information in Issue to the applicant would result in a person being subjected to a serious act of harassment or intimidation. [27] I am therefore satisfied that QPS is entitled to refuse access to the Information in Issue because it comprises exempt information. DECISION I vary QPS’s decision by finding that QPS is entitled to refuse access to the Information in Issue under sections 47(3)(a), 48 and schedule 3, section 10(1)(d) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ Lisa Meagher Acting Assistant Information Commissioner Date: 4 October 2012 APPENDIX Significant procedural steps Date Event 18 August 2011 Access application dated 10 August 2011 was validated upon QPS’s receipt of evidence of identity of the applicant. The access application sought access to information about complaints of assault involving the applicant and a third party. 9 September 2011 QPS advised the applicant that it had located 48 relevant pages and decided to: release 2 pages under an administrative access arrangement grant full access to 1 page refuse access in full to 2 pages and in part to 38 pages on the basis that they comprised information that would, on balance, be contrary to the public interest to be disclosed under section 47(3)(b) of the RTI Act; and delete certain information from 5 pages on the basis that the information was irrelevant to the access application under section 73 of the RTI Act. 4 October 2011 By correspondence dated 3 October 2011, the applicant applied to QPS for internal review of its decision and specifically noted that certain affidavits had not been released. 10 October 2011 QPS affirmed its original decision on internal review. 16 November 2011 By correspondence dated 1 November 2011, the applicant applied to OIC for external review of QPS’s internal review decision. 29 November 2011 Information Commissioner decided to exercise the discretion to extend the timeframe in which an applicant can apply for external review under section 88(1)(d) of the RTI Act. December 2011 During telephone conversations between OIC and QPS officers, it was noted that some of the Information in Issue may have been obtained, used or prepared for an investigation of a complaint made by the applicant to the Crime and Misconduct Commission (CMC). 22 December 2011 By telephone conversation, a CMC officer advised OIC that the investigation of relevant complaints was handled by QPS’s Ethical Standards Unit (ESU). 24 January 2012 By telephone conversation, the applicant confirmed he did not seek access to information provided to QPS by him, or provided to him by QPS. 14 February 2012 By correspondence to QPS, OIC requested a submission on whether the Information in Issue was exempt under schedule 3, section 10(4) of the RTI Act on the basis that it had been obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in the performance of the prescribed functions of the prescribed crime body. 27 February 2012 By correspondence, QPS submitted that the Information in Issue was not exempt under schedule 3, section 10(4) of the RTI Act. 7 March 2012 By telephone conversation with OIC staff, the applicant raised a number of public interest factors favouring disclosure of the Information in Issue. 17 May 2012 An OIC officer attended QPS’s ESU to inspect the relevant complaint file to determine whether the Information in Issue had been obtained, used or prepared for an investigation of a complaint made by the applicant to the Crime and Misconduct Commission. 18 May 2012 By correspondence, OIC requested QPS undertake further searches for affidavits identified by the applicant. 7 June 2012 By correspondence dated 6 June 2012, QPS provided OIC with copies of 9 additional pages located on external review. 15 June 2012 By correspondence to the applicant, OIC confirmed the scope of the external review and advised the applicant of the additional documents located by QPS on external review. 17 July 2012 By correspondence, OIC conveyed its preliminary view to the applicant that QPS was entitled to refuse access to the Information in Issue on the basis that it comprised exempt information, the disclosure of which could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation. OIC also advised the applicant of its view that QPS was entitled to refuse access to 17 pages of the Information in Issue on the basis that they comprised exempt information that was obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in the performance of the prescribed functions of the prescribed crime body. 30 July 2012 By correspondence, the applicant provided a submission to OIC in which he advised that he did not accept OIC’s preliminary view. 14 September 2012 By correspondence, OIC conveyed its preliminary view to the applicant that QPS was entitled to delete certain information on pages 2-4, 45, 46 and 48 of the Information in Issue under section 73 of the RTI Act, on the basis that it is irrelevant to the access application. OIC also indicated that if the applicant did not accept the preliminary view in relation to irrelevant information, he should notify OIC by 28 September 2012 and that if no response was received by 28 September 2012, OIC would proceed on the basis that the applicant accepted the preliminary view on this issue. 28 September 2012 The due date for the applicant to notify OIC that he did not accept the preliminary view in relation to irrelevant information passed and the applicant was taken to have accepted the preliminary view as set out in OIC’s letter dated 14 September 2012. [1] By application dated 10 August 2011, validated on 18 August 2011. [2] According to information provided by the applicant to QPS and released to the applicant in response to his access application.[3] By decision dated 9 September 2011.[4] Pages 39-41 and 44. I note that pages 39-41 were released under an administrative access arrangement separate to disclosure under the RTI Act.[5] Pages 1, 4-38, 42, 43, 45 and 47.[6] Pages 2, 3, 4, 46 and 48.[7] On 4 October 2011 by correspondence dated 3 October 2011.[8] By internal review decision dated 10 October 2011.[9] On 16 November 2011 by correspondence dated 1 November 2011.[10] Information on pages 1, 33-36 and 42-43 which was either provided to QPS by the applicant, or provided to the applicant by QPS and information on pages 2, 3, 4, 45, 46 and 48 which the applicant accepted was irrelevant to the access application under section 73 of the RTI Act.[11] Pages 4-32, 37, 38, 47 and 9 pages located on external review.[12] The applicant made submissions dated 30 July 2012 raising public interest factors, alleged corruption and the application of the ‘Whistleblowers Protection Act 1994 Qld’. There is nothing before me to suggest the applicant is protected by the Public Interest Disclosure Act 2010 (Qld) (this Act supercedd the Whitleblowers Protection Act 1994 (Qld)). I have taken into account the applicant’s submissions in so far as they are relevant to the issues being considered in this external review. [13] As set out in section 47(3) of the RTI Act.[14] Section 47(3)(a) of the RTI Act. [15] Schedule 3, section 10(1)(d) of the RTI Act. This provision is subject to the exception contained in schedule 3, section 10(2). I am satisfied that none of the exceptions apply in this matter. [16] It is likely that 17 pages of the Information in Issue would also be exempt under schedule 3, section 10(4) of the RTI Act. I have not considered this in this decision as I am satisfied that all the information is exempt under schedule 3, section 10(1)(d) of the RTI Act. [17] Ogawa and Queensland Police Service (Unreported, Queensland Office of the Information Commissioner, 21 June 2012) applying Sheridan and South Burnett Regional Council (and others) (Unreported, Queensland Information Commissioner, 9 April 2009) (Sheridan) at paragraphs 194-197 referring to the Macquarie Dictionary Online (Fourth Edition). The decision in Sheridan concerned section 42(1)(ca) of the now repealed Freedom of Information Act 1992 (Qld). Schedule 3, section 10(1)(d) of the RTI Act is drafted in substantially the same terms as the provision considered in Sheridan. Therefore, the Information Commissioner’s findings in that matter are relevant in interpreting schedule 3, section 10(1)(d) of the RTI Act.[18] Sheridan at paragraph 187.[19] Macquarie Dictionary Online (Fifth Edition).[20] Macquarie Dictionary Online (Fifth Edition).[21] New Shorter Oxford Dictionary (4Pth Edition), as quoted by the Information Commissioner in Sheridan.[22] At page 2 of the applicant’s submission dated 30 July 2012. [23] Section 108(3) of the RTI Act.[24] Sheridan at paragraph 193.[25] At page 2 of the applicant’s submission dated 30 July 2012.[26] Sheridan at paragraph 307.[27] Sections 47(3)(a), 48 and schedule 3, section 10(1)(d) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

AZ4Z4W and the Department of Communities, Child Safety and Disability Services [2014] QICmr 26 (5 June 2014)

AZ4Z4W and the Department of Communities, Child Safety and Disability Services [2014] QICmr 26 (5 June 2014) Last Updated: 21 January 2015 Decision and Reasons for Decision Citation: AZ4Z4W and the Department of Communities, Child Safety and Disability Services [2014] QICmr 26 (5 June 2014) Application Number: 311892 Applicant: AZ4Z4W Respondent: Department of Communities, Child Safety and Disability Services Decision Date: 5 June 2014 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION -DISCLOSURE PROHIBITED BY ACT - application on behalf of child for all information about that child - section 67(1) of the Information Privacy Act 2009 (Qld) - whether disclosure prohibited by section 187 of the Child Protection Act 1999 (Qld) - whether exempt - section 47(3)(a) and section 48 and schedule 3, section 12 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE CHILD’S BEST INTERESTS - application on behalf of child for all information about that child - section 67(1) of the Information Privacy Act 2009 (Qld) - whether disclosure of the information would not be in the child’s best interests - sections 47(3)(c) and 50 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary A mother applied under the Information Privacy Act 2009 (Qld) (IP Act) on behalf of her eldest child to the Department of Communities, Child Safety and Disability Services (Department) for access to documents relating to that child (applicant).[1] The Department decided[2] to grant access to 96 full pages and refuse access to 451 part and 1160 full pages on various grounds under the IP Act and Right to Information Act 2009 (Qld) (RTI Act). The applicant applied to the Office of the Information Commissioner (OIC) for external review of the decision by the Department to refuse access on the basis that: the documents comprised exempt information as disclosure is prohibited by the Child Protection Act 1999 (Qld) (CP Act) (Category A);[3] or disclosure of the documents would not be in the child’s best interests (Category B).[4] For the reasons given below, the Department’s internal review decision refusing access to the Category A and B documents is affirmed. Background The mother does not currently have custody of her four children including the applicant in this matter, her first child, a daughter. Section 45 of the IP Act provides that a child’s mother is a parent who may make an access application on behalf of the child. The section does not require the parent to have parental responsibility for the child. The IP Act also makes clear that in such circumstances the applicant is taken to be the child rather than the parent.[5] Significant procedural steps relating to the application and external review are set out in the appendix. Reviewable decision The decision under review is the Department’s internal review decision dated 13 January 2014. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and appendix). Information in issue The information in issue comprises the documents to which access was refused by the Department on the basis that either: the documents comprised exempt information as disclosure is prohibited by the CP Act;[6] or disclosure of the documents would not be in the child’s best interests.[7] While I cannot provide details of the information in issue,[8] it generally comprises documents held by the Department about the applicant who, following child protection proceedings, is no longer in the care of her biological parents and has been in the Department’s care for a number of years. Category A - Child Protection Information Relevant law As previously noted, section 45(1) of the IP Act provides that where an application is made on behalf of a child by their parent, the applicant is taken to be the child rather than the parent.[9] Under the IP Act, the applicant has a right to access documents of an agency to the extent those documents contain the applicant’s personal information.[10] It is Parliament’s intention that an agency should decide to give access unless giving access would, on balance, be contrary to the public interest.[11] The right of access is subject to other provisions of the IP Act and RTI Act, including the grounds on which access to information may be refused.[12] Relevantly, access may be refused to exempt information.[13] Schedule 3 of the RTI Act sets out information which Parliament considers is exempt information on the basis that disclosure would, on balance, be contrary to the public interest.[14] Schedule 3, section 12 of the RTI Act provides that information is exempt if its disclosure is prohibited by a number of listed provisions, including section 187 of the CP Act.[15] Section 187 of the CP Act makes it an offence to disclose certain information obtained under the CP Act. If this provision applies to the Category A Information, it will be exempt from disclosure under the RTI Act. Findings Submissions made by the applicant’s mother raise concerns about the Department not following the correct process in relation to section 187 of the CP Act. The applicant’s mother submits that a ‘deed’ was put in place by a tribunal regarding the application of section 187 of the CP Act and that there is ‘an extra layer’ that the Department has to follow in relation to this section. The applicant’s mother has not elaborated on this submission to OIC claiming that it relates to confidential matters.[16] OIC sought further information from the Department in relation to the submission. The Department is not aware of any binding judgments or deeds that impact on the application of section 187 of the CP Act in this external review. It has explained that while there have been discussions with the applicant’s representatives regarding this section in other legal proceedings, these do not affect the application of the relevant sections of the RTI Act.[17] Having assessed the submission made by the applicant’s mother and the Department’s response, I consider that the submission does not affect the findings I have made below. To be exempt from disclosure under section 187 of the CP Act, the Category A Information must: be information about a person’s affairs have been received by a listed person performing functions under or relating to the administration of the CP Act; and not be subject to an exception in section 187 of the CP Act. (a) Is the information about a person’s affairs? The term ‘person’s affairs’ is not defined in the CP Act or the Acts Interpretation Act 1954 (Qld). The relevant dictionary definitions for ‘affair/s’ are ‘matters of interest or concern’ and ‘a private or personal concern’.[18] I have carefully examined the Category A information and I am satisfied that it contains information of a private or personal concern to the applicant and the applicant’s family members. (b) Was the information received under the CP Act? I am satisfied that the Category A information is information received by Departmental officers (public servants) under the CP Act. Section 187 of the CP Act lists a public service employee as a person to whom section 187 applies. I have examined the Category A Information and am satisfied that it was received by Departmental officers in the course of performing functions under or relating to the CP Act. (c) Do any of the exceptions apply? The exemption in schedule 3, section 12(1) of the RTI Act will not apply if the relevant information comprises only the applicant’s personal information.[19] Section 187 of the CP Act contains a number of exceptions where information given or received under the CP Act may be disclosed. In this case, section 187(4)(a) of the CP Act is relevant. It provides that access may be given to another person if the information is about that other person. While I acknowledge that the Category A information is about the applicant, it is also intertwined with the information of others, including the applicant’s siblings, parents, healthcare providers and Departmental staff. After careful assessment, I find that it is not solely about the applicant.[20] Conclusion I am satisfied that the Category A information: is about a person’s affairs was received under the CP Act is prohibited from disclosure under the CP Act is not subject to the exceptions in schedule 3, section 12(2) of the RTI Act or section 187(4)(a) of the CP Act; and is accordingly exempt from disclosure under the RTI Act. Category B – Disclosure not in the best interests of the child Relevant law Access may also be refused to information under section 47(3)(c) of the RTI Act where: the information is sought under an application made by or for a child the information sought comprises the child’s personal information; and the disclosure of that information would not be in the child’s best interests.[21] Section 50 of the RTI Act provides that regard must be had to whether the child has the capacity to: understand the information and the context in which it was recorded; and make a mature judgment as to what might be in his or her best interests. The IP Act and RTI Act provide limited guidance as to what factors are to be considered in deciding whether disclosure of the information would not be in the best interests of the child. The principle ‘best interests of the child’ is set out in the United Nations’ Convention on the Rights of the Child (1989) (Convention),[22] and has since been applied in Australia in a number of legal contexts, particularly in family law and administrative law.[23] In the family law context, courts have recognised that the ‘best interests of the child’ is not a straightforward test. For example, in the High Court decision of CDJ v VAJ[24] the majority stated that: It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. Courts have also recognised that ‘best interests’ is a multi-faceted test and incorporates the wellbeing of the child, all factors which will affect the future of the child, the happiness of the child, immediate welfare as well as matters relevant to the child’s healthy development. The concept includes not only material wealth or advantage but also emotional, spiritual and mental wellbeing.[25] In Re Bradford and Director of Family Services; Commissioner, Australian Federal Police[26] the applicant sought access under the Freedom of Information Act 1982 (Cth) to various documents about herself and her four children that were held by the Director of Family Services. In that case, President Curtis noted that if there are child protection issues, anything that undermines the relationship between the child and the agency charged with the protection of children may not be in the child’s best interests: Where a child is in care ..., it is in the best interests of the child that it should be able to be open with those in whom it has confidence about its relationships with its parents. The confidence might be destroyed if the information concerned went back to a parent, especially if the parent were to take some disciplinary action against the child. [27] The Family Court has also recognised the right of children with sufficient maturity and understanding to form their own views and to express those views in all matters affecting them. Those views are then given due weight in accordance with the age and maturity of the child.[28] A child’s right to privacy is also recognised in the Convention. Australian courts accept that children reach varying levels of autonomy and independence prior to turning 18 and that a right to privacy, whilst generally low for a young child in relation to their parent, will strengthen as the child’s understanding and maturity grows.[29] The Australian Law Reform Commission (ALRC) also specifically addressed the decision - making ability of individuals under the age of 18 in ALRC Report 108 For Your Information: Australian Privacy Law and Practice.[30] It noted that ‘in many jurisdictions the age of presumption of legal capacity in relation to privacy decisions has been set at 16’. Determining when a child has a separate right to privacy can be a difficult balancing exercise. The ALRC acknowledged this, stating that ‘the family is the fundamental unit of society, but that children are individuals who are not wholly subsumed by their family’. [31] Findings Turning first to the submissions made by the applicant’s mother, she contends that the Department is not acting in the best interests of the child by withholding information about the child from her.[32] She also submits that she has a right to know what is going on in her child’s life so she knows how to interact with the child.[33] The applicant also contends that the ALRC report is not binding and therefore has no legal bearing. I accept this submission and agree that the ALRC report does not establish any binding legal principles. I note that determining whether disclosure would or would not be in the best interests of a child is a difficult question of fact. I have most carefully considered the particular circumstances of the child in this case, the submissions made by the child’s mother and the Category B information prior to making these findings. I have also considered the guidance offered by other material such as the cases mentioned above, the relevant UN Convention and the ALRC report. The applicant child is 17 years of age and her biological mother has not had responsibility for the day to day care of the child for at least the past five years. While the child is taken to be the applicant in this matter, the child’s mother has not sought the views of her daughter in making this application on her behalf. While I am unable to disclose the contents of the Category B information, having thoroughly examined it I am satisfied that this information is the sensitive personal information of the 17 year old applicant including information provided by the applicant to Departmental staff. This information is not already known or available to the applicant’s biological mother. While I note that the applicant’s mother is acting on behalf of her child in seeking the Category B information, the practical effect of disclosure of information in this matter is that the applicant’s mother will access the information. Given the applicant will shortly be recognised as an adult under the law, [34] I am satisfied that she can expect a significant right to privacy from her biological mother. I consider that disclosure of the Category B information to the applicant’s mother would have a significant impact on the applicant’s right to privacy. I do not consider that it would be in the best interests of the 17 year old applicant to provide any and all information about her to her biological mother. While the applicant is of an age that she is capable of understanding that a request for information has been made on her behalf by her biological mother, there is no evidence before me to suggest that she has given consent for her biological mother to seek information on her behalf or expressed any interest in sharing the relevant information with her biological mother. I consider that disclosure of the Category B information to the applicant’s biological mother without the consent of the applicant would have a negative effect on the interests of the applicant as it would prejudice her privacy. I also note that the applicant has shared sensitive personal information, including her own personal opinions, with the Department to assist the Department in its care for the applicant. I am satisfied that the disclosure of the Category B information in these circumstances will have a detrimental impact on the applicant’s relationship with the Department and her willingness to provide information to the Department in the future. Conclusion Accordingly, I consider that disclosure of the Category B information would not be in the best interests of the applicant and access can therefore be refused under section 47(3)(c) of the RTI Act. In the particular circumstances of this matter and for the reasons outlined above, the submissions outlined at paragraph [36] do not persuade me that disclosure of the Category B information would not be contrary to the best interests of the applicant. DECISION I affirm the Department’s decision and find that access may be refused to the Category A information under sections 67(1) of the IP Act and 47(3)(a) of the RTI Act and to the Category B information under sections 67(1) of the IP Act and 47(3)(c) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________ J S Mead Right to Information Commissioner Date: 5 June 2014 APPENDIX Significant procedural steps Date Event 21 June 2013 The Department received the applicant’s valid access application under the IP Act. 11 October 2013 The Department issued its decision on the access application. 18 December 2013 The applicant applied for internal review of the Department’s decision. 13 January 2014 The Department issued its internal review decision. 19 January 2014 The applicant applied to OIC for external review of the Department’s internal review decision. 22 January 2014 OIC requested that the Department provide copies of procedural documents. 23 January 2014 The Department provided OIC with the requested procedural documents. 4 February 2014 OIC notified the applicant and the Department it had accepted the application for external review and asked the Department to provide OIC with copies of the information in issue. 11 April 2014 OIC conveyed a preliminary view to the applicant that the Department was entitled to refuse access to the information in issue and invited the applicant to provide submissions. 22 April 2014 The applicant provided submissions contesting the preliminary view. OIC staff contacted the applicant to discuss the external review. The applicant requested an extension of time to provide submissions in response to OIC’s preliminary view. 23 April 2014 OIC requested that the Department provide information relevant to the external review by 2 May 2014. 24 April 2014 The Department provided OIC with the requested information. 6 May 2014 The applicant requested that the Information Commissioner refer a question of law to the Queensland Civil and Administrative Tribunal under section 118 of the RTI Act. 8 May 2014 OIC notified the applicant that the Information Commissioner would not refer the matter to Queensland Civil and Administrative Tribunal under section 118 of the RTI Act. 9 May 2014 The applicant requested an extension of time to provide submissions in response to OIC’s preliminary view until 16 May 2014. OIC granted the extension of time. 18 May 2014 The applicant provided OIC with submissions in response to OIC’s preliminary view dated 11 April 2014. [1] The definition of ‘applicant’ in schedule 5 and section 45(1) of the IP Act provides that where an application is made on behalf of a child, the child is taken to be the applicant.[2] Decision dated 11 October 2013 and affirmed by the Department’s internal review decision dated 13 January 2014.[3] Specifically, 511 pages refused in full and 439 pages refused in part.[4] Specifically, 26 pages refused in full and 41 pages refused in part under sections 47(3)(c) and 50 of the RTI Act. [5] See section 45(1) note 2 and the definition of ‘applicant’ in schedule 5 of the IP Act.[6] Under sections 47(3)(a) and 48, and schedule 3, section 12 of the RTI Act.[7] Under sections 47(3)(c) and 50 of the RTI Act. [8] Section 123(7) of the IP Act prohibits the Information Commissioner from including information that is claimed to be exempt in reasons for a decision on external review.[9] See section 45(1) note 2 and the definition of ‘applicant’ in schedule 5 of the IP Act.[10] Section 40 of the IP Act.[11] Section 64 of the IP Act. This is referred to as the ‘pro-disclosure bias’. [12] Section 67 of the IP Act provides that access may be refused to information in the same way and to the same extent provided for under section 47 of the RTI Act.[13] Section 47(3)(a) of the RTI Act. The categories of exempt information are listed in schedule 3 of the RTI Act. [14] See also section 48 of the RTI Act. [15] See Appendix B for the text of the relevant parts of section 187 of the CP Act. [16] The applicant’s written submissions dated 18 May 2014, oral submissions dated 9 May 2014, email submission and oral submissions dated 6 May 2014, email and oral submissions dated 22 April 2014.[17] Department submission dated 24 April 2014.[18] 7CLV4M and Department of Communities (Unreported, Queensland Information Commissioner, 21 December 2011) at paragraph 30.[19] Schedule 3, section 12(2) of the RTI Act. ‘Personal information’ comprises ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’: schedule 6 of the RTI Act, and section 12 of the IP Act.[20] In Hughes and Department of Communities, Child Safety and Disability Services (Unreported, Queensland Information Commissioner, 17 July 2012), Assistant Information Commissioner Corby considered whether the exception in section 187(4)(a) applies to shared information about the applicant and other persons. She observed at paragraph 26: “The CP Act exception only applies where the information is solely about the applicant. Thus where information is simultaneously about the applicant and others, the CP Act exception will not apply.”[21] As explained in section 50 of the RTI Act.[22] Ratified by Australia in December 1990. This convention provides that the best interests of the child is a ‘primary consideration’ in decisions concerning children and defines 'children' as everyone under 18 years.[23] Section 60CC of the Family Law Act 1975 (Cth) and also see Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273.[24] (1998) 197 CLR 172 [151] per McHugh, Gummow and Callinan JJ. [25] O’Conner v A and B [1971] 1 WLR 1227 at [1237]; In the Marriage of Bishop (1981) 6 Fam LR 882 at paragraph 888; McGrath (Infants) [1893] 1 Ch 143, 148. [26] (1998) 52 ALD 455.[27] Bradford at paragraph 459. [28] These issues are discussed in Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] 1 AC 112 cited in Marion’s case (Secretary, Department of Health and Community Services v JWB and another [1992] HCA 15; (1992) 175 CLR 218. [29] Marion’s case (Secretary, Department of Health and Community Services v JWB and another [1992] HCA 15; (1992) 175 CLR 218 at paragraph 19 referring to Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] 1 AC 112 . [30] Accessible from: http://www.alrc.gov.au/publications/report-108 as at 28 May 2014[31] See For Your Information: Australian Privacy Law and Practice, chapter 68 at paragraph 68.13.Ultimately, the ALRC recommended that children aged over 15 should be presumed to be capable of giving consent, making a request or exercising a right of access. See For Your Information: Australian Privacy Law and Practice, chapter 68.[32] External review application received by OIC on 20 January 2014.[33]Submissions dated 18 May 2014.[34] Section 17 of the Law Reform Act 1995 (Qld) provides that the age of majority is 18 years. Also, ‘adult’ is defined in schedule 1 of the Acts Interpretation Act 1954 (Qld) as an individual who is 18 years or more.

queensland

court_judgement

Queensland Information Commissioner 1993-

McMahon and Department of State Development [2002] QICmr 13 (27 June 2002)

McMahon and Department of State Development [2002] QICmr 13 (27 June 2002) McMahon and Department of State Development (S 18/01, 27 June 2002, Deputy Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-2. These paragraphs deleted. REASONS FOR DECISION Background The applicant was an employee of the Queensland public service until April 1999, when he was retrenched following a series of unsuccessful attempts at deployment. As part of the deployment process, he made applications to numerous agencies, including the Department, for appointment to advertised vacancies. He has since applied to the relevant agencies, under the FOI Act, for access to their documentation of the respective selection processes, in order to ascertain whether there was improper conduct in any of those selection processes in the treatment of his job applications. The applicant is concerned that there may have been collective improper conduct, which he has described as "mobbing". With respect to the Department involved in this application for review, the applicant applied by letter dated 22 March 2000 for access, under the FOI Act, to: ...documents pertaining to the selection and appointment of officers to the positions SD3/99 SD4/99 including the decision not to deploy me at level to the AO8 level position Manager Research and Evaluation. The applicant received an initial decision dated 28 August 2000, by which he was granted access to 877 pages (either in full or in part) out of 1,130 pages identified as responsive to the terms of his FOI access application. The documents, and parts of documents, to which access was refused were found to be exempt under s.44(1) of the FOI Act. By letter dated 23 November 2000, the applicant sought an internal review of that decision. The internal review decision was made on behalf of the Department by Mr Frank Walduck who, by letter dated 7 December 2000, affirmed the Department's initial decision. By letter dated 17 January 2001, the applicant applied for review by the Information Commissioner, under Part 5 of the FOI Act, of Mr Walduck's decision. External review process In his application for external review, the applicant raised a number of issues regarding exemptions claimed by the Department, and also raised 'sufficiency of search' issues. Extensive inquiries have been undertaken by FOI officers within the Department, and by my staff, in an effort to locate any additional responsive documents, including inquiries of members of the relevant selection panel. Negotiations were conducted with the applicant in an effort to provide him with as much information as possible from the job applications of unsuccessful applicants for the relevant advertised vacancies, apart from information which could enable identification of those unsuccessful job applicants. At one point, the applicant indicated that he would be satisfied if he could have access to more information from the responses to selection criteria 5 and 6 (on which the selection panel gave the applicant a low ranking), as contained in the statements addressing selection criteria which were lodged by a selected range of unsuccessful candidates. Extensive re-editing of those documents was done in accordance with the applicant's request, but he has subsequently again insisted that he is entitled to obtain access in full to all of the documents in issue. In making my decision, I have taken into account the following material: the contents of the documents in issue; the Department's initial decision dated 28 August 2000; the application for internal review dated 23 November 2000; the internal review decision dated 7 December 2000; the application for external review dated 17 January 2001; copies of various e-mails and file notes relating to searches conducted by the Department to locate all responsive documents; the applicant's submissions dated 23 December 2000 (relating to application for review no. S 169/00), 13 and 17 June 2001, and 31 July 2001; and to the extent of its relevance in the present case, material held in respect of the applicant's other applications for review lodged with the Office of the Information Commissioner. 'Sufficiency of search' issues As explained in Re Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 (pp.27-42, paragraphs 12-61) and in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 (pp.499-500, paragraphs 14-15), the Information Commissioner has jurisdiction to conduct an external review where an applicant who applies to an agency for access to documents complains that the searches and inquiries undertaken by the agency to locate requested documents have been inadequate. The Information Commissioner explained the principles applicable to 'sufficiency of search' cases in Re Shepherd and Department of Housing, Local Government & Planning [1994] QICmr 7; (1994) 1 QAR 464 (pp. 469-470, paragraphs 18 and 19) as follows: It is my view that in an external review application involving 'sufficiency of search' issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act) to which access has been requested. It is provided in s.7 of the FOI Act that: "'document of an agency' or 'document of the agency' means a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes - (a) a document to which the agency is entitled to access; and (b) a document in the possession or under the control of an officer of the agency in the officer's official capacity;" In dealing with the basic issue referred to in paragraph 18, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case. The applicant asserts that additional responsive documents of the following kinds should exist in the possession or control of the Department: notes on the evaluation of his application as a deployee; scores recorded by individual panel members after scoring written applications against the selection criteria, for shortlisting purposes; model answers to interview questions; informal referee reports, e.g., by way of notes of telephone conversations; originals of 'joint' shortlisting scoresheets (photocopies of which, viz, documents 492-496 in file SD 4/99 and documents 597-601 in file SD 3/99, have been disclosed to the applicant). The procedures adopted, and the documents generated, by selection panels in the Queensland public sector are not uniform (nor are they required to be, since 9 May 1997 when Directive 5/97 issued by the Public Service Commissioner superseded the more prescriptive Public Sector Management Standard for Recruitment and Selection). In my experience, it is a common practice for members of selection panels to create their own scoring sheets when evaluating written job applications for shortlisting purposes. It is less common for model answers to be prepared in respect of set interview questions. Some selection panels undertake informal referee checks of preferred candidates, while other panels only resort to informal referee checks in an effort to decide between candidates who are difficult to separate on the basis of written applications and/or interview performance. While there was no reason to assume that documents of the first four kinds noted above must exist in the possession or control of the Department, such documents are generated commonly enough in merit selection processes to have afforded a reasonable basis for requesting the Department to make further searches and inquiries in an effort to locate any responsive documents of those kinds. With respect to category (e) above, there were reasonable grounds for believing that the original 'joint' shortlisting scoresheets might still exist in the possession of the Department. From his examination of the copies to which he has been given access, the applicant believes that examination of the original scoresheets would disclose that some scores have been 'whited out'. Even assuming that that did occur, it would not necessarily indicate anything untoward. Initial assessments are liable to be re-evaluated when more detailed comparisons are made between candidates, and as a result of discussion between panel members undertaking a joint evaluation process. In any event, the Department was willing to disclose the original scoresheets if it could locate them. The initial searches conducted by the Department for documents responsive to the applicant's FOI access application located photocopies of the 'joint' shortlisting scoresheets in the Human Resources (HR) section. However, subsequent searches of the HR section have failed to locate the originals. Inquiries have been made by the Department's FOI officers, and by a member of my staff, of the Chairman of the selection panel, and another panel member. Neither of them holds the originals, and neither was able to assist with any further information or possible leads as to their present whereabouts. In a letter dated 5 April 2001, the applicant was provided with copies of all correspondence and file notes relevant to these searches. The same outcome followed from searches and inquiries (including inquiries of the Chairman, and another member, of the selection panel) with respect to the first four categories of documents identified in paragraph 11 above. The selection panel members do not recollect the creation of any documents corresponding to categories (a), (b), (c) and (d), and do not have any such documents in their possession. While I stated above that it was a common practice for members of selection panels to create their own scoring sheets when evaluating job applications for shortlisting purposes, it also frequently occurs that selection panels meet and agree on a joint approach to the scoring of each written application for shortlisting purposes. The HR manager of the Department has stated that this was an accepted practice in the Department, and the Chairman of the relevant selection panel has informed my office that it was the approach adopted by the selection panel in the selection process for the relevant positions. Another member of the selection panel was contacted to verify the Chairman's recollection. That member had no recollection of preparing individual shortlisting scores, but did recollect a lengthy panel meeting to finalise shortlisting prior to the interviews, and supports the Chairman's account. The preponderance of evidence is that no 'individual' shortlisting scoresheets were created, and I am not satisfied that there are reasonable grounds for believing that documents of the kind referred to in category (b) above exist in the possession or control of the Department. I am satisfied that there are no further searches and inquiries that the Department could reasonably be required to undertake in an effort to locate any additional documents answering the descriptions in categories (a) – (e) from paragraph 11 above. However, because documents matching those descriptions have not been located on the Department's files or in the possession of the panel members, the applicant has contended that searches should be made for files relating to him held under codenames, on which these documents may exist. For a number of years the applicant worked for the former Department of Natural Resources (the DNR). During that time he lodged a number of grievances against officers of the DNR. He had also appealed against appointments within the Department and commenced court proceedings with respect to other matters. Ultimately, after a departmental restructuring at the DNR and a period as a surplus officer seeking deployment (during which the applications the subject of this external review were made), the applicant was retrenched from the Queensland public service in April 1999. During the course of an FOI access application to the DNR, the applicant became aware of the existence of documents relating to him held by the DNR under the codename "---". The documents, and the basis for establishment of the codename, are discussed at pages 9-12 of a letter to the applicant dated 31 May 2000 from Mr F W Fanning (Director, Executive and Legal Services, DNR). Mr Fanning stated that this was done in order to allow officers responsible for dealing with the applicant's actions against the DNR to deal with them without revealing the applicant's identity beyond those for whom such knowledge was essential. The applicant has submitted that the very existence of such documents in the DNR supports his contention of an overall pattern of mishandling his applications and related documents across a number of departments. He asserts that if such documents are held by one department, it is not unreasonable to assume that other departments would use similar processes. He also submitted: ... I am not searching for records of dealing involving chief officers, not directly at least. I am proposing a storage place for documents on dealings by lower level officers, but a storage place that only chief officers could approve (if such storage places are or can be legal). The critical role of the chief officers is not with the documents, but with approval of the storage place in which documents may lie. My argument is that these storage places for documents would not exist without the knowledge and approval of chief officers, however those storage places might be used. ...[17 June 2001] The Department has supplied me with the following internal e-mails and file notes created during the search for coded documents: e-mail correspondence between Bree Linklater and Kerry Rule, Human Resources Officer, dated 22 December 2000; internal review-file note e-mail from Graham Walker, Principal Employee Relations Adviser, to Michelle Duckworth (FOI officer) dated 5 March 2001: e-mail from Russell Wood, (at the time, Manager, Management Information Unit), to Michelle Duckworth, dated 5 March 2001; e-mail from Chrystal James, Management Information Unit, to Michelle Duckworth, dated 5 March 2001. In his internal review decision, Mr Frank Walduck informed the applicant: Discussions also took place with senior officers of the Human Resources Division regarding the use of codenames rather than surnames for the filing of confidential documentation. I was informed that this was not a practice utilised by this Department and that any relevant documents would have been included on the selection and appointment files identified in the initial search. The applicant has insisted that declarations be obtained in this review (and other external reviews) from the relevant chief executive officer(s). He said: Your first condition, then, requires me to take the word of the HRM officer that no codeworded files exist, where as, in the DNR case, the HRM was himself holding "---" documents and withholding them from DNR's FOI unit who knew the documents were being withheld. I only discovered the deceit because of a slip-up with one document.[17 June 2001] There is no material before me which suggests that the relationship of the applicant with other DNR staff over many years, which gave rise to the creation of coded documents, is common to, and liable to result in the use of similar practices by, other departments. The fact that such an extraordinary procedure was used in the DNR, which had longstanding dealings with the applicant, is not sufficient to establish that similar procedures were, or might have been, adopted by other departments or agencies. I am not satisfied that there is a proper or logical basis for refusing to accept the responses of Messrs Wood and Walker to questions specifically asked of the respondent Department in this case, concerning the existence of coded documents. I find that there is no reasonable basis for believing that coded documents concerning the applicant exist in the possession or control of the Department, unknown to senior officers in the Human Resources and Information Management Units. I am also satisfied that the Department has conducted all reasonable searches and inquiries in an effort to locate any such documents, and indeed in an effort to locate all documents which the applicant believes should exist in response to his FOI access application. Application of s.44(1) of the FOI Act The Department has claimed that the matter remaining in issue, which comprises identifying information contained in the job applications of unsuccessful candidates for the relevant positions in the Department, is exempt matter under s.44(1) of the FOI Act, in accordance with the principles explained by the Information Commissioner in Re Baldwin and Department of Education [1996] QICmr 8; (1996) 3 QAR 251. The applicant has obtained access to those parts of the job applications the disclosure of which would not, in the opinion of the Departmental decision-makers, enable identification of the respective unsuccessful job applicants. Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. The applicant has not disputed the correctness of the Department's characterisation of the matter in issue as matter the disclosure of which would disclose information concerning the "personal affairs" of the respective unsuccessful job applicants. It will be sufficient if I record my finding that, based on my examination of the matter remaining in issue, I am satisfied that, with some minor exceptions, the matter remaining in issue is properly to be characterised as matter the disclosure of which would disclose information concerning the personal affairs of the respective unsuccessful job applicants, in accordance with the reasons for decision given by the Information Commissioner in Re Baldwin at paragraphs 21-23. It is matter which, if disclosed, would disclose the fact that identifiable individuals had made unsuccessful applications for positions SD 3/99 and/or SD 4/99. That is information which concerns the personal affairs of the unsuccessful applicants. Hence the matter in issue is prima facie exempt from disclosure under s.44(1) of the FOI Act, subject to the application of the public interest balancing test incorporated in s.44(1). The minor exceptions to which I referred above consist of several segments of information in respect of which I consider that the Department has been overly cautious in making deletions. The prospect that disclosure of those passages could enable identification of the relevant job applicant is, in my opinion, negligible, and I am not satisfied that they qualify for exemption under s.44(1) of the FOI Act. (I will forward to the Department with these reasons for decision copies of the documents in issue on which I have marked those segments of information which qualify for exemption under s.44(1), in accordance with the principles stated in Re Baldwin, and my decision at paragraph 53 below. The applicant should be given access to the documents in issue subject to the deletion of only the marked segments of information referred to in the preceding sentence.) Because of the way that s.44(1) of the FOI Act is worded and structured, the mere finding that information concerns the personal affairs of a person other than the applicant for access must always tip the scales against disclosure of that information (to an extent that will vary from case to case according to the relative weight of the privacy interests attaching to the particular information in issue in the particular circumstances of any given case), and must decisively tip the scales if there are no public interest considerations which tell in favour of disclosure of the information in issue. It therefore becomes necessary to examine whether there are public interest considerations favouring disclosure, and if so, whether they outweigh all public interest considerations favouring non-disclosure. Summary of applicant's submissions on the public interest balancing test In submissions dated 23 December 2000 (in external review S 169/00), 13 and 17 June 2001, and 31 July 2001, the applicant has addressed arguments on the public interest considerations to be taken into account, and the relative weight that he contends should be accorded them, of which the following passages are representative: the accountability outcome, as a positive for disclosure, was tied to the open merit selection process only. This process has some inherent features, namely for any person with standing, accountability can be tested by a comparison of their application with that of the successful (best) applicant. Re Baldwin provides that application. for any person with standing in the process, the adverse consequence of a bad process is the loss of a promotion or a transfer the concern about accountability was a concern for scrutiny, assurance of a process for which no disclosures of wrongdoing in the process have been as yet made My case will be substantively different to the circumstances "balanced" in Re Baldwin. the process for which I will be advocating the public interest in accountability will be the deployment process Here the adverse consequence of bad process is retrenchment The deployee is successful if he/she meets the selection criteria. The best application is likely to provide measures of suitability for the position that are higher than "adequate", and is thus not very useful for accountability purposes Applicants who gained ratings of "adequate" against the selection criteria provide a better basis for scrutiny of the decision as to whether or not the deployee's application was also "adequate" or "not adequate" Wrongdoing or prima facie evidence of wrongdoing has already been identified in the deployment process and/or any consequent open merit selection process, FOI process, tribunal hearing or such. Information exists tending to show "mobbing" of me across the public service with respect to these processes. (applicant's submission of 23 December 2000) I understand this submission to mean that the public interest in the applicant being able to scrutinise, and hold accountable, agency processes for dealing with his applications for deployment favour disclosure of a wider range of selection process documentation than in the ordinary case of an unsuccessful applicant in a merit selection process (because the applicant merely had to establish that he was suitable for appointment to the advertised vacancy, not that he was the most meritorious available candidate), and is higher than in the ordinary case because: the consequence of the misapplication of the process in his case was retrenchment; the applicant alleges "wrongdoing" in the selection process; the applicant alleges that the events formed part of an orchestrated approach to exclude the applicant from successfully obtaining deployment. I should note in this regard that the applicant was a candidate for deployment at AO8 level in respect of position no. SD 4/99, but his application for the higher SO1 position, SD 3/99, fell to be treated on a merit selection basis. After viewing the edited job applications that have been disclosed to him, the applicant submitted: ... Proven maladministration and prima facie or suspected official misconduct (with respect to public records and the treatment of a public officer, both entailing positions of trust) open the door for me to now obtain the documents without any exempted materials. Where responses to SC5 and SC6 by other applicants refer to unspecified work history/work experience/or such, I claim the right of access to other parts of their applications that describe this experience. (applicant's submission of 13 June 2001) In the same submission, the applicant went on to add: The public interest in accountability, I hold, includes the interest that the documents go to a person who will drive the processes or be a driver for the processes of accountability concerning the events that are the subject of the FOI application. Application of the public interest balancing test The public interest considerations favouring disclosure to the applicant of the matter in issue are: the general public interest in scrutiny and accountability of government; the accountability of the Department for the proper conduct of selection processes in accordance with merit and equity principles, but also, in this case (at least with respect to position SD 4/99), in accordance with established government rules and policies for the deployment of surplus public service officers; the public interest in the fair treatment of the applicant according to law (as to which, see Re Pemberton and The University of Queensland (1994) 2 QAR 293 at pp.368-379, in particular at pp.376-377, at paragraph 190). The public interest considerations telling against disclosure of the matter in issue to the applicant are the protection of the privacy interests of the unsuccessful job applicants, and the consideration identified by the Information Commissioner in Re Baldwin (at paragraph 33) as: ... the probability that some meritorious candidates for appointment, especially from outside the public sector or the particular government agency in which an advertised vacancy has occurred, may be inhibited from applying at all for appointment to a government office if they perceive that the fact of their making an application for appointment may be disclosed in circumstances other than their appointment to the office. The applicant has sought to distinguish his case from Re Baldwin on the bases mentioned in paragraphs 31-32 above. Because he was a surplus officer seeking deployment, the applicant asserts that proper scrutiny of the selection process requires comparison of his application with those that were rated at a level that could be equated with suitability for appointment, having regard to the relevant OPS Directive 4/98 which provided that: Assessment [of a surplus officer seeking deployment or redeployment] shall be in terms of suitability with regard to the selection criteria for the job, as opposed to relative merit...[5.10] In a memorandum by the Chairman of the selection panel dated 8 February 1999 (documents 497-501), he stated: One redeployee (Mr G McMahon) (from another Department and registered with OPS) applied for this position. This applicant was considered first and in accordance with the guidelines. It was the opinion of the selection panel that, on the face of the application, the applicant would not have the minimum level of competencies to fulfil the requirements of the position but, to more fully assess the applicant, an interview should be held. This was undertaken and the following quantified assessment made against the criteria. ... Overall, therefore, the selection panel considered Mr McMahon to be unsuitable for the position. I accept the validity of the applicant's proposition that the interests (with regard to scrutiny and accountability of agency selection processes) of a surplus public service officer who is seeking deployment are different from those of an unsuccessful applicant for appointment or promotion in an ordinary merit selection process. Indeed, the selection processes involved differ in significant respects. The approach referred to in the first two sentences quoted from the report of the selection panel in this case (see paragraph 39 above) is logically correct. The first decision should be as to the suitability (as against the selection criteria for the vacant position) of any candidate for deployment. Should the candidate for deployment be determined to be unsuitable, the selection panel should then proceed with a merit selection process. (Although, I accept that, in a case where a selection panel considers it necessary to interview a candidate for deployment in order to determine his/her suitability for the vacant position, it may well be a more convenient and expeditious use of its time and resources to carry out shortlisting and interviews prior to making either decision.) An agency or a selection panel that does not recognise these distinct decision-making tasks might prejudice the interests of a candidate for deployment. However, I am far from satisfied that, even in such a case, comparisons with the job applications of other unsuccessful candidates, even those who were shortlisted, necessarily affords a valid basis for any meaningful assessment of whether a candidate for deployment ought to have been rated as suitable for appointment to the advertised vacancy. The applicant's claimed basis for wanting to compare his relevant skills, experience et cetera with other unsuccessful candidates would only have validity in respect of other candidates who were specifically rated by the selection panel as suitable for appointment to the advertised vacancy (even though not rated as the most meritorious candidate). While it is common for candidates to be assessed as unsuitable at the shortlisting stage on the basis of their written applications, it would be rare for any selection panel to assess candidates as suitable for appointment at the shortlisting stage, i.e., without the benefit of an interview. It certainly could not be safely assumed that any candidates not shortlisted for interview were regarded by the selection panel as suitable for appointment, unless there were a specific written finding to that effect, and no such findings were recorded by the relevant panel in the present case. Nor do I accept that selection of a candidate for shortlisting necessarily equates to a finding by the selection panel that that candidate was suitable for appointment. Shortlisting does not, in itself, connote that all or any of the candidates selected for interview will be found to be suitable for appointment. It may be that, following interview, no person is found to be suitable for appointment, and the position is re-advertised (as happens from time to time with more senior public sector positions). If a person is appointed to a vacant position, it can be taken that that person was considered suitable, but it does not necessarily follow that any of the other shortlisted candidates was considered suitable. Some selection panels, after interviewing shortlisted candidates, rate them as either suitable or unsuitable for appointment to the advertised vacancy, and rank the suitable candidates in a comparative order of merit. Other selection panels do not specifically address suitability, but merely assess relative merit. In the present case, the report of the selection panel recorded a comparative order of merit of the shortlisted candidates for position SD 4/99, but did not address, or record any findings, as to whether or not the unsuccessful shortlisted candidates were suitable for appointment. In the absence of any such findings by the selection panel, I have difficulty in attributing any substantial weight to the asserted public interest in the applicant being permitted to compare his relevant skills, experience et cetera with those of other unsuccessful candidates who were regarded by the selection panel as suitable for appointment to the advertised vacancies. In any event, in the present case, I consider that the material already disclosed to the applicant under the FOI Act, plus the additional material to be disclosed in accordance with my finding at paragraph 29 above, is more than adequate to give a sufficient indication of the relevant skills, work experience et cetera of other unsuccessful candidates (including shortlisted candidates), so as to enable the applicant to make comparisons with his own relevant skills, work experience et cetera. While some of the withheld identifying information would give more detail as a basis for comparison, I do not consider that its disclosure could give the applicant any substantially greater assistance for his stated purposes, and certainly not to an extent that would justify overriding the privacy interests of the unsuccessful job applicants. With respect to the applicant's asserted interest in accessing matter to enable him to make out a case of maladministration/misconduct, there is no material before me which affords any objective support for a suspicion that the conduct of the selection processes for positions SD 3/99 and SD 4/99 was affected by misconduct or wrongdoing. Therefore, I do not attribute any substantial weight in this case to the applicant's allegations that there was wrongdoing in the selection process, or that these selection processes formed part of an orchestrated approach to exclude the applicant from successfully obtaining deployment. I note that the applicant appears to believe that he already has sufficient material to enable him to make out a case of maladministration/misconduct. In a letter dated 13 June 2001, the applicant stated: The material shown to me to date accepting some exemptions is sufficient to demonstrate wrongdoing and to raise suspicion of official misconduct. I do not know through what forum the applicant proposes to make out a case of maladministration/misconduct. However, the courts, and relevant statutory 'watchdog' agencies, would have coercive powers to call for and examine the unexpurgated copies of the documents in issue, if the applicant could persuade the relevant body that that was necessary in the interests of justice. More importantly, there would be legal restrictions on further use or disclosure of information obtained in that way (or, for instance, information obtained by the applicant through curial disclosure processes) that would safeguard the privacy interests of the unsuccessful job applicants so far as possible, in contrast to disclosure of information to the applicant under the FOI Act, which would leave the applicant free to use or further disseminate the information in any way that was not contrary to law. Conclusion Based on my examination of the matter remaining in issue, I am not satisfied that the public interest considerations claimed to favour its disclosure to the applicant outweigh the public interest considerations favouring non-disclosure (see paragraph 37 above). I find that the matter remaining in issue is exempt from disclosure under s.44(1) of the FOI Act. Copyright In his application for external review, the applicant queried the practice of the Department in allowing him to inspect certain documents without making full copies. Section 30(3)(c) of the FOI Act provides: 30.(3) If giving access in the form requested by the applicant ... (c) would involve an infringement of the copyright of a person other than the State; access in that form may be refused and given in another form. Questions relating to forms of access to non-exempt matter are not questions which the Information Commissioner has jurisdiction to determine (i.e., they do not fall within the categories of reviewable decisions specified in s.71 of the FOI Act). If an agency accepts that s.30(3)(c) is applicable in respect of particular documents, it is appropriate that access be given by way of inspection only. DECISION I decide to vary the decision under review (being the decision of Mr F Walduck on behalf of the Department dated 7 December 2000) by finding that: (a) the segments of matter in issue referred to in paragraph 29 above do not qualify for exemption from disclosure to the applicant under s.44(1) of the FOI Act; but (b) the balance of the matter remaining in issue is exempt matter under s.44(1) of the FOI Act. I also decide that there are no reasonable grounds for believing that additional documents, responsive to the terms of the applicant's FOI access application dated 18 March 2000, exist in the possession or control of the Department, and that the searches and inquiries undertaken by the Department in an effort to locate any such documents have been reasonable in all the circumstances of this case.

queensland

court_judgement

Queensland Information Commissioner 1993-

Hillier and Redland City Council [2011] QICmr 22 (9 June 2011)

Hillier and Redland City Council [2011] QICmr 22 (9 June 2011) Last Updated: 19 July 2011 Decision and Reasons for Decision Application Number: 310243 Applicant: Hillier Respondent: Redland City Council Decision Date: 9 June 2011 Catchwords: RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION – REFUSAL OF ACCESS – DOCUMENTS NOT IN POSSESSION – applicant contended additional documents should exist – whether there are reasonable grounds for agency to be satisfied that documents exist to the extent they should be in the agency’s possession – whether agency has taken all reasonable steps to locate the documents – whether access to documents can be refused under sections 47(3)(e) of the Right to Information Act 2009 (Qld) on the ground set out in section 52(1)(b) of the Right to Information Act 2009 (Qld) RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION – REFUSAL OF ACCESS – Grounds on which access may be refused – section 47(3)(a) of the Right to Information Act 2009 (Qld) – to the extent the document comprises exempt information under section 48 – whether information would be privileged from production in a legal proceeding on the ground of legal professional privilege – whether employee legal advisers had the requisite degree of independence in giving professional advice RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION – REFUSAL OF ACCESS – Grounds on which access may be refused – section 47(3)(b) of the Right to Information Act 2009 (Qld) – to the extent the document comprises information the disclosure of which would, on balance, be contrary to public interest under section 49 – whether disclosure of the information would, on balance, be contrary to the public interest Contents REASONS FOR DECISION Summary On 9 December 2009, the applicant made an application to Redland City Council (Council) under the Right to Information Act 2009 (RTI Act) seeking access to documents relating to a development application for a biomass power station at Mount Cotton and Council’s investigation of a complaint to the CMC about the development application. By letter dated 22 January 2010, the applicant agreed to narrow the scope of the access application (Amended Application).[1] Council located 757 pages and decided (Decision) to release 750 pages in full and 7 pages in part (First Release Documents). The applicant sought an internal review of Council’s Decision. An additional 183 pages were located, 177 pages of which Council decided to release in full and 6 pages of which Council decided to release in part. (Second Release Documents).[2] The applicant applied for external review and alleged that further documents responsive to his application must exist. As a result of further searches requested on external review, Council located 217 pages of emails (Third Release Documents). Council provided the applicant with full access to 205 pages and partial access to 12 pages on the basis that some of the information is outside the scope of the Amended Application. The applicant has not contested the out of scope issue and therefore the out of scope information on those 12 pages is not in issue in this review. The applicant maintains that further additional documents exist. His claim is in two parts, firstly that specific documents exist (Further Specific Documents) that have not been provided to him and secondly; a general claim that further documents exist (Further General Documents). After carefully considering all of the evidence and submissions before me, I am satisfied that: Council may refuse access to the Further Specific Documents as they are outside the scope of the Amended Application Council may refuse access to the Further General Documents sought[3] as they do not exist[4] on the basis that: ○ Council has conducted comprehensive searches for the Further General Documents sought by the applicant; and ○ such searches comprise all reasonable steps to locate them Council may refuse access to some of the information on the basis that it would be privileged from production in a legal proceeding on the ground of legal professional privilege;[5] and council may refuse access to some of the information on the basis that disclosure of the information would, on balance, be contrary to public interest.[6] Decision under review The decision under review is Council’s Internal Review Decision dated 6 May 2010. Background Significant procedural steps relating to the application are set out in the Appendix to this decision. Evidence considered In making this decision, I have taken into account the following: the applicant’s access application, amended application, application for internal review, application for external review and supporting material Council’s Decision and Internal Review Decision submissions provided by the applicant submissions provided by Council file notes of telephone conversations between OIC staff and the applicant file notes of telephone conversations between OIC staff and Council relevant provisions of the RTI Act and the Information Privacy Act 2009 (IP Act); and previous decisions of the Information Commissioner of Queensland and other relevant case law as identified in this decision. Issues in this review The issues to be determined in this review are: the scope of the terms of the applicant’s Amended Application the sufficiency of Council’s searches to locate documents responsive to the Amended Application whether Council can refuse access to certain information[7] on the basis that the information is exempt matter as it is subject to legal professional privilege; and whether Council can refuse access to certain information[8] on the basis that disclosure of the information would, on balance, be contrary to public interest. Each of these issues shall be dealt with separately. Scope On 22 January 2010 the applicant wrote to Council and agreed to narrow the scope of his access application to the following information (Amended Application): Briefing notes from department heads and others to Susan Rankin re my complaint to the CMC that resulted in the Susan Rankin letter dated 15th February 2008 to me and the CMC, these would include notes from the legal department and the development department. All notes from Kylie [Fernon] (the appointed investigator) covering her investigation E mails from and to those listed below covering the period from 1 December 2006 to March 2007 Donovan Appleton Doyle Toohey Quak Purdy Bray It is necessary to address the issue of the scope of the applicant’s Amended Application as, in the course of this review[9] the applicant has sought access to the following Further Specific Documents: a file note dated 25 May 2010 documents relating to the May 2008 complaint registered by Council on 26 May 2008 the record of a meeting held on 25 May 2010; and a draft report submitted to Council and such documents may be outside the scope of the terms of the Amended Application. There have been a number of decisions of this Office that have considered the issue of the construction and interpretation of access applications.[10] These decisions[11] specify that the terms of an FOI Application will set the parameters for an agency’s search efforts and that an applicant cannot unilaterally expand the terms of an FOI Application. Additionally, in Robbins the Information Commissioner noted that where there is ambiguity in the terms of an FOI application it is rarely appropriate to apply legal construction techniques in preference to consulting with the author of the words for clarification. However, in the circumstances of that case the Information Commissioner was satisfied that there was no ambiguity in the terms of the FOI application that required clarification.[12] I consider in this case there is no ambiguity in the terms of the Amended Application. It is clear from the terms of the Amended Application that the applicant seeks documents that are: briefing notes (including notes from the legal department and the development department) to Susan Rankin about the applicant’s complaint to the CMC in preparation for her letter dated 15 February 2008 notes relating to the investigation conducted by Kylie Fernon; or emails from or to the various named persons in the period 1 December 2006 to March 2007. In relation to the file note dated 25 May 2010, the documents relating to the May 2008 complaint and the record of a meeting held on 25 May 2010, I consider such documents are outside the scope of the applicant’s Amended Application as they are clearly not a briefing note (or note from the legal department or development department) designed to brief Susan Rankin in preparation of the letter dated 15 February 2008, because they were created after that date. Additionally, they are clearly not a note relating to Kylie Fernon’s investigation as Kylie Fernon’s investigation was completed in February 2008, well prior to the creation of the documents sought; and finally, they are not emails from or to the various named persons created in the period 1 December 2006 to March 2007. Finally, in relation to the draft report which the applicant contends was submitted to Council, I am satisfied that this refers to a draft version of a final report which was submitted to Council on 24 June 2010. I consider the draft report to be outside the scope of the applicant’s Amended Application for the same reasons as outlined in paragraph 16 above. Accordingly, I am satisfied that the Further Specific Documents fall outside the scope of the Amended Application and therefore can not be considered further in this decision. Sufficiency of search The applicant has contended that there are Further General Documents that have not been provided to him that should be in the Council’s possession. This raises the issue of whether the documents are nonexistent or unlocatable or whether Council’s searches for the documents have been sufficient. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency[13] though this right is subject to other provisions of the RTI Act including the grounds on which an agency may refuse access to documents.[14] The RTI Act provides that access to a document may be refused[15] if the document is nonexistent or unlocatable.[16] A document is nonexistent if there are reasonable grounds for the agency or Minister dealing with the access application to be satisfied that the document does not exist.[17] The RTI Act is silent on how an agency or Minister can be satisfied that a document does not exist. However in PDE and the University of Queensland[18] (PDE) the Information Commissioner explained that, to be satisfied that a document does not exist, an agency must rely on its particular knowledge and experience, having regard to various key factors including: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach) other factors reasonably inferred from information supplied by the applicant including: ○ the nature and age of the requested document/s ○ the nature of the government activity the request relates to. Alternatively, an agency may rely on searches to satisfy itself that a document does not exist. In such cases the Information Commissioner indicated in PDE that in order to substantiate a conclusion that there are reasonable grounds to be satisfied that the document does not exist, it may be necessary for the agency or Minister to take all reasonable steps to locate the document sought. To ensure all reasonable steps have been taken to locate documents, a decision-maker should make enquiries and undertake searches of all relevant locations, having regard to the key factors listed above.[19] Has Council taken all reasonable steps to find the documents? On internal review, the applicant stated that he believed there were documents that had not been provided. In response to this concern, Council’s representative stated: ... a directive [was issued] to all officers who had been identified as stakeholders in this matter asking them to review their records for any documents that fell within the scope of [the applicant’s] initial application. To assist officers, I provided a copy of the document schedule listing the documents [the applicant] had already been provided with and specifically asked them to conduct a thorough search for any additional documents not on the schedule. As required, the internal review has stuck strictly to the scope of [the] amended application ... As a result of the further searches on internal review, Council identified and provided the applicant with the Second Release Documents. On external review, the applicant maintained his assertion that Further General Documents responsive to his request should be in existence. He voiced concern that he had gone back to Council on a number of occasions during the initial and internal review phases of the RTI process and each time Council had found more documents, thus in his view demonstrating that it was likely that more documents exist that had not been discovered. In particular, the applicant indicated that the following Further General Documents must exist: email correspondence documents relating to Kylie Fernon’s investigation; and briefing notes relating to Item 1 of the Amended Application. Following receipt of the applicant’s request for an External Review, the applicant was requested to provide a submission in relation to the Further General Documents which he believed should have been located by Council. In response, the applicant submitted:[20] no search had been completed of Council’s archived email records or the individual computers by the RTI officers. They relied upon officers the subject of the investigations to reveal documents and officers have been shown to have concealed these the legal department has further document relating to the complaint to the CMC that are being withheld; and no notes, diary entries, meeting notes or communications regarding advice or contacts with other officers, other than Appleton, have been provided regarding Kylie Fernon’s investigation. As a part of the external review process, Council was asked to conduct any further searches necessary to locate the Further General Documents identified by the applicant. Council provided this Office with a detailed submission in relation to the further searches undertaken including certifications, records and schedules of the searches undertaken. Council asserted in reply that the following locations were searched: individual files of officers for hard copy information Council’s official records management system “dataworks”; and Council’s email archive in relation to the seven persons specifically requested by the applicant. Council submitted that these locations were searched for the following reasons: to satisfy the applicant’s specific request relating to email searches because, in accordance with Council’s policy, all material, business related documents pertaining to this matter should be contained in “dataworks”; and in recognition that officers maintain filing cabinets and hard copy files, it was considered prudent that hard copy file searches should be undertaken by relevant officers relating to items 1 and 2 of the Amended Application. As a result of these searches, Council located the Third Release Documents. Following receipt of the Third Release Documents, the applicant has maintained the contention that further documents must exist. The applicant has submitted that:[21] it appears that the RTI officer could be withholding for reasons that to release would provide the public with evidence that officers have breached aspects of policy, procedure or various Acts, and possibly be shown to be biased and unfair a number of documents have been withheld as they show that an officer has contravened due process and it is in the public interest to have these events made public Council either have problems or they did not want documents to be disclosed the additional documents released on external review were emails and he had previously been told that they were not available; there should have been a number of documents that the RTI search should have found and it appears that these documents have been withheld; and he has not been provided with a copy of the PowerPoint which is attached to the email at page 165 of the Third Release Documents. Following enquiries by OIC, Council stated that the PowerPoint mentioned in the email at page 165 of the Third Release Documents was a working version of a document which had been released to the applicant.[22] While Council have identified the document as being part of a deliberative process, Council has nonetheless agreed to release a copy of the working version to the applicant.[23] I note that apart from the PowerPoint issue the applicant has not adduced any direct evidence of the existence of further documents (that are within the scope of the Amended Application). Conclusion – Sufficiency of search I consider that the locations identified by Council as having documents responsive to the applicant’s Amended Application appear reasonable based on Council’s policy and practice. The evidence before me indicates that Council have undertaken a thorough search of these locations. The applicant’s mere assertion, that more documents must exist, is not sufficient evidence upon which I can make a finding that documents do exist (that fall within the scope of the applicant’s Amended Application). Further, there is nothing before me to suggest that the search certifications or records completed by Council’s staff are not credible. Accordingly, I am satisfied that: Council has undertaken searches for the documents sought by the applicant in all relevant locations, having regard to Council’s practices and procedures in relation to information management and other administrative practices; such searches comprise all reasonable steps to locate the documents; and access may be refused pursuant to section 47(3)(e) of the RTI Act on the ground that further documents do not exist. Remaining Issues The issues that now remain to be resolved in this decision are the claims by Council that certain information is exempt on the grounds of legal professional privilege and that the disclosure of certain other information is contrary to the public interest. The information that remains for me to consider can be categorised as follows: Category A Information – information contained in pages 12 to 16 of the Second Release Documents which Council has claimed to be exempt under schedule 3, section 7 of the RTI Act on the basis that it is subject to legal professional privilege; and Category B Information – information in pages 284-285, 288, 530, 535-536 and 593 of the First Release Documents and page 183 of the Second Release Documents which Council claims it would, on balance, be contrary to the public interest to disclose. Each category shall be dealt with separately. Category A – Legal professional privilege In relation to the Category A Information, Council refused the applicant access to parts of these pages on the basis that the information refused is subject to legal professional privilege. The applicant has submitted that Council cannot claim legal professional privilege over the Category A Information as it was generated by an officer employed by Council and that even though they are possibly trained as a solicitor, they cannot claim legal privilege as they are not a separate body as a firm of lawyers would be. Relevant law Under section 23 of the RTI Act, a person has a right to be given access to documents of an agency or Minister. However, this right is subject to a number of exclusions and limitations, including grounds for refusal of access.[24] Relevantly, information will be exempt if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.[25] It is well settled that legal professional privilege attaches to confidential communications between a lawyer and client (including communications through their respective servants or agents) made for the dominant purpose of seeking or giving legal advice or professional legal assistance for use, or obtaining material for use, in legal proceedings that have commenced, or were reasonably anticipated, at the time of the relevant communication.[26] For information to attract legal professional privilege, the following elements must be established: confidential communications dominant purpose test; and professional relationship and independence. The applicant’s submission that Council cannot claim legal professional privilege focuses on the issue of whether the third element of the test has been satisfied in relation to the Category A Information. Accordingly, I do not propose to explore the first two elements of the test except in so far as to state that I am satisfied, on the basis of the information before me in this review, that the first two elements of the test for legal professional privilege are satisfied. Was there a professional relationship and independence? Privilege only attaches to confidential communications between a legal adviser and a client if: the advice is provided by the legal adviser in his or her capacity as a professional legal adviser; and the legal adviser is competent and independent.[27] The High Court of Australia has established that legal professional privilege may protect communications between salaried employee legal advisers of a government department or statutory authority and his/her employer as client (including communications through other employees of the same employer) provided there is a professional relationship of legal adviser and client, which secures to the advice an independent character notwithstanding the employment.[28] A lawyer employed by a government agency or an ‘in-house’ lawyer may claim privilege on behalf of his or her employer as the client.[29] However, an in-house lawyer will not have the required degree of independence if their advice is affected by their personal loyalties, duties and interests.[30] In Potter and Brisbane City Council[31], the Information Commissioner found that the Brisbane City Council City Solicitor and the professional staff of the City Solicitor’s office: were appropriately qualified legal practitioners conducted their practice with the requisite degree of independence from their employing organisation; and had given legal advice to the Council which attracted legal professional privilege. In this case, Council submitted[32] that: the communication was confidential and there were no third parties involved the advice was provided with regard to prospects of success in litigation the dominant purpose of the communication was the provision of a legal opinion the advice was provided by a legal adviser in her capacity as a professional legal adviser who was a registered solicitor at the time of providing the advice; and although the legal advisor was an “in house” lawyer, the advice given was independent and provided a balanced view of the matter. Council further submitted[33] that staff of Council’s Legal Services are not answerable to anyone else within Council in relation to the legal advice that they give to Council. The legal advice that the unit provides to Council is not vetted by any other area of Council prior to being given. Having reviewed the Category A Information, I note that it was contained within an email (the Advice) that was sent directly from the Manager Legal Services, who was the person providing the legal advice, to the person who was seeking the legal advice. There is no evidence before me to suggest that the Manager Legal Services was answerable to anyone else within Council in respect of the content of the Advice. Nor is there any evidence before me to suggest that the manner of the provision of the Advice deviated from the usual practice within Council of being provided directly from the Legal Services Unit without interference from other areas within Council. I consider that the Advice has the necessary character of independence. On the basis of the nature of the Category A Information and taking into account Council’s submission, I am satisfied that Council’s legal advisor who authored the Category A Information was an appropriately qualified legal practitioner who conducted her practice with the requisite degree of independence from her employing organisation and gave advice to Council which attracted legal professional privilege. Accordingly, I am satisfied that the Category A Information is subject to legal professional privilege. Has privilege been waived? Even where the elements of privilege are established, communications may not be subject to legal professional privilege because privilege has been waived, either expressly or impliedly. When a party deliberately and intentionally discloses a privileged communication, legal professional privilege which once attached to that communication will be expressly waived.[34] Privilege can be impliedly waived by voluntary conduct that is inconsistent with maintaining the confidentiality that the privilege is intended to protect.[35] The level of inconsistency required to constitute waiver will depend upon the circumstances of the case and the conduct of the privilege holder, viewed objectively. In the case of Osland v Secretary to the Department of Justice (Osland)[36], the majority judges recognised that a limited disclosure of the existence and the effect of legal advice could be consistent with maintaining confidentiality in the actual terms of the advice.[37] I have carefully examined the entire document in which the Category A Information is situated and I note that the information which has been disclosed to the applicant in that document comprises: a statement that the author had been asked to provide advice on whether emails received from the applicant were defamatory and any action that may be taken in relation to them general information about what ‘defamation’ is and the applicable law in Queensland extracts taken from correspondence received from the applicant an observation that the applicant’s complaint was still before the Crime and Misconduct Commission; and a statement that a draft letter to the applicant had been attached. The above information reveals only the existence and effect of the legal advice given. It does not reveal the substance or the actual terms of the advice. In my view the disclosure of the above information is a limited disclosure of the legal advice that is not inconsistent with the maintenance of the confidentiality in the Category A Information (which contains the actual terms of the advice). Accordingly, in my view privilege in the Category A Information has not been waived. Conclusion – Legal professional privilege I am satisfied that: the element of professional relationship and independence of Council’s legal advisor has been established; and privilege in the legal advice given has not been waived by the limited disclosure of the existence and effect of the legal advice being revealed to the applicant. Accordingly, I am satisfied that the Category A Information is subject to legal professional privilege and is therefore exempt from disclosure under the RTI Act. Category B – Contrary to public interest Council has refused the applicant access to certain information on the basis that disclosure would, on balance, be contrary to public interest. The Category B Information is contained in the following pages: Documents Page/s containing information First Release Documents 284-285, 288, 530, 535-536, and 593 Second Release Documents 183 I have reviewed the Category B Information and note that it is comprised of names, addresses and personal email addresses of persons other than the applicant. Relevant law Sections 47(3)(b) and 49 of the RTI Act provide a ground for refusal of access where disclosure of information would, on balance, be contrary to public interest. The term ‘public interest’ is not defined in the RTI Act. Instead the RTI Act recognises that many factors can be relevant to the concept of the public interest. The public interest refers to considerations affecting the good order and functioning of the community and governmental affairs for the well-being of citizens. The notion of the public interest is usually treated as separate from matters of purely private or personal interest. Usually, a public interest consideration is one that is available to all members or a substantial segment of the community should they choose to access it. Although, in some circumstances public interest considerations can apply for the benefit of particular individuals. In determining whether disclosure of the Category B Information would, on balance, be contrary to public interest, I must:[38] identify and disregard irrelevant factors identify factors favouring disclosure of the information in the public interest identify factors favouring non-disclosure of the information in the public interest balance the relevant factors favouring disclosure and non-disclosure; and decide whether disclosure of the information would, on balance, be contrary to public interest. Irrelevant factors In the course of providing submissions in support of his case, the applicant has raised concerns that Council have refused access to certain information on the basis that disclosure of the information would:[39] reveal that Council officers had not followed procedures, had breached various Acts or contravened due process highlight that Council was incompetent and deceptive cause the public to lose confidence in Council’s administration reveal that senior officers gave directions that could be detrimental, legally, to the applicant; and provide the public with evidence that showed Council to be biased and unfair. As a result of the concerns raised by the applicant, I have identified the following irrelevant factors: disclosure of the information could reasonably be expected to cause embarrassment to the Government or to cause a loss of confidence in the Government;[40] and the person who created the document containing the information was or is of high seniority within the agency.[41] Having reviewed the Category B Information I am satisfied that the information does not give rise to the first factor noted above. However the second irrelevant factor is made out on the information before me. The purpose in identifying these irrelevant factors is to ensure that potential embarrassment to Council or the seniority of a person is not taken into account as a factor in favour of nondisclosure. Accordingly, I confirm that the second irrelevant factor identified above has not influenced my decision when considering the factors in favour of disclosure and nondisclosure of the Category B Information.[42] Factors in favour of disclosure and nondisclosure Council have not identified any factors in favour of disclosure of the Category B Information in their Decision or Internal Review Decision. Taking into account the applicant’s submissions and the content of the Category B Information, I have identified the following factors in favour of disclosure: disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance Council’s accountability; and disclosure of the information could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest. Council have identified the following factor in favour of nondisclosure: disclosure of the information could reasonably be expected to prejudice the protection of an individual’s right to privacy. In addition, I have identified the following factor in favour of nondisclosure because of public interest harm in disclosure: disclosure of the information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person, whether living or dead. I shall consider each factor below. Accountability I accept that there is a broad public interest in Council being accountable to its electorate. However, it is necessary to consider the facts of each case to decide whether the relevant accountability interest is sufficiently strong and whether it is appropriately served by disclosure of the information. In processing the applicant’s Amended Application, Council has granted the applicant access to documents, including documents which may be either exempt or contrary to public interest documents, or outside the scope of the Amended Application, such as: various documents relating to Council’s Internal Audit Report and the CMC investigation which resulted from the applicant’s complaint referred to Council by the CMC on 20 December 2007 including: ○ briefing note prepared by Kylie Fernon detailing her findings and recommendation in relation to the investigation ○ the investigation running sheet ○ a copy of the Development Application Decision Notice dated 23 March 2007 issued to Cleveland Power Pty Ltd ○ a chronology of events for the development application ○ a copy of the sealed Judgment of the Planning and Environment Court dated 7 November 2007 approving the development application subject to stated conditions briefing notes addressed to Council’s CEO with dates prior to 15 February 2008 copies of correspondence to the applicant and CMC dated 15 February 2008; and various emails between the dates of 1 December 2006 and March 2007. I have reviewed the Category B Information and find that: it comprises a small percentage of the entirety of the information located by Council in response to the applicant’s request; and consists of the personal information[43] of other persons, including names, addresses and personal email addresses. Given the content of the information which has been disclosed to the applicant and the content of the Category B Information, I am of the view that disclosure of the Category B Information would not enhance the ability of the public to scrutinise Council’s actions in relation to the proposed biomass power station. Accordingly, I attribute limited weight to this factor in favour of disclosure. Positive and informed debate In his submission dated 24 February 2011, the applicant has submitted that the release of the information is in the public interest as 330 complaints, representing over 300 households, were received in relation to the proposed biomass power station. I accept that the development approval application in relation to the proposed biomass power station was, and still is, an important issue or matter of serious interest for the applicant’s local community. I also accept that release of the information sought by the applicant in his Amended Application would contribute to a positive and informed debate of the issue within that community. Given the content of the information which has been disclosed to the applicant and the content of the Category B Information, I am of the view that disclosure of the Category B Information would not further the public interest in contributing to a positive and informed debate of the issue. Accordingly, I attribute limited weight to this factor in favour of disclosure. Protecting an individual’s right to privacy Disclosure of information that could reasonably be expected to prejudice the protection of an individual's right to privacy is a public interest factor favouring nondisclosure. I am satisfied that the Category B Information comprises personal information about persons other than the applicant such as names, addresses and personal email addresses and that no authority to grant access to that personal information has been provided by any of the persons named. On the information available to me, I am satisfied that disclosure of the Category B Information: would disclose the personal information of other persons; and could reasonably be expected to prejudice the protection of their right to privacy. Accordingly, I attribute significant weight to this factor in favour of nondisclosure. Personal information I accept that disclosing information may result in a public interest harm if the disclosure would disclose the personal information of a person. Personal information is ‘information or an opinion... whether true or not ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’[44] The Category B Information consists of the names, addresses and personal email addresses of other persons. Such information is clearly personal information as per the above definition. Accordingly, the question arising is how significant the public interest harm would be if the information were disclosed. In my view the public interest harm would be significant as the information is about other persons or concerns matters that affect the interests of persons other than the applicant. Disclosure of the Category B Information would invade the privacy rights of those individuals and cause a public interest harm. Accordingly, I attribute significant weight to this factor in favour of nondisclosure. Balancing the public interest In balancing the competing public interest factors, I am satisfied that disclosure of the Category B Information would not: enhance the public interest in the accountability of Council; and contribute to the positive and informed debate on the issue of the development approval application for the proposed biomass power station. I am also satisfied that disclosure of the Category B Information would: invade the privacy rights of other persons; and disclose personal information of other persons. Accordingly, on balance I find that the public interest factors in favour of nondisclosure of the Category B Information outweigh the public interest factors in favour of disclosure. Findings Taking into account all of the information set out above, I consider: in relation to the issue of the scope of the terms of the applicant’s Amended Application: ○ there is no ambiguity in the terms of the Amended Application ○ the Further Specific Documents fall outside the scope of the Amended Application; and ○ therefore, the Further Specific Documents can not be considered further in this decision. in relation to the issue of sufficiency of search: ○ Council has conducted comprehensive searches for the Further General Documents sought by the applicant ○ such steps comprise all reasonable steps to locate the Further General Documents ○ the Further General Documents do not exist for the purpose of section 52(1)(a) of the RTI Act; and ○ Council can refuse access to the Further General Documents under section 47(3)(e) of the RTI Act. in relation to the issue of whether Council can refuse access to the Category A Information on the basis that it is subject to legal professional privilege: ○ the element of a professional relationship and independence of Council’s legal advisor has been established ○ privilege in the legal advice given has not been waived by the limited disclosure of the existence and effect of the legal advice being revealed to the applicant; and ○ Council can refuse access to the Category A Information under section 47(3)(a) of the RTI Act. in relation to the issue of whether Council can refuse access to the Category B Information on the basis that its disclosure is contrary to the public interest: ○ the Category B Information is comprised of the personal information of other persons and disclosure of the Category B Information would disclose the personal information of other persons and invade their right to privacy ○ release of the Category B Information would not enhance the ability of the public to scrutinise Council’s actions in relation to the proposed biomass power station or further the public interest in contributing to a positive and informed debate of the issue; and ○ on balance, disclosure of the Category B Information is contrary to the public interest under section 47(3)(b) of the RTI Act. DECISION I vary the decision under review by finding that: access to the Further General Documents sought can be refused under section 47(3)(e) of the RTI Act on the ground set out in 52(1)(a) of the RTI Act access to the Category A Information can be refused on the basis that it would be privileged from production in a legal proceeding on the ground of legal professional privilege under section 47(3)(a) of the RTI Act; and access to the Category B Information can be refused on the basis that disclosure would be contrary to the public interest under section 47(3)(b) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Jenny Mead Right to Information Commissioner Date: 9 June 2011 Appendix Significant procedural steps Date Event 18 December 2009 Council receives the applicant’s RTI application. 22 January 2010 The applicant agrees to narrow the scope of his access application (Amended Application). 12 March 2010 Council locates 757 pages and decides (Decision) to release 750 pages in full and 7 pages in part (First Release Documents). 8 April 2010 The applicant requests Council to undertaken an internal review of the Decision. 6 May 2010 On internal review, Council locates an additional 183, 177 pages of which Council decided (Internal Review Decision) to release in full and 6 pages of which Council decided to release in part (Second Release Documents). 2 June 2010 The applicant applies to the OIC for external review of Council’s Internal Review Decision. 11 June 2010 Council provides OIC with copies of relevant documents. 22 June 2010 OIC informs Council and the applicant that the external review application has been accepted. The applicant is requested to provide a submission identifying the specific documents he believes should have been located by Council and providing his reasons for his belief that these documents exist. 5 July 2010 The applicant provides a submission. 24 August 2010 OIC provides Council with a copy of the applicant’s submission dated 5 July 2010 and requests Council to complete the following steps: conduct any further searches Council identified as necessary to locate the requested documents certify the records sheets; and provide a submission on the outcome of the searches. 24 August 2010 OIC asks the applicant to clarify the issues for consideration on external review. The applicant confirms that he 31 August 2010 Council provides OIC with copies of the First Release Documents. 3 September 2010 Council provides OIC with copies of the Second Release Documents. 16 September 2010 Council provides a submission on further searches undertaken which is supported by signed search certifications and records of searches. Council advises OIC that a further 217 pages of emails responding to the narrowed scope of the access application had been located (Third Release Documents). Council proposes to provide the applicant with full access to 205 pages and partial access to 12 pages. 8 October 2010 Council provides OIC with a further signed search certification and record of searches. 22 February 2011 OIC conveys a written preliminary view to the applicant and invites the applicant to provide submissions in support of his case by 25 March 2011 if the view is contested. 24 February 2011 The applicant provides submissions in support of his case. 28 February 2011 The applicant provides further submissions in support of his case. 6 March 2011 The applicant provides further submissions in support of his case. 7 March 2011 The applicant provides further submissions in support of his case. 9 March 2011 OIC seeks clarification from the applicant about two points from his submission dated 24 February 2011. 10 March 2011 The applicant provides further submissions in support of his case. 8 April 2011 OIC requests Council to provide a submission addressing Council’s claim for legal professional privilege. 21 April 2011 Council provides a submission addressing their claim for legal professional privilege. 23 May 2011 The applicant provides further submissions in support of his case and states that a PowerPoint document referred to in an email (contained in the Third Release Documents) has not been provided. 24 May 2011 OIC enquires with Council about the missing PowerPoint document. Council indicates that the applicant had contacted them and his concern was being addressed. 27 May 2011 Council advises that while the PowerPoint document mentioned in the email was an earlier working version of a document already released to the applicant, a copy would be released to the applicant. 3 June 2011 OIC seeks further information from Council regarding the independence of Council’s Legal Team. [1] See paragraph 11 below for wording of the Amended Application.[2] Internal Review decision dated 6 May 2010 (Internal Review Decision).[3] Under sections 47(3)(e) of the RTI Act.[4] As mentioned in section 52(1)(a) of the RTI Act.[5] Under section 47(3)(a) of the RTI Act.[6] Under sections 47(3)(b) and 49 of the RTI Act.[7] Information contained in pages 12 to 16 of the Second Release Documents.[8] Information contained in pages 284-285, 288, 530, 535-536 & 593 of the First Release Documents and page 183 of the Second Release Documents.[9] In submissions to this Office dated 24 February 2011, 28 February 2011, 6 March 2011, 7 March 2011 and 10 March 2011.[10] While these decisions have considered the issue in the context of the Freedom of Information Act 1992 (Qld) the principles have equal application to a consideration of the issue in the context of the RTI Act.[11] Robbins and Brisbane North regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30 (Robbins).Cannon and Australian Quality Egg Farms Limited (1994)1 QAR 491 (Cannon) paragraph 8.[12] See Robbins at paragraph 16.[13] Section 23 of the RTI Act.[14] As set out in section 47 of the RTI Act.[15] Section 47(3)(e).[16] Sections 47(3)(e) and 52 of the RTI Act.[17] Section 52(1)(a).[18] Unreported, Queensland Information Commissioner, 9 February 2009. Note—Although PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are replicated in section 52 of the RTI Act. [19] See PDE at paragraph 49.[20] By correspondence dated 5 July 2010.[21] As summarised from the applicant’s submissions of 28 February 2011, 6 March 2011, 7 March 2011 and 23 May 2011.[22] Correspondence dated 27 May 2011. Correspondence dated 25 May 2011 identified the final document which was released to the applicant as pages 115 to 144 of the Third Release Documents.[23] Correspondence dated 27 May 2011.[24] Set out in section 47 of the RTI Act.[25] Under section 48 and schedule 3, section 7 of the RTI Act.[26] Esso Australia Resources Ltd v Commission of Taxation [1999] HCA 67; (1999) 74 ALJR 339.[27] Proudfoot v Human Rights and Equal Opportunity Commission [1992] AATA 317; (1992) 28 ALD 734 at 740.[28] Waterford v Commonwealth [1987] HCA 25; (1986) 163 CLR 54 per Mason and Wilson JJ at paragraph 7 of their Honours’ judgement.[29] Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 530-531.[30] Seven Network News v News Ltd [2005] FCA 1551; (2005) 225 ALR 672 at 674.[31] (1994) QAR 37.[32] Contained in correspondence dated 21 April 2011.[33] During a conversation between Council’s current Manager Legal Services and an OIC officer on 7 June 2011.[34] Goldberg v Ng (1994) 33 NSWLR 639 at 670.[35] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1.[36] (2008) 234 CLR 275.[37] At paragraphs 48 to 50.[38] Section 49 of the RTI Act. This section must be read in conjunction with the public interest factors listed in schedule 4 of the RTI Act.[39] As summarised from the applicant’s submissions dated 24 February 2011, 28 February 2011 and 6 March 2011.[40] Schedule 4, part 1, factor 1.[41] Schedule 4, part 1, factor 4.[42] In accordance with section 49(3)(d) of the RTI Act.[43] Personal information is ‘information or an opinion... whether true or not ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’ See section 12 of the IP Act.[44] See section 12 of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Scott and South Burnett Regional Council [2009] QICmr 25 (9 April 2009)

Scott and South Burnett Regional Council [2009] QICmr 25 (9 April 2009) Office of the Information Commissioner Decision and Reasons for Decision Application Number: 210279, 210349, 210465 and 210466 Applicant: Ms S Scott Respondent: South Burnett Regional Council Decision Date: 9 April 2009 Catchwords: FREEDOM OF INFORMATION – section 42(1)(ca) of the Freedom of Information Act 1992 – matter relating to law enforcement or public safety – whether disclosure of the matter in issue could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation FREEDOM OF INFORMATION – section 29(4) of the Freedom of Information Act 1992 – refusal to deal with application – agency’s or Minister’s functions – refusal to deal with the application without having identified any or all of the documents Contents REASONS FOR DECISION............................................................................................... 4 Summary............................................................................................................................. 4 Background......................................................................................................................... ............................................................................................................................................. 4 • External review 210279............................................................................................. 5 • External review 210349............................................................................................. 6 • External review 210465............................................................................................. 6 • External review 210466............................................................................................. 6 Decisions under review....................................................................................................... 7 Steps taken in the external review process........................................................................ 7 • External review 210279............................................................................................. 7 • External review 210349............................................................................................. 8 • External review 210465............................................................................................. 8 • External review 210466............................................................................................. 9 Steps taken in relation to the question of the application of section 42(1)(ca) of the FOI Act in external reviews 210279, 210349, 210465 and 210466........................................... 10 Issue for determination........................................................................................................ 12 Matter in issue..................................................................................................................... 12 • External review 210279............................................................................................. 12 • External review 210349............................................................................................. 13 • External review 210465............................................................................................. 13 • External review 210466............................................................................................. 14 The law................................................................................................................................ 14 • Section 42(1)(ca) of the FOI Act................................................................................ 14 • Legislative history of section 42(1)(ca) of the FOI Act.............................................. 14 • Interpretation of section 42(1)(ca) of the FOI Act...................................................... 16 o ‘Could reasonably be expected to’................................................................... 19 o ‘Harassment’.................................................................................................... 19 o ‘Intimidation’...................................................................................................... 20 o ‘A serious act of harassment or intimidation’................................................... 20 • How relevant information is considered.................................................................... 21 Submissions and relevant information................................................................................ 21 • Information provided by Mr Gray................................................................................ 21 • Information contained on Bunya Watch.................................................................... 22 • Information from the report on A Current Affair......................................................... 25 • Other information....................................................................................................... 25 • The applicant’s submissions..................................................................................... 25 o Information provided to the Office by Mr Gray.................................................. 25 o Involvement in the alleged incidents................................................................. 26 o Public interest considerations.......................................................................... 27 o Bunya Watch.................................................................................................... 27 o FOI applications............................................................................................... 28 Findings............................................................................................................................... 29 • Serious acts of harassment and intimidation............................................................ 33 o Threatening phone call and act of physical violence....................................... 33 o Bunya Watch postings..................................................................................... 33 o FOI applications............................................................................................... 35 • Could disclosure of the Matter in Issue reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation?................. 40 o Nature of the Matter in Issue and likely effect of disclosure............................. 40 o Past conduct.................................................................................................... 41 o Nature of the relationship between the parties................................................. 41 • Sufficiency of search................................................................................................. 42 DECISION........................................................................................................................... 43 REASONS FOR DECISION Summary 1. For the reasons set out below, I have set aside the decisions of the agency and in substitution have decided: • the remaining matter in issue in each of these reviews qualifies for exemption from disclosure under section 42(1)(ca) of the Freedom of Information Act 1992 (FOI Act) • to refuse to deal with the sufficiency of search issues under section 29(4) of the FOI Act, on the basis that it appears that any further documents responsive to the freedom of information (FOI) applications qualify for exemption under section 42(1)(ca) of the FOI Act. Background 2. The Office of the Information Commissioner (the Office) has eight associated external review applications on foot from the applicant and Ms Leigh Sheridan. The Office has finalised six other associated external review applications.[1] 3. The applicant is a friend and supporter of Ms Sheridan. Ms Sheridan worked in the library at the former Nanango Shire Council (NSC) (now South Burnett Regional Council) and in 2006, Ms Sheridan’s employment with NSC was terminated (Termination). 4. As a result of the Termination (and/or related events) Ms Sheridan pursued the remedies available to her in various forums including: • the Crime and Misconduct Commission (CMC) • the Australian Industrial Relations Commission (AIRC) • the Supreme Court of Queensland • Local Government Workcare • QComp • the Magistrates Court of Queensland. 5. The fact that Ms Sheridan has pursued these remedies has been reported in the media. 6. All of the associated external review applications concern documents related to the Termination and people she perceived to be involved in the Termination. 7. This decision primarily concerns the application of section 42(1)(ca) of the FOI Act in external reviews 210279, 210349, 210465 and 210466. NSC did not submit that section 42(1)(ca) applied to the matter in issue in the external reviews subject of this decision. Such submissions however were received in relation to the other external reviews referred to in paragraph 2. 8. These four external review applications had been substantially dealt with to date. However, based on submissions received and a review of the eight external review applications currently before the Office as a whole, it was appropriate to consider the application of section 42(1)(ca) of the FOI Act in the applicant’s four external reviews. 9. The procedures to be followed on external review are within the discretion of the Information Commissioner. Proceedings are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the FOI Act and a proper consideration of the matters before the Information Commissioner permit. The Information Commissioner is not bound by the rules of evidence and may inform himself or herself on any matter in any way the Information Commissioner considers appropriate.[2] 10. Section 88(1)(b) of the FOI Act provides that in the conduct of a review, the Information Commissioner has power to decide any matter in relation to the application that could have been decided by an agency or Minister under the FOI Act. The Information Commissioner must also take into account relevant considerations which arise during the investigation and review of a decision. 11. In conducting a review the Information Commissioner is required to adopt procedures that are fair having regard to her obligations under the FOI Act and to ensure that each participant in the review has an opportunity to present their views. To this end the applicant was provided with a very detailed preliminary view which set out the factors that would be taken into account in any decision and afforded the applicant an opportunity to make submissions in relation to the matters the Information Commissioner might rely upon and any other information/evidence the applicant thought might be relevant to any decision. 12. At the request of the Office, Mr Shane Gray, the former Chief Executive Officer (CEO) of NSC provided written and oral submissions to the Office in relation to his concerns about the release of documents to the applicant and Ms Sheridan under the FOI Act. External review 210279 13. By letter dated 2 April 2007 the applicant requested access to 18 categories of documents from NSC under the FOI Act. 14. By letter dated 30 April 2007 NSC requested that the applicant clarify various parts of the FOI application. 15. By letter dated 14 May 2007 the applicant wrote to NSC and provided the necessary clarification. In clarifying the various parts of the FOI application, the applicant also expanded the scope of the FOI application and sought access to approximately 61 categories of documents. 16. By letter dated 15 June 2007 NSC issued a decision in relation to the FOI application. 17. By letter dated 14 July 2007 the applicant applied to the Office for external review of the decision. External review 210349 18. By letter dated 2 July 2007 the applicant sought access to six categories of documents from NSC under the FOI Act. 19. By letter dated 10 September 2007 NSC issued a considered decision[3] in relation to the FOI application. 20. By letter dated 5 October 2007 the applicant applied to the Office for external review of the decision. External review 210465 21. By letter dated 7 September 2007 the applicant sought access to 16 categories of documents from NSC under the FOI Act. 22. NSC did not make a decision within the time limits set out in the FOI Act and was therefore deemed to have refused the applicant access to the relevant documents.[4] The applicant was then entitled to apply to the Office for external review of NSC’s deemed decision. 23. By letter dated 4 February 2008 the applicant applied for external review of NSC’s deemed decision. 24. By letters dated 11 February 2008 the Acting Information Commissioner advised the applicant that: • the Office had decided to grant NSC an extension of time until 14 March 2008 to deal with the FOI application[5] • if NSC did not advise the applicant of its decision by that time, the applicant would be entitled to make a fresh external review application to the Office. 25. By letter dated 25 March 2008 the applicant advised the Office that NSC had not made a decision on the FOI application and the applicant again applied for external review. External review 210466 26. By letter dated 16 October 2007 the applicant sought access to ten categories of documents from NSC under the FOI Act. 27. NSC did not make a decision within the time limits set out in the FOI Act and was therefore deemed to have refused the applicant access to the relevant documents.[6] The applicant was then entitled to apply to the Office for external review of NSC’s deemed decision. 28. By letter dated 4 February 2008 the applicant applied for external review of NSC’s deemed decision. 29. By letter dated 11 February 2008 the Acting Information Commissioner advised the applicant that: • the Office had decided to grant NSC an extension of time until 14 March 2008 to deal with the FOI application[7] • if NSC did not advise the applicant of its decision by that time, the applicant would be entitled to make a fresh external review application to the Office. 30. By letter dated 25 March 2008 the applicant advised the Office that NSC had not made a decision on the FOI application and the applicant again applied for external review. Decisions under review 31. The following decisions of NSC are under review: • the decision dated 15 June 2007 in external review 210279 • the considered decision dated 10 September 2007 in external review 210349 • the deemed decisions in external reviews 210465 and 210466. Steps taken in the external review process External review 210279 32. By letter dated 18 July 2007 the Office advised the applicant that NSC’s decision would be reviewed. The First Assistant Commissioner also asked the applicant to confirm the scope of the external review. 33. By letter dated 18 July 2007 the Office advised NSC that the decision would be reviewed and asked NSC to provide certain documents relevant to the review. 34. By letter dated 31 July 2007 the applicant wrote to the Office setting out some of her concerns about NSC’s decision. 35. By letter dated 1 August 2007 NSC provided the requested documents. 36. By letter dated 12 August 2008 the Acting Assistant Commissioner provided the applicant with a preliminary view in relation to parts of the FOI application. The applicant was invited to provide submissions in support of her case by 28 August 2008 if she did not accept the preliminary view. 37. By letter dated 12 August 2008 the Acting Assistant Commissioner provided NSC with a preliminary view in relation to other parts of the FOI application. NSC was invited to provide submissions in support of its case by 28 August 2008 if it did not accept the preliminary view. 38. By letter dated 28 August 2008 the applicant requested an extension of time to provide submissions in response to the preliminary view. 39. By letter dated 5 September 2008 the Acting Assistant Commissioner advised the applicant that she had been granted an extension of time to provide submissions in response to the preliminary view. 40. By email on 5 September 2008 NSC provided a response to the preliminary view and indicated that it was prepared to release some documents to the applicant. 41. By email on 9 September 2008 the Acting Assistant Commissioner wrote to NSC to clarify and confirm parts of its submissions and to ask NSC to contact the applicant to arrange access to the documents it had agreed to release to her. 42. By letter dated 23 September 2008 the applicant provided submissions in response to the preliminary view. External review 210349 43. By letter dated 10 October 2007 the Office advised the applicant that NSC’s decision would be reviewed. The Acting Information Commissioner also confirmed the scope of the external review with the applicant. 44. By letter dated 10 October 2007 the Office advised NSC that the decision would be reviewed and asked it to provide certain documents relevant to the review. 45. By letter dated 7 December 2007 NSC provided the requested documents. 46. On 19 August 2008 a staff member of the Office spoke with NSC to clarify certain issues relevant to the review. External review 210465 47. By letter dated 22 April 2008 the Office advised the applicant that NSC’s deemed decision would be reviewed. 48. By letter dated 23 April 2008 the Office advised NSC that the decision would be reviewed and asked NSC to: • advise whether it was prepared to release any documents to the applicant • provide submissions in support of its case if it claimed that any documents were exempt from disclosure under the FOI Act • provide certain documents relevant to the review. 49. By letter dated 8 May 2008 NSC provided the requested information to the Office. 50. By letter dated 5 August 2008 the applicant wrote to the Office setting out some of her concerns about NSC’s processing of the FOI application. 51. By letter dated 8 August 2008 the Acting Assistant Commissioner wrote to NSC to confirm some parts of its submissions. 52. By letter dated 20 August 2008 the Acting Assistant Commissioner wrote to the applicant to: • convey NSC’s submissions to her • ask the applicant to indicate whether she sought external review of any aspects of NSC’s submissions and if so, to invite her to provide submissions in support of her case. 53. By letter dated 15 August 2008 NSC provided confirmation of parts of its submissions. 54. By email on 22 August 2008 the Acting Assistant Commissioner asked NSC to contact the applicant to arrange access to the documents it had agreed to release to her. 55. By letter dated 28 August 2008 the applicant indicated that she could not make the requested submissions until she had received certain documents that NSC had agreed to release to her. 56. By email on 5 September 2008 the Acting Assistant Commissioner again asked NSC to contact the applicant to arrange access to the documents it had agreed to release to her. 57. By letter dated 5 September 2008 the Acting Assistant Commissioner again asked the applicant to indicate whether she sought external review of any aspects of NSC’s submissions and if so, to invite her to provide submissions in support of her case. The Acting Assistant Commissioner advised the applicant that if she did not hear from her to the contrary by 29 September 2008, she would assume that the applicant wished to withdraw her application for external review. 58. By letter dated 23 September 2008 the applicant made general submissions in relation to NSC’s processing of the FOI application and the external review process. External review 210466 59. By letter dated 23 April 2008 the Office advised the applicant that NSC’s deemed decision would be reviewed. 60. By letter dated 23 April 2008 the Office advised NSC that the decision would be reviewed and asked NSC to: • advise whether it was prepared to release any documents to the applicant • provide submissions in support of its case if it claimed that any documents were exempt from disclosure under the FOI Act • provide certain documents relevant to the review. 61. By letter dated 18 May 2008 NSC provided the requested information to the Office. 62. By letter dated 5 August 2008 the applicant wrote to the Office setting out some of her concerns about NSC’s processing of the FOI application. 63. By letter dated 20 August 2008 the Acting Assistant Commissioner wrote to the applicant to: • convey NSC’s submissions to her • ask the applicant to indicate whether she sought external review of any aspects of NSC’s submissions and if so, to invite her to provide submissions in support of her case. 64. By email on 22 August 2008 the Acting Assistant Commissioner asked NSC to contact the applicant to arrange access to the documents it had agreed to release to her. 65. By email on 2 September 2008 the Acting Assistant Commissioner asked NSC to advise whether it was prepared to release a particular document to the applicant and if not, to provide submissions in support of its case. 66. By letter dated 28 August 2008 the applicant indicated that she could not make the requested submissions until she had received certain documents that NSC had agreed to release to her. 67. By email on 5 September 2008 the Acting Assistant Commissioner again asked NSC to contact the applicant to arrange access to the documents it had agreed to release to her. 68. By letter dated 5 September 2008 the Acting Assistant Commissioner again asked the applicant to indicate whether she sought external review of any aspects of NSC’s submissions and if so, to invite her to provide submissions in support of her case by 29 September 2008. 69. By letter dated 23 September 2008 the applicant made general submissions in relation to NSC’s processing of the FOI application and the external review process. Steps taken in relation to the question of the application of section 42(1)(ca) of the FOI Act in external reviews 210279, 210349, 210465 and 210466 70. By email on 23 October 2008 NSC provided the Office with a copy of a further FOI application made by the applicant. 71. On 27 October 2008 a staff member of the Office telephoned a staff member of NSC to confirm certain background events relevant to this review. 72. On 20 November 2008 a staff member of the Office telephoned Mr Gray to: • clarify submissions he had made to the Office in a previous external review involving Ms Sheridan • seek his permission to refer to those submissions in relation to the external reviews involving the applicant • invite him to provide further submissions in support of his concerns. Mr Gray provided submissions in support of his concerns during that telephone conversation. 73. On 4 December 2008 and at the request of the Office, Mr Gray met with the Acting Assistant Commissioner and another staff member of the Office. Mr Gray provided more detail on the previous submissions he had made to the Office. 74. On 17 December 2008 Mr Gray provided the Office with documents in support of his submissions to the Office. 75. By letter dated 22 December 2008 the applicant was provided with a preliminary view in relation to the application of section 42(1)(ca) of the FOI Act in external reviews 210279, 210349, 210465 and 210466. The preliminary view included the following attachments: • written submissions made by Mr Gray • examples of Ms Sheridan and people claiming to be her supporters having used public notices and the media to publicise their grievances with Mr Gray • print-outs from the website www.bunyawatch.com (Bunya Watch) • FOI applications made to various agencies. The applicant was afforded an opportunity to provide submissions in support of her case by 19 January 2009 if she did not accept the preliminary view. 76. By letter dated 5 January 2009 the applicant requested an extension of time to provide submissions in support of her case. 77. By letter dated 12 January 2009 the applicant was given an extension of time in which to provide submissions. 78. By letter dated 30 January 2009 the applicant provided submissions in response to the preliminary view and various documents in support of her case. 79. By email on 12 March 2009 NSC provided the Office with a copy of the decision dated 12 November 2008 which was issued to the applicant in response to her recent FOI application to NSC (which is not subject to external review at this time). 80. On 18 March 2009 NSC provided the Office with a copy of the report broadcast on A Current Affair relating to the Termination. 81. On 23 March 2009 a staff member of the Office telephoned Mr Gray to clarify certain information he had provided to this Office. 82. On 25 March 2009 a staff member of this Office made further enquiries with NSC in relation to information Mr Gray provided to the Office. 83. On 27 March 2009 NSC provided further information relevant to these reviews. 84. The following material was taken into account in making this decision: • the applicant’s FOI applications dated 2 April 2007,[8] 2 July 2007,[9] 7 September 2007[10] and 16 October 2007[11] and the applicant’s letter to NSC dated 14 May 2007 in which she expanded the scope of the FOI application[12] • NSC’s decision dated 15 June 2007,[13] considered decision dated 10 September 2007[14] and submissions to the Office dated 8 May 2008[15] and 18 May 2008[16] • the correspondence and submissions provided to the Office by NSC throughout the course of the external reviews • file notes of conversations between staff members of the Office and NSC • the correspondence, submissions and supporting documents provided to the Office by the applicant throughout the course of the external reviews, including her submissions dated 30 January 2009 • the submissions provided to the Office by Mr Gray throughout the course of the external reviews and supporting documents (including the submissions provided to the Office by Mr Gray in external review 210240 as referred to in the decision of Sheridan and South Burnett Regional Council[17]) • file notes of conversations between staff members of the Office and Mr Gray • the four associated external review applications before the Office made by Ms Sheridan • examples of Ms Sheridan and people claiming to be her supporters having used public notices and the media to publicise their grievances with Mr Gray • print-outs from Bunya Watch referred to in this decision • the report from A Current Affair relating to the Termination • the various FOI applications made by the applicant and other associated people • the matter in issue • relevant case law and previous decisions of the Information Commissioner • relevant provisions of the FOI Act. Issue for determination 85. In light of all the associated external review applications, a threshold question to be answered in these external reviews is whether disclosure of the matter in issue in these reviews could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation. Matter in issue 86. The remaining matter in issue in these reviews (Matter in Issue) is set out below. External review 210279 87. In external review 210279, the remaining Matter in Issue in relation to the refusal of access issues is: Item Document/s sought 6 a number of emails between Mr Greasley and Mr Gray 15 & 16 correspondence between NSC and the CMC 17 an investigation report including attachments 88. In external review 210279, the remaining Matter in Issue in relation to the sufficiency of search issues relates to the following items of the FOI application: Item Document/s sought 1 full accounting of all expenses incurred by the activities of the NSC, Councillors, employees and contracted personnel attached to the process of dismissing Librarian Ms Leigh Sheridan. Together with all documentation (including delegations, authorisations, correspondence, memoranda, etc) relating to same... 2 any and all documentation in whatever form relating to the legal representations of the NSC in the process of dismissing Ms Sheridan and ensuing advice and court representation and the associated costs together with • copies of any and all documentation in whatever form, relating to the authorisation of such expenses. Together with ... • the ledger numbers to which these expenses are charged 3 the report of the Counsellor employed to address the management of the Shire library services, his qualifications, the NSC authorisation, the terms of reference for the employment of this person and the total cost to the Shire 7(a) the memo/report that states items are missing from the Visitor Information Centre 10(b) the advertisement for the position of rates clerk dated c. 1998 as published in the South Burnett Times (single document) 14(u) any/all documentation relating to the performance review of the CEO Shane Michael Gray for the duration of his contract with NSC External review 210349 89. In external review 210349, the remaining Matter in Issue in relation to the refusal of access issues is: Item Document/s sought 1 the Notice of Alleged Industrial Dispute filed with the AIRC on 8 February 2006 4 the affidavits provided to the AIRC by Shane Gray, Michael Hunter, Iris Crumpton and Leigh Sheridan 5 the two final staff appraisals for Leigh Sheridan prior to termination of her employment with NSC External review 210465 90. In external review 210465, the remaining Matter in Issue in relation to the refusal of access issues is: Item Document/s sought 5 Ricky Allison’s resume 13 the email Kathy Cope sent to staff members on 31 March 2006 at 11:05 am in relation to a proposed public notice, which was later published in the South Burnett Times 14 all documentation for the process of filling the management position(s) of the South Burnett Aquatic Centre 91. In external review 210465, the remaining Matter in Issue in relation to the sufficiency of search issues relates to the following items of the FOI application: Item Document/s sought 1 copies of all reports from the Administration Manager to Shane Gray from March 2005 – April 2006 that refer to Nanango Library, Audrey Sampson, Iris Crumpton, Val Hooper, Leigh Sheridan 3 copy of the log book for Kerry Mercer’s work vehicle that was used in February and March 2006 12 copies of the minutes of Council staff meetings February – April 2006 External review 210466 92. In external review 210466, the remaining Matter in Issue in relation to the refusal of access issues is: Item Document/s sought 9 correspondence from NSC to the Information Commissioner from 2006 93. In external review 210466, the remaining Matter in Issue in relation to the sufficiency of search issues relates to the following items of the FOI application: Item Document/s sought 2 any and all documentation (in what ever form) between the State Library of Queensland and NSC in relation to the missing books from the Nanango Library 4 copy of the invoice from the State Library of Queensland issued to NSC in relation to missing books from the Blackbutt Library (c. Jan/Feb/March 2005) 5 any and all documentation (in whatever form) between the State Library of Queensland and NSC in relation to the missing books from the Blackbutt Library 6 copy of the requisition order authorising payment of the above invoice and copy of details concerning the cheque issued to the State Library of Queensland to pay the invoice 8 any and all documentation (in whatever form) in relation to the refurbishment of the Nanango Library shelves (26/27 October 2007) The law Section 42(1)(ca) of the FOI Act 94. Section 42(1)(ca) of the FOI Act provides: [18] 42 Matter relating to law enforcement or public safety (1) Matter is exempt if its disclosure could reasonably be expected to— ... (ca) result in a person being subjected to a serious act of harassment or intimidation. Legislative history of section 42(1)(ca) of the FOI Act 95. Section 42(1)(ca) of the FOI Act is a relatively new exemption provision inserted into the FOI Act by the Freedom of Information and Other Legislation Amendment Act 2005 with commencement on 31 May 2005. There is no equivalent provision in other Australian jurisdictions, the United Kingdom or Canada, interpretation of which might provide guidance regarding the provision. 96. Section 42(1)(ca) of the FOI Act was enacted in response to Report No 32 of the Legal, Constitutional and Administrative Review Committee (LCARC Report).[19] 97. The LCARC Report referred to section 42(1)(c) of the FOI Act and noted that:[20] In some circumstances the disclosure of matter could risk harm to an individual which falls short of endangering their life or physical safety. For example, the disclosure of information could cause a person to apprehend harassment or intimidation. Harassment does not satisfy s42(1)(c) unless there is evidence of a risk that disclosure of the matter in issue would endanger a person’s life or physical safety. (Re Murphy and Queensland Treasury [1995] QICmr 23; (1995) 2 QAR 744 at paras 53, 90-91.) The QIC submitted that, for these reasons, the provision should be extended to also exempt matter which could reasonably be expected to subject a person to acts of serious harassment. 98. The LCARC Report also stated:[21] The committee agrees that potential harm to an individual, apart from the risk of endangering a person’s life or physical safety, justifies the non-disclosure of material under the Act. In particular, people should not be deterred from providing information to investigative authorities, and professionals responsible for preparing reports about individuals should not be deterred from providing full and frank reports. In this regard, s 42(1)(c) should be extended to situations where disclosure of information could be reasonably expected to: ♦ subject a person to serious acts of harassment; or ♦ substantially prejudice the mental well-being of a person. Each of these components is necessary. The first relates to likely possible acts against the person, whereas the second is focussed on any reasonable apprehension of harm which a person may have. Care should be taken in drafting the new provision to ensure that it is no broader than is necessary to protect the well-being of third parties who might be affected. The definition of ‘detriment’ for the purposes of the Criminal Code, chapter 33A (Unlawful stalking) appears to provide an appropriate precedent for an amended provision. 99. The LCARC Report contained the following recommendation:[22] In relation to the exemptions contained in s 42 (Matter relating to law enforcement or public safety), s 42(1)(c) should be extended to also exempt matter if its disclosure could reasonably be expected to: ♦ subject a person to serious acts of harassment; or ♦ substantially prejudice the mental well-being of a person. The definition of ‘detriment’ for the purposes of the Criminal Code, chapter 33A (Unlawful stalking) appears to provide an appropriate precedent for an amended provision. 100. In the explanatory notes to the Freedom of Information and Other Legislation Amendment Bill, section 42(1)(ca) of the FOI Act was described as follows:[23] Clause 24 amends section 42 to create a new exemption to prevent disclosure where it is reasonably expected that such disclosure could subject a person to serious acts of harassment or intimidation. Such harassment or intimidation would be a consequence of, for example, the applicant having knowledge of the content of the information or of the provider of the information. For example, potential disclosure of information provided by a victim about the offence, upon the application of an offender, could constitute harassment or intimidation. Harassment or intimidation includes, for example, the threat of violence. This implements LCARC finding 177. Interpretation of section 42(1)(ca) of the FOI Act 101. Section 4 of the FOI Act relevantly provides: 4 Object of Act and its achievement (1) The object of this Act is to extend as far as possible the right of the community to have access to information held by Queensland government. (2) Parliament recognises that, in a free and democratic society— (a) the public interest is served by promoting open discussion of public affairs and enhancing government’s accountability; and (b) the community should be kept informed of government’s operations, including, in particular, the rules and practices followed by government in its dealings with members of the community; and ... (3) Parliament also recognises there are competing interests in that the disclosure of particular information could be contrary to the public interest because its disclosure in some instances would have a prejudicial effect on— (a) essential public interests; or (b) the private or business affairs of members of the community about whom information is collected and held by government. (4) This Act is intended to strike a balance between those competing interests. (5) The object of this Act is achieved by— (a) giving members of the community a right of access to information held by government to the greatest extent possible with limited exceptions for the purpose of preventing a prejudicial effect on the public interest of a kind mentioned in subsection (3); and ... (6) It is Parliament’s intention that this Act be interpreted to further the object stated in subsection (1) in the context of the matters stated in subsections (2) to (5). 102. Consistent with Parliament’s intention expressed in section 4(6) of the FOI Act, section 42(1)(ca) of the FOI Act must be interpreted in a way that best achieves the purpose of the FOI Act[24] as: the primary objective of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[25] 103. Section 4(1) of the FOI Act recognises that the community has a right to access information held by the Queensland government. However, sections 4(2)-(5) of the FOI Act provide that the right of access to documents under the FOI Act is subject to a balancing of competing public interests. Accordingly, section 42(1)(ca) should be interpreted in a way that extends as far as possible the right of the community to access information held by agencies whilst recognising that section 42(1)(ca) is one of the limited exceptions that may apply because disclosure ‘could be contrary to the public interest’ as it ‘would have a prejudicial effect’ on ‘essential public interests’ or on ‘the private or business affairs of members of the community about whom information is collected and held by government.’ 104. Accordingly, in interpreting section 42(1)(ca) of the FOI Act it is necessary to consider any ‘essential public interests’ and ‘private or business interests’ that, absent the provision, may be prejudiced by disclosure of documents through the right of access under section 21 of the FOI Act. 105. The LCARC Report specifically addresses the public interest in ensuring that people are not deterred from providing information to investigative authorities and similarly, that professionals are not deterred from providing full and frank reports to agencies through concern that disclosure could lead to serious harassment or intimidation.[26] The Committee agreed that potential harm to an individual justifies non-disclosure. 106. In addition to the public interests identified by LCARC, section 42(1)(ca) also works to protect the public interest in disclosure not having a prejudicial effect on the private or business affairs or individuals. 107. Though the term ‘personal affairs’ appears throughout the FOI Act, the term ‘private affairs’ does not otherwise appear. 108. In ABC v Lenah Game Meats Pty Ltd[27] Gleeson CJ noted that: There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private. 109. In accordance with section 4(6) of the FOI Act, section 42(1)(ca) of the FOI Act may be interpreted as a limited exception to the right of access which allows non-disclosure of information or professional advice provided to an agency where that disclosure could reasonably be expected to result in serious harassment or intimidation of person/s. Such disclosure would therefore be contrary to the public interest in the supply of this information as well as the public interest in protecting such individuals from conduct that would prejudice their private affairs. 110. Section 42(1)(ca) of the FOI Act must be interpreted in the context of the FOI Act as a whole. 111. Paragraph (ca) was inserted into subsection 42(1) of the FOI Act by an amending Act which also inserted section 96A into the FOI Act. 112. Under section 96A of the FOI Act, the Information Commissioner may declare a person a vexatious applicant if the Commissioner is satisfied that the person has made repeated applications under the FOI Act and those applications ‘involve an abuse of the right of access, amendment or review’ under the FOI Act. Section 96A(4) gives an example of conduct which amounts to an abuse of the right of access, amendment or review: For subsection (3)(b), repeated applications involve an abuse of the right of access, amendment or review if, for example, the applications were made for the purpose, or have had the effect, of – (a) harassing or intimidating an individual or an employee or employees of the agency or agencies; or (b) unreasonably interfering with the operations of the agency or agencies. 113. Considered together, the amending provisions in relation to sections 96A and 42(1)(ca) reflect Parliament’s intent to limit, prevent or terminate access applications which are improper or amount to abuse of the rights conferred under the FOI Act. 114. In considering the FOI Act as a whole, the following observations can be made about the operation of section 42(1)(ca): a) The conduct contemplated in section 42(1)(ca) is more ‘serious’ than some conduct that may be contemplated by section 96A(3)(b). b) Some degree of harassment or intimidation is contemplated as permissible before the right to access documents under the FOI Act is removed. c) The subjective purpose of the applicant is not a relevant consideration. d) Section 42(1)(ca) may apply in respect of a single access application, that is, neither the application nor the applicant need be characterised as vexatious for the provision to apply. e) Under section 42(1)(ca) the exemption may be available where it is reasonably expected that disclosure will result in a single serious act of harassment rather than ‘repeated attacks’ or ‘persistent disturbances’ which may be a requirement under section 96A of the FOI Act. 115. There are no definitions of the words or phrases contained in section 42(1)(ca) in either the FOI Act or the Acts Interpretation Act 1954. Therefore, in accordance with the rules of statutory interpretation, this decision gives effect to the ordinary meaning of those words, except where there is relevant interpretation. ‘Could reasonably be expected to’ 116. In Attorney-General v Cockcroft,[28] (Cockcroft) which dealt with the interpretation of the phrase ‘could reasonably be expected to prejudice the future supply of information’ in the context of the section 43(1)(c)(ii) (business affairs) exemption contained in the Commonwealth FOI Act, Bowen CJ and Beaumont J said:[29] In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s.43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Jason Kioa v. The Honourable Stewart John West, High Court, unreported, 18 December 1985 per Mason, J. at p 36; see also per Gibbs, C.J. at p 12). 117. The Justices’ interpretation of the phrase ‘could reasonably be expected to’ and the proposed line of inquiry, while made in the context of the business affairs exemption contained in Commonwealth FOI legislation, is relevant in the context of the exemption contained in section 42(1)(ca) of the FOI Act. 118. Accordingly, the phrase ‘could reasonably be expected to’ in this context requires a consideration of whether the expectation that disclosure of the Matter in Issue will result in a serious act of harassment or intimidation is reasonably based. 119. Shepherd J also noted in Cockcroft that it is not necessary for a decision-maker ‘to be satisfied upon a balance of probabilities’ that disclosing the document will produce the anticipated prejudice.[30] 120. Depending on the circumstances of the particular review, a range of factors may be relevant in determining whether an act could reasonably be expected to occur. These factors may include, but are not limited to: • past conduct or a pattern of previous conduct • the nature of the relevant matter in issue • the nature of the relationship between the parties and/or third parties • relevant contextual and/or cultural factors. ‘Harassment’ 121. The plain meaning of the word ‘harass’, as defined in the Macquarie Dictionary[31] includes: to trouble by repeated attacks, ... to disturb persistently; torment ‘Intimidation’ 122. The plain meaning of the word ‘intimidate’,[32] includes: to make timid, or inspire with fear; overawe; cow ... to force into or deter from some action by inducing fear ‘A serious act of harassment or intimidation’ 123. Section 42(1)(ca) of the FOI Act requires that an anticipated act of harassment or intimidation be serious. 124. The plain meaning of the word ‘serious’,[33] includes: giving cause for apprehension; critical and in the New Shorter Oxford Dictionary (4th Edition) includes: having (potentially) important, esp. undesired, consequences; giving cause for concern. 125. As I have noted above, the definition of ‘harassment’ refers to persistent or repeated conduct. However, I consider that section 42(1)(ca) of the FOI Act can apply where what is expected to result from disclosure is a single act of serious harassment and it is not necessary for me to consider whether disclosure of the Matter in Issue could reasonably be expected to result in more than one act of serious harassment. 126. Therefore, I am satisfied that a ‘serious act of harassment’ in the context of section 42(1)(ca) of the FOI Act means an action that attacks, disturbs or torments a person and that causes concern or apprehension or has undesired consequences. 127. Accordingly, • Acts which induce fear or force a person into some action by inducing fear or apprehension are acts of intimidation. • Acts of intimidation which have undesired consequences or cause concern and/or apprehension are serious acts of intimidation. • Acts which persistently trouble, disturb or torment a person are acts of harassment. • Acts of harassment which have undesired consequences or cause concern and/or apprehension are serious acts of harassment. How relevant information is considered 128. The question of whether disclosing the Matter in Issue in these reviews could reasonably be expected to result in a serious act of harassment or intimidation should be considered objectively, in light of all relevant information, including information from and/or about the claimed source of harassment or intimidation.[34] 129. Section 42(1)(ca) of the FOI Act does not require a causal link to be drawn between a specific person and the conduct; nor does it require the conduct to be that of the applicant. Submissions and relevant information Information provided by Mr Gray 130. In telephone conversations with a staff member of the Office and in a meeting with two staff members of the Office on 4 December 2008, Mr Gray provided submissions which can be summarised as follows. a) Mr Gray relocated his family from Nanango shortly after the Termination purely because of the incidents associated with the Termination. b) The incidents have caused significant stress to him and his family and have impacted on his personal financial circumstances and career. c) After the Termination, people were driving past his residence at night and yelling obscenities relating to Ms Sheridan. This continued for around two or three months. d) On at least one occasion, Mr Gray was followed by a supporter of Ms Sheridan while driving his car and, in the context of the other incidents, this made him feel anxious. e) Mr Gray received around half a dozen phone calls on his work mobile phone and home phone between the hours of midnight and 3am. Mr Gray’s work mobile phone number was not publicly available. All of those phone calls made reference to Ms Sheridan. One of the callers said something like, ‘You’ll get what you deserve for what you did to Leigh Sheridan’. Mr Gray started receiving these calls around one or two months after the Termination and he received more calls after any significant decision was made relating to Ms Sheridan. Mr Gray reported a number of these calls to police. f) Around the time of the Termination, Mr Gray received a phone call from an anonymous caller while at work. The caller made a threat against Mr Gray’s children with reference to Ms Sheridan. Mr Gray reported the matter to the police. g) The applicant, Ms Sheridan and a number of people claiming to be her supporters appeared on A Current Affair and discussed the Termination and Mr Gray. h) Approximately six to eight weeks after the Termination, Mr Gray was shoulder charged by a man in the street in the presence of his children. The man made an obscene comment to Mr Gray’s children about Mr Gray with reference to Ms Sheridan Mr Gray had never seen the man before. i) Mr Gray has observed that staff of NSC have become visibly upset during the processing of the FOI applications relating to Ms Sheridan and in the context of the circumstances described above. Mr Gray remains concerned for the emotional well being of some NSC employees as a result of the incidents surrounding the Termination. j) Damage was done to NSC wheelie bins located around 200 metres from Ms Sheridan’s residence around the time of the CMC complaint. The wheelie bins had offensive comments written on each face including the lid (in the form of homosexual slurs) using the names of two NSC employees who were involved in the CMC complaint. k) Other NSC officers have received threatening phone calls and some have taken periods of stress leave as a result of the incidents surrounding the Termination. l) When information is released to Ms Sheridan or people claiming to be her supporters, the information is used to make new FOI applications. There have been numerous FOI applications made to NSC seeking information in relation to Mr Gray, including seeking information from his previous employers. m) Since the Termination, each year on his birthday, the applicant has sent a card to Mr Gray expressing a sentiment to the effect that she wishes him ‘all he deserves’. Mr Gray considers the cards are linked with Ms Sheridan (for example one card has a picture of a frog on the cover and the frog is a common theme related to Ms Sheridan). The applicant’s name and address are written on the back of the envelopes. 131. Mr Gray also provided submissions in external review 210240 (which are set out in the decision Sheridan and South Burnett Regional Council).[35] With those submissions, Mr Gray provided: • examples of Ms Sheridan and people claiming to be her supporters having used public notices and the media to publicise their grievances with him • print-outs from Bunya Watch. Information contained on Bunya Watch 132. The applicant describes Bunya Watch as:[36] An internet site that draws attention to events occurring in the Bunya Mountains and the South Burnett region of Queensland. It has had nearly 95000 visitors....What I like about it is that this website has a discussion page where people from all around the world can post their comments on a variety of topics ranging from the proliferation of feedlots in the area and their effect on lifestyle and the environment, to the effect that Tarong is having on the area, alternative energy, the state of the roads in the region, the amalgamation..... 133. An anonymous posting on Bunya Watch from 11 April 2007 states in part: i have been asked by Leigh to let you all know she hasn’t given up ... she has asked that bunyawatchers stick with her. Also she needs help to keep the pressure on. Don’t be afraid to call the mongrels that did this to her. night time is best. especially the ceo. 134. A further undated posting from ‘observer’ states: Keep up the FOI’s and phone calls as it is starting to get to them. Leigh will have her day and it will serve them right. 135. A posting titled ‘Re: Freedom of Information Mockery in NSC’ by an anonymous person on 21 April 2007 provides: i have an idea, lets call a public meeting, get dorothy pratt to chair it and ask tarong, feedlotowners, council and bunyawatchers including susan, leigh, pam, godbee, newson ....to debate the whole us versus them conspiracy theory ... i for one would like to hear all about the knowledge of the bunyawatchers as they destroy the credibility of the bastards ... 136. The following postings on Bunya Watch are examples of people claiming to be Ms Sheridan’s supporters using threatening language to publicly discuss their negative views of Mr Gray and other employees of NSC: • An undated posting: What would you do?? You trained someone and that person then stabbed you in the back, and pressed until you were fired, simply because they wanted your job?? Lucky Nanango has a water shortage, otherwise some concrete boots may be on the shopping list! • An undated posting from ‘Darling Jim’ about Michael Hunter: I believe that he is known in some circles as “The Weed”. Suits him. Needs spraying. • A posting dated 15 January 2007 from ‘a sad ratepayer’: Mr Gray, if you are so well liked and confident of your position, a true test would be for you to throw open your door and invite those to your abode to discuss their concerns. Only joking, as if the people of Nanango Shire knew where you hide in Kingaroy, they would storm your front lawn like the US marines did at Omaha beach and we all know what happened there. 137. In a number of postings on Bunya Watch, people claiming to be Ms Sheridan’s supporters use insulting language to publicly discuss their negative views of Mr Gray and other employees of NSC by, for example, comparing Mr Gray to Adolf Hitler[37] and referring to NSC employees as ‘mongrels’,[38] ‘wankers’,[39] ‘dickheads’,[40] ‘despicable creatures’[41], and ‘bastards’.[42] 138. The following postings on Bunya Watch are examples of people claiming to be Ms Sheridan’s supporters using insulting and derogatory language to publicly discuss their negative views of Mr Gray and other employees of NSC: • A posting on 8 January 2007 from ‘ex library user’: ... Iris, the pathetic and jealous person who had a “history” with the ceo while they were both still at Murgon Council (along with the other slime weed) Micheal Hunter... • A posting on 11 January 2007 from ‘Hijau’: Yeah Leigh, give it a go. I’d love to see the look on scumbag-gray’s face when you told him his contract is not being re-newed because of his attitude and unprofessionalism, Maybe you could flush out a few more of the bludgers as well... • A posting on 14 January 2007 from ‘Darling Jim’: Couldn’t agree more about snivelling suckhold iris. My God it’s sickening to watch. Dump her gray or she will drag you down. But then that might be a good thing, afterall! • A posting on 15 January 2007 from ‘Darling Jim’: Does that mean Michael (slimebag) Hunter would walk out too? Or should I say “ooze out”. That I would have to see. What a pathetic slithery little piece of crap he is. • A posting from 18 January 2007 from ‘A Hole’: It seems Iris is being blamed for the demise of Leigh Sheridan. Are you sure it was all Iris and she wasn’t under instructions from the ceo. If you can’t find Iris in the library I have heard she can be found in an Adult Shop. Is she picking up a bucket supply of ky jelly for the ceo so he can shaft us. Obviously for-play is not his forte. As appearances go you would swear he was a rock-ape. Sorry animal lovers. • An anonymous posting from 18 January 2007: ky jelly and iris hmmm is it true she enjoys sex parties? could this be rumor no ? for capt canary • A posting on 19 January 2007 from ‘Hijau’: And WHAT is going on here now at Nanango? Even an arrogant airheaded wanker like gray must realise that iris is a liability to him. Hope she drags him down with her! We would be ecstatic to be rid of the pair of them. “Go, in God’s name go and let us be rid of the lot of your perfidious works” (Oliver Cromwell 1650). • A posting on 17 April 2007 from ‘Pam’: ... What a disgraceful clown Reg was-IS. ... By the by, has anyone checked out the size of the CEO lately? He looks like a bloated, ugly toad. When did he become so hideous? The corruption from within is obvious without. • A posting on 18 April 2007 from ‘Darling Jim’: That’s because he IS a fat ugly toad, wrong, make that a hideous toad. Are they blaming Leigh for all this? No? It’s a wonder. About time we had a cleanout. Get rid of: 1) the clown (reg) 2) the hideous, never wrong toad (s gray) 3) the fool (m hunter) 4) the half-wit (iris) 5) & other assorted arse lickers in (as some-one said) bullying castle. Start fresh with GOOD & HONEST people who have the welfare of their ratepayers at heart. Can we? WILL we? soon! • An undated posting from ‘Hijau’: You are the one who should grow up, mr/mrs/ms head-in-sand council a-licker. The case of Mrs Sheridan can be summed up thus: 1) someone wanted her job (which I believe she was very good at). 2) they and others within the nsc bullied and harassed her for over a year. 3) when she complained (as was her right and within council’s policy) she was sacked. Where is the truth and justice in that? I believe that you are probably a nsc plant or one of the bullies or their friends. Remember this “The mills of God grind slowly but they grind exceedingly fine” Information from the report on A Current Affair 139. A report was televised on the current affairs program A Current Affair after the Termination. The applicant, Ms Sheridan, Ms Sheridan’s solicitor and a number of other people claiming to be supporters of Ms Sheridan were interviewed for the report. 140. The report indicated that the applicant and three other individuals who claim to be supporters of Ms Sheridan had started a petition for Mr Gray to be sacked. Other information 141. Of concern is that at least one other probative source of information has not been prepared to participate and be identified in these external review proceedings because of fear of further serious acts of harassment and intimidation from people claiming to be Ms Sheridan’s supporters. The applicant’s submissions 142. By letter dated 30 January 2009 the applicant provided submissions and supporting documents in response to the preliminary view letter dated 22 December 2008. I have summarised those submissions for convenience under a number of sub-headings and address them below. Information provided to the Office by Mr Gray 143. The applicant makes a range of complaints about the information Mr Gray provided to the Office and submits that the Office: • adopted a point of view based on Mr Gray’s ‘unsubstantiated’[43] and ‘scurrilous’[44] allegations and notes that some of those submissions were provided to the Office verbally • regarded his allegations as truth without verifying the information he provided[45] • has been unduly influenced by Mr Gray.[46] 144. The applicant then claims Mr Gray has not provided sufficient details or proof to substantiate his allegations and provides examples of the types of evidence that should be obtained by the Office before accepting his submissions.[47] 145. The applicant also suggests that if Mr Gray objects to disclosure of documents under the FOI Act, one can only assume that he has something to hide.[48] 146. The applicant goes on to suggest that: • the Office has formed a view without ‘hearing her versions of events’[49] • has made a flawed decision by accepting the information provided by Mr Gray[50] • the view of the Office is biased[51] • she has no faith that the external review will be dealt with in a fair and impartial manner.[52] Involvement in the alleged incidents 147. In response to the information provided by Mr Gray, the applicant: • submits that Mr Gray holds her responsible for some of the alleged incidents[53] • denies any involvement in or responsibility for most of the incidents Mr Gray refers to[54] • claims that any belief that she or Ms Sheridan are responsible for the alleged incidents is ‘utter nonsense’[55] • notes that she has not been interviewed by police in relation to any of the alleged incidents and has not received correspondence from NSC’s solicitors. 148. The applicant submits that she: • met with Mr Gray to discuss her concerns about staffing in the NSC library[56] • made requests to speak at NSC meetings[57] • wrote to Mr Gray, the Mayor of NSC, the Minister for Local Government, the Premier, the Ombudsman, her local Member of Parliament and the CMC in relation to issues involving Ms Sheridan[58] • wrote a letter to the editor of the South Burnett Times in relation to Ms Sheridan[59] • was one of the people involved in placing a public notice in the South Burnett Times in relation to NSC and its treatment of Ms Sheridan[60] • appeared on A Current Affair in relation to the Termination[61] • sent Mr Gray a birthday card on two occasions[62] • made numerous FOI applications which relate to Mr Gray and other NSC officers[63] • posted comments relating to Mr Gray and other related issues on Bunya Watch.[64] 149. The applicant also submits that the various articles and public notices which the Office provided to her with the preliminary view letter are a case of a ‘community discussing a situation they see unfolding before them’ and trying to ‘convey their concerns to the CEO who responded by ignoring them’. She claims that what was reported in the articles and letters to the editor was the truth.[65] Public interest considerations 150. The applicant makes the following submissions in relation to general public interest considerations: • NSC and Mr Gray have failed to make decisions that are seen to be fair and transparent including keeping records that show how decisions are made.[66] • Release of the Matter in Issue is in the public interest because a number of the documents relate to the disbursement of ratepayer’s money. • As a ratepayer/stakeholder, she has the right to be fully informed as to how money entrusted to Council is used, particularly as it is distributed on behalf of ratepayers and clear and transparent accountability of all actions is a tenet of Council.[67] Bunya Watch 151. In relation to the Bunya Watch postings, the applicant submits:[68] • She was not responsible for creating the Bunya Watch website and should not be held responsible for the postings therein. • The Bunya Watch posting set out at paragraph 133 above, is an anonymous posting and there is no evidence to suggest Ms Sheridan asked this person to make a posting on her behalf. For a short period of time, unknown individuals were submitting postings to Bunya Watch using other people’s names, including her name. • Bunya Watch contains postings from various people, on various topics, which recently have not been about Mr Gray. • The Bunya Watch postings referred to by the Office are selective and therefore the context of the postings is not established. • She posts under her own name and tries to ensure that her comments are accurate and can be substantiated by documentary evidence. • The Office is suggesting that she is responsible for what people choose to post on Bunya Watch, which is incorrect and notes that unknown individuals have submitted postings to Bunya Watch using other people’s names, including hers. FOI applications 152. The applicant has made the following submissions in relation to the FOI applications: • The FOI applications were made in accordance with her democratic rights and obligations under the FOI Act.[69] • The Office has labelled her as vexatious.[70] • She has been required to make numerous and repeated FOI applications to access information about how certain events occurred and decisions were made.[71] • She has been forced to make her FOI applications as a series of requests because if she had lodged one application requesting access to everything she wanted, it would have been rejected on the grounds that it would involve an unreasonable use of NSC’s resources.[72] • She has applied for external review because NSC did not adhere to the time limits in the FOI Act.[73] • The FOI applications as they relate to Mr Gray, relate to him as a manager and not as an individual. Anyone can make an FOI application on any subject and they are not required to provide a reason for seeking access to the documents, nor explain what they intend to do with the documents. Individuals have a right to make FOI applications to Mr Gray’s employers and if Mr Gray objects then it must be assumed that he has something to hide.[74] • She would not have been forced to make persistent FOI applications if her applications were treated seriously and processed exactly as the guidelines set out. If NSC wants her to cease making FOI applications, they should provide her with the requested documents.[75] • The fact that she has made numerous FOI applications should be disregarded as the FOI Act does not require her to limit the number and frequency of applications, nor does it require her to give a context.[76] • Her FOI applications have not been to torment and wear down the staff of NSC and she cannot see how the FOI applications could have this effect.[77] Findings 153. During the course of these external reviews, I have carefully considered the information provided by NSC, the applicant, Mr Gray and information from associated external reviews and exempt matter. Where considered necessary, the Office asked Mr Gray to provide further details and documents in support of his concerns. Staff members of the Office also met with Mr Gray to further clarify his submissions. Staff of the Office independently verified those of Mr Gray’s submissions where it was possible to do so. Mr Gray’s submissions are generally consistent with information contained in matter that I consider is exempt from disclosure. In light of the fact that the Information Commissioner is not bound by the rules of evidence and may inform himself or herself on any matter in any way the Information Commissioner considers appropriate, I consider the information before me is sufficient to enable a proper consideration of the matters and on that basis I do not accept the applicant’s submissions that the information provided to the Office by Mr Gray should not be relied upon. 154. On the information available to me, I am satisfied that: a) Mr Gray, as CEO of NSC was responsible for management decisions with which Ms Sheridan did not agree and was responsible for the decision to terminate Ms Sheridan’s employment. b) A number of employees of NSC were in some way associated with processes that led to the Termination or subsequent events. c) The personal and employment related affairs of each of these employees have been the subject of various FOI applications made by Ms Sheridan and people claiming to be her supporters. d) The applicant is a friend and supporter of Ms Sheridan. e) Ms Sheridan and/or people claiming to be her supporters were and remain highly aggrieved by Mr Gray’s decisions despite Ms Sheridan exercising her legal rights with respect to those disputes in various forums. f) Some or all of the incidents, acts of harassment or intimidation by people claiming to be supporters of Ms Sheridan as described in submissions did occur and were directly related to the Termination. In particular I am inclined to accept Mr Gray’s version of events that: • a threat was made by an unknown caller against Mr Gray’s children with reference to Ms Sheridan • Mr Gray has received repeated telephone calls at night at his home from people claiming to be Ms Sheridan’s supporters • Mr Gray was subject, in the presence of his children, to an act of physical violence and a comment was made with reference to Ms Sheridan. g) Mr Gray has relocated his family from Nanango as a result of the events. h) The applicant, Ms Sheridan, and people claiming to be her supporters have directly or indirectly used a petition, the internet, public notices and the media to publicise their grievances with Mr Gray. i) Bunya Watch has been used by the applicant and other people claiming to be Ms Sheridan’s supporters as a forum to publicly discuss their negative views of Mr Gray and other employees of NSC. Some of the postings by people other than the applicant use threatening and insulting language. j) The applicant, Ms Sheridan and another person have made 23 FOI applications[78] to agencies where Mr Gray has been employed and other agencies concerning: • the personal and employment affairs of employees associated with the Termination • Mr Gray’s decision-making • a workplace grievance involving Ms Sheridan (Grievance) • the AIRC proceedings • the Termination • the CMC complaint. 155. On the basis of Mr Gray’s submissions and the applicant’s admission that she sent them, I find that Mr Gray received a malicious birthday card each year from the applicant since the Termination. 156. On the basis of Mr Gray’s submissions and verbal verification by the FOI decision maker in these reviews, I find that NSC staff involved in processing the FOI applications have become visibly upset when dealing with FOI applications from Ms Sheridan and the applicant. 157. On the basis of Mr Gray’s submissions and verification by way of legible photographs, I find that offensive comments about two NSC employees who were involved in the Termination and the CMC complaint were painted onto NSC wheelie bins. 158. I have carefully considered the applicant’s submissions, including that Mr Gray has not provided sufficient details or proof to substantiate his allegations and his submissions should not be accepted by the Office. 159. To ensure procedural fairness, the applicant was provided with a preliminary view which set out in detail the factors that would be taken into account in any decision. The applicant was afforded the opportunity to provide submissions to the Office in support of her case and in response to the information provided by Mr Gray. As a result, the applicant provided extensive submissions and supporting documents which I have considered. In her response, the applicant denies knowledge of many of the events reported by Mr Gray. It follows that the applicant is unable to provide any evidence about those events. The fact that the events are unknown to the applicant does not make it any more likely that the events did not occur or that Mr Gray’s information about the events is unreliable. 160. While I note that the applicant does not accept the veracity of the information provided by Mr Gray, there is nothing in the applicant’s submissions that suggests that the information provided by Mr Gray is unreliable or that the information he has provided is inaccurate. The acceptance of information which cannot be confirmed or contradicted by an applicant, is not a basis for apprehending prejudice on the part of a decision-maker. The information provided by Mr Gray has been tested by requests for further details and particulars. I have found that information to be consistent with and to some extent corroborated by independent evidence in the form of the postings on Bunya Watch and that contained in exempt material. 161. I accept the applicant’s submissions that she has not been involved in most of the incidents outlined by Mr Gray. 162. The applicant has not been accused of any criminal wrongdoing by any person. At no stage has that proposition been considered or put to the applicant by the Office. With the exception of one or two acts, it is not suggested the applicant is responsible for the incidents Mr Gray has described. 163. I accept the applicant’s submissions that her Bunya Watch postings and media involvement in the main have not been personally derogatory of Mr Gray or other NSC employees and that she has, by and large, confined herself to her broader concerns. The applicant however did post information on Bunya Watch following access to information obtained under the FOI Act in relation to the expenses that NSC has incurred in relation to the Termination and related matters.[79] In commenting on the information, the applicant publicly expresses the supposition that Mr Gray acted outside his lawful authority in approving the expenditure related to the Termination. 164. I do not accept the applicant’s submission that the birthday cards she sent to Mr Gray were sent in a spirit of good will. The applicant submitted that:[80] In a spirit of good will I have sent him 2 birthday cards with generic messages. He actually thanked me for the first birthday card the first time I sent it to him. (This was at a Council meeting of which I was a regular unrecorded attendee.) As I said I have not been alone with him since that last awful appointment. He did not say to me that he found it offensive or intimidating or harassing. He did not act as though he was frightened of me. He acted like he was really amused, quite patronizing really. He did not send me a letter from Edgar & Wood telling me to cease and desist. He did not make a complaint to the police about the fact that I dared to send him a birthday card on his birthday. The second birthday card also contained a generic message. Would he have expected me to sign them “love from Sue x.” I think not. To date I have not been interviewed by the police nor have I been charged either for harassment or for breaching the Australia Post guidelines. Based on the fact that he seemed amused, I sent him the second birthday card the following year. 165. Through her submissions the applicant variously described Mr Gray as ‘impatient and quite rude’, and says:[81] ... he spoke over me... I found [the conversation] to be so distressing that I broke down in tears... I have not had another appointment [with] Mr Gray since that first appointment and I will NEVER be alone in a room with him again. My faith in him, as a decent human being, has been totally shattered. As I found this experience to be quite traumatic, all communication between me and Mr Gray has subsequently been in writing... 166. Given the applicant’s active involvement in supporting Ms Sheridan and her attitude towards Mr Gray, the possibility the birthday cards were sent in a spirit of good will is a rather remote one. The form of greeting used by the applicant in the card wishing him ‘all he deserves’ can only be characterised in the circumstances as malicious although I do not consider this act, if considered in isolation, to be a serious act of harassment or intimidation. 167. My findings in paragraphs 154 to 157 do not suggest that either the applicant or Ms Sheridan were responsible for each of the incidents. As previously indicated it is not necessary for the purposes of section 42(1)(ca) of the FOI Act to make a finding as to who posted each of the relevant entries on Bunya Watch or who may have prompted or carried out each of the acts. While the applicant has been directly involved to some degree in some of the acts which I consider constitute harassment or intimidation, it is the cumulative effect and the ongoing, sequential and encouraging (though not necessarily orchestrated) nature of some of those acts by people claiming to be Ms Sheridan’s supporters that is of concern and is the subject of my findings in this decision. 168. One of the purposes served by the preliminary view letter was to provide the applicant with an opportunity to respond to the information provided by Mr Gray. The applicant’s contention that the forming of a preliminary view raises an apprehension of bias is incorrect. The presentation of a preliminary view is a step often and properly taken to clarify issues and test possible conclusions.[82] As noted elsewhere, the applicant denies any personal knowledge of most of the events reported by Mr Gray. It follows that the applicant is unable to provide any relevant evidence as to those events. To reiterate, the fact that the events are unknown to the applicant does not make it more likely that the events did not occur or that Mr Gray’s information about the events is unreliable. Contrary to the applicant’s contention, I am not prevented from accepting information provided by Mr Gray merely because it is not verified or accepted by the applicant. This is particularly so where the information is not within the applicant’s knowledge. 169. I am cognisant that a possible result of the application of section 42(1)(ca) of the FOI Act is the potential for third parties, over which an applicant may exercise little or no control, to put into jeopardy an applicant’s access rights. However, an overriding public interest contemplated by Parliament was the protection of individuals from serious acts of intimidation and harassment. 170. The applicant suggests that the reason Mr Gray is objecting to release of documents under the FOI Act is because he has something to hide and he has unduly influenced the Office. 171. It would be unacceptable for an agency not to meet its statutory obligations because the content of documents may embarrass it or staff. There is nothing in the deliberations of the FOI decision makers to suggest that this irrelevant factor was taken into account by them and it is not a factor taken into account in this review. Serious acts of harassment and intimidation 172. To reach a decision on whether the requirements of the exemption provision are made out, it is unnecessary for me to make a finding with respect to each and every past act of alleged harassment and intimidation. However, it is necessary for me to consider whether it is reasonable to expect that disclosure of the information sought could result in a person being subjected to a serious act of harassment or intimidation. 173. Mr Gray has pointed to a number of incidents related to the Termination which in my view amount to serious acts of harassment and/or intimidation of Mr Gray and/or NSC staff. These include: • his receipt of a threatening telephone call • the act of physical violence • numerous postings on Bunya Watch • multiple FOI applications in the context of the above. 174. These incidents are dealt with in more detail under the corresponding headings below. Threatening phone call and act of physical violence 175. The threatening phone call and the act of physical violence are acts of intimidation. These acts have caused Mr Gray a level of concern and apprehension sufficient for him to relocate his family from Nanango. I am satisfied that these acts amount to serious acts of intimidation. Bunya Watch postings 176. I accept the applicant’s submissions that she is not responsible for creating the Bunya Watch website or for all of the postings on that website. These propositions were never considered or put to the applicant by the Office. The applicant forwarded the Office copies of the postings she says she made about Mr Gray and issues related to the Termination. These postings do not contain the derogatory and threatening comments of some of the postings. 177. However the Office provided the applicant with a copy of a posting dated 13 January 2008 posted by one S. H. Scott. That posting contained details of the response NSC gave to the author’s FOI application and contained the following comment: ONE of my FOI requests to NSC was for a full and proper accounting of just what it had cost us ratepayers to implement the CEO’s campaign to replace our former librarian of 15 years excellent service with his “very good friend”. ... It is also interesting to note that the Local Government Act and NSC’s Local Laws both insist that these expenses are outside the “Normal day-to-day matters of Councils delegation to the CEO, and therefore must be authorised by the FULL Council” – There is No record of this in any of the NSCs minutes. Does this mean that we can expect Reimbursement of these questionable expenditures and supposedly made on our behalf, rather than favouritism benefiting an acknowledged “very good friend” 178. On the basis of the detailed knowledge about the FOI application held by the author, I find that the person posting this comment was the applicant. I also find that the comment contains an unsubstantiated allegation that Mr Gray acted unlawfully. 179. Bunya Watch has been used as a public forum in which site users have discussed and commented on Mr Gray and other NSC officers in insulting and threatening language and prompted others to ‘keep up the pressure’. There are instances in which the language used to describe officers involved in the Termination on Bunya Watch (for example, ‘mongrels’ and ‘bastards’) is aggressive and derogatory. 180. The criticism and derision of Mr Gray and other NSC officers on Bunya Watch takes the form of personal attacks and is not confined to matters relating to the substantive workplace issues involving Ms Sheridan. The threats made in some of the postings in my view go further than an acceptable level in the ‘rough and tumble’ of public debate. 181. The context of the postings, that is, the discussion threads which show the postings before and after the cited postings, does not in my view change the characterisation I have given to those postings that have been selected as examples. In any context, the postings identified in this decision are aggressive and derogatory. 182. While I accept that being subject to community action and public comment in the media and other forums is an accepted part of public administration for many public officials and more importantly exemplifies the shared value of freedom of expression and in some cases the implied constitutional freedom of freedom of political communication, I am of the view that Mr Gray has been subject to a campaign of ongoing harassment and denigration by virtue of his employment with NSC which goes beyond what is reasonable and acceptable in the circumstances. 183. I am satisfied that: • Many past Bunya Watch postings publicly deride Mr Gray and others and may have effected their reputations. • The personal nature of the criticism of Mr Gray and others and the aggressive and threatening tone of them goes beyond what is reasonably acceptable in the public discussion of public officials and matters of public interest. • The postings on Bunya Watch have persisted over a period of time and included relatively recent entries.[83] • Some of the postings contain threats directed at staff associated with the Termination. • Some entries encourage and have already led to further entries and other harassing and intimidating conduct. • The postings have given Mr Gray and undoubtedly others, cause for concern. 184. Accordingly, I consider the numerous postings on Bunya Watch directed at Mr Gray and other employees associated with the Termination to be serious acts of harassment because they comprise attacks which have disturbed and tormented the subject of the attack and given cause for concern or apprehension. FOI applications 185. In relation to the FOI applications, the applicant expresses the view that the Office has labelled her as vexatious. The proposition that the applicant is vexatious was not put to the applicant in the preliminary view letter and no finding to that effect is made in this decision. 186. The applicant states she has been forced to make her FOI applications as a series of requests because if she had lodged one application requesting access to everything she wanted, it would have been rejected on the grounds that it would involve an unreasonable use of NSC’s resources. 187. The applicant also states she applied for external review because NSC did not adhere to the time limits in the FOI Act and that she would not have been forced to make persistent FOI applications if her applications were treated seriously and processed exactly as the guidelines set out. 188. I do not entirely agree with these statements. Later in this decision examples are provided of the applicant making an FOI application as a result of information obtained under the FOI Act, and making an FOI application on the basis of shared information with the associated applicants. 189. The applicant’s initial FOI application to NSC dated 2 April 2007 contained a request for 18 separate categories of documents. NSC wrote to the applicant seeking clarification of parts of the FOI application. In response, the applicant expanded her request to approximately 61 categories of documents. By that time, NSC had received at least two other associated FOI applications. It did not refuse to deal with the FOI application on the basis that it would involve an unreasonable use of NSC’s resources. NSC provided the applicant with a decision just outside the 60 day statutory time frame from the initial date of receipt of the FOI application and within the statutory time frame from the date the applicant expanded the scope of that FOI application. NSC provided the applicant with access to a number of the documents sought, advised that certain other documents were publicly available or did not exist, and refused access to some documents on the basis that they were exempt under the FOI Act. The decision was made by the CEO and was therefore reviewable by the Office.[84] There is nothing in the decision that suggests the FOI application was not treated seriously. 190. The applicant lodged a second FOI application with NSC on 15 June 2007, apparently prior to the applicant receiving NSC’s decision with respect to her first FOI application. Although NSC did not make its decision within the 45 day statutory timeframe, it continued to deal with the FOI application as provided for in the legislation and made a considered decision on 6 August 2007 (a matter of days outside the statutory time frame). NSC provided the applicant with access to a number of the documents sought, advised that certain other documents were publicly available and refused to provide access to one document as access had already been provided under the initial FOI application. The decision was made by the CEO and was therefore reviewable by the Office.[85] There is nothing in the decision to suggest that the FOI application was not treated seriously. In that external review, the Office sought submissions from the applicant in relation to the documents NSC said were publicly available documents however the applicant made no submissions and the Office finalised its review. 191. The applicant lodged a third FOI application with NSC on 2 July 2007. Although NSC did not make its decision within the 45 day statutory timeframe, it continued to deal with the FOI application and made a considered decision on 10 September 2007. NSC decided to grant full access to one document and refuse access to other documents because they concerned the personal affairs of another, were publicly available, did not exist or had been previously provided to the applicant under a previous FOI application. The decision was made by the CEO and was therefore reviewable by the Office.[86] There is nothing in the decision to suggest that the FOI application was not treated seriously. 192. NSC did not make decisions with respect to the applicant’s following two FOI applications prior to the applicant seeking an external review.[87] In these circumstances, the FOI Act provides a right of external review, as exercised by the applicant. 193. The applicant in her submissions stated that the release of the Matter in Issue was in the public interest because a number of the documents relate to the disbursement of ratepayer’s money and as a ratepayer she has the right to be fully informed as to how money entrusted to Council is used. She also submits that NSC and Mr Gray have failed to make decisions that are seen to be fair and transparent including keeping records that show how decisions are made. 194. While I accept that these are the reasons for the applicant’s FOI applications, and while the motivation of FOI applicants is irrelevant in making decisions with respect to them, consideration of the applicant’s FOI applications and submissions shows that the applicant is also utilising FOI laws to investigate the performance and/or conduct of Mr Gray and other staff involved in the Termination on the off chance those records show any prejudicial information about them. For example, the applicant has requested ‘any/all documentation relating to the performance review of the CEO Shane Michael Gray for the duration of his contract with NSC’[88] and the ‘copy of the log book for Kerry Mercer’s work vehicle that was used in February and March 2006’.[89] Furthermore, as noted above, on ascertaining information about expenses associated with the Termination, the applicant publicly alleged that Mr Gray approved the expenditure without lawful authority. 195. Risk and performance management are important to the public service being managed in an ethical, efficient, effective and economical way. Formal mechanisms are in place to protect workers from unfair treatment in these processes. There is an essential public interest in ensuring that managers are not deterred from carrying out this aspect of their duty by being subject to multiple FOI applications from members of the community conducting their own investigations into personnel to attempt to uncover information that points to wrongdoing or poor performance and which is essentially unrelated to the merits of the decision by which they are aggrieved. There are appropriate authorities to impartially deal with such concerns circumventing the need for citizens to take matters into their own hands. 196. My consideration of the use of the FOI applications in the application of section 42(1)(ca) of the FOI Act relates to the nature and effect of all the FOI applications, not just the applicant’s, on Mr Gray and other officers of NSC. In this regard, it is relevant for me to consider the 23 FOI applications made by the associated people, not just those the applicant has made. 197. Section 21 of the FOI Act gives a person a legal right (subject to the provisions of the FOI Act) to access documents of an agency and to have access to information held by Queensland government. In decision-making, my role is to ensure that a person’s right to access information is extended as far as possible, in accordance with the FOI Act. In that regard, FOI laws may be legitimately used by an individual to try to uncover a reason, other than the one given to them by government, for a decision affecting them. I also have a duty, in accordance with section 4(6) of the FOI Act, when interpreting the provisions of the FOI Act, to identify and consider any prejudicial effect that disclosure of the information may have by reason of the right of access under the FOI Act. As a result, the right to access information can be fettered in certain circumstances as discussed at paragraphs 103 - 109 above. 198. Parliament recognises that the public interest is served by enhancing government’s accountability and keeping the community informed of government’s operations, including the rules and practices followed by government in its dealings with members of the community.[90] Parliament also recognises that there are limited exceptions to a person’s legal right of access to information. While multiple FOI applications by various individuals will not always constitute an abuse of access rights, Parliament considered through the amendments discussed above that access rights may be fettered in certain circumstances where harassment and/or intimidation could reasonably be expected to occur. 199. In Australian Competition and Consumer Commission v Maritime Union of Australia,[91] Hill J considered the meaning of ‘undue harassment or coercion’ in the context of section 60 of the Trade Practices Act 1974 (Cth). His Honour said:[92] 60. The word “harassment” in my view connotes conduct which can be less serious than conduct which amounts to coercion. The word “harassment” means in the present context persistent disturbance or torment. In the case of a person employed to recover money owing to others, as was the first respondent in McCaskey, it can extend to cases where there are frequent unwelcome approaches requesting payment of a debt. However, such unwelcome approaches would not constitute undue harassment, at least where the demands made are legitimate and reasonably made. On the other hand where the frequency, nature or content of such communications is such that they are calculated to intimidate or demoralise, tire out or exhaust a debtor, rather than merely to convey the demand for recovery, the conduct will constitute undue harassment: see per French J in McCaskey at [48]. Generally it can be said that a person will be harassed by another when the former is troubled repeatedly by the latter. The reasonableness of the conduct will be relevant to whether what is harassment constitutes undue harassment. Like French J in McCaskey at [47] I get little assistance from cases in the context of sexual harassment where the word has almost taken on a technical meaning. [my emphasis] 200. The processing of a high volume of FOI applications or FOI applications that seek access to a large range of documents may be considered an annoyance or inconvenience for some agencies. However, an act of annoyance or inconvenience does not amount to a serious act of harassment or intimidation and it would be inappropriate to apply section 42(1)(ca) of the FOI Act in that circumstance. As indicated earlier, it is apparent that section 42(1)(ca) of the FOI Act contemplates that some degree of inconvenience, annoyance and even a certain level of harassment should be tolerated before a curtailment of access rights is considered. 201. The applicant submits that her FOI applications have not been to torment and wear down the staff of NSC and she cannot see how the FOI applications could have this effect.[93] Although the applicant asserts that it was not her intention or purpose to torment or wear down NSC staff by making numerous FOI applications, I am satisfied that this has resulted from the combined effect of the repeated and persistent use of FOI applications by the applicant and associated people. This is an undesirable consequence and one that might lead to the application of section 42(1(ca) of the FOI Act. 202. The Bunya Watch posting referred to at paragraph 134 above suggests that the people claiming to be supporters of Ms Sheridan understand the FOI applications are being used as a tool to wear staff of NSC down. Such a characterisation is reasonable. Only three people have made FOI applications to NSC in relation to the Termination and related events – Ms Sheridan, the applicant and one other associate. Having accepted the applicant’s submission[94] that there is no evidence before me that proves Ms Sheridan asked this person to make the posting on her behalf, these circumstances tend to suggest that: • either one of the three applicants may be responsible for the Bunya Watch posting referred to at paragraph 134 above or alternatively, information provided by one of those individuals led to the posting by another • information about the processing of the FOI applications is being shared by one of those individuals with a supporter who is responsible for the postings. 203. The 23 FOI applications from the applicant, Ms Sheridan and another associated person all concern similar matter: the personal and employment affairs of employees associated with the Termination, Mr Gray’s decision-making, the Grievance and AIRC proceedings, the Termination and the CMC complaint. The most recent FOI application was made by the applicant on 19 September 2008 to NSC. The Office is not aware of the four FOI applications Ms Sheridan has made additional to the 23 FOI applications considered in this decision. 204. Many of the FOI applications run to several pages of detailed requests for documents. In a number of instances, repeated requests have been made by the applicant, Ms Sheridan and another associated person to NSC for similar documents. There have also been requests made to different agencies for the same documents/types of documents. A number of requests seek Mr Gray’s employment records from his employers prior to NSC. 205. The applicant submits that her FOI applications relate to Mr Gray in his professional capacity and not in his personal capacity. While the applicant’s requests largely relate to Mr Gray in his professional capacity, many of the requested documents contain information relating to the personal affairs of Mr Gray and other NSC officers. For example, one of the FOI applications requests access to Mr Gray’s superannuation beneficiary forms, which clearly do not relate to Mr Gray as a manager. 206. These FOI applications and their subsequent external reviews conducted in relation to FOI applications by the applicant and Ms Sheridan have required and would continue to require the significant involvement of Mr Gray, the agency and a number of NSC officers. 207. Because of the volume, pattern of requests, the encouragement of the making of FOI applications on Bunya Watch, the posting of information obtained under the FOI Act on Bunya Watch and the fact that the applicant and Ms Sheridan are known to each other, I am satisfied that the FOI applications are associated with each other and that, despite any other legitimate purpose they may serve, they have resulted in the wearing down of the staff of the agencies and the staff involved in the Termination. The FOI applications themselves became persistent or repeated conduct with undesirable consequences. For example, staff of NSC involved in the processing of the FOI applications have been visibly upset. 208. In the context of the other acts of intimidation which have occurred, it would not be unreasonable for NSC staff to see the FOI applications as another vehicle through which they are being harassed. For these reasons I am satisfied that the FOI applications made to date constitute serious acts of harassment. 209. In some instances, I also consider that serious acts of harassment or intimidation including further FOI applications and/or postings on Bunya Watch have occurred as a result of: • an agency’s refusal to grant the applicant or Ms Sheridan access to documents under the FOI Act • the disclosure of documents under the FOI Act. 210. An example of an agency’s refusal to grant the applicant or Ms Sheridan access to documents under the FOI Act resulting in further FOI Applications is as follows: • By letter dated 30 May 2006, Ms Sheridan requested access to ‘the memo [Kathy Cope] wrote to all Council staff requesting their signature to a public notice supporting the Chief Executive Officer published in April 2006’ and ‘documented responses or emails relating to the memo’. By letter dated 17 April 2007, NSC advised Ms Sheridan that access to the requested documents was refused under the FOI Act. • By letter dated 12 June 2007, Ms Sheridan again sought access to the ‘email from Kathy Cope dated 31.03.07 sent at 11.05 am with attachment’. • By letter dated 7 September 2007, the applicant sought access to the ‘email Kathy Cope sent to council staff members on 31st March 2006 at 11:05 am in relation to a proposed public notice, which was later published in the South Burnett Times’. 211. An example of the disclosure of documents under the FOI Act leading to the posting of information on Bunya Watch is as follows: • The applicant posted information on Bunya Watch in relation to the expenses that NSC has incurred in relation to the Termination and related matters.[95] This information was contained in documents released under the FOI Act. In commenting on the information, the applicant publicly insinuates that Mr Gray has acted outside his lawful authority. 212. An example of the disclosure of documents under the FOI Act leading to a further FOI application is as follows: • In an FOI application dated 2 July 2007, the applicant requested access to a ‘copy of the library policy for Nanango Shire introduced 17th May 2005 with the added PLS suggestions (as stated on page 1 of 4 – “Notes compiled by Audrey and Iris following CLS training in Brisbane 11 to 17 July 2005” – and also numbered 000022 in documents obtained from you under FOI’ [my emphasis]. Could disclosure of the Matter in Issue reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation? 213. Under the above sub-heading ‘Serious acts of harassment and intimidation, I have found there to have been past acts of serious harassment and intimidation related to the Termination against Mr Gray and staff of NSC. I consider the past occurrences of serious acts of harassment and intimidation alone provide a reasonable basis for Mr Gray and the staff of NSC to expect to be subjected to a further serious act of harassment or intimidation. However, for matter to be exempt under section 42(1)(ca) of the FOI Act, I must be satisfied that the disclosure of the Matter in Issue could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation. 214. In these reviews, I consider the following factors relevant to determining that issue: • the nature of the relevant Matter in Issue • the likely effect of disclosure of the Matter in Issue • the past conduct of people claiming to be Ms Sheridan’s supporters • the nature of the relationship between the parties and/or third parties. Nature of the Matter in Issue and likely effect of disclosure 215. The Matter in Issue in each external review concerns the matters related to the Termination, including the personal and employment affairs of people involved in the Termination, and more particularly work processes/decision-making involving Mr Gray. The categories of documents sought by the applicant in these reviews fall into the same categories of documents sought in the other associated FOI applications. 216. The previous disclosure of documents falling within these categories has resulted in serious acts of harassment and intimidation, being further FOI applications and the use of public forums to personally denigrate Mr Gray and/or NSC officers, examples of which are set out at paragraphs 211 - 212 above. 217. I am mindful of the fact that disclosure under the FOI Act is, minimally, disclosure to the applicant. Once information is disclosed, there is no way of controlling the ultimate extent of the disclosure. While the disclosure of information under the FOI Act is not always to be regarded as disclosure to the world,[96] I am reminded of this possibility by: • the recent publication on Bunya Watch of selected excerpts of a decision of the Information Commissioner concerning a related external review application involving Ms Sheridan[97] • the applicant posting information she obtained under the FOI Act on Bunya Watch in relation to costs associated with the Termination.[98] 218. As explained above, the applicant has made a serious allegation against Mr Gray in a public forum based on supposition in the context of her posting information obtained under the FOI Act. It is reasonable to expect she will do so again. I consider the release of even innocuous information to the applicant is likely to be shared with Ms Sheridan and/or other people claiming to be her supporters. It is likely further postings will be made on Bunya Watch. The further dissemination of the information is likely to result in further acts of serious harassment and/or intimidation against Mr Gray or staff of NSC, namely further FOI applications and postings on Bunya Watch. 219. Further FOI applications and further use of public forums will involve Mr Gray and officers of NSC in further consultation in relation to the administration of the FOI Act, and are likely to involve further adverse publicity giving them cause for concern - an undesirable consequence of the FOI applications. 220. A significant amount of the information sought about Mr Gray concerns his former places of employment. In view of the nature of the discussion on Bunya Watch, that is, participants encouraging one another to contribute further ‘information’ to the discussion as a means of further publicly deriding Mr Gray and others, I consider that disclosure of even innocuous information may be used by Bunya Watch participants to further this end. Past conduct 221. As expressed earlier, I consider that Mr Gray and other employees involved in the Termination have been subjected to serious acts of harassment and intimidation in the past and these acts have all been linked to the Termination. Though past conduct is not necessarily indicative of future conduct, I consider in these reviews it provides a reasonable basis to expect that further serious acts of harassment or intimidation could reasonably be expected to occur. Some of the serious acts of harassment or intimidation that have occurred in the past have resulted from the disclosure of matter that falls within the same categories as the Matter in Issue in these reviews. Nature of the relationship between the parties 222. As explained above, I consider the people claiming to be Ms Sheridan’s supporters, including the applicant, remain highly aggrieved by Mr Gray’s decisions and have been actively involved in expressing their negative views about Mr Gray and officers of NSC in public forums. 223. While I accept the applicant’s submissions that she has not been involved in any way with the physical acts of violence and intimidation directed at Mr Gray by some of the other people claiming to be Ms Sheridan’s supporters, the applicant has engaged in her own acts of harassment: • sending malicious birthday cards • posting on Bunya Watch an allegation of unlawful conduct based on supposition • making repeated and numerous FOI applications for documents which may assist in her personal investigation into the performance and/or conduct of Mr Gray and other staff involved in the Termination and which are largely unrelated to the substantive merit of Mr Gray’s decisions in relation to Ms Sheridan. 224. The applicant’s FOI applications, like the associated FOI applications, are aimed at ‘investigating’ the staff of NSC involved in the Termination. 225. The personalised nature of the Bunya Watch entries, the threatening phone call and the act of physical violence suggest that the conduct which amounts to serious acts of harassment and/or intimidation is not directly linked to any objective assessment of the substantive merit of the decisions in relation to the Termination or a respect for the rule of law which provides appropriate avenues of redress for Ms Sheridan. 226. Therefore, on the information available to me, I am satisfied that: • Disclosure of the Matter in Issue in these reviews could reasonably be expected to result in further FOI applications by the applicant and people claiming to be Ms Sheridan’s supporters. • The further FOI applications would themselves be acts of serious harassment. • Disclosure of the Matter in Issue in these reviews could reasonably be expected to result in further public vilification of Mr Gray and other people by people claiming to be Ms Sheridan’s supporters. • Any further public vilification would constitute acts of serious harassment and/or intimidation. • Disclosure of the Matter in Issue in these reviews could reasonably be expected to result in a serious act of physical violence, threats or other acts of intimidation in relation to Mr Gray and staff of NSC. 227. Accordingly, I am satisfied that the Matter in Issue is exempt from disclosure in its entirety under section 42(1)(ca) of the FOI Act. Sufficiency of search 228. Section 29(4) of the FOI Act provides: 29 Refusal to deal with application—agency’s or Minister’s functions ... (4) If— (a) an application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and (b) it appears to the agency or Minister that all of the documents to which the application relates are exempt documents; the agency or Minister may refuse to deal with the application without having identified any or all of the documents 229. On the information currently available to me, I am satisfied that the documents the applicant claims have not been located by NSC concern: • Mr Gray’s decision-making • the Grievance & the AIRC proceedings • the Termination • the CMC complaint • the employment or personal affairs of employees associated with the Termination, including Mr Gray. 230. This matter, if it exists, falls within the classes of matter that I consider could reasonably be expected to result in a person being subjected to a serious act of harassment and/or intimidation if disclosed. I am satisfied that this matter, if it exists, is exempt under section 42(1)(ca) of the FOI Act and therefore the documents to which the applicant’s sufficiency of search concerns pertain are exempt documents. 231. On this basis I am satisfied that I should, under section 29(4) of the FOI Act, decline to deal with these parts of the external review applications without directing NSC to undertake further searches. DECISION 232. For the reasons set out above, I set aside the decisions under review and decide: • the remaining Matter in Issue in each of these reviews qualifies for exemption from disclosure under section 42(1)(ca) of the FOI Act • to refuse to deal with the sufficiency of search issues under section 29(4) of the FOI Act, on the basis that it appears to me that any further documents responsive to the FOI applications qualify for exemption under section 42(1)(ca) of the FOI Act. ________________________ Julie Kinross Acting Information Commissioner Date: 9 April 2009 [1] External reviews 210240, 210241, 210330, 210318, 210377 and 210323.[2] Section 72 of the FOI Act.[3] Section 27B(4) of the FOI Act.[4] Section 27(5) of the FOI Act. [5] Section 79 of the FOI Act.[6] Section 27(5) of the FOI Act. [7] Section 79 of the FOI Act.[8] External review 210279.[9] External review 210349.[10] External review 210465.[11] External review 210466.[12] External review 210279. [13] External review 210279.[14] External review 210349.[15] External review 210465.[16] External review 210466. [17] (Unreported, Queensland Information Commissioner, 23 June 2008). [18] Section 42(1) of the FOI Act is subject to section 42(2) which provides that matter is not exempt under subsection (1) if it consists of matter described in paragraph (a) of subsection (2), unless its disclosure would, on balance, be in the public interest. I am satisfied that the Matter in Issue is not of a type described in paragraph (a) and therefore subsection (2) of section 42 does not apply in this matter. [19] Legal, Constitutional and Administrative Review Committee, Freedom of Information in Queensland, December 2001, Report No 32. [20] At page 203.[21] At page 204. [22] Committee finding 177 – recommendation, at page 204. [23] At page 14. [24] Section 14A(1) of the Acts Interpretation Act 1954. [25] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381. [26] Section 42(1)(ca) of the FOI Act does not contain a public interest test, however, the public interest considerations discussed above are relevant to how section 42(1)(ca) of the FOI Act is interpreted. [27] (2001) 208 CLR 199 at 226.[28] [1986] FCA 35; (1986) 64 ALR 97. [29] Cockcroft, at 106. [30] Cockcroft, at 106.[31] Macquarie Dictionary Online (Fourth Edition) www.macquariedictionary.com.au.[32] As above. [33] As above. [34] Price and Queensland Police Service (Unreported, Queensland Information Commissioner, 29 June 2007) at paragraph 63; see also the comments of the Information Commissioner at paragraph 47 of Murphy and Queensland Treasury [1995] QICmr 23; (1995) 2 QAR 744 regarding section 42(1)(c) of the FOI Act.[35] (Unreported, Queensland Information Commissioner, 23 June 2008). [36] At page 29. [37] Posting 15 January 2007.[38] Posting 6 January 2007 from ‘Hijau’ and anonymous posting on 11 April 2007.[39] Posting 17 January 2007 from ‘Spotted Dog’ and posting on 8 March 2007 from ‘Hijau’.[40] Posting 18 December 2006.[41] Posting 8 March 2007 from ‘Hijau’.[42] Anonymous posting 21 April 2007. [43] At pages 2, 26, 28 and 32. [44] At page 28. [45] At page 2. [46] At page 3. [47] At pages 17 – 20.[48] At page 20. [49] At page 28. [50] At page 32.[51] At page 34. [52] At page 34. [53] At page 28. [54] At pages 16 – 23. [55] At page 19. [56] At pages 7 - 8. [57] As set out in documents attached to her submissions. [58] At page 12 and as set out in documents attached to her submissions. [59] At page 22. [60] At page 12. [61] At pages 12 and 19. [62] At pages 20 and 27. [63] At pages 20 and 27 – 30.[64] At pages 23, 25 and 29. [65] At page 21. [66] At page 13. [67] At page 15. [68] At pages 23 – 33. [69] At pages 13 and 14. [70] At page 13. [71] At page 14. [72] At page 28. [73] At pages 13 – 14. [74] At page 20. [75] At page 29. [76] At page 35. [77] At page 29. [78] Ms Sheridan advised the Office that an additional four FOI applications have been made (bringing the total to 27 FOI applications) however the Office is only aware of the content of 23 of those applications and therefore this decision refers only to the 23. [79] Bunya Watch posting dated 13 January 2008.[80] At page 20. [81] At page 8. [82] Community Care Inc v Taylor [2007] QSC 148 at [21]. [83] The most recent entry relating to Ms Sheridan and Mr Gray is the posting by S. H. Scott dated 4 July 2008.[84] External review 210279. [85] External review 210318. [86] External review 210349. [87] FOI applications dated 7 September 2007 (external review 210465) and 16 October 2007 (external review 210466). [88] External review 210279. [89] External review 210465. [90] Section 4(2) of the FOI Act.[91] [2001] FCA 1549; 114 FCR 472. [92] At paragraph 60. [93] At page 29. [94] At page 26. [95] Bunya Watch posting dated 13 January 2008.[96] Victoria Police v Marke [2008] VSCA 218.[97] External review 210240. [98] Posting by S.H. Scott on 13 January 2008.

queensland

court_judgement

Queensland Information Commissioner 1993-

Bennett and Queensland Corrective Services Commission [1995] QICmr 29; (1995) 3 QAR 78 (1 December 1995)

Bennett and Queensland Corrective Services Commission [1995] QICmr 29; (1995) 3 QAR 78 (1 December 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 136 of 1994COMMISSIONER (QLD) ) (Decision No. 95029) Participants: JOHN C BENNETT Applicant - and - QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - applicant seeking access to information concerning the parole conditions of another person - whether such information concerns the other person's personal affairs - whether disclosure of the information would, on balance, be in the public interest - application of s.44(1) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.44(1)Corrective Services Act 1988 Qld s.165, s.165(5), s.169, s.175, s.175(1)(a), s.175(1)(a)(ii), s.175(1)(b)Lapidos and Office of Corrections (No. 2 ), Re (Victorian Administrative Appeals Tribunal, Jones J (President), 19 February 1990, unreported)Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227 DECISIONI affirm the decision under review (being the internal review decision made on behalf of the respondent by Mr G W Taylor on 5 September 1994).Date of Decision: 1 December 1995...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 136 of 1994COMMISSIONER (QLD) ) (Decision No. 95029) Participants: JOHN C BENNETT Applicant - and - QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent REASONS FOR DECISIONBackground1. The applicant seeks review of the respondent's decision to refuse him access to information concerning the parole conditions of a third party. That information is claimed by the respondent to be exempt matter under s.44(1) of the Freedom of Information Act 1992 Qld (the FOI Act).2. By letter dated 25 July 1994, the applicant applied to the Queensland Corrective Services Commission (the QCSC) for access under the FOI Act to information concerning the parole conditions of a named person (who will be referred to in these reasons for decision as "the parolee"). The parolee had been convicted of a crime which did not involve violence against a person, and in respect of which the applicant was not a victim. The applicant asserted, however, that he had become involved in dealings with the parolee (following the latter's release from jail on parole) in which the applicant believed the parolee had acted criminally, and he wished to establish whether the parolee's actions were in breach of relevant parole conditions.3. Both the QCSC's initial decision (made by Ms P Cabaniuk on 5 August 1994) and its internal review decision (made by Mr G W Taylor on 5 September 1994) refused the applicant access to the requested information on the basis that the parole conditions of the parolee comprised exempt matter under s.44(1) of the FOI Act. In his internal review decision, Mr Taylor said: ... the information you have requested pertains to another person's parole conditions and is considered to be of a personal nature. All persons placed on parole must obey the law, however, other conditions of their parole are of a personal nature and should not be disclosed to third parties. I feel it would not be in the public interest for this information to be disclosed.4. By letter dated 14 September 1994, the applicant applied for review by the Information Commissioner, under Part 5 of the FOI Act, of Mr Taylor's decision.External review process5. At the commencement of this external review, a letter was forwarded to the parolee, drawing his attention to s.78 of the FOI Act and inviting him to apply to participate in this external review. No response has been received from the parolee.6. The matter in issue was obtained and examined. It was explained to the applicant that the five requirements set out in s.175(1)(a)(i)-(v) of the Corrective Services Act 1988 Qld (these provisions are reproduced at paragraph 11 below) are standard inclusions in every parole order. In his written submission dated 21 February 1995, the applicant made it clear that he did not seek access to the mandatory parole conditions stipulated in s.175(1)(a) of the Corrective Services Act, but to "the specific orders relating to [the parolee's] specific behaviour".7. The participants were invited to lodge written submissions concerning the application of s.44(1) of the FOI Act to the matter in issue. Submissions dated 9 November 1994 and 21 February 1995 were received from the applicant, and a submission dated 9 February 1995 was received from the QCSC.The Queensland legislative scheme for parole of prisoners 8. The legislative provisions which govern the administration of Queensland's parole system are contained in Part 4 of the Corrective Services Act. Section 165 of the Corrective Services Act provides that the Queensland Community Corrections Board may, by written order, direct that a prisoner be released on parole on the date specified in the order. The same function may be exercised by a Regional Community Corrections Board in respect of a prisoner who is serving a term of imprisonment not longer than five years. 9. Section 169 of the Corrective Services Act provides that a prisoner may, if the prisoner so requests, appear before, and make representations to, the relevant Community Corrections Board in support of the prisoner's application for parole, and may, with the leave of the Board, be represented by an agent.10. Section 165(5) of the Corrective Services Act provides that the secretary of the relevant Community Corrections Board shall send a copy of the parole order to the prisoner in respect of whom the order is made, the person in charge of the prison or centre from which the prisoner is to be released, and to the QCSC itself. 11. The requirements of a parole order are set out in s.175 of the Corrective Services Act which, so far as relevant for present purposes, provides: 175.(1) A parole order- (a) shall contain requirements that the prisoner- (i) be under the supervision of a community correctional officer- (A) if the prisoner is a prisoner mentioned in section 165(1)(a) - for such period, that does not go past the end of the prisoner's term of imprisonment, as is determined by the board making the order; or (B) if the prisoner is a prisoner mentioned in section 165(1)(b) - for the period that the prisoner was directed to be detained; and (ii) abstain from violation of the law; and (iii) carry out the lawful instructions of the community correctional officer; and (iv) report and receive visits as directed by the community correctional officer; and (v) notify the community correctional officer within 48 hours of any change of address or change of employment during the parole period; and (b) may contain such other requirements specified in the parole order as the board making the order considers necessary with a view to - (i) securing the good conduct of the prisoner; (ii) preventing a repetition by the prisoner of the offence in relation to which the prisoner was imprisoned or detained or the commission by the prisoner of other offences. (2) A parole order may include requirements relating to the residence of the prisoner in the State or if the prisoner consents, in another State or a Territory of the Commonwealth. (3) Unless the parole order otherwise permits or requires the prisoner to reside in another State or a Territory of the Commonwealth, it shall be a requirement of every parole order that the prisoner shall not leave or remain out of the State save in compliance in every respect with the terms and conditions of a permit in writing of - (a) where the order was made by the Queensland Community Corrections Board - that board or the Commission; (b) where the order was made by a regional community corrections board - any such board or the Commission. ...12. As noted above, s.175(1)(a) sets out mandatory requirements for inclusion in every parole order. Of significance for the present case, however, is s.175(1)(b) which permits a relevant Community Corrections Board to specify other requirements in a parole order, which may be individually tailored to the particular prisoner, for the purposes set out in s.175(1)(b)(i) and (ii).13. The provisions of Part 4 of the Corrective Services Act which follow s.175 are either administrative machinery provisions, or provisions relating to breach of parole or variation to parole, and are not relevant to the issues in this external review.14. In its written submission dated 9 February 1995, the QCSC informed me that meetings of the Queensland Community Corrections Board and of Regional Community Corrections Boards are closed to the public because "... the dealing with parole applications is considered to be a private matter between the parolee and the Board, as numerous issues of a "personal nature" to the parolee are examined and discussed." The QCSC also informed me that copies of a parole order are sent only to the releasing correctional centre, to the parolee, and to the supervising community corrections office. 15. The nature and objects of legislative schemes allowing for the grant of parole to prisoners were concisely explained by the High Court of Australia in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, at pp.628-9, in a joint judgment of Barwick CJ and Menzies, Stephen and Mason JJ: ... To interfere with [a prisoner's] sentence is not within the authority of the paroling authority. Its authority is to release the prisoner conditionally from confinement in accordance with the sentence imposed upon him. The sentence stands and during its term the prisoner is simply released upon conditional parole . ... To read the legislation in the way we have suggested fulfills the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.16. Although a parolee may be released from prison before the full custodial term ordered by the sentencing court has been served, the parolee remains subject to the supervision of the corrective authorities, and may be returned to prison during the parole term in the event that parole conditions are not complied with. Do parole conditions comprise information concerning the parolee's personal affairs?17. Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest.18. As the applicant contended in his written submission dated 21 February 1995 (and as paragraphs 15 and 16 above make clear), there is no doubt that regulation of a prisoner's release on parole has a public character. However, the fact that information has a public character does not necessarily disqualify it from being properly characterised as information which concerns a person's personal affairs, within the meaning of s.44(1) of the FOI Act: see Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 at p.266; paragraph 111.19. Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, based on the proper characterisation of the matter in question. In Re Stewart, I explained that the central concept of the phrase "information concerning the personal affairs of a person" is that of information concerning the private aspects of a person's life. I also endorsed (at p.257, paragraph 80, of Re Stewart) the finding by Jones J (President) of the Victorian Administrative Appeals Tribunal in Re Lapidos and Office of Corrections (No. 2) (Victorian AAT, Jones J, 19 February 1990, unreported) to the effect that information concerning what happens to a prisoner while in prison is information concerning the prisoner's personal affairs.20. In its written submission dated 9 February 1995, the QCSC made the following arguments: It is submitted that parole conditions are that person's "personal affairs" as such conditions are variable depending on the facts of the particular case and are framed to specifically address issues which may arise in the course of the person's supervision. Typical parole conditions which are usually imposed can, for instance, require a person to accept counselling because of some perceived personal deficit ie because of a drug or other substance abuse problem or to address some issue of a personal nature, often relating to relationship and sexual issues or to accept such psychiatric treatment as directed or to live at a certain place or to have no contact with a specified person. The parole conditions are directed towards the regulation of the parolee's personal lifestyle during the parole period and are specifically selected or framed in a way which will address the personal issues involved in the parolee's prior offending behaviour.21. I consider that discretionary parole conditions imposed pursuant to s.175(1)(b) of the Corrective Services Act will usually comprise information concerning the personal affairs of the prisoner. Having examined it, I am satisfied that the matter in issue in the present case, comprising the discretionary parole conditions - conditions 6-10 (inclusive) - of the parole order issued in respect of the parolee, comprises information concerning the parolee's personal affairs.Would disclosure of the matter in issue, on balance, be in the public interest?22. The applicant's submissions primarily focussed on the application of the public interest balancing test incorporated within s.44(1) of the FOI Act. The essence of the applicant's submissions is that the parolee defrauded the applicant and others, and that disclosure of the parole conditions would assist the applicant in proposed civil action against the parolee, if the applicant were able to establish that the parolee's actions in connection with the alleged fraud involved a breach of parole conditions.23. The QCSC's submissions in response hint that there is nothing in the discretionary parole conditions which would assist the applicant in that regard, or otherwise lend any force to public interest arguments of the kind advanced by the applicant. Having examined the matter in issue, I can confirm that that is the case. The QCSC's submissions as to the public interest balancing test in s.44(1) were: The QCSC cannot identify any public interest in the requested disclosure. The issue whether [the parolee] acted unlawfully during the parole period does not depend in any obvious way upon the terms of the conditions applied in this case. If the applicant or others have information which supports a breach of the law, that information and relevant facts and circumstances can be investigated by the Police. Should the circumstances warrant it, then the parolee can be prosecuted. It is submitted that this course does not depend in any way upon the conditions attached to the parole order, but upon the facts and circumstances as are within the knowledge of the complainants.24. There may be cases in which public interest considerations, favouring disclosure to a particular applicant (or perhaps to any applicant) of discretionary parole conditions in another person's parole order, are found to exist. They would then have to be weighed against the public interest in non-disclosure of information which satisfies the test for prima facie exemption under s.44 of the FOI Act. One possible case is where a victim of crime is fearful of the perpetrator's release from prison, and wishes to establish what, if any, parole conditions have been made affecting the perpetrator's potential contact with the victim.25. Another possible case is that of a prisoner, convicted of sex offences against children, who is released subject to a parole condition, for example, to have no unsupervised contact with children and to stay more than 500 metres away from any school, kindergarten, child care centre or children's playground. Arguably, the public interest in the observance of such a parole condition, and the difficulty for the parole authorities in ensuring its observance, might justify a finding that disclosure of parole conditions of that kind would, on balance, be in the public interest. 26. Against public interest considerations of that kind, there must also be weighed the public interest in achievement of the objects of the parole system in fostering rehabilitation of prisoners, for example, by an offender being able to undertake his or her rehabilitation, and re-integration into society, without unnecessary or demeaning exposure of his or her status as a parolee.27. There is a general public interest in scrutiny of the operations of Community Corrections Boards, and accountability for their performance, on behalf of the public of Queensland, of what are quite sensitive, important and occasionally controversial duties, in assessing applicants for parole and imposing discretionary parole conditions on individual prisoners. However, I do not think that disclosure of the particular matter in issue in this case would further that public interest to an extent which outweighs the public interest in non-disclosure which is inherent in the satisfaction of the test for prima facie exemption under s.44(1) of the FOI Act.28. Moreover, I am not satisfied of the existence of any other public interest considerations which favour disclosure of any of the parole conditions in issue. It is possible that relevant authorities have other documents which might assist the plaintiff in his stated aim of seeking redress, but the alleged activities of the parolee, as described in the applicant's submissions to me, would not involve any breach of the terms of the discretionary parole conditions (conditions 6-10) in the relevant parole order. If the applicant believes the parolee engaged in conduct which violated the law (see s.175(1)(a)(ii) of the Corrective Services Act) he is able to lodge a complaint with the police or the parole authorities. Access to the matter in issue, however, would not be of any assistance in that regard.29. I am not satisfied that disclosure of the matter in issue would, on balance, be in the public interest.Conclusion30. For the foregoing reasons, I am satisfied that the matter in issue is exempt matter under s.44(1) of the FOI Act, and I affirm the decision under review. ..................................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Cook Shire Ratepayers and Residents Association Inc and Cook Shire Council [2020] QICmr 38 (20 July 2020)

Cook Shire Ratepayers and Residents Association Inc and Cook Shire Council [2020] QICmr 38 (20 July 2020) Last Updated: 24 August 2020 Decision and Reasons for Decision Citation: Cook Shire Ratepayers and Residents Association Inc and Cook Shire Council [2020] QICmr 38 (30 June 2020) Application Number: 314734 Applicant: Cook Shire Ratepayers and Residents Association Inc Respondent: Cook Shire Council Decision Date: 30 June 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE - documents relating to the Cameron Creek Rural Electrification Scheme - whether documents subject to legal professional privilege - sections 47(3)(a) and 48 and schedule 3, section 7 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - BREACH OF CONFIDENCE - agreement between agency and third party relating to the Cameron Creek Rural Electrification Scheme - whether disclosure of the document would found an action for breach of confidence - sections 47(3)(a) and 48 and schedule 3, section 8 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - documents relating to the Cameron Creek Rural Electrification Scheme - accountability - reason or background for government decision - business or financial affairs - protection of individual’s right to privacy - deliberative process of government - local government closed meeting - personal information - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary Cook Shire Ratepayers and Residents Association Inc (CSRRA) applied[1] under the Right to Information Act 2009 (Qld) (RTI Act) to Cook Shire Council (Council) for access to agreements, including documents related to agreements, regarding the Cameron Creek Rural Electrification Scheme (Scheme) and Council’s original map of the benefitted area for the Scheme. Council decided[2] to release the original map of the benefited area in full, but otherwise refused access to documents[3] on the ground that they comprised exempt information[4] on the basis the documents were subject to legal professional privilege or disclosure would found an action for breach of confidence. CSRRA applied[5] to the Office of the Information Commissioner (OIC) for external review of Council’s decision. For the reasons set out below, I find that the information remaining in issue may be refused on the following grounds: 6 pages and parts of 4 pages are exempt information, as they are subject to legal professional privilege 3 pages are exempt information, as disclosure would found an action for breach of confidence; and disclosure of 1 page and parts of 5 pages would, on balance, be contrary to the public interest. Background Council has explained the Scheme as follows:[6] The overall plan to construct a “backbone” high voltage power line along Cameron Creek Road was to enable occupiers of the land within the map marked “Benefitted Area, Rural Electrification Cameron Creek Road”, to be able to obtain a supply of electricity that otherwise would have been prohibitive. Council funded the construction of a backbone line borrowing $200,882 from Queensland Treasury Corporation. The annual debt servicing charges are apportioned equally on all properties within the benefitted area, as per the annual implementation plan. These charges will continue to apply irrespective of whether the ratepayer is accessing the service, and irrespective of whether the land is at some point reconfigured. Significant procedural steps taken during the external review are set out in the Appendix to this decision. Reviewable decision The decision under review is Council’s decision dated 23 July 2019. Evidence considered In reaching my decision, I have had regard to the submissions, evidence, legislation and other material referred to throughout these reasons (including footnotes and Appendix). I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[7] particularly the right to seek and receive information as embodied in section 21 of the HR Act. I consider that a decision-maker will, when observing and applying the law prescribed in the RTI Act, be ‘respecting and acting compatibly with’ this right and others prescribed in the HR Act.[8] I further consider that, having done so when reaching my decision, I have acted compatibly with and given proper consideration to relevant human rights, as required under section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between the Victorian equivalent of Queensland’s RTI Act and HR Act: ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[9] Information in issue Following a request from OIC, Council provided[10] OIC with copies of its original map of the benefitted area for the Scheme, which had been released to the CSRRA in accordance with Council’s decision, and a further 18 pages, being the pages to which access was refused in Council’s decision.[11] During the external review, Council agreed to release a further 3 pages[12] and parts of 5 pages[13] to the CSRRA. Accordingly, the information remaining for consideration is contained within 10 pages[14] and parts of 5 pages.[15] Issues for determination The issues for determination are: Legal professional privilege – whether access to information may be refused on the ground that it is subject to legal professional privilege and is therefore exempt information. Breach of confidence – whether access to information may be refused on the ground that disclosure would found an action for breach of confidence and is therefore exempt information. Contrary to public interest – whether access to information may be refused on the ground that disclosure would, on balance, be contrary to the public interest. Legal professional privilege Relevant law The RTI Act gives a right to access documents of government agencies.[16] This right is subject to other provisions of the RTI Act, including grounds on which access may be refused. Access may be refused to information, to the extent the information comprises exempt information.[17] Information will be exempt where it would be privileged from production in a legal proceeding on the basis that it is protected by legal professional privilege.[18] Legal professional privilege protects confidential communications between a lawyer and their client, made for the dominant purpose of: seeking or giving legal advice or professional legal assistance (advice privilege), or use in legal proceedings either on foot or reasonably anticipated, at the time of the relevant communication (litigation privilege).[19] Legal professional privilege can extend to copies of non-privileged documents where they are attached to privileged communications,[20] and to internal client communications repeating legal advice, whether verbatim or in substance, or gathering information necessary in order to seek legal advice.[21] When the requirements at paragraph 15 above are met, legal professional privilege is established. However, qualifications and exceptions t[22]privilege22 may, in particular circumstances, affect the question of whether information attracts or remains subject to it, and therefore is exempt under the RTI Act. Findings I have considered information contained within 6 pages[23] and parts of 4 pages[24] (LPP Information). I am limited by the operation of the RTI Act[25] in the extent to which I can describe this information, as to describe it in detail will necessarily result in disclosure of that which is sought. For this reason, my explanation below is necessarily circumspect. I am satisfied that: the LPP Information comprises correspondence received by Council from an external legal advisor and discussion of and/or references to that advice within Council documents the advice was received from a suitably qualified and independent legal advisor the communication was for the dominant purpose of providing legal advice; and there is no evidence indicating that the advice was not confidential or that Council has otherwise waived privilege. In response to a preliminary view setting out the above,[26] the CSRRA stated[27] that, as OIC cannot disclose the content of the LPP Information to the CSRRA, this ‘prevents [the CSRRA] from making any relevant comment’ in relation to this information. While I acknowledge this constraint, as set out at paragraph 18 above, the RTI Act prevents me from providing the CSRRA with any further detail about the LPP Information. Based on my findings of fact set out at paragraph 19 above, I find that the LPP Information is subject to legal professional privilege and is therefore exempt information under schedule 3, section 7 of the RTI Act. Accordingly, access to the LPP Information may be refused under section 47(3)(a) of the RTI Act. Breach of confidence Relevant law Another category of exempt information is information the disclosure of which would found an action for breach of confidence.[28] An action for breach of confidence can be an action for an equitable breach of confidence or a breach of a contractual obligation of confidence.[29] An action for breach of a contractual confidentiality requires there to be a contract in place. If the agreement is not a contract or the confidentiality clause is not legally binding (which may be the case if the parties are still negotiating or the clause has expired) there can be no breach of contractual confidence.[30] It is also necessary to consider if there has been an exchange of consideration between the parties in relation to the contract. In the absence of some form of consideration, then a confidentiality clause will not be capable of supporting an obligation of confidence.[31] Findings I have reviewed information contained within 3 pages[32] (BOC Information). As with the LPP Information, I am limited by the operation of the RTI Act[33] in the extent to which I can describe this information. However, I can state that I am satisfied that: there is a legally binding contract which has not expired the contract includes a confidentiality clause; and an exchange of consideration has taken place between the parties in relation to the contract. The CSRRA’s statement about limited ability to make comment at paragraph 20 above was also made in relation to the BOC Information. Again, I acknowledge the constraint, however, the RTI Act prevents me from providing the CSRRA with any further detail about the BOC Information. Given the circumstances set out at paragraph 25 above, I find that the BOC Information comprises exempt information under schedule 3, section 8 of the RTI Act. Accordingly, access to the BOC Information may be refused under section 47(3)(a) of the RTI Act. The CSRRA submits:[34] We also submit the factors favouring nondisclosure, in this instance, disclosing the personal information of certain ratepayers, causing public harm and prejudicing their right to privacy is based on assumptions that this could be the case. It is our understanding, it is Council who doesn't want the information released in this matter, not the ratepayers given exemptions. Council has a history of requiring people to sign settlement deeds with confidentiality clauses to protect Council interests only. The other party is required to sign to get the payout and this payout is the driving factor for the other parties, not the need for non disclosure in the public domain. While it is unclear whether the CSRRA is making the above submission in relation to the BOC Information as well as the CTPI Information, when information is found to be exempt information, there is no scope under the legislation to consider public interest arguments because Parliament has decided that it would be contrary to the public interest to disclose exempt information.[35] Further, the Information Commissioner does not have the power to direct that access be given to information that is found to be exempt.[36] If my above findings of fact regarding the BOC Information are incorrect, I am satisfied that the BOC Information would, on balance, be contrary to the public interest to disclose for the same reasons as set out below in relation to the CTPI Information. Contrary to public interest Relevant law Access to information may also be refused if its disclosure would, on balance, be contrary to the public interest.[37] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest and explains that a decision-maker must take specific steps in reaching a decision, as follows:[38] identify any irrelevant factors and disregard them[39] identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosing the information in issue would, on balance, be contrary to the public interest. Findings I have carefully considered the 1 page[40] and parts of 5 pages[41] (CTPI Information) which is contained within ‘Ordinary Council Meeting Agenda’ for closed session meetings held on 21 August 2018 and 18 September 2018. My description of the CTPI Information is circumspect given limitations imposed by the RTI Act.[42] Factors favouring disclosure Factors favouring disclosure arise where disclosure could reasonably be expected to: enhance accountability and transparency[43] inform the community of the Government’s operations, including, in particular, the policies, guidelines and codes of conduct followed by the Government in its dealings with members of the community;[44] and reveal the reason for a government decision and any background or contextual information that informed the decision.[45] The CSRRA submits:[46] it has been approached by 10 ratepayers, who collectively own eight parcels of land within the benefitted area and represents approximately 50% of the ratepayers within the benefitted area Council has provided the CSRRA with conflicting information about the number of parcels of land within the benefitted area, citing both 19 and 23 lots Council has failed to proportionally reduce the levies applied to each parcel of land to take into account the greater number of parcels now within the benefitted area there is a lack of transparency about the parcels of land which are now exempt Council’s current map of the benefitted area is not accurate none of the ten ratepayers who have contacted the CSRRA have been approached by Council; and the CTPI Information should be released following the annual budget being decided and that Council should be transparent about its reasons for making decisions. The CSRRA further submits[47] that the Scheme ‘is one which has an impact on all ratepayers of Cook Shire Council, not only the affected landholders’ and that the CSRRA has concerns relating to ‘Council's dealings with members in our community; in this case a demonstrated inconsistency.’ I accept that disclosure of the CTPI Information could reasonably be expected to: enhance Council’s accountability and transparency in relation to the special charge relating to the Scheme (Special Charge) inform the community of Council’s operations in relation to the Scheme reveal reasons for Council’s decisions about the Scheme and Special Charge; and provide background or contextual information which informed decisions made about the Scheme and Special Charge. However, the Scheme and Special Charge only relate to a limited number of ratepayers within the benefitted area of the Scheme and Council has been in contact with these ratepayers directly about the Scheme and Special Charge. While the CSRRA contends[48] that the ratepayers who have contacted the CSRRA have not been approached by Council, the information which has been disclosed in response to the access application, information which is publicly available about the Scheme on Council’s website,[49] and information provided to OIC by the CSRRA[50] indicates that ratepayers within the benefitted area were required to provide confirmation of their acceptance of the proposed Special Charge for the term of the loan and that they are notified of the amount of the Special Charge levied in each rates notice issued by Council. In addition to this, the information which has been released by Council includes details of Council’s decisions about exemptions granted in relation to the Special Charge following Council’s review of the Special Charge. Based on the above, I consider that the weight afforded to factors favouring disclosure set out at paragraph 33 above is reduced to some degree. I afford these factors favouring disclosure moderate weight. In relation to the last dot point at paragraph 34 above, the CSRR[51]clarified51 that this submission was in relation to the 2018/2019 financial year and that ‘after all the confidential meetings etc were concluded and decisions made, Council should enhance both accountability and transparency by revealing the reason for the decision and any background or contextual information that informed the decision.’ I accept the CSRRA’s submission about the importance of transparency in government decision making and provision of contextual information wherever possible. I have afforded moderate weight to those factors favouring disclosure given aspects of this review which discount those factors to some degree. The CSRRA has concerns[52] about ‘Council's expenditure of public funds; in this instance legal correspondences, agreements, rates and levies.’ This raises the factor favouring disclosure where disclosure could reasonably be expected to ensure effective oversight of expenditure of public funds. [53] The information disclosed to the CSRRA includes: information about the overall costs of the Scheme, including the Special Charges levied as at August 2018 the revised Special Charges levied as at August 2018 excluding the two proposed ex gratia payments the estimated overall cost of the Scheme; and the charges levied on each ratepayer per year. The specific amount of each of the two proposed ex gratia payments has not been disclosed. In these circumstances, while disclosure of the CTPI Information would further enhance oversight of Council’s expenditure of public funds in relation to that aspect, I am satisfied that the information which has been disclosed substantially reduces the weight I must afford this factor favouring disclosure. I consider it attracts low weight. The CSRRA also has concerns[54] relating to ‘Council's fair treatment of individuals; in this instance exemption's given to some still on the scheme and listed on Council's current benefitted map.’ If disclosing information could reasonably be expected to advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies[55] it is relevant to consider this public interest factor favouring disclosure. However, this public interest factor does not require a decision maker to ensure that an applicant is provided with sufficient information to enable that applicant to be subjectively satisfied that he, she or another individual received fair treatment. I find that based on the information released to the CSRRA, including the information released on external review, that CSRRA, and therefore the ratepayers who have approached the CSRRA, have been afforded procedural fairness in this matter. CSRRA has been provided with information about why Council decided to grant exemptions to particular ratepayers within the benefitted area of the Scheme. I consider that the release of the CTPI Information may further advance the fair treatment of the CSRRA to a modest extent and by extension the ratepayers who have approached the CSRRA, but given the information already released, I am satisfied that the weight to be afforded to this factor favouring disclosure is reduced and attracts moderate weight. The CSRRA submits[56] there are ‘Deficiencies in Council administration, including negligence and improper behaviour; in this instance a failure to correct errors.’; ‘Council's fair treatment of individuals; in this instance exemption's given to some still on the scheme and listed on Council's current benefitted map.’; and ‘Council's failure to advise on decisions which are demonstrably incorrect, misleading and out of date.’ It is not my role to investigate Council’s management of the Scheme and Special Charge. My role is limited to undertaking merits review of Council’s decision on access to information under the RTI Act. However, the RTI Act recognises that factors favouring disclosure arise where disclosure could reasonably be expected to: allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official[57] reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct;[58] and reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[59] The information Council has released to the CSRRA during this external review includes: background/contextual information and reasons for Council’s decisions about exemptions granted and ex gratia payments made in relation to the Special Charge; and information about the overall cost of the Scheme, the amount of the charges levied on each ratepayer and the amount of the proposed ex gratia payments. I am satisfied that the CSRRA has been provided with sufficient information to allow or assist inquiry into possible deficiencies in the conduct or administration of Council or an official in relation to the implementing and managing of the Scheme and Special Charge. I have carefully reviewed the CTPI Information and I am satisfied that these three public interest factors do not apply. However, if I am wrong and they do apply, I consider that they would warrant only low weight. Factors favouring nondisclosure The RTI Act recognises that disclosing an individual’s personal information to someone else could reasonably be expected to cause a public interest harm[60] and that a further factor favouring nondisclosure arises if disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[61] Some of the CTPI Information relates to a small number of lots within the Scheme benefitted area and contains the personal information[62] of the owners of those lots. I consider that disclosure of this information would disclose the personal information of those lot owners and thereby prejudice the protection of their right to privacy. The CSRRA questions how disclosing the CTPI Information will cause a public interest harm in relation to the right to privacy of individuals, stating that it is a small community, and everyone knows the names of the owners of the parcels of land which have been given an exemption.[63] The CSRRA further submits:[64] ... the factors favouring nondisclosure, in this instance, disclosing the personal information of certain ratepayers, causing public harm and prejudicing their right to privacy is based on assumptions that this could be the case. It is our understanding, it is Council who doesn't want the information released in this matter, not the ratepayers given exemptions. Council has a history of requiring people to sign settlement deeds with confidentiality clauses to protect Council interests only. The other party is required to sign to get the payout and this payout is the driving factor for the other parties, not the need for non disclosure in the public domain. While I acknowledge that the information sought, including the CTPI Information, relates to ratepayers within a small community who know each other and may be aware of exemptions given to a number of those ratepayers, I am satisfied that disclosing the CTPI Information would still disclose the personal information of certain ratepayers (by expressly disclosing that information, or by allowing that information to be deduced from disclosed information), thereby causing a public interest harm, and prejudice the right to privacy of those ratepayers. I afford these two factors favouring nondisclosure significant weight. The CTPI Information also includes discussion about various issues arising in relation to the Special Charge, some of which are ongoing and require further discussion at future Council budget meetings. This raises factors favouring nondisclosure relating to Council’s business and/or financial affairs[65] and Council’s deliberative processes.[66] Council needs to be able to freely discuss such matters without information being prematurely released publicly, particularly in circumstances where deliberations are ongoing and form part of Council’s budgetary processes. I afford these factors favouring nondisclosure moderate weight. Council submits that disclosure of the CTPI Information is prohibited by section 275(1) of the Local Government Regulation 2012 (LGR). I have carefully considered section 275(1) of the LGR and it does not specifically prohibit disclosure of information.[67] Rather, it provides a mechanism for Council to resolve to hold a closed meeting when Council is satisfied that it would, on balance, be contrary to the public interest to discuss the matter in an open meeting. In the circumstances here, Council resolved not to discuss matters pertaining to the Special Charge in an open meeting on the basis that it dealt with rating concessions.[68] I consider that this raises a factor favouring nondisclosure relating to closed meeting discussions of Council. The CSRRA submits:[69] ... Council has a repeated history of stalling, denying transparency, an unwillingness to provide information to ratepayers, and will make use of "processes" to do so, including their submissions that [the CTPI Information] is prohibited by sections 275(1) of the Local Government Regulation 2012. Closed meetings provide another mechanism for Council to withhold information and explanations to their ratepayers... While I acknowledge the CSRRA’s submission, Parliament has determined that local governments should have the ability to discuss certain matters, including ratings concessions, within closed meetings. In the circumstances of this matter, I afford moderate weight to this factor favouring nondisclosure. On the other hand, I have also afforded moderate weight to factors favouring disclosure relating to enhancing accountability and transparency or revealing the reason for a government decision and any background or contextual information that informed the decision as discussed at paragraphs 33 to 40 above. Balancing the factors I have considered the pro-disclosure bias in deciding access to information.[70] For the reasons set out above I afford: moderate weight to the public interest factors in enhancing the government’s accountability, informing the community of government operations and revealing the reasons for a government decision or any background or contextual information that informed the decision; and low weight to the public interest factor relating to effective oversight of expenditure of public funds. Balanced against these factors favouring disclosure of the CTPI Information are the following factors favouring nondisclosure: the CTPI Information contains the personal information of other individuals and its disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy and cause a public interest harm, to which I afford significant weight; and disclosure of the CTPI Information could reasonably be expected to prejudice Council’s business and/or financial affairs, Council’s deliberative processes and the process of enabling Council to discuss ratings concessions within a closed meeting in accordance with the LGR, to which I afford moderate weight. Having balanced the relevant factors in this case, I consider the nondisclosure factors outweigh the disclosure factors. Accordingly, I find that access to the CTPI Information may be refused under section 47(3)(b) of the RTI Act on the basis that its disclosure would, on balance, be contrary to the public interest. DECISION I vary Council’s decision by finding that: 6 pages and parts of 4 pages are exempt information, as they are subject to legal professional privilege 3 pages are exempt information, as disclosure would found an action for breach of confidence; and disclosure of 1 page and parts of 5 pages would, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Louisa LynchRight to Information CommissionerDate: 30 June 2020 APPENDIX Significant procedural steps Date Event 24 July 2019 OIC received the applicant’s application for external review. 30 July 2019 OIC notified Council and the applicant that the external review application had been received and requested procedural documents from Council. 1 August 2019 OIC received the procedural documents from Council. 15 August 2019 OIC notified Council and the applicant that the external review had been accepted and requested a copy of the documents located from Council. 29 August 20219 OIC received the requested documents from Council. 1 November 2019 OIC conveyed a preliminary view to Council. 28 November 2019 OIC received a submission from Council. 28 February 2020 OIC conveyed a further preliminary view to Council OIC conveyed a preliminary view to the applicant. 12 March 2020 OIC received a submission from the applicant. 18 March 2020 Council advised OIC that it accepted OIC’s further preliminary view. 9 April 2020 OIC requested Council release information to the applicant in accordance with Council’s acceptance of OIC’s further preliminary view. OIC wrote to the applicant confirming OIC’s preliminary view. 21 April 2020 OIC received notification from the applicant that it had received the information released by Council. 2 May 2020 OIC received a submission from the applicant. [1] Access application dated 4 June 2019. [2] Decision dated 23 July 2019.[3] Council’s decision did not specify how may pages had been located.[4] Under sections 47(3)(a) and 48 of the RTI Act.[5] External review application dated 24 July 2019.[6] Cameron Creek Rural Electrification Scheme Implementation and Overall Plan, available at:http://www.cook.qld.gov.au/council/rates-fees-and-charges/cameron-creek-rural-electrification-scheme/cameron-creek-rural-electrification-scheme-implementation-and-overall-plan.pdf/view (accessed 29 June 2020).[7] Which came into force on 1 January 2020.[8] See XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; and Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [11].[9] XYZ at [573].[10] On 29 August 2019.[11] For the purposes of this external review, the further 18 pages have been numbered as pages 1 to 18. As Council’s original map of the benefitted area for the Scheme was released to the CSRRA in accordance with Council’s decision, this page has not been included in the page numbering.[12] Being pages 12 and 14-15.[13] Being pages 1-4 and 13.[14] Being pages 5-11 and 16-18.[15] Being pages 1-4 and 13.[16] Section 23 of the RTI Act.[17] Section 47(3)(a) of the RTI Act.[18] Schedule 3, section 7 of the RTI Act. [19] Esso Australia Resources Ltd v Commission of Taxation [1999] HCA 67; (1999) 201 CLR 49; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 552.[20] Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. [21] Brambles Holdings v Trade Practices Commission (No. 3) [1981] FCA 83; (1981) 58 FLR 452 at 458-459; Komacha v Orange City Council (Supreme Court of New South Wales, Rath J, 30 August 1979, unreported).[22] Such as waiver or improper purpose.[23] Pages 6 to 11 of the documents located by Council.[24] Pages 2-4 and 13 of the documents located by Council.[25] Specifically, section 108(1) of the RTI Act.[26] Preliminary view letter to the CSRRA dated 28 February 2020.[27] Submission to OIC dated 12 March 2020.[28] Section 48 and schedule 3, section 8(1) of the RTI Act. [29] Ramsay Health Care Ltd v Information Commissioner & Anor [2019] QCATA 66 at [66].[30] Palmer and Townsville City Council [2019] QICmr 43 (3 October 2019), referring to B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (B and BNRHA).[31] B and BNRHA at [45]. Adani Mining Pty Ltd v Information Commissioner & Ors [2020] QCATA 52 at [23] states that a form of consideration is one party providing information in consideration for another party’s promise to keep that information confidential.[32] Pages 16 to 18 of the documents located by Council.[33] Specifically, section 108(1) of the RTI Act.[34] Submission to OIC dated 2 May 2020.[35] Section 48(2) of the RTI Act.[36] Section 118(2) of the RTI Act. [37] Sections 47(3)(b) and 49 of the RTI Act. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests.[38] Section 49(3) of the RTI Act.[39] In my view, no irrelevant factors arise in this case.[40] Page 5 of the documents located by Council.[41] Pages 1-4 and 13 of the documents located by Council.[42] Specifically, section 108(1) of the RTI Act.[43] Schedule 4, part 2, item 1 of the RTI Act.[44] Schedule 4, part 2, item 3 of the RTI Act.[45] Schedule 4, part 2, item 11 of the RTI Act.[46] Submission to OIC dated 12 March 2020.[47] Submission to OIC dated 2 May 2020.[48] Submission to OIC dated 12 March 2020.[49] See http://www.cook.qld.gov.au/council/rates-fees-and-charges/cameron-creek-rural-electrification-scheme/cameron-creek-rural-electrification-scheme-implementation-and-overall-plan.pdf/view (accessed 29 June 2020).[50] Rates notices issued to a ratepayer within the Scheme benefit area enclosed with the submission to OIC dated 12 March 2020.[51] Submission to OIC dated 2 May 2020.[52] Submission to OIC dated 2 May 2020.[53] Schedule 4, part 2, item 4 of the RTI Act.[54] Submission to OIC dated 2 May 2020.[55] Schedule 4, part 2, item 10 of the RTI Act.[56] Submission to OIC dated 2 May 2020.[57] Schedule 4, part 2, item 5 of the RTI Act.[58] Schedule 4, part 2, item 6 of the RTI Act.[59] Schedule 4, part 2, item 12 of the RTI Act.[60] Schedule 4, part 4, section 6(1) of the RTI Act. [61] Schedule 4, part 3, item 3 of the RTI Act. [62] ‘Personal information’ is ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’ – see definition in schedule 5 of the RTI Act and section 12 of the IP Act.[63] Submission to OIC dated 12 March 2020.[64] Submission to OIC dated 2 May 2020.[65] Schedule 4, part 3, item 2 of the RTI Act.[66] Schedule 4, part 3, item 20 and part 4, section 4 of the RTI Act.[67] And therefore does not give rise to the factor favouring nondisclosure in schedule 4, part 3, item 22 of the RTI Act.[68] As detailed in the Ordinary Council Meeting Minutes dated 21 August 2018 and 18 September 2018.[69] Submission to OIC dated 2 May 2020.[70] Section 44 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Brack and Queensland Corrective Services Commission [1994] QICmr 5; (1994) 1 QAR 414 (6 April 1994)

Brack and Queensland Corrective Services Commission [1994] QICmr 5; (1994) 1 QAR 414 (6 April 1994) Last Updated: 26 February 2001 OFFICE OF THE INFORMATION ) S 56 of 1993COMMISSIONER (QLD) ) (Decision No. 94005) Participants: JAMES ROBERT BRACK Applicant - and - QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - Refusal of access - matter communicated to the respondent alleging that a prisoner made threats in respect of the family of the prisoner's victim - whether matter exempt under s.46(1) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - Applicant seeks removal of a document from the applicant's Case Management file held by the respondent - Part 4 of the Freedom of Information Act 1992 Qld imposes a prerequisite to an application for amendment that the applicant has had access to the relevant document from an agency or Minister - applicant unable to satisfy prerequisite - jurisdiction of Information Commissioner to deal with application.Freedom of Information Act 1992 Qld s.6, s.25, s.41(1), s.42(1)(b), s.44(1), s.46(1)(a), s.46(1)(b), s.46(2), s.52, s.53, s.55, s.78Freedom of Information Act 1982 Cth s.37(1)(b)Doelle and Legal Aid Office (Queensland), Re (Information Commissioner Qld, Decision No. 93005, 24 November 1993, unreported)Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re (Information Commissioner Qld, Decision No. 93002, 30 June 1993, unreported)G v Day [1982] 1 NSWLR 24McEniery and Medical Board of Queensland, Re (Information Commissioner Qld, Decision No. 94002, 28 February 1994, unreported)McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645McMahon and Department of Consumer Affairs, Re (Information Commissioner Qld, Decision No. 94003, 28 February 1994, unreported) - ii - DECISION1. I affirm that part of the decision under review (being the internal review decision of 26 March 1993 made by Ms K Mahoney on behalf of the Queensland Corrective Services Commission) by which it was determined that page 8 of the applicant's Case Management File is exempt from disclosure under s.46(1)(b) of the Freedom of Information Act 1992 Qld.2. I also find that page 8 of the applicant's Case Management File is an exempt document under s.46(1)(a) of the Freedom of Information Act 1992 Qld.3. I find that I have no jurisdiction under the Freedom of Information Act 1992 Qld to deal with the applicant's request for the removal of page 8 from the applicant's Case Management File.Date of Decision: 6 April 1994...........................................................F N ALBIETZINFORMATION COMMISSIONER - iii - TABLE OF CONTENTS PageBackground 1 The External Review Process 1 The Applicable Legislative Provisions 2 The Applicant's Submissions 3 Application of s.46(1)(a) of the FOI Act to the Document in Issue 4 Application of s.46(1)(b) of the FOI Act to the Document in Issue 8 Jurisdiction Issue - Removal of Page 8 from the Applicant's Case Management File 11 Conclusion 12 OFFICE OF THE INFORMATION ) S 56 of 1993COMMISSIONER (QLD) ) (Decision No. 94005) Participants: JAMES ROBERT BRACK Applicant - and - QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent REASONS FOR DECISIONBackground1. Mr J R Brack seeks review of a decision of the respondent, the Queensland Corrective Services Commission (the QCSC), to refuse him access to one of a number of documents claimed by the respondent to be exempt under s.46(1)(b) of the Freedom of Information Act 1992 Qld (hereinafter referred to as the FOI Act or the Queensland FOI Act). Mr Brack also seeks removal of the document in issue from his Case Management File held by the QCSC.2. Mr Brack is presently incarcerated at the Borallon Correctional Centre, serving a life sentence for the crime of murder. His FOI access request dated 27 November 1992 was for his "complete prison files". 3. By a decision dated 26 January 1993, Mr Brack was granted access to most of the requested documents, but was refused access to a number of documents and parts of documents contained on his Case Management File and his Detention File which were claimed to be exempt under one or more of s.41(1), s.42(1)(b), s.44(1) and s.46 of the FOI Act. In accordance with s.52 of the FOI Act, Mr Brack applied for internal review which was undertaken by Ms K Mahoney, Internal Review Officer, of the QCSC. By decision dated 26 March 1993, Ms Mahoney affirmed the initial decision.4. On 6 April 1993, Mr Brack applied to the Information Commissioner for external review of Ms Mahoney's decision of 26 March 1993. In the letter which accompanied his application, Mr Brack advised that he accepted all but one of the exemptions claimed by the QCSC, the exception being in respect of page 8 of his Case Management File. Mr Brack sought access to page 8 and also requested that it "be removed" from his Case Management File.5. In the circumstances, the sole document in issue in the present external review is page 8 of the applicant's Case Management File. That document was identified in the QCSC's initial decision of 26 January 1993 as being "a brief note of the relative of a victim", though it is more precisely described in the evidence at paragraphs 7 and 8 below.The External Review Process6. Following examination of page 8, evidence was sought from Mr J R Meakins, Manager (Operations), of the Borallon Correctional Centre, who provided a statutory declaration executed on 29 July 1993.7. In that statutory declaration, Mr Meakins states that on 5 April 1990 he was contacted by Ms D Graham, Executive Secretary to the Director (Corporate Services), of the QCSC in relation to the applicant. Mr Meakins was advised that an individual (hereinafter referred to as the third party) had contacted the QCSC in relation to Mr Brack. The third party had claimed that a letter had been posted by the third party to the QCSC. Mr Meakins was advised by Ms Graham that the QCSC had no record of receiving any correspondence from the third party.8. Mr Meakins contacted the third party by telephone on 5 April 1990 to discuss the information which he had received from Ms Graham. At that time, the third party advised Mr Meakins that a letter in relation to Mr Brack had been posted to the QCSC by the third party. Mr Meakins stated that he had a further telephone conversation with the third party on 6 April 1990 during which he requested that the third party read out the letter which had been written to the QCSC. While the third party read out the letter, Mr Meakins transcribed by hand what was read to him over the telephone. A typed copy of what Mr Meakins transcribed during that telephone conversation constitutes page 8 of Mr Brack's Case Management File.9. The third party was then contacted by a member of my staff who was advised that the third party objected to the release of page 8 to Mr Brack. The third party was invited to apply, in accordance with s.78 of the FOI Act, to be a participant in the review proceedings, but did not take up that opportunity. Nevertheless, evidence was obtained from the third party by way of a statutory declaration (executed on 17 August 1993) in relation to the facts and circumstances surrounding the communication to Mr Meakins of the matter recorded in page 8.10. After obtaining the third party's evidence, I wrote to the applicant setting out my preliminary view that the QCSC had correctly claimed that page 8 was exempt under s.46(1)(b) of the FOI Act, and setting out the arguments in support of that view. I also advised the applicant that it was my preliminary view that I had no jurisdiction to consider whether or not page 8 should be removed from his Case Management File. Again, I set out arguments in support of that view. Mr Brack was asked to indicate whether he accepted or contested my preliminary views. In that letter I extended to the applicant the opportunity to provide me with a written submission addressing the issues of whether or not page 8 was exempt under the provisions of the FOI Act, and whether or not I had jurisdiction to consider the removal of that document from his Case Management File.11. By letter dated 26 September 1993, Mr Brack advised me that he did not accept my preliminary views as previously communicated. The submissions which Mr Brack made in support of his case are discussed below at paragraphs 14 to 19.The Applicable Legislative Provisions12. Section 46 of the FOI Act provides as follows: "46.(1) Matter is exempt if - (a) its disclosure would found an action for breach of confidence; or (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest. (2) Subsection (1) does not apply to matter of a kind mentioned in section 41(1)(a) unless its disclosure would found an action for breach of confidence owed to a person or body other than - (a) a person in the capacity of - (i) a Minister; or (ii) a member of the staff of, or a consultant to, a Minister; or (iii) an officer of an agency; or (b) the State or an agency."13. In relation to the issue of my jurisdiction to consider the removal of page 8 from Mr Brack's Case Management File, the following section is relevant: "Person may request amendment of information 53. If a person has had access to a document from an agency or Minister (whether or not under this Act) containing information relating to - (a) the person's personal affairs; or (b) the personal affairs of a deceased person to whom the person is next of kin; the person is entitled to apply to the agency or Minister for correction or amendment of any part of the information if it is inaccurate, incomplete, out-of-date or misleading."The Applicant's Submissions14. In response to my letter outlining my preliminary views in respect of page 8, Mr Brack provided (by letter dated 26 September 1993) a written submission in relation to the issues arising under s.46(1)(b) of the FOI Act.15. In relation to the issue of whether or not page 8 contained information of a confidential nature, Mr Brack stated: "I still don't understand the confidential nature, the relatives are [four of Mr Brack's victim's relatives were named], the latter being the problem, now to be honest with you, I know where it came from, and the guts so to speak of the letter."16. Mr Brack also addressed the issue of whether or not disclosure of the matter recorded in page 8 would be in the public interest. His submissions in this regard were as follows: "This page 8 is being used as fact, and is being used in the decision-making process, about my life, my future, how, where, and when I live, this makes me a victim many times over. I would like this to stop, and I would like a fair assessment of myself, so that I can plan and work towards the future, a future that I can live in, and not one governed by anyone, who feels that they have a problem with me, and in one letter accuse me, of anything they wish, even though I cannot read it, I cannot refute it, nor am I able to give my side of it, this would seem to be the simplest of Justice. So on balance we are saying aren't we that we should observe Justice, in the public interests, but in so doing, allow any crime, or injustice to happen as a result, even though we are talking of a human life, in the public interests, no sir I don't accept the finding as you have explained them, and on balance how do you weight my life with a letter, a letter that to date is still unproven, which way would the scales lean, in the public interest of course."17. Mr Brack also alleged that as a result of page 8 being on his Case Management File, he had been disadvantaged and discriminated against. In this regard he provided the example of being handcuffed while he attended a funeral outside the prison.18. As a result of Mr Brack's reference to page 8 being used to his detriment and his passing reference to the commission of a "crime" in his submissions relating to the public interest considerations, I afforded the applicant an opportunity to provide a further submission, explaining those matters in greater detail. Mr Brack took up this opportunity and provided me with a second written submission by letter dated 8 November 1993.19. The applicant's further submissions can be summarised as follows: • the "crime" to which Mr Brack referred in his letter dated 26 September 1993 was that, in refusing him access to page 8, the QCSC was denying him procedural fairness or natural justice as he had not been permitted to present his case in response to the matters recorded in page 8; • Mr Brack was concerned that nothing had been done to confirm whether or not the information recorded on page 8 was correct; • in relation to the issue of whether or not disclosure of page 8 could reasonably be expected to prejudice the future supply of such information pursuant to s.46(1)(b) of the FOI Act, it was Mr Brack's contention that page 8 did not constitute "information" for the purposes of that section as it was merely an unproven allegation; and • Mr Brack submitted that I had the jurisdiction to order the removal of page 8 from his Case Management File.Application of s.46(1)(a) of the FOI Act to the Document in Issue20. In my recent decision in Re "B" and Brisbane North Regional Health Authority (Information Commissioner Qld, Decision No. 94001, 31 January 1994, unreported), I had occasion to consider in detail the elements which must be established in order for matter to qualify for exemption under s.46(1)(a) of the FOI Act. The test of exemption is to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff, in respect of information in the possession or control of the agency or Minister faced with an application for access, under s.25 of the FOI Act, to the information in issue (see paragraph 44 in Re "B"). Where the hypothetical legal action by which the test of exemption is to be evaluated must, in the circumstances of a particular case, be an action in equity for breach of confidence, there are five criteria which must be established: (a) it must be possible to specifically identify the information in issue, in order to establish that it is secret, rather than generally available information (see paragraphs 60-63 in Re "B"); (b) the information in issue must possess the "necessary quality of confidence"; i.e. the information must not be trivial or useless information, and it must possess a degree of secrecy sufficient for it to be the subject of an obligation of conscience, arising from the circumstances in or through which the information was communicated or obtained (see paragraphs 64-75 in Re "B");(c) the information in issue must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it (see paragraphs 76-102 in Re "B"); (d) it must be established that disclosure to the applicant for access under the FOI Act would constitute a misuse, or unauthorised use, of the confidential information in issue (see paragraphs 103-106 in Re "B"); and(e) it must be established that detriment is likely to be occasioned to the original confider of the confidential information in issue if that information were to be disclosed (see paragraphs 107-118 in Re "B").21. No suggestion arises in the present case of a contractual obligation of confidence between the third party and the respondent concerning the communication of the information in issue. Therefore, the test for exemption under s.46(1)(a) must be evaluated in terms of the requirements for an action in equity for breach of confidence.22. I am satisfied that there is an identifiable plaintiff (the third party) who would have standing to bring an action for breach of confidence, and that the information claimed to be confidential information (as recorded in page 8) can be identified with specificity.23. Mr Brack has received some information in relation to the contents of page 8. At paragraph 13 of his statutory declaration, Mr Meakins states: "I recall that at about 8.30 a.m. on 6 April 1990, I informed Brack I had received information from the Commission alleging that he had made threats to the family of [name of the applicant's victim appeared here]. I advised him that, until the matter was investigated thoroughly, he would be re-assigned to a work detail inside the Centre. Brack denied making any threats and claimed that he had had no contact with [the victim's] family. Thereafter, Brack was relocated to an inside garden working party."24. Further, as noted at paragraph 5, the QCSC's initial decision of 26 January 1993 informed Mr Brack that page 8 constituted a communication from a relative of his victim.25. Thus, it has been revealed to Mr Brack that information had been received by the QCSC from a relative of his victim, in relation to an allegation that Mr Brack had made threats of some sort with respect to the family of his victim. However, Mr Brack was not provided with any details in relation to the nature of the threats which were alleged to have been made, nor the means by which the third party was made aware of those threats. While Mr Brack was able to identify a number of people from whom he suspected the communication recorded on page 8 had been received, there is no evidence that Mr Brack is aware of the identity of the person who communicated the matter in issue to Mr Meakins. Moreover, the allegation that threats had been made by the applicant in respect of the family of his victim is only one of the issues raised in the communication between the third party and Mr Meakins, as recorded on page 8.26. On the evidence before me, I find that the information recorded on page 8 is certainly not trivial and has the requisite degree of secrecy to invest it with the "necessary quality of confidence", so as to satisfy the second criterion referred to in paragraph 20 above. The information recorded on page 8 includes the third party's identity, which is also in my opinion eligible for protection as confidential information under s.46(1)(a) of the FOI Act given the circumstances of this case. Those circumstances are, in material respects, very similar to those encountered in G v Day [1982] 1 NSWLR 24 which is authority for the proposition that although a person's identity is ordinarily not information which is confidential in quality, the connection of a person's identity with the imparting of confidential information can itself be secret information capable of protection in equity (see paragraph 137 of my decision in Re "B").27. As to whether the information recorded on page 8 was received in circumstances importing an obligation of confidence, I have had regard to the evidence obtained from the third party and from Mr Meakins. 28. In a statutory declaration executed on 17 August 1993, the third party provided evidence of the telephone conversation the third party had with Mr Meakins on 6 April 1990. The third party recalled Mr Meakins requesting that the third party read out the letter which had been posted by the third party to the QCSC, but which apparently had not reached its proper destination. The third party stated that a copy of the letter had been retained, and that the third party had read the letter to Mr Meakins over the telephone. With the exception of the name of one individual referred to in the letter, the third party confirmed the accuracy of Mr Meakins' transcription of the letter which forms the contents of page 8. In relation to the issue of confidentiality, the third party stated that Mr Meakins had advised the third party that the information which had been communicated to Mr Meakins would be kept on the applicant's file and would be completely confidential. The third party also recalled that Mr Meakins had said that the applicant would not have access to the information communicated to Mr Meakins by the third party. The third party recalled telling Mr Meakins that what had been communicated to Mr Meakins had to be kept confidential for certain reasons provided by the third party, which it would be inappropriate for me to reproduce as part of my reasons for decision. The third party also recalled telling Mr Meakins that under no circumstances should the applicant receive any information which would enable the applicant to identify the source of the information communicated to Mr Meakins.29. Mr Meakins had no independent recollection of the telephone conversations he had with the third party on 5 April 1990 and 6 April 1990. In providing the evidence contained in his statutory declaration in relation to those conversations, Mr Meakins refreshed his memory from a record he made of the conversations in a memorandum to Mr B Dickson, General Manager, of the Borallon Correctional Centre dated 6 April 1990 (the memorandum). Mr Meakins' evidence did not specifically address the issue of whether or not he had provided the third party with an assurance that the third party's identity, and the information communicated by the third party to Mr Meakins, would be treated as confidential, as details of any such assurance were not included in the memorandum. However, at paragraph 17 of his statutory declaration, Mr Meakins addressed the issue of confidentiality as follows: "When allegations of threats by prisoners are received from third parties, the information received is treated with a great deal of sensitivity and is considered to be very confidential. In investigating the allegations made, the names of the third parties are not revealed to the prisoners involved. It is a matter for the External Investigation Unit as to whether or not the substance of the allegations made are related to the prisoners."30. I am satisfied on the evidence that the third party sought an express assurance from Mr Meakins that the information imparted by the third party, and the third party's identity, would remain strictly confidential, especially from the applicant. I am also satisfied that Mr Meakins gave the third party the assurance which the third party sought. The information in issue is clearly sensitive in nature, and the third party appears to have reasonable grounds for fearing detriment from its disclosure. In my opinion, the circumstances of Mr Meakins' receipt of the information recorded on page 8 from the third party are such as to bind the QCSC with an equitable obligation to respect the third party's confidence.31. While the third party was advised that the matter communicated to Mr Meakins would be investigated by the External Investigation Unit (now the Corrective Services Investigation Unit) of the Queensland Police Service, this is not a case where it must reasonably have been expected that the External Investigation Unit would reveal the identity of the third party to the applicant in the course of its investigation (cf. Re McEniery and Medical Board of Queensland (Information Commissioner Qld, Decision No. 94002, 28 February 1994, unreported) at paragraphs 26 to 35). Further, that investigation was capable of being undertaken without putting to the applicant any more detail of the substance of the information recorded on page 8 than has actually been disclosed to the applicant, i.e. that it had been alleged that threats had been made by Mr Brack with respect to the family of his victim (cf. Re McMahon and Department of Consumer Affairs (Information Commissioner Qld, Decision No. 94003, 28 February 1994, unreported) at paragraphs 22 to 26).32. As to the fourth criterion identified above at paragraph 20, I am satisfied that at the time the information recorded on page 8 was communicated to Mr Meakins, the third party expressly stipulated that the information was not to be conveyed to the applicant. The third party has also advised me that the third party continues to object to the release to Mr Brack of the information recorded on page 8. In the circumstances, I find that disclosure to Mr Brack of the information recorded on page 8 would constitute an unauthorised use of that information.33. I am also satisfied that disclosure to Mr Brack of the information recorded on page 8 would cause detriment to the third party. At paragraph 111 of my decision in Re "B", I stated that it was not necessary to establish that a threatened disclosure of the matter in issue would cause detriment in a financial sense but that detriment could also include embarrassment, a loss of privacy, fear or an indirect detriment, for example, confidential information may injure some relation or friend. I am satisfied that disclosure to Mr Brack of the information recorded on page 8 (including the third party's identity) would cause detriment to the third party of one or more of the types mentioned above.34. In the circumstances of the present case, no occasion arises to consider the application of any of the defences to an equitable action for breach of confidence discussed in my decision in Re "B" at paragraphs 119 to 134. Further, s.46(2) of the FOI Act does not apply to the matter recorded on page 8 (so as to render s.46(1) inapplicable) because its disclosure would found an action for breach of confidence owed to a person or body other than those mentioned in s.46(2)(a) and (b).35. I am satisfied that disclosure of the matter recorded on page 8 would found an action for breach of confidence, and that it is therefore exempt matter under s.46(1)(a) of the FOI Act. Since I wrote to the applicant setting out my preliminary views in terms of s.46(1)(b) and invited him to address his case to me on that basis (see paragraph 10 above) it is necessary that I also address s.46(1)(b) of the FOI Act.Application of s.46(1)(b) of the FOI Act to the Document in Issue36. As discussed at paragraph 146 of my decision in Re "B", in order to establish the prima facie ground of exemption under s.46(1)(b) of the FOI Act three cumulative requirements must be satisfied:(a) the matter in issue must consist of information of a confidential nature;(b) that was communicated in confidence; and(c) the disclosure of which could reasonably be expected to prejudice the future supply of such information.37. The requirement that the information must be of a confidential nature calls for a consideration of the same matters that would be taken into account by a court in determining whether, for the purpose of the second criterion identified at paragraph 20 of this decision, the information in issue has the requisite degree of relative secrecy or inaccessibility (see paragraph 148 of Re "B").38. In relation to the second element, I discussed the meaning of the phrase "communicated in confidence" at paragraph 152 of my decision in Re "B" as follows: "I consider that the phrase 'communicated in confidence' is used in this context to convey a requirement that there be mutual expectations that the information is to be treated in confidence. One is looking then for evidence of any express consensus between the confider and confidant as to preserving the confidentiality of the information imparted; or alternatively for evidence to be found in an analysis of all the relevant circumstances that would justify a finding that there was a common implicit understanding as to preserving the confidentiality of the information imparted."39. I have already made findings at paragraphs 26 and 30 above that the information in issue in this case is confidential in nature, and that it was received by the QCSC in circumstances importing an equitable obligation of confidence. Thus, the first two criteria for the application of s.46(1)(b) are also satisfied.40. The nature of the inquiry in relation to the requirement that disclosure of page 8 could reasonably be expected to prejudice the future supply of such information was discussed at paragraphs 154-161 of my decision in Re "B". The test is not to be applied by reference to whether the particular confider whose confidential information is being considered for disclosure could reasonably be expected to refuse to supply such information in the future, but by reference to whether disclosure could reasonably be expected to prejudice the future supply of such information from a substantial number of sources available or likely to be available to an agency. The meaning of the phrase "could reasonably be expected to" was explained at paragraphs 154 to 160 of my reasons for decision in Re "B". Where an expectation is asserted of prejudice to the future supply of information of a like character to the information in issue, it must be determined whether the expectation claimed is reasonably based. The words "could reasonably be expected to" call for the decision-maker applying s.46(1)(b) to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.41. In the present case, the nature of the inquiry concerns the expected effects of disclosure to the applicant, who has been convicted of a serious crime of violence to the person, of the full details surrounding an allegation that the applicant had made threats in respect of the family of his murder victim. In view of the nature of the information in issue and the evidence of the third party, I am satisfied that disclosure of page 8 to the applicant could reasonably be expected to prejudice the future supply of information of a like character.42. In the circumstances, I am satisfied that a prima facie case is established that page 8 is exempt under s.46(1)(b) of the FOI Act. It remains to be considered (having regard to the "public interest balancing test" incorporated within s.46(1)(b)) whether disclosure of page 8 to the applicant would, on balance, be in the public interest.43. The meaning of the phrase "public interest" was discussed in detail in my decision in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (Information Commissioner Qld, Decision No. 93002, 30 June 1993, unreported) at paragraphs 35-57, of which the following are presently relevant: "54 Likewise, under freedom of information legislation, the task of determining, after weighing competing interests, where the balance of public interest lies, will depend on the nature and relative weight of the conflicting interests which are identifiable as relevant in any given case. 55 While in general terms, a matter of public interest must be a matter that concerns the interests of the community generally, the courts have recognised that: 'the public interest necessarily comprehends an element of justice to the individual' (per Mason CJ in Attorney-General (NSW) v Quin (1990) 64 ALJR 627). Thus, there is a public interest in individuals receiving fair treatment in accordance with the law in their dealings with government, as this is an interest common to all members of the community. Similarly, the fact that individuals and corporations have, and are entitled to pursue, legitimate private rights and interests can be given recognition as a public interest consideration worthy of protection, depending on the circumstances of any particular case. 56 Such factors have been acknowledged and applied in several decisions of the Commonwealth AAT; for example in Re James and Others and Australian National University (1984) 6 ALD 687 at p.701, Deputy President Hall said: '87 In [Re Burns and Australian National University (1984) 6 ALD 193] my colleague Deputy President Todd concluded that, for the purposes of the Freedom of Information Act, the concept of public interest should be seen as embodying public concern for the rights of an individual. Referring to a decision of Morling J, sitting as the former Document Review Tribunal (Re Peters and Department of Prime Minister and Cabinet (No. 2) (1983) 5 ALN No. 218) Deputy President Todd said: "But what is important is that his Honour clearly considered that there was a public interest in a citizen having such access in an appropriate case, so that if the citizen's 'need to know' should in a particular case be large, the public interest in his being permitted to know would be commensurately enlarged." (at 197) I respectfully agree with Mr Todd's conclusion ... The fact that Parliament has seen fit to confer upon every person a legally enforceable right to obtain access to a document of an agency or an official document of a minister, except where those documents are exempt documents, is to my mind a recognition by Parliament that there is a public interest in the rights of individuals to have access to documents - not only documents that may relate more broadly to the affairs of government, but also to documents that relate quite narrowly to the affairs of the individual who made the request." 57 The force of this principle has been recognised, at least in so far as it relates to documents concerning the personal affairs of an applicant for access, in s.6 of the FOI Act, which is in the following terms: 'Matter relating to personal affairs of applicant 6. If an application for access to a document is made under this Act, the fact that the document contains matter relating to the personal affairs of the applicant is an element to be taken into account in deciding - (a) whether it is in the public interest to grant access to the applicant; and (b) the effect that the disclosure of the matter might have'."44. As discussed at paragraph 19 of Re Eccleston and paragraph 179 of Re "B", s.46(1)(b) of the FOI Act is framed so as to require an initial judgment as to whether disclosure of the document in issue would have certain specified effects, which if established would constitute a prima facie ground of justification in the public interest for non-disclosure of the matter, unless the further judgement is made that the prima facie ground is outweighed by other public interest considerations, such that disclosure of the document in issue "would, on balance, be in the public interest".45. I have taken into account Mr Brack's submissions as to the public interest considerations favouring disclosure, which are set out at paragraphs 16 to 20 above. I accept that there is a public interest in a prisoner having access to documents relevant to his or her incarceration and security classification. Further, I accept that there is a public interest in an individual being afforded access to particulars of the substance of allegations made against that individual with a view to enabling that individual to present his or her case in respect of the allegations made. However, as noted at paragraph 31 above, I consider that the extent of the disclosure which has already been made to the applicant has probably afforded sufficient access to the substance of the allegations made against the applicant, and accordingly, I have not given significant weight to this public interest consideration in the particular circumstances of the applicant's case. In accordance with s.6 of the FOI Act, I have also taken into account the fact that the matter recorded on page 8 relates to the personal affairs of Mr Brack.46. Nevertheless, I am not satisfied in the circumstances of this case that, collectively, the public interest considerations favouring disclosure of page 8 are of sufficient weight to displace the public interest favouring non-disclosure which is evident in the satisfaction of the prima facie test for exemption under s.46(1)(b) of the FOI Act. That public interest lies in preserving from the applicant (who has been convicted of a serious crime of violence to the person) the confidentiality of a communication concerning details of threats alleged to have been made by the applicant in respect of the family of his victim. I regard that public interest consideration as carrying such weight as to overbear, in this case, the public interest considerations favouring disclosure (which themselves concern issues of no small importance). I find that page 8 is an exempt document under s.46(1)(b) of the FOI Act.47. Before leaving this subject, I should deal with a specific contention raised by the applicant that the matter recorded on page 8 does not constitute "information" for the purposes of s.46(1)(b) of the FOI Act (as it is merely an unsubstantiated allegation which he submits is false). There is no substance in this contention. I see no reason to doubt the correctness of the following remarks made by Muirhead J of the Federal Court of Australia in McKenzie v Secretary, Department of Social Security (1986) 65 ALR 645 at 647-9, concerning the meaning of the word "information" in the context of s.37(1)(b) of the Freedom of Information Act 1982 Cth, nor do I doubt that Muirhead J's remarks are equally applicable to the meaning of the word "information" in the context of other exemption provisions such as s.46(1)(b) of the Queensland FOI Act: "Here [the applicant says] the letter did not supply 'information' as such. To the contrary it contained only factual allegations found to be false, coupled with a malicious attack on the applicant who was in effect labelled as an inveterate liar. It contained not 'information' but 'disinformation', which is defined in the Concise Oxford Dictionary 7th ed, as deliberately false information. That publication defines information, inter alia, as an 'informing, telling, thing told, knowledge, items of knowledge, news ...'. But it seems to me that deliberately false information, albeit malicious, coming into the hands of a department, which does not at the time of receipt know whether it is true or false is nevertheless at that time fairly labelled 'information'. The word misinformation goes merely to the true quality of the information. So when the letter comes into the hands of the Department it must I think be treated as 'information', a word of common albeit wide meaning constantly used in the statute but which, wisely enough, the draftsman did not attempt to define. But that is not the end of the applicant's argument. Counsel submitted that it is at the time a client seeks disclosure of the document that the matter must be examined, a time, it must be assumed in this case, when the Department is satisfied the information was inaccurate and false. At that time when the document has lost all credibility can its author be aptly regarded as a 'confidential source of information in relation to the enforcement or administration of the law?' ... [The applicant] argues that the exemption applies only to sources of information which are established as having validity or accuracy. If the stage is reached when the Department concludes that the information has no truth or validity, in the sense that it does not influence a decision, it ceases to have the protection of the Act as it can no longer be regarded as informative and the author can no longer be regarded as a confidential source of information. But I cannot accept such a narrow interpretation. Information prompting administrative inquiry is still properly classified as information in the hands of the Department, be it true or false."Also relevant in this context are my remarks concerning s.42(1)(b) of the FOI Act and confidential sources who supply false information, at paragraphs 56-64 of my decision in Re McEniery and Medical Board of Queensland (Information Commissioner Qld, Decision No. 94002, 28 February 1994, unreported).Jurisdiction Issue - Removal of Page 8 from the Applicant's Case Management File48. In his application for internal review of the QCSC's initial decision of 26 January 1993, and in his application for external review of Ms Mahoney's decision of 26 March 1993, Mr Brack requested that page 8 be removed from his Case Management File.49. I am satisfied that I have no jurisdiction to consider this aspect of Mr Brack's application for external review. 50. Part 4 of the FOI Act provides the mechanism by which an individual may, in certain circumstances, request an agency to amend information contained in documents held by an agency. Section 53 of the FOI Act, which is quoted above at paragraph 13, is drafted in terms which make it a prerequisite to the entitlement to apply to amend information recorded in a document that the applicant has previously had access to that document from an agency or Minister (whether under the FOI Act or otherwise). Mr Brack has not had access to page 8, nor is he to receive access to that document as a result of my decision in the present case. Accordingly, as Mr Brack is incapable of making a valid request for amendment of information under s.53 of the FOI Act, I have no jurisdiction to consider the removal of page 8 from his Case Management File. Even in the event that Mr Brack at some time in the future should obtain access to page 8, I consider that Mr Brack would not be entitled to seek the removal of page 8 (which I take to mean the destruction or disposal of that document) from the Case Management File under the provisions of Part 4 of the FOI Act. In my decision in Re Doelle and Legal Aid Office (Qld) (Information Commissioner Qld, Decision No. 93005, 24 November 1993, unreported), I determined that the removal or destruction of a document is not a method of amending information which can be required of an agency or Minister under s.55 of the FOI Act.Conclusion51. For the foregoing reasons:(a) I affirm that part of Ms Mahoney's decision of 26 March 1993 by which it was determined that page 8 of the applicant's Case Management File is exempt from disclosure under s.46(1)(b) of the FOI Act;(b) I find that page 8 of the applicant's Case Management File is an exempt document under s.46(1)(a) of the FOI Act; and(c) I find that I have no jurisdiction to consider the removal of page 8 from the applicant's Case Management File........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Stanford and Crime and Misconduct Commission [2009] QICmr 34 (22 May 2009)

Stanford and Crime and Misconduct Commission [2009] QICmr 34 (22 May 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210677 Applicant: Mr B Stanford Respondent: Crime and Misconduct Commission Decision Date: 22 May 2009 Catchwords: FREEDOM OF INFORMATION – section 50(c)(i) of the Freedom of Information Act 1992 – whether disclosure would infringe the privileges of Parliament Contents REASONS FOR DECISION Summary 1. For the reasons set out below, I am satisfied that the matter in issue in this review is exempt from disclosure under section 50(c)(i) of the Freedom of Information Act 1992 (FOI Act). Background 2. By email dated 1 October 2008 (FOI Application) the applicant applied to the Crime and Misconduct Commission (CMC) as follows: This is a request under the Freedom of Information Act for documents pertaining to Brendan Stanford from the Crime and Misconduct Commission. These documents include all correspondence from the CMC to the Queensland Police Service. All documents from the QPS to the CMC. Documents sent to the Parliamentary Crime and Misconduct Commission from the CMC with regard to a complaint made by Brendan Stanford. [other documents concerning the applicant] 3. By letter dated 8 October 2008 (Original Decision), Mr Russell Kenzler, FOI Coordinator CMC, issued a notice to the applicant advising the applicant that: • he had dealt with the FOI Application as a request for documents created since the applicant’s similar freedom of information application in December 2007 • he was unable to locate any documents concerning the applicant sent by the CMC to the Parliamentary Crime and Misconduct Committee (PCMC) • he had decided to give the applicant access to 39 documents (comprising 108 pages). 4. By email dated 14 October 2008, the applicant requested internal review of the Original Decision that no documents concerning the applicant, sent by the CMC to the PCMC, could be located. The applicant provided further information relating to the existence of documents sent from the CMC to the PCMC. 5. On receipt of the applicant’s email, the CMC undertook a further search for documents and identified an additional three documents (comprising five pages) to which the CMC refused to grant access under section 50(c)(i) of the FOI Act. The CMC treated the applicant’s request as a general enquiry and issued an amended notice to the applicant on 17 October 2008 (Amended Original Decision). 6. By email dated 30 October 2008, the applicant requested internal review of the Amended Original Decision to refuse access to documents under section 50(c)(i) of the FOI Act (Internal Review Application). 7. By email dated 10 December 2008, the applicant applied to the Office of the Information Commissioner (Office) for external review of ‘documents deemed to be exempt under parliamentary privilege by the crime and misconduct commission’ (External Review Application). Decision under review 8. Under section 52(6) of the FOI Act, if on internal review, an agency does not decide an application and notify the applicant of the decision within 28 days after receiving the application, the agency’s principal officer is taken to have made a decision at the end of the period affirming the original decision. 9. As no decision was notified to the applicant within 28 days of the CMC receiving the Internal Review Application, the decision under review is the decision of CMC’s principal officer affirming the Amended Original Decision. Steps taken in the external review process 10. Preliminary inquiries were made with the CMC. 11. By letters dated 16 December 2008, Acting Assistant Commissioner Jefferies notified the parties that the application for external review had been accepted. Acting Assistant Commissioner Jefferies also invited the applicant to provide submissions regarding the release of documents to him. 12. Not having received submissions from the applicant, by letter dated 21 January 2009, Acting Assistant Commissioner Jefferies: • provided the applicant with a preliminary view that the matter in issue in this review was exempt from disclosure under section 50(c)(i) of the FOI Act • invited the applicant to make submissions in respect of the preliminary view. 13. By letter to the Office dated 4 February 2009 (received 12 February 2009), the applicant: • requested an extension of time in which to make submissions in response to the preliminary view • indicated that the first point of his submissions would be the third party consultation process which had not been undertaken when the FOI Application was considered by the CMC. 14. By letter dated 12 February 2009, Acting Assistant Commissioner Jefferies: • granted the applicant an extension of time in which to provide further submissions • responded to the applicant’s submissions relating to the third party consultation process, indicating that the obligation to take steps to obtain views from relevant third parties under section 51 of the FOI Act[1] did not arise in this case because the CMC did not propose to disclose the documents. 15. By letter dated 10 March 2009, Acting Assistant Commissioner Jefferies provided the applicant with a further extension of time in which to provide submissions. 16. By letters dated 3 March 2009 (received 12 March 2009), 16 March 2009 (received 23 March 2009) and 1 April 2009 (received 14 April 2009) the applicant provided information which the applicant considered was relevant to the conduct of his external reviews with the Office. 17. During telephone conversations with the CMC on 30 March 2009 and 31 March 2009, staff members of the Office clarified matters relating to the scope of the FOI Application and the documents comprising the matter in issue. 18. In reaching a decision in this external review, I have taken into account the following: • the FOI Application and Original Decision • the applicant’s email to the CMC of 14 October 2008 • the Amended Original Decision • the Internal Review Application • the External Review Application • the applicant’s letters to the Office dated 4 February 2009, 3 March 2009, 16 March 2009 and 1 April 2009 • the character of the matter in issue • the provisions of the following Acts referred to in this decision, the: ○ FOI Act ○ Constitution of Queensland Act 2001 ○ Parliament of Queensland Act 2001 ○ Acts Interpretation Act 1954 ○ Crime and Misconduct Act 2001 • case law and previous decisions of the Office as referred to in this decision. Scope of FOI Application 19. In the FOI Application, the applicant applied for, amongst other things: ... Documents sent to the Parliamentary Crime and Misconduct Commission from the CMC with regard to a complaint made by Brendan Stanford ... 20. In response to Mr Kenzler’s Original Decision indicating that he was unable to locate any documents concerning the applicant sent by the CMC to the PCMC, the applicant wrote on 14 October 2008 saying: ... This is a request for internal review for documents concerning Brendan Stanford that were sent to the Parliamentary Crime and Misconduct Committee. It is stated that there are no documents ‘concerning’ myself at the cmc which were sent to the PCMC. To clarify a complaint was sent to the PCMC regarding [a staff member’s] dealings with me on 4 July 2006 and I received a response from the PCMC, Minister Nolan, I do believe. Hence it is my understanding that the PCMC requested documents regarding this and although with the use of semantics these may not be documents ‘concerning’ me directly, but rather [the staff member] some of those documents would have surely mentioned me. This is a request for those documents. 21. In the Amended Original Decision, the CMC identified three documents which in the CMC’s view responded to the applicant’s request for documents as stated in his email of 14 October 2008. The CMC appears to have interpreted the applicant’s request for documents broadly, to relate to correspondence between the CMC and the PCMC in relation to his complaint, and not restricted to correspondence from the CMC to the PCMC. In the Amended Original Decision, the CMC claimed all three documents were exempt from disclosure under section 50(c)(i) of the FOI Act. 22. The External Review Application requests an external review of: ... documents deemed to be exempt under parliamentary privilege ... 23. I am of the view that the CMC and the applicant have impliedly agreed to expand the scope of the FOI Application to relate to correspondence between the CMC and the PCMC relating to the complaint, not merely the correspondence from the CMC to the PCMC. This is the basis on which the matter in issue in this review has been determined. Matter in Issue 24. The matter in issue in this review therefore comprises three documents (five pages), consisting of: • a letter from the PCMC to the CMC dated 15 February 2007 attaching correspondence from the applicant (2 pages) • a letter from the PCMC to the CMC dated 20 April 2007 (1 page) (collectively the Category A Matter) • a letter from the CMC to the PCMC dated 15 March 2007 (2 pages) (Category B Matter). Relevant law 25. Under section 21 of the FOI Act, a person has a legally enforceable right to be given access under the FOI Act to documents of an agency and official documents of a Minister. This right of access is subject to other provisions of the FOI Act, in particular, section 28 of the FOI Act, which provides that an agency may refuse access to exempt matter or an exempt document, and the provisions of Part 3, Division 2 of the FOI Act, which set out those exemption provisions. 26. The CMC claims the matter in issue is exempt from disclosure under section 50(c)(i) of the FOI Act. Section 50(c)(i) of the FOI Act 27. Section 50(c)(i) of the FOI Act provides: 50 Matter disclosure of which would be contempt of Parliament or contempt of court Matter is exempt matter if its public disclosure would, apart from this Act and any immunity of the Crown— ... (c) infringe the privileges of— (i) Parliament; or ... 28. The word ‘Parliament’ is not defined in the FOI Act but is defined under section 36 of the Acts Interpretation Act 1954 as follows: Parliament means – (a) for Queensland – the Sovereign and the Legislative Assembly; or (b) for another State – the State’s legislature. 29. Section 50(c)(i) of the FOI Act therefore requires me to consider whether the public disclosure of the matter in issue would infringe the privileges of the Legislative Assembly (and the Sovereign). Parliamentary privilege 30. The author of ‘Parliamentary Privilege’ writes:[2] The term ‘parliamentary privilege’ is commonly used to refer to the special rights and powers possessed by individual houses of a parliament and the various protections accorded by law to members of a parliament and other participants in parliamentary proceedings. These protections include an immunity from legal liability for things said or done in the course of parliamentary proceedings. The special powers possessed by houses of a parliament include a power to require the attendance of persons to give evidence or produce documents, and to delegate that power to a committee of members of the house. Other special powers of a house may include a power to suspend, or even expel, a member of the house and a power to impose penalties on persons whom the house adjudges to have engaged in conduct in contempt of the house or in breach of parliamentary privileges. The special rights, powers and immunities collectively known as parliamentary privileges serve one essential purpose, that being to enable houses of parliament and their members to carry out their functions effectively. 31. The immunity of parliamentary proceedings from external examination is a fundamental pillar of Westminster-style parliaments. An important reason for the privilege is that ‘...a member of Parliament should be able to speak in Parliament with impunity and without any fear of the consequences.’ [3] 32. In Queensland, statutory provisions have been enacted in respect of parliamentary privilege. In particular, section 9 of the Constitution of Queensland Act 2001 provides that: 9 Powers, rights and immunities of Legislative Assembly (1) The powers, rights and immunities of the Legislative Assembly and its members and committees are – (a) the powers, rights and immunities defined under an Act; and (b) until defined under an Act – the powers, rights and immunities, by custom, statute or otherwise, of the Common House of Parliament of the United Kingdom and its members and committees at the establishment of the Commonwealth. (2) In this section – rights includes privileges 33. Further, the Parliament of Queensland Act 2001 provides for, amongst other things, the powers, rights and immunities of the Legislative Assembly. Again, in the Parliament of Queensland Act 2001, ‘rights’ is defined to include privileges. 34. Specifically, section 8 of the Parliament of Queensland Act 2001 provides: 8 Assembly proceedings can not be impeached or questioned (1) The freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of the Assembly. (2) To remove doubt, it is declared that subsection (1) is intended to have the same effect as article 9 of the Bill of Rights (1688) had in relation to the Assembly immediately before the commencement of the subsection. 35. Section 9 of the Parliament of Queensland Act 2001 relevantly provides: 9 Meaning of proceedings in the Assembly (1) Proceedings in the Assembly include all words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the Assembly or a committee. (2) Without limiting subsection (1), proceedings in the Assembly include— (a) giving evidence before the Assembly, a committee or an inquiry; and (b) evidence given before the Assembly, a committee or an inquiry; and (c) presenting or submitting a document to the Assembly, a committee or an inquiry; and (d) a document tabled in, or presented or submitted to, the Assembly, a committee or an inquiry; and (e) preparing a document for the purposes of, or incidental to, transacting business mentioned in paragraph (a) or (c); and (f) preparing, making or publishing a document (including a report) under the authority of the Assembly or a committee; and (g) a document (including a report) prepared, made or published under the authority of the Assembly or a committee. (3) Despite subsection (2)(d), section 8 does not apply to a document mentioned in subsection (2)(d) - (a) in relation to a purpose for which it was brought into existence other than for the purpose of being tabled in, or presented or submitted to, the Assembly or a committee or an inquiry; and (b) if the document has been authorised by the Assembly or the committee to be published. ... (4) If the way in which a document is dealt with has the effect that – (a) under an Act; or (b) under the rules, orders, directions or practices of the Assembly; the document is treated, or accepted, as having been tabled in the Assembly for any purpose, then, for the purposes of this Act, the document is taken to be tabled in the Assembly. (5) For this section, it does not matter what the nature of the business transacted by a committee is or whether the business is transacted under this Act or otherwise. 36. The Schedule to the Parliament of Queensland Act 2001 provides: Assembly means the Legislative Assembly committee means a committee of the Assembly, whether or not a statutory committee Judicial consideration 37. In Rowley v O’Chee,[4] the Queensland Court of Appeal considered a comparable provision in section 16 of the Parliamentary Privileges Act 1987 (Cth), along with Article 9 of the Bill of Rights 1688, the modern formulation of which was stated to provide: that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.[5] 38. McPherson JA considered the meaning of the word ‘impeach’ used in Article 9 of the Bill of Rights 1689 and suggested that: • the best and surest mode of construing an instrument is to read it in the sense which would have been applied when it was drawn up[6] • the phrase ‘ought not to be impeached’ was a reference to not being impeded, hindered or prevented, not being detrimentally or prejudicially affected, or impaired.[7] 39. Accordingly, McPherson JA suggested that reading article 9 of the Bill of Rights 1689 with section 16(2) of the Parliamentary Privileges Act 1987 (Cth) lead to the following: ... preparation of a document for purposes of or incidental to the transacting of the business of a House is not to be impeded, hindered or prevented (first meaning); or is not to be detrimentally or prejudicially affected, or impaired (second meaning).[8] 40. The nature of the privilege conferred by section 8 and 9 of the Parliament of Queensland Act 2001 was considered in Erglis v Buckley (No. 2)[9] in which the Queensland Court of Appeal considered the status of a letter supplied to a Minister which was subsequently read and tabled in Parliament. McPherson JA, with whom the other justices agreed, cited the trial judge with approval noting that: for the privilege to be attached to a document, a member, or his or her agent, must in some way appropriate the document to proceedings in Parliament by doing some act with respect to the document for purposes of, or incidental to, transacting parliamentary business[10] and went on to say that the acts of composing, typing, printing and sending the letter to the Minister were brought into the assembly’s proceedings when the Minister undertook to read the proposed letter in the assembly.[11] 41. Considering documents which were letters sent by, or documents received from, other persons or sources and subsequently retained by Senator O’Chee, McPherson JA, in Rowley v O’Chee said: Generally, it seems to me that if documents like these came into the possession of Senator O’Chee and he retained them with a view to using them, or the information they contain, for the purpose of Senate questions or debate on a particular topic, then it can fairly be said that his procuring, obtaining or retaining possession of them were ‘acts done ... for purposes of or incidental to the transacting of the business’ of that House. Although ‘acts done’ is not specially apt to describe what happens when a possibly unsolicited document arrives through the mail or by other forms of communication, a member who becomes aware that the document has arrived and elects to keep it for purposes of transacting business of a House, may properly be said to have done an ‘act’ or ‘acts’ for purposes of, or incidental to, the transacting of that business.[12] Public disclosure 42. Matter is exempt under section 50(c)(i) of the FOI Act if its public disclosure would infringe the privileges of Parliament. 43. It was observed in Sharples and Queensland Police Service[13] that: The test for exemption under s.50 is worded in different terms to other exemption provisions. Most exemption provisions use the words "Matter is exempt if its disclosure ...". However, s.50 uses the words "if its public disclosure ...". This imports a different test. In particular, the test imposed by the words "public disclosure" in s.50 appears to negate the possibility of taking into account the effect of a limited waiver of privilege for the benefit of a particular individual, where that individual is the applicant for access to a document under the FOI Act ... It appears that only an intentional general waiver of parliamentary privilege (most commonly, through tabling, or other authorised publication, of a document) may be taken into account in the application of s.50 of the FOI Act ... 44. Accordingly, even in cases where there has been a limited disclosure to an individual of matter over which section 50(c)(i) of the FOI Act is claimed, it is still open to conclude that the public disclosure of that matter would infringe the privileges of Parliament. 45. Section 50(c)(i) of the FOI Act does not require me to determine whether public disclosure of the matter in issue would itself impeach or question proceedings in the Assembly. Rather, I am required to determine whether public disclosure of the matter in issue would infringe the privileges of Parliament, which include the privilege set out in section 8(1) of the Parliament of Queensland Act 2001, being that proceedings in the Assembly cannot be impeached or questioned. 46. In Ainsworth; Ainsworth Nominees Pty Ltd and Criminal Justice Commission; A (Third Party); B (Third Party)[14] the Information Commissioner said that: An unauthorised disclosure of ‘proceedings in Parliament’ will constitute an infringement of the privileges of Parliament, and hence, if the matter in issue can properly be characterised as a ‘proceeding in Parliament’, it will be exempt matter under s50(c)(i) of the FOI Act, unless its public disclosure has been authorised by Parliament or by the PCJC. 47. Therefore, if a document falls within the meaning of the term ‘proceedings in the Assembly’ set out in section 9 of the Parliament of Queensland Act 2001, then section 8 of the Parliament of Queensland Act 2001 applies to that document and to release that document, other than in accordance with parliamentary processes,[15] would infringe the privileges of parliament. Submissions of participants CMC’s submissions 48. The CMC provided the applicant with reasons for decision when it issued the Amended Original Decision. In those reasons, the CMC indicates that: • the purpose of section 50(c)(i) of the FOI Act is to exempt from disclosure documents relating to Parliament’s power to regulate its own proceedings • this power is regarded as a necessary incident to Parliament’s functions • the PCMC is a standing committee of the Legislative Assembly and is therefore entitled to all the privileges enjoyed by the Assembly • an unauthorised disclosure of ‘proceedings in the Assembly’ will constitute an infringement of the privileges of the Assembly • each of the documents has been either presented to the PCMC or made under the authority of the PCMC and is a proceeding in the Assembly for the purposes of sections 8 and 9 of the Parliament of Queensland Act 2001 • each of the documents fall within the terms of Standing Order 209(2)[16] so that their unauthorised disclosure would be a breach of the Standing Order and infringe the privileges of Parliament • neither the PCMC nor the Parliament has authorised the disclosure of the Category A Matter or the Category B Matter. Applicant’s submissions 49. In his correspondence of 3 March 2009, 16 March 2009 and 1 April 2009, the applicant provided information relating to the following: • complaints he made about the conduct of a CMC staff member • other freedom of information access and amendment applications he has made. 50. The applicant did not provide any submissions relating to the application of section 50(c)(i) of the FOI Act to the matter in issue. Findings of fact and application of the law to the matter in issue 51. I have considered the participants’ submissions and the application of the law to the matter in issue in this review, and I make a number of observations. The PCMC 52. The Schedule to the Parliament of Queensland Act 2001 provides that a committee means a committee of the Assembly, whether or not a statutory committee. 53. The PCMC is not a statutory committee under the Parliament of Queensland Act 2001.[17] However, section 291 of the Crime and Misconduct Act 2001[18] provides: 291 Establishment of parliamentary committee A committee of the Legislative Assembly called the Parliamentary Crime and Misconduct Committee is established. 54. I am therefore satisfied that: • the PCMC is a committee of the Legislative Assembly (that is, Parliament) which is established under the Crime and Misconduct Act 2001 • sections 8 and 9 of the Parliament of Queensland Act 2001 apply to the PCMC. Category A Matter 55. Section 9(2)(g) of the Parliament of Queensland Act 2001 provides that ‘proceedings in the Assembly’ includes: (g) a document (including a report) prepared, made or published under the authority of the Assembly or a committee. ‘Proceedings in the Assembly’ also includes all words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the Assembly or a committee.[19] 56. A ‘document’ includes any paper or other material on which there is writing.[20] 57. I am satisfied that: • the Category A Matter consisting of correspondence from the PCMC to the CMC are documents prepared or made under the authority of the PCMC and are therefore proceedings in the Assembly • the copy of correspondence written by the applicant was appropriated to proceedings in the Assembly by attaching it to the letter of 15 February 2007 for purposes of, or incidental to, transacting business of the PCMC • there has been no authorised disclosure of the Category A Matter. Category B Matter 58. Section 9(2)(c) of the Parliament of Queensland Act 2001 provides that ‘proceedings in the Assembly’ includes: (c) presenting or submitting a document to the Assembly, a committee or an inquiry; 59. I am satisfied that: • the Category B Matter consists of a document which was presented or submitted to the PCMC • there has been no authorised disclosure of the Category B Matter. Conclusion – application of the law to the matter in issue 60. I am satisfied that: • both the Category A Matter and Category B Matter fall within the meaning of ‘proceedings in the Assembly’ under section 9 of the Parliament of Queensland Act 2001 • the Category A Matter and Category B Matter cannot be impeached or questioned in any court or place out of the Assembly under section 8(1) of the Parliament of Queensland Act 2001 • there has been no authorised disclosure of the Category A Matter or the Category B Matter • the unauthorised public disclosure of the Category A Matter and/or the Category B Matter other than in accordance with parliamentary processes, would infringe the privileges of parliament • the Category A Matter and Category B Matter is exempt from disclosure under section 50(c)(i) of the FOI Act. DECISION 61. I find that the matter in issue in this review is exempt from disclosure under section 50(c)(i) of the Freedom of Information Act 1992. 62. The decision under review is affirmed. ________________________ Julie Kinross Acting Information Commissioner Date: 22 May 2009[1] Section 51(1) of the FOI Act provides: An agency or Minister may give access to a document that contains matter the disclosure of which may reasonably be expected to be of substantial concern to a government, agency or person only if the agency or Minister has taken such steps as are reasonably practicable to obtain the views of the government, agency or person concerned about whether or not the matter is exempt matter. [2] Campbell, Enid (2003) ‘Parliamentary Privilege’ The Federation Press, page 1.[3] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 35 (Gibbs CJ) in the context of a discussion relating to Article 9 of the Bill of Rights 1688 which declared ‘That the freedom of speech, and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.’[4] [2000] 1 Qd R 207.[5] See page 218 per McPherson JA, citing Davies JA in Laurance v Katter [2000] 1 Qd R 147 at 202.[6] Citing Brennan J in Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319, 322 – 323.[7] At pages 222 – 223, cited with approval in Erglis v Buckley [2004] QCA 223; [2004] 2 Qd R 599.[8] At pages 222 – 223.[9] [2005] QCA 404; [2006] 2 Qd R 407.[10] At paragraph 30. See also paragraphs 99 – 100 of the judgment of Jerrard JA. [11] See paragraphs 31 – 32. [12] [2000] 1 Qd R 207, 221.[13] (Unreported, Queensland Information Commissioner, 7 December 2001) at paragraph 20.[14] (1999) 5 QAR 284 at paragraph 59.[15] For instance, Part 5 of the Parliament of Queensland Act 2001 provides for the publication of parliamentary records in accordance with that Part. [16] Standing Order 209(2) provides ‘The evidence taken by a committee or sub-committee and documents presented to it, and proceedings and reports of it, which have not been reported to the House, shall not, unless authorised by the House or the committee, be disclosed or published to any person other than a member or officer of the committee’.[17] The Statutory committees are established under section 80 of the Parliament of Queensland Act 2001.[18] See Chapter 6, Part 3.[19] Section 9(1) of the Parliament of Queensland Act 2001.[20] Definition of document, s36 Acts Interpretation Act 1954.

queensland

court_judgement

Queensland Information Commissioner 1993-

Bentley and Murweh Shire Council [2012] QICmr 17 (30 April 2012)

Bentley and Murweh Shire Council [2012] QICmr 17 (30 April 2012) Bentley and Murweh Shire Council [2012] QICmr 17 (30 April 2012) Last Updated: 17 July 2012 Decision and Reasons for Decision Application Number: 310545 Applicant: Bentley Respondent: Murweh Shire Council Decision Date: 30 April 2012 Catchwords: RIGHT TO INFORMATION – REFUSAL OF ACCESS – NONEXISTENT OR UNLOCATABLE DOCUMENTS – applicant sought access to documents regarding construction of the Charleville levee bank – agency located and released some documents – applicant contended that further documents should exist – whether there are reasonable grounds to be satisfied that documents do not exist or are unlocatable – whether agency has taken all reasonable steps to locate documents – whether access can be refused under sections 47(3)(e) and 52(1)(a) and (b) of the Right to Information Act 2009 (Qld) Contents APPENDIX...........................................................................................................7 Significant procedural steps...............................................................................7 REASONS FOR DECISION Summary On 8 March 2010, the applicant applied to the Murweh Shire Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to the: “Complete file flood mitigation and levy bank systems – as constructed as was sighted at Murweh Council office – in Alfred St Charleville – I want to inspect the entire file – I want a copy of the file in its entirety – I spoke to Neil Polglase (director of Corporate Services) who showed the file to myself and Len Schouten and then withdrew the file and informed us that we would need to apply for access in this manner – this information is required within seven days of this date. I want to review all correspondence leading up to and including flooding from 1990 through 2010.” By decision dated 16 December 2010, Council granted full access to 3024 pages and refused access to 17 pages (comprising information about valuations and compensation paid to landholders) on the basis that their disclosure would, on balance, be contrary to the public interest.[1] The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision[2] and submits that: Council has not located all documents responsive to his access application; and further documents relating to the expenditure and allocation of monies for the construction of the Charleville levee bank should exist.[3] On external review, Council provided comprehensive submissions[4] regarding the sufficiency of its searches and advised that all relevant information about levee banks including costings, has been released to the applicant. Additionally, Council claimed that the 17 pages to which access was refused were also exempt on the basis that their disclosure would found an action for breach of confidence.[5] OIC provided a preliminary view to Council that some information to which access had been refused should be released. Council accepted this view. OIC provided a preliminary view[6] to the applicant advising that: Council agrees to release additional information;[7] Council is entitled to refuse access to the remaining information to which access was refused (that is, the remaining parts of the seventeen pages) on three grounds;[8] and the additional documents sought by the applicant do not exist or are unlocatable, therefore Council is entitled to refuse access to them under section 47(3)(e) of the RTI Act on the grounds set out in sections 52(1)(a) and (b) of the RTI Act. In response, the applicant made no submissions regarding the refusal of access to the remaining information in the seventeen pages but objected to OIC’s preliminary finding regarding the sufficiency of Council’s searches. Accordingly, Council’s refusal of access to the remaining information in the seventeen pages is no longer in issue and the only issue for determination in this review is the sufficiency of Council’s searches. After carefully considering all of the relevant information before me, I am satisfied that the additional documents sought by the applicant do not exist or are unlocatable and that Council is therefore entitled to refuse access to them under section 47(3)(e) of the RTI Act on the grounds set out in sections 52(1)(a) and (b) of the RTI Act. Reviewable decision The decision under review is Council’s decision dated 16 December 2010. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision is disclosed in these reasons (including footnotes and Appendix). Relevant law Under the RTI Act a person has a right to be given access to documents of an agency the subject of a valid access application[9], subject to other provisions of the RTI Act including the grounds on which an agency may refuse access to documents.[10] The RTI Act allows an agency to refuse access to documents where the agency is satisfied that those documents are nonexistent or cannot be located following all reasonable steps having being taken to locate them. The Information Commissioner considered the grounds for refusal of access set out in section 52 in PDE and the University of Queensland [11] (PDE). In PDE, the Information Commissioner said that:[12] ... [T]he FOI Act [equivalent of section 52] address[es] two different scenarios faced by agencies and Ministers from time to time in dealing with FOI applications: circumstances where the document sought does not exist and circumstances where a document sought exists (to the extent it has been or should be in the agency’s possession) but cannot be located. In the former circumstance, an agency or Minister is required to satisfy itself that the document does not exist. If so satisfied, the agency or Minister is not required by the FOI Act to carry out all reasonable steps to find the document. In the latter circumstance an agency or Minister is required to satisfy itself that the document sought exists (to the extent that it has been or should be in the agency’s possession) and carry out all reasonable steps to find the document before refusing access. The Information Commissioner also found[13] that to be satisfied that a document does not exist, it is necessary for the agency to rely upon its particular knowledge and experience with respect to various key factors including: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach) other factors reasonably inferred from information supplied by the applicant including: ○ the nature and age of the requested document/s ○ the nature of the government activity the request relates to. If an agency relies on searches to justify a decision that the document sought does not exist, the Information Commissioner indicated in PDE that all reasonable steps must be taken to locate documents. Enquiries and searches of all relevant locations having regard to the key factors listed above should take place.[14] As for unlocatable documents, for an agency to be entitled to refuse access under section 47(3)(e) of the RTI Act [15] it is necessary to consider whether: the document/s sought has been or should be in the agency’s possession? and the agency has taken all reasonable steps to find the document/s sought ? Were searches conducted by Council? As noted above, when assessing claims by an agency that documents are unlocatable or that documents are nonexistent, it is always necessary to consider the adequacy of searches undertaken by an agency in an effort to locate relevant documents. Council’s search efforts were explained in its submission dated 28 March 2011. The search certification sheet and search record table show that comprehensive and systematic searches were undertaken. I accept the submission as accurate. The specific searches undertaken were of: every folder in every filing cabinet, book shelf and cupboard of the engineering offices at Council’s office during an 8 hour search all filing cabinets and shelves in the archived records storage area within the Charleville Airport complex during a 6 hour search all archive boxes in the records storage shed at the rear of Council Chamber during a 4 hour search; and the Electronic Document and Records Management System (EDRMS) operated by Council, named Dataworks, for all documents with ‘levee’[16] in the title during a 3 hour search. Council’s submission also explains that the areas searched represented all storage and archive locations (both physical and electronic) maintained by Council. Moreover, in relation to each search undertaken, clear reasons are provided about whether or not documents were located in the differing locations. The reasons cited are as follows: the engineering offices at the Council office were the sole repository of relevant documents with in excess of 3000 pages of information found in manila folders and lever arch files the Charleville Airport complex held no relevant documents because the records held at this location predate planning, design and construction of the levee bank but it was checked the records storage shed at the rear of Council chambers held no relevant documents as it holds personnel and rates assessment documents but it was checked; and the EDRMS, Dataworks, held no relevant documents because levee bank documentation was all held by the engineering officer at the relevant time. Also, the EDRMS was implemented in 2006 by which time the levee bank construction project was nearly complete, but the EDRMS was checked. Are there reasonable grounds to be satisfied that further documents do not exist or are unlocatable? In short, yes. The applicant submits that he has not received “any of the relevant costings” and that “the Murweh Council and its officers have deliberately withheld the information relating to costings” and the “alleged Queensland water infrastructure levy bank report that the Murweh mayor advised the Charleville (sic) about, does not appear to exist.”[17] Where documents requested in an application under the RTI Act cannot be located, an agency may refuse access provided the statutory requirements (as discussed in this decision) are satisfied. Council submits it has undertaken all reasonable steps in an effort to locate all documents, i.e., by way of the search inquiries outlined in paragraph 21. No further documents can be located. As noted in paragraph 20, I accept Council’s submission about its search efforts as accurate. The scope of the access application is very broad and it covers an extensive period of time, 20 years. In this context, I find it impossible to determine with precision whether further documents are unable to be found because they cannot be located or because they never existed. However, in this instance, the basis of refusal – that the sought documents are nonexistent [18] or unlocatable[19] – is essentially immaterial as the practical consequences of Council’s position is that “information provided to Mr Bentley comprised everything we could find with regard to costs, design, construction and public consultation pertaining to the Levee bank.”[20] All documents that could be located have been identified and dealt with under the RTI Act. I am also satisfied that Council’s searches have been carried out in a systematic way taking into account the factors identified in PDE.[21] Having carefully reviewed Council’s submissions, together with the submissions lodged by the applicant, I am satisfied that Council has taken all reasonable steps to locate relevant documents and that there are reasonable grounds for me to be satisfied that no further documents responding to the applicant’s access application exist or can be located. DECISION On the basis of the above, I vary Council’s decision to refuse access to the requested documents under the RTI Act and find that: Council has taken all reasonable steps to locate all documents responding to the access application no further documents either exist or can be located which respond to the access application; and Council is therefore entitled to refuse the applicant access to the documents sought under section 47(3)(e) and sections 52(1)(a) and (b) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Acting Assistant Information Commissioner Lynch Date: 30 April 2012 APPENDIX Significant procedural steps Date[22] Event 8 March 2010 The applicant applied to Council under the RTI Act for access to the complete file concerning the construction of the Charleville levee bank. 16 December 2010 Council issued its access decision granting access to 3024 pages of information and refusing access to 17 pages of information. 4 February 2011 The applicant applied to OIC for external review of Council’s original decision. 3 March 2011 OIC informed Council and the applicant that the external review application has been accepted fro review. 4 March 2011 OIC received submissions from Council. 17 March 2011 OIC requested further submissions from Council. 28 March 2011 OIC received submissions from Council. 6 April 2011 OIC received submissions from the applicant. 21 October 2011 OIC conveyed an oral preliminary view to Council. 31 October 2011 OIC conveyed a written preliminary view to the applicant inviting him, if he did not accept the preliminary view to provide submissions in support of his case. 16 November 2011 OIC conveyed to Council advice that the applicant had not responded to OIC’s preliminary view and that OIC’s file would be closed. 16 November 2011 OIC advised the applicant that its file had closed. 17 November 2011 The applicant telephoned OIC to advise that its correspondence of 31 October 2011 was received on 16 November 2011. 18 November 2011 OIC advised the applicant that the external review would be reopened. 18 November 2011 OIC advised Council that the external review would be reopened. 2 December 2011 OIC received submissions from the applicant. 27 April 2012 OIC received submissions from the applicant. 30 April 2012 OIC received further submissions from the applicant. [1] Council specifically relied on the public interest factor found in schedule 4, part 3, item 3 of the RTI Act in relation to the protection of an individual’s right to privacy.[2] The application for external review was received on 4 February 2011, 32 days after the date of Council’s decision. Note - the Information Commissioner exercised her discretion and accepted this application outside the 20 business day timeframe required by section 88(1)(d) of the RTI Act.[3] Other concerns about the form in which access was granted to documents and discrepancies in the exact number of documents released to the applicant by Council were initially raised by the applicant. The applicant agreed not to pursue those external review issues on 9 March 2011 in a telephone conversation between the applicant and an OIC officer. [4] Dated 28 March 2011. [5] See schedule 3, section 8 of the RTI Act and Council’s submission dated 4 March 2011.[6] Dated 31 October 2011.[7] These pages have now been released to the applicant by Council subject to the deletion of exempt and contrary to public interest information pursuant to sections 74 and 75 of the RTI Act.[8] Pursuant to sections 47(3)(b) and 49 of the RTI Act (contrary to public interest for part of page 1), sections 47(3)(a) and 48 and schedule 3, section 8(1) of the RTI Act (disclosure would found an action for breach of confidence for some information on page 2 and all of the information on pages 3 to 12) and section 47(3)(a) and 48 of schedule 3, section 7 of the RTI Act (legal professional privilege attaches to all of the information on pages 13 to 17).[9] See sections 23 and 24 of the RTI Act.[10] As set out in section 47 of the RTI Act.[11] Unreported, Queensland Information Commissioner, 9 February 2009. Note—Although PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are replicated in section 52 of the RTI Act. [12] At paragraph 34.[13] See PDE at paragraph 37.[14] At paragraph 49.[15] On the ground set out in section 52(1)(b) of the RTI Act.[16] The Council submission dated 28 Mach 2011 also advises that the word ‘levee’ was not searched on case sensitive basis.[17] Page 1 of submissions dated 2 December 2011.[18] Under section 52(1)(a) of the RTI Act.[19] Under section 52(1)(b) of the RTI Act.[20] Paragraph 2, point d) of the submission dated 28 March 2011.[21] See paragraphs 13 and 14 of this Decision.[22] Of correspondence or relevant communication unless otherwise indicated.

queensland

court_judgement

Queensland Information Commissioner 1993-

Lindeberg and Department of Children, Youth Justice and Multicultural Affairs [2022] QICmr 39 (15 August 2022)

Lindeberg and Department of Children, Youth Justice and Multicultural Affairs [2022] QICmr 39 (15 August 2022) Last Updated: 20 February 2023 Decision and Reasons for Decision Citation: Lindeberg and Department of Children, Youth Justice and Multicultural Affairs [2022] QICmr 39 (15 August 2022) Application Number: 316319 Applicant: Lindeberg Respondent: Department of Children, Youth Justice and Multicultural Affairs Decision Date: 15 August 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL WITH APPLICATION - EXEMPT INFORMATION - application for report of an inquiry into a death in custody - whether application expressed to relate to all documents containing information of a stated kind or relating to a stated subject matter - whether all documents to which application relates appear to be comprised of exempt information - whether agency may refuse to deal with application - whether disclosure of information prohibited by section 288 of the Youth Justice Act 1992 (Qld) - section 40 and schedule 3, section 12 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of Children, Youth Justice and Multicultural Affairs (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a January 1999 report of an inquiry into a death in custody conducted by a Senior Policy Adviser, Independent Indigenous Representative and Independent Community Representative (Report). The Department refused to deal with the application under section 40 of the RTI Act on the basis that the report would be comprised of exempt information prohibited from disclosure under section 288 of the Youth Justice Act 1992 (Qld) (YJ Act). The applicant applied[2] to the Office of the Information Commissioner (OIC) for external review of the Department’s decision. For the reasons set out below, I affirm the Department’s decision to refuse to deal with the application under section 40 of the RTI Act. Background The applicant’s access application refers to the following passage in the Forde Inquiry Report which references the Report in issue in this review:[3] On the evening of 28 December 1998, a 16-year-old indigenous boy committed suicide by hanging himself from a sheet tied to a ventilation grate. The Department conducted an immediate inquiry into the suicide and prepared a report. [Footnote: Report of an Inquiry into a Death in Custody, Parts I and II, January 1999, conducted by T Macdermott, Senior Policy Adviser, Juvenile Justice, DFYCC, L Watson (independent indigenous representative) and L Burgess (independent community representative).] The ventilation grates have long been recognised as a potential hanging point. In fact, the same boy attempted suicide in the same room from the same grate in 1997. Although the inquiry into his death recommended specifically that residents’ cells be air-conditioned so that the ventilation grates could be removed, and that work should commence promptly, information was received in early April 1999 that the grates are still in existence at the Centre. A coronial inquiry is yet to be held. [my emphasis] The applicant seeks the report in relation to his concerns about the destruction of Heiner Inquiry documents.[4] The applicant submits that the nature of the material under review:[5] ... concerns an alleged unresolved systemic criminal cover-up of serious wrongdoing in public office. It involves many elected and appointed public officials [footnote omitted] which brings referral obligations at law on public officials who become directly acquainted with the facts and various acts and acts of omission by certain public officials at particular times while holding particular public positions and come to a suspicion of corrupt conduct in their minds. The applicant submits that his application:[6] ... SPECIFICALLY concerns the JOYDC’s [John Oxley Youth Detention Centre’s] “hanging points”, and related structure and design... They are undoubted matters of highly significant ‘public interest’ regarding safety obligations owed by the State/Crown to citizens (i.e. children) forced by law to be housed therein for various periods of time, and hence, be accessible information under the RTI Act as the public’s ‘right to know’, and not be concealed. The applicant submits that the Report:[7] ... ought to be a detailed history of how these hanging points came to be, who knew about them and when, and what happened and/or did not happen concerning those in positions of responsibility and duty of care which ought to have seen their removal well before [named person] tragically hanged himself on one in his cell on 28 December 1998. 33. By reason of this clear warning of grave danger to life being lawfully lodged within the proper processes of government to be actioned but deliberately was not, I submit that it may be open to conclude that, by the presence of compellingly clear reckless indifference to a duty of care, the criminal law may have been breached in a most serious way. That is, the tragic, avoidable death of a 16-year-old child. To be precise, in conduct pertaining to sworn duty-of-care obligations owed by the State of Queensland (i.e. responsible Ministers of the Crown and appointed public officials) to children in its care and protection, an avoidable death became foreseeably unavoidable, and ultimately, on 28 December 1998, by doing nothing, became an irreversible reality. [applicant’s emphasis] The applicant also referred to various newspaper articles disclosing the name of the deceased indigenous boy about whose death the inquiry was conducted.[8] Significant procedural steps relating to the external review are set out in the Appendix. Reviewable decision The decision under review is the Department’s decision dated 30 August 2021. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). 13. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[9] I consider a decision-maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the RTI Act.[10] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[11] ‘it is perfectly compatible with the scope of that positive right in the Charter of Human Rights and Responsibilities Act for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[12] Information in issue The information in issue is the Report. Issue for determination The issue for determination is whether the Department is entitled to refuse to deal with the application under section 40 of the RTI Act. Allegation of bias and matters outside OIC’s jurisdiction At the time of making this decision, the applicant has two matters on external review with OIC. He raised concerns about apprehended bias if the same decision-maker was appointed both reviews:[13] ...I would suggest that on the face of the evidence and its clear interconnectedness, a decision on your part to remain as the final decision-maker in both, would not be supportable in the impartial administration of justice... This is because an apprehension of bias, namely the absence of impartiality and presence of possible pre-judgement (as might be able to be drawn from the answers to the test), would, I suggest, reasonably and immediately support (i.e. in the mind of any fair-minded reasonable observer informed of these facts) that a tendency towards pre-judgement and bias may affect your mind to warrant a recusal that having made a decision in one of my interconnected RTI applications, the integrity of a following decision in the other may be effected by the first. [applicant’s emphasis] The procedure to be followed on external review is, subject to the RTI Act, within the discretion of the Information Commissioner.[14] The applicant has not provided any specific reason for an apprehension of bias other than that having made a decision on one file, I might be unable to bring an impartial mind to a consideration of the second file. This matter has been handled at various times by different Assistant Commissioners. The issues of law I am considering in each external review involving the applicant are separate and require different assessments. In any event, it is not certain that both applications will proceed to a formal decision. In these circumstances, and having no personal connection to the subject matter of interest to the applicant, I am satisfied that I am capable of determining this application with detachment and objectivity, and that there is no basis for finding that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to reaching a decision on this matter.[15] The applicant also alleges that I will be biased if I do not address his concerns about the interpretation of section 129 of the Criminal Code Act 1899 (Qld) (Criminal Code) by the Queensland Cabinet and former Crime and Justice Commission (CJC): If you believe that the CJC’s 1993 interpretation (now known to be unarguably erroneous – see Queensland Court of Appeal re R v Ensbey) does not give rise to a suspicion of wrongdoing, then both in the public interest as well as to allay obvious concerns of apprehended bias being present (which may need to be brought against you), I call on you to state your reasons in writing... OIC’s jurisdiction is set out in the RTI Act and does not extend to considering the former CJC’s interpretation of the Criminal Code.[16] In this matter, I am required to review the decision about access to documents made by the Department under the RTI Act and whether it should be affirmed, varied or set aside.[17] I do not consider that limiting myself to a consideration of issues within OIC’s jurisdiction would cause a fair-minded lay observer to reasonably apprehend that I am not bringing an impartial and unprejudiced mind to reaching a decision on this matter. Relevant law Under the RTI Act, a person has a right to access documents of an agency,[18] however, this right is subject to certain exclusions, including particular circumstances where an agency may refuse to deal with an application.[19] If an access application is made to an agency under the RTI Act, the agency should deal with the application unless this would, on balance, be contrary to the public interest.[20] One of the few circumstances in which Parliament considers it would, on balance, be contrary to the public interest to deal with an access application is set out in section 40 of the RTI Act, which provides:[21] 40 Exempt information (1) This section applies if— (a) an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and (b) it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information. (2) The agency or Minister may refuse to deal with the application without having identified any or all of the documents. Exempt information is information the disclosure of which Parliament considers would, on balance, be contrary to the public interest as set out in schedule 3 of the RTI Act.[22] Relevantly, information is exempt if its disclosure is prohibited by section 288 of the YJ Act, unless it is only personal information of the access applicant.[23] Section 288 of the YJ Act (together with a number of surrounding provisions) provides that a person who has gained, gains, or has access to, confidential information relating to a child who is being, or has been, dealt with under the YJ Act through involvement in the administration of the Act must not intentionally disclose that information to anyone, other than in accordance with part 9, division 2 of the YJ Act.[24] In considering whether to refuse to deal with an application, an agency is not required to identify any or all of the documents, and must assess whether the documents ‘appear’ to comprise exempt information.[25] In the circumstances of this review, I obtained a copy of the Report from the Department to assist in my consideration. FindingsIs the application expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter? Yes, for the reasons that follow. The applicant applied for: DFYCC DEPARTMENT REPORT OF AN INQUIRY INTO A DEATH IN CUSTODY, PART I & II, JANUARY 1999 CONDUCTED BY TERRY MACDERMOTT, SENIOR POLICY ADVISER, DFYCC, L WATSON (INDEPENDENT INDIGENOUS REPRESENTATIVE), AND L. BURGESS (INDEPENDENT COMMUNITY REPRESENTATIVE) The Department confirmed to the applicant that the terms of his application would be construed as:[26] Report of an Inquiry into a Death in Custody, Parts I and II, January 1999, conducted by T Macdermott, Senior Policy Adviser, Juvenile Justice, DFYCC, L Watson (independent indigenous representative) and L Burgess (independent community representative). The application is for one document only—the Report. The Report concerns a stated subject matter—the inquiry into a specific death in custody. While section 40(1)(a) refers to ‘all documents’, the Acts Interpretation Act 1954 (Qld) (AI Act) provides that words in the plural include the singular.[27] In considering the equivalent provision in the Information Privacy Act 2009 (Qld), Holmes CJ (with whom Fraser JA and Boddice J agreed) of the Supreme Court noted that ‘... those provisions also manifest the legislative intent to carve out public interest exceptions, one of which is that relevant here: for exempt information.’[28] I do not consider that the legislative intent would have been to allow an agency to refuse to deal with an application for an exempt class of documents on its face, but not allow the agency the same discretion where only one document was concerned. Therefore, I am satisfied that an application for a single document relating to a stated subject matter satisfies the first limb of section 40 of the RTI Act.Does it appear that all of the documents to which the application relates comprise exempt information? Yes, for the reasons that follow. The Report will comprise exempt information under section 12, schedule 3 of the RTI Act if its disclosure is prohibited under section 288 of the YJ Act. Discussed at (a) to (e) below are the various criteria to be considered in order to determine whether section 288 of the YJ Act applies. (a) Is the Report confidential information? The prohibition on disclosure in section 288 of the YJ Act refers to ‘information’, which includes ‘confidential information’ as defined in section 284.[29] Therefore, I must consider whether the Report appears to contain ‘confidential information’. Confidential information relating to a child includes ‘a report about the child made for the department or another government department’.[30] A child is an individual who is under 18.[31] As set out in the Forde Inquiry Report extract at paragraph 5 above, and in the Report itself, a 16-year-old boy committed suicide. The child is the subject of the Report as it concerns an inquiry into his death in custody, therefore, I am satisfied that the Report appears to be a report about the child. While I am constrained in the level of detail I can provide about the Report,[32] I can confirm that it was prepared for the Department responsible for juvenile justice at the relevant time - the Department of Families, Youth and Community Care.[33] Therefore, I am satisfied that the Report appears to have been made for a government department. On this basis, I am satisfied that the Report appears to be ‘confidential information’ as defined in section 284 of the YJ Act. (b) Does the confidential information relate to a child? The confidential information must relate to a child to be prohibited from disclosure by section 288 of the YJ Act.[34] As set out at paragraph 33 above, I am satisfied that the Report is ‘about the child’. On this basis, I am also satisfied that it relates [35] a child.35 (c) Is the child being, or has the child been, dealt with under the YJ Act? Part 9 of the YJ Act applies to confidential information relating to a child who is being, or has been, dealt with under the YJ Act.[36] The ways that a child may be dealt with under the YJ Act includes being detained.[37] As the Report was described in the Forde Inquiry Report, it is a ‘Report of an Inquiry into a Death in Custody’ [my emphasis]. Therefore, it is evident that the child was being detained at the relevant time. On this basis, I am satisfied that the deceased child was dealt with under the YJ Act for the purpose of section 283(1) of the YJ Act. (d) Does a person have access to the Report through involvement in the administration of the YJ Act? The division of the YJ Act in which section 288 appears applies to a person who has gained, gains, or has access to, confidential information through involvement in the administration of the YJ Act.[38] A person is taken to have been involved in the administration of the YJ Act if they are an officer of the Department.[39] A person has access to information through this involvement (being an officer of the Department) if the person has access in the course of the involvement or because of opportunity provided by the involvement.[40] The Report is able to be accessed by officers of the Department performing functions in relation to the YJ Act. Therefore, I am satisfied that the Report appears to be accessible to a person involved in the administration of the YJ Act for the purpose of section 287 of the YJ Act. (e) Is disclosure authorised under the YJ Act? Sections 289 – 297A of the YJ Act outline various authorised disclosures which are not prohibited by section 288 of the YJ Act.[41] Confidential information may be disclosed ‘... as expressly permitted or required under [the YJ Act] or another Act’.[42] The RTI Act overrides the provisions of other Acts prohibiting the disclosure of information[43] unless the disclosure is prohibited under a provision of an Act mentioned in schedule 3, section 12,[44] which is the case in this review. As set out at paragraphs 7 and 8 above, the applicant raised some compelling public interest arguments in favour of disclosure of the Report. I have carefully considered these submissions, however none raise grounds that fall within the authorised disclosures in sections 289 – 297A of the YJ Act. Therefore, I am satisfied that disclosure of the Report is not authorised by the YJ Act. Is the Report the personal information of the applicant? Information is not exempt for the purposes of section 12, schedule 3 of the RTI Act if it is only personal information of the applicant.[45] I have reviewed the Report and I did not identify any personal information of the applicant, therefore I am satisfied that this exception to the exemption does not apply. Conclusion Although the applicant raised some compelling public interest arguments in favour of releasing the Report, these arguments are not relevant to a consideration of whether the exemption under schedule 3, section 12 of the RTI Act is made out. I am satisfied that section 288 of the YJ Act prohibits disclosure of the Report and therefore the Report appears to comprise exempt information. Accordingly, I find that the second limb of section 40 of the RTI Act is also satisfied and the Department correctly refused to deal with the application under section 40 of the RTI Act. Relationship with other Acts prohibiting disclosure The applicant submits that ‘section 288 does not and cannot stand alone above all other laws in all contexts to block access’.[46] Specifically, the applicant refers to:[47] when taking into account the binding obligation on public officials to refer all suspicions of corrupt conduct which they become aware of in the course of performing their public duties to the CCC pursuant section 38 and 39 of the Crime and Corruption Act 2001, the ‘preservation of confidentiality’ (of contents) pursuant to section 288 of the Youth Justice Act 1992, loses its force; and just because a document’s initial creation by and for a department purpose, namely to investigate the circumstances surrounding the death by suicide of a youth in State detention may attract ‘preservation of confidentiality’ pursuant to section 288 of the Youth Justice Act 1992, does not mean such a non-access definition (although correct in law at that time) remains forever unaltered. This is to say, when another context (still relevant to the creation and purpose of the document) comes into lawful existence, namely a related coronial inquest, i.e. under the Coroner’s Act 2003, which accepts the said document into evidence as relevant under its aforesaid head of power on whose contents its public official/author is then permitted to be publicly cross-examined in court under oath by counsel representing the dead youth and his family, and counsel assisting the Coroner, its previous ‘preservation of confidentiality’ is obviously ruptured, if not irretrievably, and the Coroner’s Act 2003 prevails regarding how it treats its evidence. The applicant submits that ‘... Mr Macdermott gave evidence on behalf of the Department in the witness box and was questioned under oath about the contents of his Report by counsel assisting the Coroner and counsel for the [named] family.’[48] The applicant is correct that section 288 does not stand above all other laws in all contexts. For example, sections 289 to 297A of the YJ Act provide various authorised purposes for disclosure of confidential information, which I have considered at paragraph 39 above. The RTI Act specifically acknowledges that information may be released otherwise than under the RTI Act, even if the information[49]s exempt.49 That is, information may be prohibited from release under the RTI Act, but otherwise permitted or required in other contexts to be released. However, my role on external review under the RTI Act is to consider whether section 288 of the YJ Act applies in the context of an application made under the RTI Act. As set out above, the RTI Act overrides the provisions of other Acts prohibiting the disclosure of information unless the disclosure is prohibited under a provision of an Act mentioned in schedule 3, section 12, which is the case in this review. The applicant also referred to his application to the Coroner for the Report. Although he was refused access on the basis of ‘... not having sufficient interest in the investigation documents’[50], he submits that it is arguable that he should be provided with access under section 53(1) of the Coroner’s Act 2003 (Qld) – Access to investigation documents for research purposes. On this basis, he submits that: This state of being regarding two identical documents (i.e. the original and the copy) residing in two places, namely the Department and the Court of the Queensland Coroner, cannot live side by side in the framework of government and be oblivious or in disharmony of and with each other regarding access otherwise it brings the law into conflict and disrepute. Accordingly, these applications may warrant a judicial ruling to declare what the law is. The RTI Act is only one of many information access schemes. These different schemes take into account different considerations, and the interaction of the RTI Act with these schemes is clearly set out in the RTI Act.[51] If the applicant was able to access the Report through another scheme, this would be a basis to refuse access under the RTI Act.[52] I do not consider the applicant’s submission in this regard is relevant to the determination of whether the Department was entitled to refuse to deal with his application under the RTI Act. DECISION For the reasons set out above, I affirm the decision under review and find that the Department was entitled to refuse to deal with the access application under section 40 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Assistant Information Commissioner CorbyDate: 15 August 2022 APPENDIX Significant procedural steps Date Event 13 September 2021 OIC received the application for external review. OIC requested initial documents from the Department. 22 September 2021 OIC received the initial documents from the Department. 12 October 2021 OIC advised the parties that the application for external review had been accepted and conveyed a preliminary view to the applicant. 22 October 2021 Applicant requested an extension of time to respond to the preliminary view. OIC granted the applicant an extension of time. 19 November 2021 Applicant requested a further extension of time to respond to the preliminary view. 22 November 2021 OIC granted the applicant a further extension of time. 7 January 2022 OIC received submissions from the applicant. 25 January 2022 OIC provided an update to the Department. 7 March 2022 OIC provided an update to the applicant. 27 May 2022 OIC provided an update to the Department and requested further documents. 30 May 2022 OIC received further documents from the Department. 4 July 2022 OIC provided an update to the applicant. [1] On 19 July 2021.[2] On 13 September 2021.[3] Forde, L, ‘Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions’, (Queensland: 31 May 1999), pages 167 and 177 (Forde Inquiry Report).[4] Events referred to in the Queensland Child Protection Commission of Inquiry ‘3(e) Report’ dated June 2013.[5] Applicant’s submission dated 7 January 2022.[6] Access application dated 19 July 2021.[7] Applicant’s submission dated 7 January 2022.[8] Application for external review dated 13 September 2021. Due to their age, OIC has not accessed these newspaper reports and cannot confirm whether these articles contain the name of the deceased in the Report.[9] Section 21 of the HR Act. [10] XYZ v Victoria Police (General) [2010] VCAT 255; (2010) 33 VAR 1 (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 at [111].[11] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [12] XYZ at [573].[13] Applicant’s submission dated 7 January 2022.[14] Section 95 of the RTI Act.[15] Paraphrasing the test for assessing apprehended bias: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. See also Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [31] per Gummow ACJ, Hayne, Crennan and Bell JJ. [16] The applicant raised a number of matters outside OIC’s jurisdiction in his correspondence during this external review. I am limited to reviewing access and amendment decisions of an agency or Minister under the RTI Act or the Information Privacy Act 2009 (Qld) and therefore I did not address submissions outside of this jurisdiction.[17] Section 110(1) of the RTI Act.[18] Section 23(1)(a) of the RTI Act.[19] Part 4 of the RTI Act.[20] Section 39(1) of the RTI Act.[21] Section 39(2) of the RTI Act.[22] Section 48(4) and schedule 3 of the RTI Act. [23] Schedule 3, sections 12(1) and 12(2) of the RTI Act.[24] Sections 283, 287 and 288 of the YJ Act.[25] Sections 40(1)(b) and 40(2) of the RTI Act.[26] Letter to the applicant dated 27 July 2021.[27] Section 32C(b) of the AI Act.[28] Commissioner of the Police Service v Shelton & Anor [2020] QCA 96 at [39].[29] Department of Youth Justice v Office of the Information Commissioner & Ors; Department of Youth Justice v Office of the Information Commissioner & Anor [2019] QCATA 143 at [38]: ‘... the section prohibits a number of forms of conduct in relation to information defined as confidential information, relating to a child’ and at [39]: ‘An examination of the text of the statute, including the definitions read in the context of the sections which draw on them, would show that the prohibition on disclosure found in s 288 would apply to confidential information, relating to a child, as the expression is defined, without further restriction.’ Section 283(1) of the YJ Act: ‘This part applies to confidential information relating to a child who is being, or has been, dealt with under this Act’ and section 287 of the YJ Act: ‘This division applies to a person who has gained, gains, or has access to, confidential information relating to a child through involvement in the administration of this Act’.[30] Subsection (c) of the definition of ‘confidential information’ in section 284 of the YJ Act. The Department’s decision relied on subsection (a) of the definition of ‘confidential information’ in section 284, however I have considered subsection (c) as it directly relates to the type of document in issue in this review. [31] Schedule 1 of the AI Act.[32] Under section 108 of the RTI Act, I must not disclose information that is claimed to be exempt in a decision or reasons for a decision on external review.[33] Under section 33(7) of the AI Act, a reference to the department without specifying a particular department is a reference to the department of government that deals with the relevant matter. [34] Sections 283(1), 284 and 287 of the YJ Act.[35] Sections 283(1) and 287 of the YJ Act.[36] Section 283(1) of the YJ Act.[37] Section 283(2)(b) of the YJ Act. The child was being dealt with under the Juvenile Justice Act 1992 (Qld) at the relevant time. The Juvenile Justice Act 1992 (Qld) was renamed the Youth Justice Act 1992 (Qld) by section 9 of the Juvenile Justice and Other Acts Amendment Act 2009 (Qld).[38] Section 287 of the YJ Act.[39] Section 285(1)(a) of the YJ Act and 33(7) of the AI Act. [40] Section 285(2) of the YJ Act.[41] Section 288 of the YJ Act prohibits disclosure ‘other than under this division’ being division 2, part 9 of the YJ Act.[42] Section 289(1)(h) of the YJ Act.[43] Section 6 of the RTI Act.[44] See note 1 to section 6 of the RTI Act.[45] Schedule 3, section 12(2) of the RTI Act.[46] Applicant’s submission dated 7 January 2022.[47] Applicant’s submission dated 7 January 2022.[48] Applicant’s submission dated 7 January 2022.[49] Section 4 of the RTI Act.[50] Applicant’s submission dated 7 January 2022.[51] Sections 4 - 6 of the RTI Act.[52] Sections 47(3)(f) and 53 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Nine Network and Department of Justice and Attorney-General [2012] QICmr 8 (14 February 2012)

Nine Network and Department of Justice and Attorney-General [2012] QICmr 8 (14 February 2012) Last Updated: 28 May 2013 Decision and Reasons for Decision Application Number: 310280 Applicant: Nine Network Australia Pty Ltd Respondent: Department of Justice and Attorney-General Decision Date: 14 February 2012 Catchwords: RIGHT TO INFORMATION – REFUSAL OF ACCESS – applicant sought information about compliance notices issued to amusement ride operators from the Department of Justice and Attorney-General – whether the information comprises exempt information – section 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) – whether disclosure of the information would, on balance be contrary to the public interest – section 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary Nine Network Australia (Applicant) applied to the Department of Justice and Attorney-General (Department) for access to compliance notices, cautions, enforceable undertakings, fines or prosecutions issued to amusement ride, fun park or other mobile show ride operators in Queensland during the period 2007-2009. The Department located 35 Improvement Notices and 31 Prohibition Notices and produced a table summarising the notices. After consulting with 26 amusement ride operators as interested third parties, the Department gave partial access to the table and refused access to the names of the amusement rides and owners on the grounds that disclosure of this information would, on balance, be contrary to the public interest. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department's decision. On external review, OIC issued a preliminary view to the Department that releasing the relevant information was not, on balance, contrary to the public interest. In response, the Department submitted that disclosure of the relevant information would be contrary to the public interest and could reasonably be expected to prejudice the maintenance of a lawful method or procedure for protecting public safety[1] or a system or procedure for the protection of persons.[2] For the reasons set out below, I set aside the Department’s decision refusing access to the relevant information and find that it can be released. Significant procedural steps Significant procedural steps relating to the application and external review are set out in the Appendix. Reviewable decision The decision under review is the Department’s decision dated 11 May 2010. Information in Issue The information under consideration comprises the Australian business number of the amusement ride operators, the names of the amusement rides and the names of the amusement ride operators (Names) as they appear in the table complied by the Department and the 35 Improvement Notices and 31 Prohibition Notices.[3] Evidence considered Evidence, submissions, legislation and other material I have considered in reaching my decision is disclosed in these reasons (including footnotes and appendix). I confirm that I have not taken any information or submissions relating to the relevant New South Wales regulatory regime into consideration in reaching this decision. Relevant law Right to access information Under section 23 of the RTI Act, a person has a right to be given access to documents of an agency. However, this right is subject to a number of exclusions and limitations, including grounds for refusal of access. These grounds are contained in section 47 of the RTI Act. Sections 47(3)(a) and 48 of the RTI Act provide that access may be refused to a document to the extent that it comprises ‘exempt information’. Schedule 3 sets out the types of information which the Parliament has considered to be ‘exempt information’ as its disclosure would, on balance, be contrary to public interest. Sections 47(3)(b) and 49 of the RTI Act provide a ground for refusal of access where disclosure of information would, on balance, be contrary to the public interest. In making this decision I have considered whether: the Names are exempt on the basis that their disclosure could reasonably be expected to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety[4] and/or a system or procedure for the protection of persons, property or the environment;[5] or disclosure of the Names would, on balance, be contrary to the public interest.[6] I will consider each issue in turn. 1. Are the Names exempt? Schedule 3 section 10(1)(g) and (i) of the RTI Act provide that information is exempt information if its disclosure could reasonably be expected to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety, or prejudice a system or procedure for the protection of persons, property or the environment. These provisions will apply if the following requirements are met:[7] there exists an identifiable lawful method or procedure for protecting public safety, or there exists a system or procedure for the protection of persons, property or the environment; and disclosure of the Names could reasonably be expected to prejudice that method, system or procedure. I will examine each of these requirements in turn. (a) Is there an identifiable lawful method, system or procedure for protecting public safety and/or a system of procedure for the protection of persons, property or the environment? Yes, for the reasons that follow. The Department submits that the ‘voluntary process’ is a method or procedure within the meaning of Schedule 3 section 10(g) and 10(1) of the RTI Act. The Department made a number of submissions concerning the voluntary process. Firstly, it described it as a process ‘in which Workplace Health and Safety Queensland (WHSQ) seeks to secure voluntary improvements in health and safety from industry.’[8] The Department then listed several examples of the process, including: ....after an incident in January 2004 in which a six year old was seriously injured when thrown from a [named] ride, WHSQ developed a good working relationship with owners of amusement devices, which resulted in the owners agreeing to modify those devices in the interests of health and safety ahead of Australian standards, International Standards and Manufacturer’s Recommendations. Cooperation between WHSQ Inspectors and amusement device owners has now greatly improved, which has resulted in the safety standards of the industry in Queensland being higher. Owners are cooperative with inspectors, proactive with modifications and audits and generally maintain their amusement devices to a higher standard. Following an incident where a child fell out of a Ferris Wheel in New South Wales, owners and Australian regulators cooperatively together agreed to enclose all patrons of Ferris wheels and gondola style rides in a cage.[9] The Department also described the process in the following manner: Following an incident (such as the incidents described above), WHSQ investigates and identifies possible causes WHSQ then drafts a safety alert and sends it in draft form to engineers known to WHSQ as being regularly engaged by amusement device owners and to the three peak bodies in the amusement device industry to obtain comment and feedback before the alert is finalised; and WHSQ also consults on a programme of implementation for the proposed alert, which may include the implementation deadline and inspectors viewing proposed changes to rides at owners’ sites.[10] The Department went on to submit: The voluntary process falls within the meaning of the words ‘lawful method or procedure for protecting public safety’ on a fair reading of the words as they appear in the RTI Act.....It is a lawful method or procedure for improving the safety of persons who use amusement devices. Amusement devices are open to the general public. The process is therefore a lawful method or procedure for protecting public safety.[11] In summary and based on the submissions set out above, I understand the voluntary process to be a process of cooperation and consultation between WHSQ, the amusement device operators and other stakeholders in the industry, aimed at improving the safety of amusement devices and achieving industry best practice, over and above and minimum standards legislated by the Workplace Health and Safety Act 1995 (Qld) (WHS Act). On the basis of the matters set out above, I am satisfied that: the voluntary process falls within the meaning of a method or procedure for protecting public safety and protecting persons; and the first requirement for exemption under Schedule 3 section 10(1)(g) and 10(1)(i) of the RTI Act is met. (b) Whether disclosure of the Names could reasonably be expected to prejudice the relevant method or procedure? No, for the reasons that follow. The Department has provided extensive submissions regarding the meaning of ‘could reasonably be expected to’ including that: In Cockroft’s case, the phrase, could reasonably be expected to was said to be something which is distinct from the ‘irrational, absurd or ridiculous’. Whilst, the phrase ‘irrational, absurd or ridiculous’ is no substitute for the words actually used by the RTI Act, they provide a valid contrast to what ‘could reasonably be expected to’ means. Thus, if a particular expectation is not ‘irrational, absurd or ridiculous’ then that suggests (although not conclusively) that the prejudice ‘could reasonably be expected.’[12] However, I note the following comment of the Federal Court in Cockroft:[13] In our opinion, in the present context, the words, ‘could reasonably be expected to prejudice the future supply of information’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous...It is undesirable to attempt any paraphrase of these words. I am also mindful of the High Court’s relevant comments in McKinnon v Department of Treasury:[14] Thus, when their Honours said, as they did, that the words required a ‘judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous,’ to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, ‘to place an unwarranted gloss upon the relatively plain words of the Act’. On the basis of the matters set out above, I am satisfied that: the term ‘could reasonably be expected to’ requires that the relevant expectation is: reasonably based; and neither irrational, absurd or ridiculous,[15] nor merely a possibility[16] whether the expected consequence is reasonable requires an objective examination of the relevant evidence[17] the expectation must arise as a result of disclosure, rather than from other circumstances;[18] and it is not necessary for a decision-maker ‘to be satisfied upon a balance of probabilities’ that disclosing the relevant information will produce the anticipated prejudice.[19] With respect to prejudice, I have previously said that prejudice should be given its ordinary meaning—to detrimentally impact.[20] Accordingly, if disclosure of the Names could reasonably be expected to detrimentally impact the voluntary process, this requirement will be met. The Department makes a number of submissions regarding the effect of disclosing the Names, including that: Disclosure of the information in issue would damage the relationship between WHSQ and amusement device owners, contributing in a return to the previous situation where owners were reticent to provide information to WHSQ and the standards of safety in the rides were generally lower This damage would result from the prejudicial impact on the business reputations caused by the public release of that information This would involve a return to the ‘minimum compliance’ mentality where operators would be less likely to voluntarily agree to health and safety improvements that go beyond Australian and industry standards and WHSQ would be left to rely on only their regulatory powers and therefore the release of the information in issue would be prejudicial to public health and safety in Queensland in relation to amusement devices. Disclosure could reasonably be expected to prejudice the willingness of industry to participate in the voluntary process. Without industry participation, there would be no process. Secondly, as a result of prejudice to the effectiveness of the process that could reasonably be expected from disclosure, this is a real possibility that WHSQ will no longer continue to use the process. A reasonable expectation of such prejudice to the effectiveness of the process that there is a real possibility WHSQ will no longer continue to use the process is sufficient to amount to prejudice to the maintenance of the process.[21] OIC consulted 26 amusement device operators. A small number responded. Of the operators who replied, the following submissions are relevant to the effect of disclosure of relevant information on the voluntary process: ...butchers do not sell contaminated sausages that cause illness and expect to have their customers return for more. Ride owners do not operate unsafe rides that injure their customers and expect them to return for more. Releasing this information will be highly detrimental to this spirit of mutual cooperation that currently exists and that has been established by all parties over a number of years. It will re-create the ‘us and them’ attitude that previously existed between operators and Department staff.[22] ...if the applicant (as a television station) put all the notices together, they would make her, and the industry as a whole, look bad.[23] I have carefully considered the submissions made by the Department and operators that disclosure of the Names could reasonably be expected to: damage the relationship between WHSQ and operators; and prejudice the voluntary process. Based on the evidence before me, I am not satisfied that the Department and operators’ expectation of damage and prejudice to the voluntary process by disclosure is reasonably based given that: It is clear from the operators’ submissions (set out at paragraph 34) that they recognise the commercial benefit to operating rides in the safest manner possible, being that “... customers ... [will] return for more ...” if they do so. The operators also recognise that the voluntary process has a positive effect on their businesses as it facilitates safety improvements. I do not consider it reasonable to expect that disclosure of the relevant information will result in prejudice to the voluntary process (being a decrease in cooperation by the operators), given the operators’ recognition that it is in their commercial interest to operate safe rides and the voluntary process facilitates safety improvements. The Department’s submission that without industry cooperation, WHSQ may cease using the voluntary process, is similarly not reasonably based given my finding that the owners’ have a commercial motivation to operate safe rides (in order to maintain a profitable businesses) which provides an incentive for them to cooperate with WHSQ and participate in the voluntary process. With respect to the Department’s submission that the voluntary process operates outside the regulatory process, as an additional optional process, I note that the Names relate to improvement and prohibition notices issued under the WHS Act. Given that this is a mandatory legislative scheme, it is unreasonable to suggest that disclosure of information obtained under it would cause prejudice to the voluntary process. There is also no evidence before me to suggest that an obligation of confidence attaches to information provided to WHSQ by operators during audits. After carefully considering all of the relevant information before me and on the basis of the matters set out above, I am satisfied that in the circumstances of this review: there is insufficient evidence before me to conclude that disclosure of the Names could reasonably be expected to prejudice the relevant voluntary process the second requirement for exemption under Schedule 3 section 10(1)(g) and 10(1)(i) of the RTI Act is not met; and the Names do not comprise exempt information under the RTI Act, the disclosure of which could reasonably be expected to prejudice the maintenance of a lawful method or procedure for protecting public safety or prejudice a system or procedure for the protection of persons, property or the environment. 2. Would disclosure of the Names be contrary to the public interest? No, for the reasons that follow. In determining whether disclosure of the Names would, on balance, be contrary to the public interest I must:[24] identify and disregard irrelevant factors identify factors favouring disclosure of the information in the public interest identify factors favouring nondisclosure of the information in the public interest balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to public interest. Irrelevant factors I have examined the irrelevant factors in schedule 4 of the RTI Act and do not consider that any irrelevant factors arise here. Factors favouring disclosure in the public interest After carefully considering all of the information before me, I am satisfied that the factors favouring disclosure of the Names include that disclosure could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[25] contribute to positive and informed debate on important issues or matters of serious interest[26] reveal environmental or health risks or measures relating to public health and safety;[27] and contribute to safe, informed and competitive markets.[28] Factors favouring nondisclosure in the public interest After carefully considering all of the information before me, I am satisfied that the factors favouring nondisclosure of the Names may include that disclosure could reasonably be expected to prejudice: the business, commercial or financial affairs of persons or entities[29] the protection of an individual’s privacy[30] public safety;[31] and the effectiveness of testing or auditing processes.[32] Balancing factors favouring disclosure and nondisclosure in the public interest First I will consider the factors favouring disclosure. I note that the objective of the WHS Act is to: ...prevent a person’s death, injury or illness being caused by a workplace, by a relevant workplace area, or by workplace activities...The Act imposes health and safety obligations on various entities associated with workplaces (including owners of plant).[33] One way in which this is achieved is through authorised inspectors undertaking audits of workplaces (including amusement parks) and where necessary, issuing improvement notices and prohibition notices under the Act. Increasing accountability and positive, informed debate[34] The Department has provided the applicant with copies of the improvement and prohibition notices from which the names of the amusement rides and their owners have been removed. The information that has been released goes some way to increasing accountability and informed debate by disclosing information about the way in which WHSQ undertakes its regulatory role. In my view, there is a clear public interest in people being able to discuss and understand the way in which regulatory entities such as WHSQ undertake their responsibilities under the WHS Act and that this public interest would be advanced by disclosure of the improvement and prohibition notices in their entirety. On this basis, I am satisfied that: disclosure of the Names would advance government accountability and positive, informed debate by allowing members of the public to see which amusement rides and operators have received improvement and prohibition notices (and link them with the content of the notices);[35] and this factor favouring disclosure should be afforded moderate weight in the circumstances of this review. Revealing environmental or health risks or measures relating to public health and safety[36] As disclosure of the Names would identify rides and owners who have received improvement and prohibition notices (and link them with the content of the notices), I am satisfied that disclosure of this information could reasonably be expected to reveal risks relating to public safety. [37] Some operators submit that they have been issued improvement notices for minor breaches (such as a faulty double adaptor) and that this should be taken into consideration. While I accept that records of minor breaches will not always reveal serious safety concerns, they do show that the WHS Act has been breached (albeit in a relatively minor way). I am also mindful that the object of the WHS Act is to prevent a person’s death, injury or illness and that a substantial amount of information in the improvement and prohibition notices relates to more serious breaches of the WHS Act. On the basis of the matters set out above, I am satisfied that disclosure of the Names would advance the public interest in revealing risks to public safety and that this factor favouring disclosure should be afforded significant weight in the circumstances of this review. Safe, informed and competitive markets I have previously found a public interest in safe, informed and competitive marketplaces.[38] To date, the applicant has received the improvement and prohibition notices from which the names of the rides and the operators have been removed. Receiving the notices without further identification does not advance the public interest in safe and informed markets. The applicant submits that: ...as a parent with children who has made use of such rides, I am most unhappy that details of compliance shortcomings on such rides are likely to be kept secret and outside of disclosure under the Right to Information Act. I believe other parents would be angry too.[39] I accept the applicant’s submission that disclosure of Names would enable the public to make more informed choices about how they choose to use amusement rides. Disclosure of this information will considerably increase the information available to consumers and significantly advance the public interest in informed and transparent markets by identifying the rides and the owners which have received notices. Additionally, disclosure will place the amusement ride operators and the industry in general on notice that information about how they comply with their obligations under the WHS Act may be disclosed to the public under the RTI Act, which could reasonably be expected to increase compliance in the amusement industry generally.[40] I note the operators’ submission that ‘...ride owners do not operate unsafe rides that injure their customers and expect them to return for more’ and consider that disclosure of the Names may well make ride owners even less likely to operate unsafe rides because members of the public may be able to see the rides which have received improvement or prohibition notices. On the basis of the matters set out above, I am satisfied that this factor favouring disclosure should be afforded significant weight in the circumstances of this review. Next I will consider the factors favouring nondisclosure. Prejudice private, business, professional, commercial or financial affairs The Department decided that disclosure of the relevant information could reasonably be expected to prejudice the business affairs of the amusement operators by identifying them in connection with improvement and prohibition notices. I accept this submission and consider that disclosure could reasonably be expected to increase public scrutiny of amusement operators, which may prejudice their business, commercial or financial affairs[41] by damaging their reputations and/or deterring existing or potential customers from patronising their businesses. As to the extent of the prejudice and the weight to be attributed to this factor, I consider that the age of the information and the fact that the operators have addressed the issues recorded in the improvement and prohibition notices lessens any prejudicial effect that could now reasonably be expected to flow from disclosure. Some operators object to the random nature of the inspections and argue that the notices do not give a ‘fair’ reflection of the industry. While I understand not every ride is inspected at any given audit, notices issued as a result of inspections reveal information recorded by authorised officers who have formed a reasonable belief as to the commission of an offence under the WHS Act. This information is reliable and credible, even if not all rides are inspected at every audit. After careful consideration of this point, I am satisfied that the random nature of the inspections does not increase the prejudicial effect that could now reasonably be expected to flow from disclosure. On the basis of the matters set out above, I am satisfied that this factor favouring nondisclosure should be afforded moderate weight in the circumstances of this review. Personal information and privacy[42] The Department decided that disclosure of names of amusement ride operators could reasonably be expected to cause a public interest harm by disclosing personal information of individuals.[43] The vast majority of the relevant information relates to business information in the form of business names and does not comprise personal information. Where it does contain personal information, it is linked to business information and the weight accorded to an individual’s right to privacy in these circumstances is low. On the basis of the matters set out above, I am satisfied that these factors should be afforded little weight in the circumstances of this review. Prejudice to public safety The Department submits that disclosure of the Names could reasonably be expected to prejudice public safety[44] because of the prejudice to industry cooperation that disclosure of the information in issue would cause.[45] As this is the same argument raised by the Department in support of its claim for exemption, I repeat and rely upon my findings at paragraph 38 of this decision and confirm that disclosure of the Names could not reasonably be expected to prejudice a system or procedure for protecting public safety. Accordingly, I find that this factor favouring nondisclosure should be afforded no weight in the circumstances of this review. Prejudice the effectiveness of testing or auditing processes Finally, the Department decided that disclosure of the Names could reasonably be expected to prejudice the effectiveness of testing or auditing processes because: ...while the inspectors have statutory powers to carry out this task, the audit process is, I understand, assisted by the inspectors fostering cooperative approaches with the ride operators. I am of the view that disclosure of the information ... could reasonably be expected to adversely affect the ability of inspectors to carry out the audit process and therefore to prejudice the effectiveness of the relevant ride safety audit procedure. This submission misconceives the nature of the statutory regime under which the WHSQ inspectors work. WHSQ is a regulatory agency responsible for enforcing the obligations set out in the WHS Act. The only way in which the prejudice anticipated in the various exemption provisions cited could reasonably be expected to occur would be if WHSQ was to abandon its statutory responsibilities and regulatory duties. In other words, while a cooperative relationship with industry participants may in some circumstances be desirable, it is not necessary to ensure the protections enshrined in the WHS Act are maintained. Ride operators are required to comply with the safety standards set out in the WHS Act or face the penalties set out in that Act. WHSQ in turn is charged with upholding that scheme. This is not a consensual or cooperative regime. Rather, it is a mandatory framework that ultimately demands compliance on the part of industry participants. The Department submits that the voluntary process assists the formal audit process and makes it easier for inspectors to do their jobs. The voluntary process may foster cooperation, but I do not accept it is necessary to ensure the effectiveness of the audit process. WHSQ Inspectors have statutory powers and operators must comply with those powers or face penalty. For the reasons set out above, I find that disclosure of the Names could not reasonably be expected to prejudice the effectiveness of relevant auditing processes under the WHS Act. On this basis, I am satisfied that this factor favouring nondisclosure should be afforded no weight in the circumstances of this review. Summary Of the factors favouring disclosure, I find that the public interest in enhancing WHSQ’s accountability and promoting public discussion about the way in which WHSQ performs its role under the WHS Act should be afforded moderate weight. I find that the public interest in having safe, informed and competitive marketplaces and the public interest in revealing health and safety risks should each be afforded significant weight in the circumstances of this review. Weighing against these factors is the public interest in avoiding prejudice to the amusement operators’ commercial and business affairs and the public interest in protecting an individual’s privacy and personal information, to which I afforded moderate and low weight respectively. In summary and after carefully considering all of the matters set out above, I find that the public interest factors favouring disclosure of the Names significantly outweigh those favouring nondisclosure. Accordingly, I find that disclosure of the Names would not, on balance, be contrary to the public interest. DECISION I set aside the Department’s decision to refuse access to the Names and find that this information: does not comprise exempt information under section 47(3)(a) of the RTI Act; and would not, on balance, be contrary to the public interest to be disclosed under section 47(3)(b) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Jenny Mead Right to Information Commissioner Date: 14 February 2012 APPENDIX Significant procedural steps Date Event 22 February 2010 Applicant applied to the Department of Justice and Attorney-General (Department) for access to compliance notices issued to amusement ride operators between 2007-2009. 11 May 2010 The Department issued its decision. 1 July 2010 Applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision. 8 July 2010 OIC notified the applicant and the Department that the application has been accepted for external review. 13 July 2010 OIC conveyed a preliminary view to the Department. 26 July 2010 OIC wrote to relevant third parties, informing them of the external review and inviting them to make submissions. 30 July 2010 The Department made submissions in response to OIC’s preliminary view. 5 August 2010 OIC sought additional submissions from the Department. 20 August 2010 The Department made submissions in response to OIC’s preliminary view. 27 August 2010 OIC wrote to Department requesting further submissions. 2 September 2010 The Department provided further submissions to OIC. 2 September 2010 OIC responded to the Department’s submissions. 17 September 2010 The Department made further submissions to OIC. 20 September 2010 OIC wrote to the applicant and the Department inviting them to make submissions regarding the scope of the access application. 24 September 2010 The Department made further submissions to OIC (regarding scope). 17 December 2010 OIC conveyed an additional preliminary view to the applicant and the Department. 24 January 2011 The Department made submissions in response to the preliminary view. 25 October 2011 OIC wrote to the Department, inviting it to make further submissions. 7 November 2011 The Department provided further submissions. [1] Schedule 3, item 10, section 10(g) of the Right to Information Act 2009 (Qld) (RTI Act). [2] Schedule 3, item 10, section 10(i) of the RTI Act. [3] In a letter to the OIC dated 24 January 2011, the Department agreed that the Improvement Notices and Prohibition Notices were in scope. The applicant confirmed that he did not seek access to addresses of the amusement device operators in a telephone conversation dated 9 February 2012. [4] Schedule 3 section 10(1)(g) of the RTI Act. [5] Schedule 3 section 10(1)(i) of the RTI Act. [6] Section 47(3)(b) and 49 of the RTI Act. [7] Ferrier and Queensland Police Service [1996] QICmr 16; (1996) 3 QAR 350 at paragraphs 27-36.[8] Department’s submission to OIC dated 20 July 2010. [9] Statutory declaration of WHSQ Chief Safety Engineer dated 30 July 2010. [10] Statutory declaration of WHSQ Chief Safety Engineer dated 16 December 2010. [11] Crown Law submission dated 24 January 2011. [12] Crown Law’s submission dated 24 January 2011.[13] [1986] FCA 35; (1986) 10 FCR 180 (Cockroft).[14] [2006] HCA 45; (2006) 228 CLR 423.[15] Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97 at 106.[16] Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744. [17] Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 at paragraphs 45-47.[18] Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 at paragraph 54.[19] Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009).[20] See Daw and Queensland Rail (220020, 24 November 2010) at paragraph 17 for a succinct exposition of the meaning of ‘prejudice’ as used throughout the RTI Act.[21] Statutory declaration of Chief Safety Inspector, 30 July 2010.[22] Letter dated 6 August 2010 sent by three amusement device operators. [23] Oral submission from amusement ride operator, 20 August 2010. [24] Section 49(3) of the RTI Act.[25] Schedule 4, part 2, item 1 of the RTI Act.[26] Schedule 4, part 2, item 2 of the RTI Act.[27] Schedule 4, part 2, item 14 of the RTI Act. [28] Channel Seven and Redland City Council (Unreported, Queensland Information Commissioner, 30 June 2011) at paragraph 35. (Seven and Redlands). [29] Schedule 4, part 3, item 2 and item 15 of the RTI Act.[30] On the basis that it could reasonably be expected to cause a public interest harm because this would disclose personal information of a person, whether living or dead (schedule 4, part 4 item 6 of the RTI Act) and that disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy (schedule 4, part 3 item 3 of the RTI Act). [31] Schedule 4, part 3, item 7 of the RTI Act.[32] Schedule 4, part 3, item 21 of the RTI Act. [33] Statutory declaration of the Chief Safety Engineer dated 30 July 2010. [34] Schedule 4, part 2, item 1 and item 2 of the RTI Act. [35] The Department acknowledged the public interest in WHSQ discharging their responsibilities transparently, efficiently and accountably in their decision dated 11 May 2010. [36] Schedule 4, part 2, item 14 of the RTI Act. [37] Schedule 4, part 2, item 14 of the RTI Act. [38] Seven and Redlands at paras 33 to 45.[39] Applicant’s submission to OIC dated 6 August 2010. [40] In this regard I note the comments of Consumer Focus UK and the study of health inspection scoring in Los Angeles County discussed and relied on by me in Seven and Redlands: see paragraph 45 and note 36 of that decision.[41] Schedule 4, part 3, item 2 and item 15 of the RTI Act.[42] Schedule 4, part 3, item 3 and schedule 4, part 4, section 6 of the RTI Act. [43] Schedule 4, part 4, section 6 of the RTI Act. [44] Schedule 4, part 3, item 7 of the RTI Act. [45] Statutory Declaration of the Chief Safety Engineer dated 30 July 2010.

queensland

court_judgement

Queensland Information Commissioner 1993-

KNWY and Department of Education [1998] QICmr 12 (6 January 1998)

KNWY and Department of Education [1998] QICmr 12 (6 January 1998) 'KNWY' and the Department of Education (S 139/97, 6 January 1998, Information Commissioner Albietz) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1. - 4. [These paragraphs removed.] REASONS FOR DECISION Background [The access applicant's] initial FOI access application sought quite a broad range of information about his children, [KNWY]. By the time [KNWY's] objection to disclosure of information about them came to be reviewed by Mr Parsons, [the access applicant] had reduced the extent of the information to which he sought access, to the following (as per the letter dated 14 August 1997 sent by [the access applicant's solicitors], to Mr Parsons): ... only those documents which reveal evidence of the names which the children use, and/or are registered under, and their marks achieved in School work and assignments need be considered. All other information including family background, attendance records, the assignments themselves really need not be disclosed. In the decision under review (being the internal review decision made on behalf of the Department of Education by Mr Parsons on 22 August 1997), Mr Parsons identified the documents which contained information falling within the terms of [the access applicant's] refined FOI access application and provided [KNWY] with copies of those documents (subject to the deletion of information found by Mr Parsons to be exempt matter under the FOI Act) so that they could see exactly what information [the access applicant] would obtain access to, in accordance with the terms of Mr Parson's decision. By letter dated 16 September 1997, [KNWY] applied to me for review, under Part 5 of the FOI Act, of Mr Parson's decision that [the access applicant] was entitled to obtain access under the FOI Act to information of the kind requested in [the access applicant's] refined FOI access application, as contained in the following documents: File Document numbers A 1-7, 11-12 B 6-11 C 10 D 6, 12, 17, 23, 25-26, 30, 32, 36-37, 39, 43-44, 46, 49 E 2 F 7, 16, 19 G 5, 14, 19, 24, 34, 44, 53, 60 H 23, 26, 28, 30, 62, 75, 91, 109, 123, 140 I 7, 17, 39, 51, 67, 73, 86 J 10, 14, 16, 26, 32, 40, 49, 61, 70, 90-91, 94, 97-98, 101, 105, 115, 120 K 3,11, 14, 18, 32, 36, 40, 47, 53, 56, 58, 63, 69, 71, 76, 83, 88, 93, 100, 107, 113, 117, 125 L 5, 13 M 2-6, 11 That information constitutes the matter in issue in this review. In making my decision in this review, I have taken into account the following matters: [the access applicant] still has legal responsibilities towards [KNWY] of a kind which were formerly described as "guardianship"; the nature of the information in issue; the objections [KNWY] have raised to [the access applicant] obtaining access to the information in issue, in particular the comments made by [KNWY] in their letters to Ms Keast dated 28 May 1997 and in their application for external review dated 16 September 1997; the general impact which [KNWY's] mother feels that [the access applicant's] obtaining of the information in issue would have on [KNWY], as indicated in her letter to Ms Keast dated 28 May 1997. I am not obliged to follow internal procedural guidelines of the Department of Education (the Department), although I may take them into account in assisting me to understand the background to the issues raised in this external review. Application of s.44(1) of the FOI Act I am bound to apply the law as enacted by Parliament in the words of the FOI Act. Pursuant to s.21 of the FOI Act, [the access applicant] has a legally enforceable right to be given access under the FOI Act to documents in the possession of the Department, except to the extent that they contain exempt matter. In this case, the only exemption provision in the FOI Act which could possibly apply to the documents in issue is s.44(1), which provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. In Re Director-General, Dept of Families, Youth & Community Care and Dept of Education (Information Commissioner Qld, Decision No. 97002, 18 February 1997, unreported) at paragraph 17, I held that: Information relating to a student's performance or behaviour at school is information which concerns the student's personal affairs, and is prima facie exempt under s.44(1). It is therefore my preliminary view that the matter in issue in this external review consists of information which concerns [KNWY's] personal affairs. Under s.44(1) of the FOI Act, the matter in issue is prima facie exempt, subject to the application of the public interest balancing test incorporated in s.44(1). This means that I have to decide whether the public interest in protecting the privacy of information concerning [KNWY's] personal affairs is outweighed by the public interest in a person, who has legal responsibilities as [KNWY's] father and legal guardian, having access to that information. Public interest balancing test The Family Law Act 1975 Cth is a Commonwealth law which spells out the legal responsibilities of parents. It defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”: see s.61B of the Family Law Act. Section 61C of the Family Law Act goes on to say: 61C.(1) Each of the parents of a child who is not 18 has parental responsibility for the child. (2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying. [The access applicant's] solicitors have informed me that [the access applicant] has what used to be referred to as a “joint guardianship” order with respect to [KNWY], and [KNWY] have not disputed that. Therefore, the responsibilities referred to above were not taken away from [the access applicant] when the Family Court granted [KNWY's] mother a custody order (as it then was) in respect of [KNWY], because (in the words of s.61D of the Family Law Act): 61D.(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any): (a) expressly provided for in the order; or (b) necessary to give effect to the order. At that time, the legal responsibilities of a "guardian" were described in the Family Law Act as follows: 63E. (1) A person who is the guardian of a child under this Act has responsibility for the long-term welfare of the child and has, in relation to the child, all the powers, rights and duties that are, apart from this Act, vested by law or custom in the guardian of a child, other than: (a) the right to have the daily care and control of the child; and (b) the right and responsibility to make decisions concerning the daily care and control of the child. On 11 June 1995, the Family Law Reform Act 1995 Cth came into effect and changed the type of orders which the Family Court is empowered to make about parenting (see Part VII, Divisions 5 and 6). It also provided, in Schedule 2, for how guardianship orders under the “old Act” are to be treated: Treatment of custody, access, maintenance and guardianship orders 2.(4) An order for the guardianship of a child in force under the old Act immediately before the Part VII commencement, has effect, after that commencement, as if: ... (b) so far as it deals (expressly or impliedly) with other aspects of parental responsibility for the child—it were a specific issues order made under Part VII of the amended Act. The Family Law Act 1975 imposes a positive responsibility on [the access applicant] with respect to [KNWY's] “long-term care, welfare and development”, which has not been altered by either the parents' separation, or the custody order made in the mother’s favour. I am satisfied that matters relating to a child’s education are matters which concern a child’s "long-term care, welfare and development”. What used to be referred to as “custodianship” at common law (but what we now understand as “long-term care, welfare and development”) was said by Nygh J of the Family Court in McEnearney and McEnearney (1980) FLC 90-866 at p.75,501 (a case in which the father was granted custody of the child, Y) to include: [A] any decisions which transcend the daily management of Y, any decisions in other words which will have an important effect upon her future are decisions in which both parents should consult each other. First of all, the joint custodianship [read guardianship] will give the right to the mother to be kept advised at all times of the educational progress of Y, to be supplied with copies of school reports when they become available and the mother is to be consulted should there be any plan to change the schooling of Y. I am satisfied that [the access applicant's] obtaining access to the matter now in issue, i.e., the names [KNWY] use at school, and their marks from 1996, will not adversely affect [KNWY] in the way contemplated in their letters dated 28 May 1997 (when a much wider range of information was in issue). [The access applicant] has a positive responsibility imposed on him by the Family Law Act 1975 which only the Family Court of Australia can alter. So long as he has not had his responsibilities removed from him by the Family Court, I consider that there is a public interest in [the access applicant] having access to sufficient information to be properly informed of [KNWY's] educational progress. I consider that the public interest in [the access applicant] having access to the matter in issue (being the matter proposed for release to [the access applicant] in Mr Parson's internal review decision dated 22 August 1997 - see paragraph 7 above) is sufficiently strong to outweigh the public interest in protecting the privacy of that information, and warrants a finding that disclosure to [the access applicant] of the matter remaining in issue would, on balance, be in the public interest. I therefore find that the matter remaining in issue is not exempt from disclosure to [the access applicant] under s.44(1) of the FOI Act. DECISION For the foregoing reasons, I affirm the decision under review, being the decision made on behalf of the Department by Mr Parsons on 22 August 1997.

queensland

court_judgement

Queensland Information Commissioner 1993-

C64 and Queensland Police Service [2021] QICmr 43 (17 August 2021)

C64 and Queensland Police Service [2021] QICmr 43 (17 August 2021) Last Updated: 12 January 2022 Decision and Reasons for Decision Citation: C64 and Queensland Police Service [2021] QICmr 43 Application Number: 314874 Applicant: C64 Respondent: Queensland Police Service Decision Date: 17 August 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL - application for access to information relating to a child safety notification – whether application expressed to relate to all information of stated kind - whether all of the documents to which the application relates would comprise exempt information - section 59 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION -REFUSAL OF ACCESS - EXEMPT INFORMATION - DISCLOSURE PROHIBITED BY AN ACT - documents relating to a notification of suspicion of harm or suspected harm to a child - whether disclosure is prohibited by sections 186 to 188 of the Child Protection Act 1999 (Qld) – whether information is exempt under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 of the Right to Information Act (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - DOCUMENTS NONEXISTENT OR UNLOCATABLE - applicant submits agency did not locate all relevant documents - whether agency has conducted all reasonable searches - whether access to further documents may be refused on the basis they are nonexistent or unlocatable – section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied[1] to Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to documents created between 4 March 2019 and 3 May 2019 relating to a child safety notification. 2. QPS decided[2] to refuse to deal with the application, as it was ‘expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter’ and ‘the documents to which the application relates are comprised of exempt information’.[3] 3. The applicant applied[4] for internal review of QPS’s original decision. QPS affirmed its original decision.[5] 4. The applicant applied to the Office of the Information Commissioner (OIC) for external review.[6] I have decided to vary QPS’s decision and find that access may be refused to: some information on the ground that it comprises exempt information under section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 12 of the Right to Information Act 2009 (Qld) (RTI Act); and emails between the applicant and a named QPS Officer on the ground the emails are nonexistent or unlocatable under section 67(1) of the IP Act and sections 47(3)(e) and 52 of the RTI Act. Background 5. Significant procedural steps in the review are set out in the Appendix. 6. In response to the applicant’s access application, QPS located a four-page QPrime Occurrence Report (QPrime Report) which details a child safety notification made to QPS about the applicant. 7. During the external review, the applicant raised concerns about the sufficiency of QPS’s searches to locate documents responsive to the applicant’s access application.[7] Specifically the applicant indicated that he was seeking access to email communications (Email Correspondence) between the applicant and a named QPS Officer (Officer A) in relation to the child safety notification made to QPS.[8] 8. OIC requested that QPS conduct further searches to locate the Email Correspondence. As a result of those searches, QPS located and released to the applicant a diary entry (Diary Entry) made by Officer A, but it was not able to locate any Email Correspondence. Reviewable decision 9. The decision under review is QPS’s decision on internal review, dated 2 September 2019. Evidence considered 10. Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). 11. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[9] I consider a decision-maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the RTI Act.[10] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[11] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[12] Issues for determination 12. The three issues for determination in this external review are: whether QPS could refuse to deal with the access application under section 59 of the IP Act if QPS could not refuse to deal with the access application; should access to the QPrime Report be granted; and whether access to the Email Correspondence may be refused on the ground that it is nonexistent or unlocatable.[13] 13. The applicant raised concerns about the content of the Diary Entry located by QPS during the external review process, in particular the applicant requested QPS provide him with a typed copy of the Diary Entry, as he does not consider the handwriting in the Diary Entry to be legible.[14] 14. OIC explained to the applicant that it does not have power under the IP Act to address the quality or readability of documents released by an agency.[15] The applicant’s request that the abbreviations in the Diary Entry be explained to him amounts to a request for an answer to a question. The IP Act does not grant a right to obtain answers to questions asked of government agencies, or even to have government agencies extract answers to questions from documents in their possession. The legally enforceable right conferred by section 40 of the IP Act is a right to be given access under the Act, and subject to the Act, to documents of an agency.[16] Accordingly, I cannot in this decision assist the applicant in relation to his queries about the content of the Diary Entry, that query would need to be directed to QPS. QPS’s refusal to deal with the access application Relevant law 15. If an access application is made to an agency under the IP Act, the agency should deal with the access application unless this would not be in the public interest.[17] One of the few circumstances where it is not in the public interest to deal with an access application is set out at section 59 of the IP Act as follows: 59 Exempt Information (1) This section applies if – (a) an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and (b) it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information. (2) The agency or Minister may refuse to deal with the application without having identified any or all of the documents. 16. Exempt information is information, the disclosure of which Parliament has considered would, on balance, be contrary to the public interest.[18] Schedule 3 of the RTI Act lists the various types of information that constitute exempt information, including: 12 Information disclosure of which prohibited by Act (1) Information is exempt information if its disclosure is prohibited by 1 of the following provisions— ... Child Protection Act 1999, sections 186 to 188 Findings Class of documents 17. For section 59 of the IP Act to be enlivened, I must firstly consider whether the application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind, or relate to a stated subject matter. To determine this, it is necessary to examine the terms of the access application. 18. The applicant’s application seeks access to specific information, namely ‘all document [sic] of whatever nature[19]’ in relation to ‘child safety notification’.[20] 19. I am satisfied that the application is framed as a request to access all documents that contain information of a stated kind or relate to a stated subject matter, that is, information relating to a child safety notification made to QPS during the specified period. Accordingly, I find that the first limb of section 59 of the IP Act is satisfied. Exempt Information 20. I must also be satisfied that all of the documents to which the application relates are comprised of exempt information. Of relevance to this review, information will be exempt information if its disclosure is prohibited by sections 186 to 188 of the Child Protection Act 1999 (Qld) (CP Act).[21] In particular, section 186(2) of the CP Act prohibits disclosure of information if the information identifies a person making a notification of a suspicion that a child has been or is likely to be harmed. 21. As noted at paragraph 6 above, in response to the applicant’s access application, QPS located the QPrime Report, which details a notification made to QPS about the[22]pplicant.22 As noted at paragraph 8 above, during the external review process QPS also located the Diary Entry. The Diary Entry does not comprise exempt information and as noted at paragraph 8 above, QPS disclosed [23]e Diary Entry to the applicant.23 Consequently, it cannot be said that all of the documents to which the application relates are comprised of exempt information. Accordingly, as I am not satisfied that the second limb of section 59 of the IP Act has been met, I consider that QPS was not entitled to refuse to deal with the application. Therefore, I must now consider whether access can be given to the QPrime Report. Access to the QPrime Report Relevant law 22. As noted at paragraph 20 above, information will be exempt information if its disclosure is prohibited by sections 186 to 188 of the CP Act and more particularly, if the information identifies a person making a notification of a suspicion that a child has been or is likely to be harmed. 23. This prohibition on disclosure is subject to the exceptions set out in section 186(2) of the CP Act and schedule 3, section 12(2) of the RTI Act. Schedule 3, section 12(2) of the RTI Act provides that information is not exempt information if it is only personal information of the applicant. Findings 24. I have considered the QPrime Report and I am satisfied that it comprises a notification to QPS of concerns held by the notifier about the safety of the applicant’s children. I am also satisfied that disclosure of the QPrime Report would identify the person making the notification. 25. The exceptions to the prohibition set out in section 186 of the CP Act, allow disclosure of this information in particular circumstances. In particular, section 186(2) of the CP Act provides that disclosure of notifier information may be made in the course of performing functions under the CP Act, under the Child Protection (International Measures) Act 2003 (Qld) part 6, to the Ombudsman conducting an investigation under the Ombudsman Act 2001 (Qld), for the chief executive functions under the Adoption Act 2009 (Qld); by way of evidence given in a legal proceeding under section 186(3) and 186(4); or to the litigation director performing a function under the Director of Child Protection Litigation Act 2016 (Qld). I have considered these exceptions and I am satisfied that none of these exceptions apply here. 26. Section 12(2) of the RTI Act also provides that an exception to the exemption applies if the information is only about the applicant.[24] The QPrime Report is about the applicant, however, it is also intertwined with information about the applicant’s children and the notifier. Accordingly, I find that the QPrime Report is not only about the applicant, and therefore, the exception to the exemption does not apply. 27. The applicant submits that OIC has incorrectly interpreted the application of the CP Act and section 12(2) of the RTI Act. In particular, the applicant submitted:[25] a vexatious and malicious complaint was made about him. Once the applicant explained the back story to QPS he was exonerated disclosing the QPrime Report would prevent vexatious complaints being made to QPS he has a right to know what he has been accused of and the information in QPS’s decision to take no further action in relation to the notification made about him he believes he knows who the notifier is, and on that basis, the applicant considers that he should be provided with access to the information the notification to QPS, will prevent the applicant from obtaining a Blue Card in the future, should he decide to apply for one; and he will be caused ‘significant demonstrable prejudice and damage and loss’ in defending such ‘false and vindictive accusations’ and can only do so, if he is provided with the QPrime Report. 28. The applicant’s submissions raise various public interest factor arguments in favour of disclosure.[26] Where I am satisfied that the information in issue meets the requirements for a particular category of exempt information in schedule 3 of the RTI Act, I am unable to take into account any further public interest arguments. This is because Parliament has already decided that it is contrary to the public interest to disclose this type of information.[27] 29. In addition, the applicant submitted:[28] IOC [sic] maintains that legislation prevents ANY documents from being provided to me. This is despite references to legislation stating only that it "may" be refused, and no references to ANY legislation stating that they "should" let alone "must" be refused... 30. I understand the applicant to be submitting that he considers OIC has misinterpreted section 47(3)(a) of the RTI Act, as section 48 of the RTI Act, provides that despite an agency being able to refuse access to all or part of a document, under section 47(3)(a) of the RTI Act, the agency may nevertheless decide to give access. While I acknowledge that section 48(3) of the RTI Act provides an agency with a discretion to disclose exempt information, that same discretion does not extend to the Information Commissioner by virtue of the operation of section 118(2) of the IP Act which states: If it is established that a document is an exempt document or a contrary to public interest document, or contains exempt information or contrary to public interest information, the commissioner does not have power to direct that access to the document, or the document to the extent of the information, is to be given. 31. Given the considerations above, I am satisfied that disclosure of the QPrime Report is prohibited by section 186 of the CP Act and therefore the QPrime Report comprises exempt information to which access is refused under sections 47(3)(a) and 48 and schedule 3 section 12(1) of the RTI Act. Access to the Email Correspondence 32. As noted at paragraph 7 above, during the external review, the applicant raised concerns regarding the sufficiency of QPS’s searches, namely that QPS had failed to locate email communications between the applicant and[29]fficer A.29 33. Following consideration of the applicant’s submissions, OIC required QPS to undertake further searches and inquiries to locate the Email Correspondence. However, QPS did not locate any Email Correspondence. Relevant law 34. The IP Act provides citizens with a right to be given access to documents of an agency, to the extent they contain the individual’s personal information.[30] This right is subject to certain limitations including grounds for refusal of access.[31] One such ground is where the requested information is nonexistent or unlocatable.[32] 35. A document will be nonexistent if there are reasonable grounds to be satisfied it does not exist.[33] To be satisfied that a document does not exist, the Information Commissioner has previously had regard to various key factors including the agency’s record keeping practices and procedures (including, but not limited to, its information management approaches).[34] By considering the relevant factors, the decision maker may conclude that a particular document was not created because, for example, the agency’s processes do not involve creating that specific document. In such instances, it is not necessary for the agency to search for the document. Rather, it is sufficient that the relevant circumstances to account for the nonexistent document are adequately explained by the agency. 36. The Information Commissioner may also take into account the searches and inquiries conducted by an agency, in determining whether a document is nonexistent. The key question then is whether those searches and inquiries amount to ‘all reasonable steps’.[35] What constitutes reasonable steps will vary from case to case as the search and inquiry process an agency will be required to undertake will depend on which of the key factors are most relevant in the particular circumstances. Such steps may include inquiries and searches of all relevant locations identified after consideration of relevant key factors.[36] 37. A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find it, but it cannot be found. In determining whether a document is unlocatable, it is necessary to consider the specific circumstances of each case,[37] and in particular whether: there are reasonable grounds for the agency to be satisfied that the requested documents have been or should be in the agency’s possession; and the agency has taken all reasonable steps to find the document.[38] 38. The agency that made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[39] Where the issue of missing documents is raised on external review, the agency must demonstrate that reasonable steps have been taken to identify and locate relevant documents.[40] If the applicant maintains further documents exist, the applicant bears a practical onus of demonstrating that the agency has not discharged its obligation. Suspicion and mere assertion will not satisfy this onus.[41] Findings 39. In response to OIC’s request that it undertake searches to locate the Email Correspondence, QPS submitted:[42] Officer A conducted searches of his Outlook email account Officer A stated that he only recalled contacting the applicant by telephone and arranging for the applicant to attend the office to discuss the notification Officer A did not recall any email correspondence between himself and the applicant, but if there was any email correspondence it would have been to request the applicant attend the office. No emails would have been exchanged that formed part of the investigation. The emails would simply have been used as a means of communication for contact; and QPS had conducted searches of its QPrime system and there were no comments regarding email correspondence with the applicant. 40. OIC required QPS to provide records of the searches conducted. I have considered these records and I am satisfied that QPS searched all locations where any existing Email Correspondence would logically be found. 41. OIC sought further submissions from the applicant including any specific evidence he was able to present as to the existence of the Email Correspondence sought[43] and explained to the applicant that this could consist of simply providing OIC with copies of the Email Correspondence.[44] 42. The applicant did not provide further specific evidence as to the existence of the Email Correspondence sought. However, the applicant advised OIC that he was unable to provide any submissions in regard to the Email Correspondence until OIC had obtained a sworn statutory declaration from Officer A, in which Officer A confirmed that he had destroyed the Email Correspondence.[45] 43. OIC had previously addressed the applicant’s request for a sworn statutory declaration from Officer A in a letter to the applicant.[46] The procedure to be followed on external review is within the discretion of the Information Commissioner or her delegate[47] where procedural fairness requirements have been met, it is not open to an applicant to require that particular matters be addressed before they will make submissions. I am satisfied that the applicant has been afforded procedural fairness throughout the course of the review and chose not to provide a submission to address the specific issue of the sufficiency of the searches undertaken by QPS. 44. In the absence of any evidence pointing to the existence of the Email Correspondence, and in light of the inquires made, the locations identified and searches undertaken by QPS informed by QPS’s knowledge of its internal recordkeeping practices and processes, I am satisfied that QPS has undertaken the searches it could reasonably be expected to undertake. 45. For these reasons, I find that QPS has taken all reasonable steps to locate the Email Correspondence and that access to the Email Correspondence may be refused on the basis they are nonexistent or unlocatable.[48]DECISION 46. For the reasons outlined above, I consider that QPS was not entitled to refuse to deal with the application under section 59 of the IP Act. Accordingly, I vary the internal review decision of QPS and find that access is refused to the: QPrime Report on the ground that it comprises exempt information under section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 12 of the RTI Act; and Email Correspondence between the applicant and Officer A on the ground the emails are nonexistent or unlocatable under section 67(1) of the IP Act and sections 47(3)(e) and 52 of the RTI Act. 47. I have made this decision under section 123 of the IP Act as a delegate of the Information Commissioner, under section 139 of the IP Act.Assistant Information Commissioner CorbyDate: 17 August 2021 APPENDIXSignificant procedural steps Date Event 30 September 2019 OIC received the external review application. 2 October 2019 OIC notified the applicant and QPS that the external review application had been received and requested procedural documents from QPS. 8 October 2019 QPS provided the procedural documents to OIC. 17 October 2019 OIC notified the applicant and QPS that the external review application had been accepted and requested the information in issue from QPS. 18 October 2019 QPS provided the information in issue to OIC. 6 December 2019 OIC received an email from the applicant requesting an update. 10 December 2019 OIC provided the applicant with a progress update. In response, OIC received an email from the applicant requesting that the external review be expedited. 11 December 2019 OIC advised the applicant by telephone that his request for the matter to be expedited would be taken into consideration. 17 December 2019 OIC wrote to the applicant, conveying the preliminary view that the information in issue was exempt from disclosure on the basis it was prohibited under the CP Act. 14 January 2020 The applicant provided oral submissions rejecting OIC’s preliminary view, raising sufficiency of search concerns and requested an extension in which to provide further submissions. 15 January 2020 OIC wrote to the applicant, granting the extension of time to provide submissions, addressing issues raised in the telephone discussion and requesting further information in relation to the applicant’s sufficiency of search concerns. 24 January 2020 The applicant wrote to OIC providing further information in relation to his sufficiency of search concerns. 28 January 2020 OIC wrote to the applicant advising that OIC would request QPS carry out additional searches. 29 January 2020 OIC wrote to QPS requesting that it undertake additional searches for the Email Correspondence. 31 January 2020 The applicant raised queries with OIC about the Email Correspondence. 28 February 2020 QPS wrote to OIC about its additional searches and provided its search record. 24 April 2020 OIC contacted the applicant to provide an update. 22 May 2020 OIC wrote to QPS requesting further information about the additional searches undertaken by QPS. 4 June 2020 QPS provided written submissions to OIC. 16 June 2020 OIC wrote to QPS requesting that it disclose the Diary Entry to the applicant. 17 June 2020 QPS notified OIC that it had disclosed the Diary Entry to the applicant. 29 June 2020 The applicant copied OIC into an email to QPS. 30 June 2020 OIC provided a second preliminary view to the applicant, reiterating OIC’s first preliminary view, and further addressing the sufficiency of search issues. 22 July 2020 OIC advised the applicant and QPS that, given a lack of response from the applicant to OIC’s second preliminary view dated 30 June 2020, the matter would be finalised and the file closed. On receipt of OIC’s closure letter, the applicant requested an extension of time in which to provide submissions. 23 July 2020 OIC reaffirmed the file closure to the applicant. 24 July 2020 The applicant provided written submissions to OIC and requested an extension of time in which to provide submissions. 30 July 2020 OIC emailed the applicant advising that OIC agreed to an extension of time to provide submissions. 31 July 2020 The applicant wrote to OIC about the timeframe provided by OIC for the applicant to make submissions, raised queries as to whether any of OIC’s previous decisions relating to the interpretation of the CP Act had been considered by the Queensland Civil and Administrative Tribunal (QCAT) or the courts and also advised that he required OIC to make a formal decision. 7 August 2020 OIC wrote to the applicant, responding to the applicant’s emails dated 24 July 2020 and 31 July 2020. 13 August 2020 OIC notified QPS that the matter had been reopened. 14 August 2020 The applicant contacted OIC raising concerns about OIC’s process, requesting that OIC refer a question of law on his matter to QCAT and requested an extension of time to provide submissions. 21 August 2020 OIC wrote to the applicant, responding to his email dated 14 August 2020. 7 September 2020 The applicant emailed OIC, raising further concerns and queries and requested an extension of time to provide submissions. 10 September 2020 OIC wrote to the applicant, in response to his email dated 7 September 2020. 29 September 2020 The applicant contacted OIC requesting an extension of time to provide submissions. 9 October 2020 OIC wrote to the applicant asking the applicant to provide OIC with an update as to when he would be in a position to provide submissions. 27 November 2020 OIC wrote to the applicant asking the applicant to advise when he would be in a position to provide submissions. 4 December 2020 The applicant provided OIC with a medical certificate. 4 December 2020 OIC wrote to the applicant and requested that he provide OIC with an update by 29 January 2021, as to when he would be in a position to provide OIC with submissions. 12 March 2021 OIC wrote to the applicant advising that if OIC did not receive submissions from the applicant by 9 April 2021, OIC would proceed to issue a formal decision. 12 April 2021 The applicant provided OIC with a medical certificate and requested an extension of time to provide submissions. 15 April 2021 OIC wrote to the applicant in response to his email dated 12 April 2021. 16 April 2021 The applicant wrote to OIC in response to OIC’s advice that we would proceed to issue a formal decision. 29 April 2021 OIC wrote to the applicant in response to his email dated 16 April 2021. 10 May 2021 The applicant contacted OIC to advise that he had made a formal complaint about OIC to the Australian Human Rights Commission. 11 May 2021 OIC emailed the applicant to advise that no formal decision would be issued within one month from OIC’s email to await correspondence from the relevant authority in relation to the applicant’s complaint about OIC. [1] Access application dated 3 May 2019.[2] Decision dated 29 July 2019.[3] Section 59 of the IP Act.[4] Internal review application dated 26 August 2019.[5] Internal review decision dated 2 September 2019. [6] External review application dated 30 September 2019. [7] During a telephone discussion with an OIC Review Officer on 14 January 2020.[8] Email to OIC dated 24 January 2020.[9] Section 21 of the HR Act. [10] XYZ v Victoria Police (General) [2010] VCAT 255 (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 at [111].[11] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [12] XYZ at [573].[13] Section 67(1) of the IP Act and sections 47(3)(e) and 52 of the RTI Act.[14] Applicant’s email to QPS dated 27 June 2020 and the applicant’s email to OIC dated 16 April 2021.[15] OIC’s letter dated 30 June 2020. See schedule 5 which provides a definition of a ‘reviewable decision’. [16] Hearl and Mulgrave Shire Council [1994] QICmr 12; (1994) 1 QAR 557 at [30].[17] Section 58(1) of the IP Act.[18] See sections 47(3)(a) and 48 and schedule 3 of the RTI Act.[19] For the timeframe to 4 March 2019 to 3 May 2019.[20] Applicant’s access application to QPS dated 3 May 2019.[21] Schedule 3, section 12(1) of the RTI Act. This prohibition on disclosure is subject to the exceptions set out in section 186(2) of the CP Act and schedule 3, section 12(2) of the RTI Act[22] The QPrime Report also refers to further documents. While QPS did not provide OIC with a copy of those further documents from the description of those documents within the QPrime Report, I am for the same reasons as I have stated for the QPrime Report satisfied that the further documents comprise exempt information.[23] Subject to the deletion of irrelevant information under section 88 of the IP Act.[24] See Hughes and Department of Communities, Child Safety and Disability Services (Unreported, Queensland Information Commissioner, 17 July 2012) at [28]-[29].[25] During the applicant’s telephone conversations with a Review Officer on 14 January 2020 and 24 April 2020 and the applicant’s email to OIC dated 7 September 2020.[26]The applicant has subsequently in emails to OIC dated 24 July 2020 and 16 April 2021, alleged that his submissions as referred to at [27] above, have been misrepresented by OIC. However, the applicant has not provided any explanation as to how OIC has misrepresented his submissions, other than to submit that they were ‘clearly based on some examples of various aspects as at that time, some of which were also hypotheitical [sic]’.[27] Section 48(2) of the RTI Act.[28] Email to OIC dated 7 September 2020.[29] The applicant stated that emails passed between the applicant and Officer A from approximately 23 March 2019 until approximately 1 May 2019.[30] Section 40 of the IP Act. [31] Section 67(1) of the IP Act states that an agency may refuse access to a document of an agency in the same way and to the same extent the agency could refuse access to the document under section 47 of the RTI Act, were the document to be the subject of an access application under the RTI Act. [32] Sections 47(3)(e) and 52(1) of the RTI Act.[33] Section 52(1)(a) of the RTI Act. For example, a document has never been created.[34] Isles and Queensland Police Service [2018] QICmr 27 (7 June 2018) at [15] which adopted the Information Commissioner’s comments in PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) at [37]-[38]. PDE addresses the application of section 28A of the now repealed FOI Act. Section 52 of the RTI Act is drafted in substantially the same terms as the provision considered in PDE and, therefore, the Information Commissioner’s findings in PDE are relevant. [35] As set out in PDE at [49]. See also section 137(2) of the IP Act.[36] As set out in PDE at [38]. [37] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [21]. See also, F60XCX and Office of the Queensland Parliamentary Counsel [2016] QICmr 42 (13 October 2016) at [84] and [87], and Underwood and Minister for Housing and Public Works [2015] QICmr 27 (29 September 2015) at [33]-[34] and [49].[38] Section 52(1)(b) of the RTI Act.[39] Section 100(1) of the IP Act.[40] Section 137(2) of the IP Act.[41] Dubois and Rockhampton Regional Council [2017] QICmr 49 (6 October 2017) at [36].[42] Email to OIC dated 4 June 2020.[43] Letters to the applicant dated 30 June 2020, 7 August 2020 and 21 August 2020 and an email dated 10 September 2020.[44] Letter to applicant dated 7 August 2020.[45] Email to OIC dated 16 April 2021.[46] OIC’s letter 7 August 2020.[47] Section 108(1)(a) of the IP Act.[48] Section 67(1) of the IP Act and sections 47(3)(e) and 52 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

ODNA Group Pty Ltd and Brisbane City Council [2020] QICmr 47 (13 August 2020)

ODNA Group Pty Ltd and Brisbane City Council [2020] QICmr 47 (13 August 2020) Last Updated: 26 October 2020 Decision and Reasons for Decision Citation: ODNA Group Pty Ltd and Brisbane City Council [2020] QICmr 47 (13 August 2020) Application Number: 315090 Applicant: ODNA Group Pty Ltd ACN 161 056 677 Respondent: Brisbane City Council Decision Date: 13 August 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - application to transfer an advertising sign licence - local council disclosed names of companies involved but not individual representatives - allegation that applicant’s interests were misrepresented in the transfer application - administration of justice - personal information and privacy - would disclosure, on balance, be contrary to the public interest - whether access can be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to Brisbane City Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to information relating to the request, approval and transfer of an advertising sign permit, at a specified location in Brisbane.[1] In its application, the applicant advised Council that a competing company had installed an advertising sign at the same location and a branch of Council was investigating permit compliance. Council located 264 pages and granted the applicant access to the majority of the information, including the names of two other companies involved in the application to transfer the advertising sign permit. Council redacted information from the released documents[2] on the basis that disclosure would, on balance, be contrary to the public interest, citing the public interest in safeguarding the personal information of other individuals and minimising prejudice to commercial and business affairs of an entity.[3] The applicant sought internal review submitting that ‘a representative acting on behalf of ODNA Group transferred the permit ... without the prior knowledge of ODNA Group’s Director ... we require their details to be reinstated’.[4] Council purported to affirm its original decision.[5] The applicant applied to OIC for external review submitting that its interests and position had been misrepresented in the application to transfer the advertising sign permit, resulting in the permit being transferred to another entity. The applicant submitted that it believed one of its own employees was involved in the transfer application and had acted without authority. During the review, the applicant limited the scope of its request to information appearing in documents relevant to the alleged unauthorised permit transfer.[6] Accordingly, and for the reasons set out below, I find that disclosure of the information remaining in issue would, on balance, be contrary to the public interest under section 49 of the RTI Act, and that therefore, access to it may be refused under section 47(3)(b) of the RTI Act. Background and evidence In October 2017, Council granted the applicant a permit for an advertising sign outside a specified property, entitling the applicant to construct a double-sided digital billboard, subject to various conditions.[7] In October 2018, the property owner (Company A) advised another entity (Company B) that the applicant ‘had decided not to proceed with the project’ thereby enabling Company B to proceed with the project.[8] Company A then proceeded to lodge, with Council, the application to transfer the existing advertising sign licence from the applicant to Company B, declaring that Company A was the authorised representative of the current licensee, ie the applicant. Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including in the footnotes and the Appendix). In making this decision, I have had regard to the Human Rights Act 2019 (Qld) (HR Act) to the extent that individuals have a right not to have their privacy unlawfully or arbitrarily interfered with[9] and have acted compatibly with this human right, in accordance with section 58(1) of the HR Act. Significant procedural steps relating to this review are set out in the Appendix. Reviewable decision As explained at footnote 3 above, Council made a deemed decision refusing access to the requested information. Accordingly, that is the decision under external review. Information in issue The information remaining in issue[10] comprises: names of the individuals appearing in the Application for Advertising Sign Approvals (Permit Transfer Application) within the sections titled “New Licensee” and “Name of licensee’s authorised representative”[11]; and names of individuals appearing in a letter sent by Company A to Company B dated 11 October 2018, advising that the applicant was not proceeding with construction of the advertising sign (Letter). (collectively, Third Party Details). Issue for determination The only issue requiring determination in this review is whether access to the Third Party Details may be refused under section 47(3)(b) of the RTI Act on the basis that disclosure would, on balance, be contrary to the public interest, under section 49 of the RTI Act. Relevant law The RTI Act provides for a right of access to information held by Queensland government agencies. However, this right is subject to certain limitations, including grounds for refusing access to information. One ground is where disclosure would, on balance, be contrary to the public interest.[12] In deciding where the balance of the public interest lies, the RTI Act requires a decision maker to identify factors for and against disclosure, disregard irrelevant factors and decide, on balance, whether disclosure would be contrary to the public interest.[13] In balancing the public interest, a decision maker is prohibited from taking into account irrelevant factors.[14] Findings In making this decision, I have not taken into account any irrelevant factors. Factors favouring disclosure The applicant submits that neither Company A nor any employee and/or representative of Company A was authorised to complete the Permit Transfer Application on its behalf.[15] The applicant’s submission about its interests being misrepresented on the Permit Transfer Application raises public interest factors relating to the administration of justice.[16] The Information Commissioner has previously decided that these factor/s will be established[17] where the applicant can demonstrate all of the following requirements: they have suffered loss or damage or some kind of wrong, in respect of which a remedy is, or may be, available under the law they have a reasonable basis for seeking to pursue the remedy; and disclosing the information would assist them to pursue the remedy or to evaluate whether a remedy is available or worth pursuing.[18] If an applicant can pursue, or evaluate the availability or merit of pursuing, the remedy, without the refused information, the third criterion will not be met. For example, an applicant may already possess sufficient information for those purposes.[19] Here, I accept that the applicant has suffered a loss in terms of the advertising sign licence being transferred, seemingly without its authority. If the applicant had maintained the licence and constructed the billboard, it could have then contracted with advertisers and generated income from that advertising. The circumstances of this case indicate that some form of civil remedy would be available to the applicant in relation to its allegations of fraud/misrepresentation. Also, there appears to be a reasonable basis for the applicant seeking to pursue a remedy as there is no evidence before me that the applicant authorised Company A to transfer the licence to Company B on its behalf. Also, the applicant strenuously submits that it did not give authority and its position is supported by it taking steps (including making an RTI Act application to Council) to uncover evidence about the transfer. The applicant argues that the name of the individual representing Company A is ‘essential’ for it to commence proceedings and submits as follows: the individual who completed the Permit Transfer Application ‘acted improperly and/or fraudulently by providing false and misleading information, either with or without the actual or apparent knowledge of Company A[20] the individual’s information is pertinent to determine liability for the apparent improper transfer of the permit[21] the information is relevant to ‘identify whether or not there was some malfeasance’ by Company A in improperly asserting an authority to act on behalf of the applicant[22] to establish liability on the part of Company A, the applicant must establish whether the company had actual or apparent knowledge of the employee’s action; without the information, the applicant is unable to establish whether the individual is genuinely connected to Company A for the purpose of commencing proceedings.[23] As noted above, Council disclosed the names and contact details of Company A and Company B as they appear in the Permit Transfer Application and the Letter. Therefore, the applicant is already aware of the commercial entities involved if they wish to commence proceedings against either/both of those parties.[24] Hypothetically, if those companies were to defend any action brought by the applicant, it would be a matter for them to consider whether circumstances necessitated joining the relevant individuals as co-defendants. While the applicant disagrees with this proposition, there is no evidence before me to suggest that the individuals named in the Permit Transfer Application were not authorised to represent those companies as agents/employees. I do however, recognise that disclosing the Third Party Details would enable the applicant to communicate directly with the individuals involved in the Permit Transfer Application. This may assist the applicant to start communicating with the relevant entities with a view to gaining information about the basis for Company A’s representation that the applicant no longer wanted to proceed with the advertising sign project. However, for the reasons given in paragraph 21 above and due to the information that is already in the applicant’s possession, I consider the weight to be afforded to the administration of justice fact[25]s is low.25 I am also satisfied that there is some weight to be afforded to the public interest in enhancing the accountability of Council in relation to its processes involved in transferring advertising sign licences.[26] However, the level of information that was disclosed by Council both in the Permit Transfer Application and other located documents, has significantly discharged this factor and given the limited nature of the Third Party Details, I afford this factor low weight. The applicant has also sought to argue that disclosure of the Third Party Details would reveal background/contextual information that informed Council’s decision.[27] However, as noted above, the Third Party Details are limited to the names of other individuals and as such, do not comprise evidence considered by Council in its decision-making process on the Permit Transfer Application so as to reveal background/contextual information. Therefore, I afford this factor[28] minimal weight. The applicant has also argued that the public interest favours disclosure of the Third Party Details as they would reveal information that is incorrect or misleading.[29] The applicant’s submission that it did not consent to Company A completing the Permit Transfer Application as their authorised representative is persuasive. As discussed above at paragraph 19, the applicant has taken steps to investigate how the permit was transferred without its authority. Accordingly, to the extent that the Third Party Details record the Company A individual as the current licensee’s authorised representative, I find that disclosure could reasonably be expected to reveal that the information was incorrect and/or misleading. I only afford this factor low weight due to the limited nature of the Third Party Details. Given the applicant’s concerns about fraudulent misrepresentation[30], I have considered whether disclosure of the Third Party Details could reasonably be expected to contribute to enforcement of the criminal law.[31] However, I find that the evidence before me does not establish a reasonable expectation[32] for this factor to apply. As stated above, in the circumstances of this case, the remedy available to the applicant appears to be in the nature of a civil claim. Similarly, in considering the applicant’s submission that disclosure may reveal negligence on behalf of Council[33], I find there is no evidence before me to establish this factor.[34] However, in terms of assisting inquiry into possible deficiencies in agency conduct, establishing that public interest factor[35] requires a lower threshold. Therefore, I consider it does apply to the extent that disclosure could assist inquiry into Council’s processes relating to the transfer of advertising sign permits. However, I afford it low weight given the limited nature and minimal probative value of the Third Party Details, ie disclosure would not reveal anything about Council’s actions/processes directly. The applicant also submits that the Third Party Details comprise its personal information, thereby raising a further factor favouring disclosure.[36] I am satisfied that this factor does not apply as the applicant is a corporate entity which cannot have personal information.[37] In support of disclosure, the applicant also pointed to section 177 of the RTI Act.[38] That provision is concerned with persons providing information to OIC that they know is false or misleading, not with the content of a released document. I am not satisfied that the requisite evidence is present to enliven this offence provision. For completeness, I have considered all factors listed in schedule 4, part 2 of the RTI Act, and I can identify no other public interest considerations favouring the disclosure of the Third Party Details.[39] Factors favouring nondisclosure The RTI Act recognises that there is a public interest in protecting the right to privacy of other individuals and safeguarding the personal information of other individuals.[40] I am satisfied the Third Party Details comprise the personal information[41] of other individuals as disclosure would reveal their names and a signature. As the individuals work in the private sector, I consider it is relevant to consider whether their right to privacy would be prejudiced through disclosure. In arguing against nondisclosure, the applicant points to the declaration section of the Permit Transfer Application completed by the representative of Company A, which relevantly provides ‘I understand the information provided in and with this application may be disclosed publicly under the Right to Information Act 2009’.[42] The applicant argues that ‘signed declaration nullifies any argument that the individual’s personal information should be kept private’.[43] The concept of ‘privacy’ is not defined in the RTI Act. It can, however, essentially be viewed as the right of an individual to keep their ‘personal sphere’ free from interference from others.[44] The Third Party Details identify other individuals in connection with their place of work (in the private sector) and therefore, I consider that disclosure would interfere with those individuals’ personal spheres. However, as they have provided their names in an application to a local authority for a commercial purpose, I consider the intrusion into their private sphere does not fall at the highest end of the spectrum. In the circumstances, including consideration of the declaration signed by the Company A representative, I afford this factor moderate weight. In terms of the level of public interest harm[45] that could reasonably be expected to arise from disclosure, I have taken into account that disclosure would allow those individuals, who work in the private sector, to be contacted and questioned in relation to work they have undertaken in their employment. Given the serious nature of the (unsubstantiated) allegations raised by the applicant, I consider this would lead to a significant level of harm. However, I reduce the weight of this factor to moderate to take into account that the Company A representative was on notice, by virtue of the signed declaration, that the information in the Permit Transfer Application may be disclosed under the RTI Act. Balancing the public interest factors I accept that the applicant has suffered loss in terms of the advertising sign permit being transferred to another entity, and that disclosure would provide the applicant with the identities of the particular individuals named in the Permit Transfer Application in order to directly communicate with them about the matter. However, given the information already available to the applicant (ie names and contact details of the commercial entities involved), I do not consider the administration of justice factors can be attributed anything beyond low weight. There are also a number of other factors favouring disclosure in terms of assisting inquiry into possible deficiencies in the Permit Transfer Application process, revealing incorrect/misleading information, enhancing Council’s accountability and revealing background/contextual information. However, due to the limited nature of the Third Party Details (ie names of individuals and a signature) I afford these factors low weight. On the other hand, I am satisfied that the public interest in protecting the other individuals’ personal spheres from interference and minimising harm by safeguarding the personal information of private individuals held by government agencies, both carry moderate weight which outweighs the collective weight of the factors favouring disclosure. Therefore, I find that access to the Third Party Details may be refused under section 47(3)(b) of the RTI Act. DECISION I vary Council’s deemed decision and find that access to the Third Party Details may be refused under section 47(3)(b) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Katie ShepherdAssistant Information Commissioner Date: 13 August 2020 APPENDIX Significant procedural steps Date Event 23 December 2019 OIC received the applicant’s external review application. 2 January 2020 OIC acknowledged receipt of the external review application. OIC requested documents from Council in order to conduct a preliminary assessment. 6 January 2020 OIC received the requested documents from Council, including information about processing and timeframes. 20 January 2020 OIC advised the applicant and Council that the external review application had been accepted. OIC asked Council to provide a copy of the documents located in response to the access application. 21 January 2020 Council provided OIC with a copy of the relevant documents. 5 and 7 May 2020 OIC obtained background information and submissions from the applicant, by telephone. 8 May 2020 The applicant emailed OIC confirming the specific pages containing the information it was seeking to access. 8 June 2020 OIC provided the applicant with an update on the status of the review. 18 June 2020 OIC wrote to the applicant to convey a preliminary view that disclosure of the information in issue would, on balance, be contrary to the public interest. 10 July 2020 The applicant provided written submissions to OIC contesting the preliminary view. 10 August 2020 OIC provided Council with an update on the status of the review. Council confirmed to OIC that no extensions to the processing period were requested. [1] Application dated 27 August 2019.[2] In 62 pages described as Various DART Documents. [3] Council issued its decision on 7 November 2019. However, as Council did not ask the applicant for an extension of time to the processing period (the RTI Act ordinarily requires decisions to be made within 25 business days), Council is taken to have made a deemed decision under section 46 of the RTI Act. This is of no practical consequence in terms of the external review, as the external review application was later accepted by the Office of the Information Commissioner (OIC). However, it does mean that the internal review process conducted by Council was not valid.[4] Internal review application dated 14 November 2019 (purported).[5] Internal review decision dated 11 December 2019 (purported).[6] Thereby excluding information located by Council relating to the original (and uncontentious) permit application and approval process that assigned the relevant licence to the applicant.[7] Confirmed by the content of the documents released to the applicant by Council. Decision Notice dated 30 October 2017 at Page 2 of the released documents.[8] This content was released at page 50 of the Various DART Documents.[9] Section 25(a) of the HR Act. Ordinarily, the Information Commissioner would have regard to the human right to seek and receive information in section 21 of the HR Act. However, it does not apply in this case as the applicant is a corporation. Section 11(2) ofo the HR Act provides that only individuals have human rights.[10] Confirmed by the applicant in an email to OIC dated 8 May 2020. [11] Appearing in pages 45-47 and 49 of the Various DART Documents, including a signature of the individual representing Company A. The applicant has excluded the mobile telephone number from further consideration. [12] Section 47(3)(b) of the RTI Act. [13] Section 49(3) of the RTI Act. [14] Including those at schedule 4, part 1 of the RTI Act.[15] Applicant’s submission dated 10 July 2020 at paragraph 3.[16] Schedule 4, part 2, items 16 and 17 of the RTI Act.[17] Noting that once established, the factors must then be afforded weight according to the particular circumstances of the case and balanced against any factors favouring nondisclosure. [18] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 at [17] affirmed in 1OS3KF and the Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011).[19] Kalman and Queensland Police Service [2016] QICmr 17 (13 May 2016) at [27].[20] Applicant’s submission dated 10 July 2020 at paragraph 3.[21] Applicant’s submission dated 10 July 2020 at paragraph 5.[22] Applicant’s submission dated 10 July 2020 at paragraph 5.[23] Applicant’s submission dated 10 July 2020 at paragraph 6.[24] I also note that rule 229(1)(b) of the Uniform Civil Procedure Rules (Qld) which allows, with the Court’s leave, a person to deliver interrogatories to a person who is not a party, to help decide whether a person would be an appropriate party to a proposed proceeding. [25] Schedule 4, part 2, items 16 and 17 of the RTI Act. [26] Schedule 4, part 2, item 1 of the RTI Act[27] Applicant’s submission dated 10 July 2020 at paragraph 19.[28] Schedule 4, part 2, item 11 of the RTI Act.[29] Schedule 4, part 2, item 12 of the RTI Act.[30] Applicant’s submission dated 10 July 2020 at paragraphs 4 and 13.[31] Schedule 4, part 2, item 18 of the RTI Act.[32] When assessing whether an outcome could reasonably be expected, I must distinguish ‘between what is merely possible ... and expectations that are reasonably based’ and for which ‘real and substantial grounds exist’: B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at [154]- [160]. Other jurisdictions have similarly interpreted the phrase ‘as distinct from something that is irrational, absurd or ridiculous’: See Smolenski v Commissioner of Police, NSW Police [2015] NSWCATAD 21 at [34], citing Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [28], McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] and Attorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at [190].[33] Applicant’s submission dated 10 July 2020 at paragraph 17(b).[34] Schedule 4, part 2, item 6 of the RTI Act.[35] Schedule 4, part 2, item 5 of the RTI Act.[36] Applicant’s submission dated 10 July 2020 at paragraph 18.[37] Personal information is defined in section 12 of the Information Privacy Act 2009 (Qld) (IP Act) as ‘information ... about an individual...’ (emphasis added). Schedule 1 of the Acts Interpretation Act 1954 (Qld) defines ‘individual’ as a natural person.[38] Applicant’s submission dated 10 July 2020 at paragraph 13.[39] In the event that further relevant factors exist in favour of disclosure, I am satisfied that there is no evidence before me to suggest that any would carry sufficient weight to outweigh the weight that I have afforded to the public interest factors that favour the nondisclosure of the information in issue. [40] Schedule 4, part 3, item 3; part 4, section 6(1) of the RTI Act.[41] Schedule 5 of the RTI Act (definition of ‘Personal Information’); section 12 of the IP Act.[42] Page 47 of the Various DART Documents.[43] Applicant’s submission dated 10 July 2020 at paragraph 22.[44] Paraphrasing the Australian Law Reform Commission’s definition of the concept in Australian Law Reform Commission, For your information: Australian Privacy Law and Practice’ (Report No 108, May 2008) vol 1, 148 [1.56]. [45] Schedule 4, part 4, section 6 of the RTI Act provides that disclosure of personal information of another person could reasonably be expected to cause a public interest harm. That is, where this factor applies, harm is already established. The question for the decision maker in affording weight to that factor is what level of harm would arise in the particular circumstances of the case.

queensland

court_judgement

Queensland Information Commissioner 1993-

Webber and Toowoomba City Council; International Generating Company Ltd, Normandy Pacific Energy Limited (third parties) [1999] QICmr 9 (4 November 1999)

Webber and Toowoomba City Council; International Generating Company Ltd, Normandy Pacific Energy Limited (third parties) [1999] QICmr 9 (4 November 1999) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 99009Application L 24/98 Participants: RAY WEBBER Applicant TOOWOOMBA CITY COUNCIL Respondent INTERNATIONAL GENERATING COMPANY LTD NORMANDY PACIFIC ENERGY LIMITED Third Parties DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - documents relating to agreement by respondent agency to sell waste water to developers of a proposed power station - whether documents contain information which has a commercial value to the agency or the developers - whether disclosure could reasonably be expected to destroy or diminish the commercial value of the information - application of s.45(1)(b) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - refusal of access - whether documents contain information concerning the business, commercial or financial affairs of the agency or the developers - whether disclosure could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of the agency or the developers - whether disclosure would, on balance, be in the public interest - application of s.45(1)(c) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.45(1)(b), s.45(1)(c)(i), s.45(1)(c)(ii), s.51, s.77(1), s.78Freedom of Information Act 1982 Cth"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Brown and Minister for Administrative Services, Re (1990) 21 ALD 526Cannon and Australian Quality Egg Farms Limited, Re [1994] QICmr 9; (1994) 1 QAR 491Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re [1993] QICmr 2; (1993) 1 QAR 60 DECISION I set aside the decision under review (being the decision made on behalf of the respondent by Mr I Farr on 26 June 1998). In substitution for it, I decide that none of the matter remaining in issue (which is identified in paragraph 18 of my accompanying reasons for decision) qualifies for exemption from disclosure under the Freedom of Information Act 1992 Qld, and that the applicant therefore has a right to be given access to it under the Freedom of Information Act 1992 Qld. Date of decision: 4 November 1999.........................................................F N ALBIETZINFORMATION COMMISSIONER OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 99009Application L 24/98 Participants: RAY WEBBER Applicant TOOWOOMBA CITY COUNCIL Respondent INTERNATIONAL GENERATING COMPANY LTD NORMANDY PACIFIC ENERGY LIMITED Third Parties REASONS FOR DECISION Background1. The applicant seeks review of the respondent's decision to refuse him access to documents concerning an agreement by the Toowoomba City Council ("the Council") to sell waste water for use by the developers of a proposed power station at Millmerran. The documents were claimed to be exempt under s.45(1)(b) and s.45(1)(c) of the Freedom of Information Act 1992 Qld (the FOI Act). 2. By letter dated 26 March 1998, the applicant applied to the Council for access under the FOI Act to the following: 1. Water Supply Agreement – The report pertaining to this matter was presented to Council on 25 September 1997 by the Director of Engineering Services, Peter Taylor, and a copy of that Water Supply Agreement.2. Correspondence between Intergen and the Toowoomba City Council – between the parties from 25 September 1997 to the present date, 26 March 1998.3. A copy of any new or amended Water Supply Agreement between the parties arranged between those dates.4. Toowoomba City Council made an application to the Department of Local Government Minister, Di McCauley, relative to this matter. The approval was denied. I require copy of documents relative to the application to waive the tendering requirement and the Minister’s replying correspondence.3. The documents to which the applicant sought access relate to a proposal by International Generating Company Ltd ("Intergen") and Normandy Pacific Energy Ltd ("Normandy Pacific") to build a coal-fired power station and associated infrastructure at Millmerran in Queensland. As part of that proposal, Intergen and Normandy Pacific entered into a "Water Supply Option Agreement" with the Council, whereby if the Queensland government gave approval for the Millmerran Power Station to be built, Intergen and Normandy Pacific would have the option of buying from the Council, for the purposes of supplying water to the power station, treated waste water from the Council's sewerage treatment works.4. By letter dated 22 April 1998, Mr R G Howe of the Council advised the applicant that he had decided to give the applicant full access to certain documents falling within item 4 of his FOI access application, and partial access to a letter dated 5 December 1997 from the Council to the Honourable Di McCauley MLA (the then Minister for Local Government and Planning), which also fell within item 4 of the FOI access application, but that in respect of the balance of the documents which fell within the terms of the applicant’s FOI access application (Mr Howe did not identify any of those documents in his decision, apart from the Water Supply Option Agreement) he had decided that such documents were exempt from disclosure to the applicant under s.45(1)(b) and/or s.45(1)(c) of the FOI Act. 5. By letter dated 28 April 1998, the applicant applied for internal review of Mr Howe’s decision. He raised a number of issues in support of his contention that disclosure of the documents in issue was in the public interest. He also included a number of newspaper clippings which discussed the Millmerran project, in order to demonstrate both the public interest in the project, and the fact that certain of the basic terms of the Water Supply Option Agreement were already in the public domain. 6. Mr Ian Farr, Chief Executive Officer of the Council, conducted the internal review. By letter dated 26 June 1998, he advised the applicant that he had consulted with Intergen and Normandy Pacific regarding disclosure of the documents in issue and that both had objected to disclosure of the documents on the grounds that they were confidential and contained commercially sensitive information. Mr Farr affirmed Mr Howe’s decision that the matter in issue was exempt from disclosure under s.45(1)(b) and s.45(1)(c) of the FOI Act. On 1 August 1998, the applicant applied to me for review, under Part 5 of the FOI Act, of Mr Farr’s decision. External review process7. Copies of the matter in issue were obtained and examined. In respect of the report of the Director of Engineering Services to which the applicant had requested access, Mr Howe advised that the Director had provided his report orally to a meeting of the Council on 25 September 1997. Mr Howe provided a copy of the relevant Minutes of Meeting which, he stated, the applicant had already seen. On the basis of Mr Howe’s advice, the applicant advised that he no longer wished to pursue access to the report.8. In respect of item 2 of the applicant’s FOI access application, Mr Howe stated that he had identified only one letter falling within the terms of the applicant’s request - a letter from Intergen to the Council dated 28 January 1998. 9. Accordingly, the matter in issue which was provided to me for review consisted of the Water Supply Option Agreement dated 20 November 1997 entered into by the Council, Intergen and Normandy Pacific, Intergen’s letter to the Council dated 28 January 1998, and parts of the Council’s letter to the Honourable Di McCauley MLA dated 5 December 1997. Those parts of the letter to the Honourable Di McCauley MLA which were in issue comprised a discussion of the methodology used by the Council in negotiating a price for the sale of the waste water. 10. By letters dated 25 August 1998, the Assistant Information Commissioner advised Intergen and Normandy Pacific of my review and sought their advice as to whether or not they continued to object to disclosure of the Water Supply Option Agreement and Intergen’s letter to the Council dated 28 January 1998. The Managing Director of Intergen, Mr Chris Colbert, responded by advising that Intergen continued to object to disclosure. He further contended that the applicant’s application for review was vexatious and without substance, and that I should exercise my discretion under s.77(1) of the FOI Act to refuse to review the Council's decision. He provided no information or evidence in support of that contention.In the event that I should decide to review the Council's decision, however, Mr Colbert stated that Intergen applied to become a participant in my review, pursuant to s.78 of the FOI Act. By facsimile letter dated 8 September 1998, Mr David Lyne of Normandy Pacific responded in identical terms. 11. On 21 September 1998, I wrote to the Council, Intergen and Normandy Pacific to express my preliminary view that none of the matter in issue qualified for exemption from disclosure under the FOI Act. In the event that they did not accept my preliminary view in that regard, I invited each of the parties to lodge written submissions and/or evidence in support of their respective claims for exemption. I further advised Intergen and Normandy Pacific that there was no evidence before me to suggest that the applicant’s application for review was frivolous, vexatious, misconceived or lacking in substance, such that I should exercise my discretion to refuse to conduct this review under s.77(1) of the FOI Act. 12. The Council lodged a brief written submission dated 14 October 1999. Intergen’s solicitors, Messrs Freehill, Hollingdale & Page, provided written submissions on 6 November 1998. They advised that Intergen was prepared to withdraw its claim for exemption in respect of its letter to the Council dated 28 January 1998, but that it continued to claim that the whole of the Water Supply Option Agreement was exempt from disclosure. Having made that blanket claim, Intergen’s solicitors went on to identify particular words and clauses contained in the Agreement which, it contended, must be omitted "in order to prevent irreparable commercial harm to our client". Mr Lyne of Normandy Pacific initially stated that he intended to lodge written submissions in support of his company’s case, but later confirmed that Normandy Pacific would not, in fact, lodge any material on its own account, but would adopt the same position taken by Intergen and would rely on the arguments presented by Intergen. 13. The Assistant Information Commissioner informed the Council of Intergen’s position and asked the Council to advise whether or not it was prepared to withdraw its claim for exemption in respect of Intergen’s letter to the Council (with the exception of a reference in that letter to the Council’s bank account details, which reference I considered qualified forexemption under the FOI Act). Mr Howe responded by advising that the Council would, in light of Intergen’s position, withdraw its claim for exemption in respect of the letter. The Assistant Information Commissioner therefore authorised disclosure of the letter to the applicant (with the exception of the reference to the Council’s bank account details) and that letter is no longer in issue in this review (the applicant having confirmed that he did not wish to pursue access to the bank account details). The Council also advised that it was not prepared to review its claim for exemption in relation to those parts of the letter dated 5 December 1997 to the Honourable Di McCauley MLA which were in issue, until disclosure or otherwise of the Water Supply Option Agreement "had been finally determined". It contended that the matter in issue in the letter was closely associated with the matter contained in the Water Supply Option Agreement and that they should therefore be considered together.14. Intergen’s solicitors were then contacted in order to discuss their client’s position regarding the Water Supply Option Agreement. It was my view that it was not realistic for them to continue to argue that the whole Agreement was exempt from disclosure, while at the same time identifying only parts of the Agreement which they contended satisfied the requirements for exemption under s.45(1)(b) and/or s.45(1)(c) of the FOI Act. Intergen’s solicitors were therefore advised that a copy of the Agreement, marked up to identify the particular information which Intergen claimed was exempt, would be forwarded to the Council and the Council would be requested to advise whether it would be prepared to withdraw its claim for exemption in respect of the remainder of the Agreement.15. The Council advised that it did not object to disclosure of the remainder of the Agreement.Intergen confirmed that it was prepared formally to withdraw its claim for exemption in respect of those parts of the Agreement, and accordingly, the Council was authorised to give the applicant partial access to the Agreement. The applicant was asked to advise whether or not he wished to continue to pursue access to those parts of the Agreement which remained in issue.16. By letter dated 29 January 1999, the applicant advised that he wished to continue to pursue access to certain parts of the Water Supply Option Agreement. He enclosed a copy of the Agreement (with deletions) to which he had been given access, and on which he had identified those segments of (deleted) information in respect of which he wished to continue to pursue access.17. At this stage of the review, it was drawn to my attention by the Council that the Water Supply Option Agreement which was in issue had in fact been superseded by a new agreement for the supply of waste water which had been entered into by Intergen, Normandy Pacific and the Council. Despite that fact, the Council and Intergen still would not withdraw their claims for exemption in respect of the Agreement, nor would the applicant withdraw his FOI access application. The new agreement is not in issue in this review as it does not fall within the terms of item 3 of the applicant's FOI access application. 18. On 8 February 1999, the Deputy Information Commissioner wrote to both the Council, and Intergen's solicitors, to advise them of the particular parts of the Agreement to which the applicant still wished to pursue access, and which (together with those parts of the letter dated 5 December 1997 from the Council to the Honourable Di McCauley MLA which the Council decided were exempt from disclosure) comprise the matter remaining in issue in this review. The Deputy Information Commissioner also advised both Intergen’s solicitors and the Council of his preliminary view that those parts of the Agreement which remainedin issue did not qualify for exemption under the FOI Act. The Council responded by advising that its objection to the release of the Agreement (and to the relevant parts of the Council’s letter to the Honourable Di McCauley MLA) "was based on Intergen’s claim". It further advised that "if, and to the extent that, Intergen agree to the release of further details, Council will concur".19. I take this opportunity to observe that the Council’s position as stated above does not accord with its legal obligations as an agency subject to the application of the FOI Act. An agency which receives a valid access application under the FOI Act has a legal duty to examine the matter which falls within the terms of the access application, and to decide for itself whether or not that matter satisfies the requirements of one or more of the exemption provisions contained in Part 3, Division 2 of the FOI Act. While an agency has an obligation to consult, under s.51 of the FOI Act, with a party to whom disclosure of the matter in issue may be of substantial concern, an objection to disclosure by the consulted party should not, of itself, be the basis of a claim for exemption by the agency. It is clear that the agency must take account of any such objection by a party consulted under s.51 of the FOI Act, and of the grounds which are raised in support of it, but the agency must decide for itself, taking account of all relevant information available to it, whether or not the matter in issue satisfies the requirements for exemption under one or more of the exemption provisions contained in the FOI Act. If, contrary to a third party’s objection, an agency decides that matter to which access has been requested is not exempt matter under the FOI Act, that third party has certain rights of review available to it which are set out in the FOI Act. 20. On 24 March 1999, Intergen’s solicitors provided further written submissions in support of Intergen’s claims for exemption. Mr Colbert also provided a statutory declaration in which he explained the background to the Millmerran project and stated that there were five other power station projects either underway, or in the development stage, in southern Queensland. He contended that those other projects were essentially in competition with his company’s proposal and that, unless and until the Millmerran project received final approval, disclosure of the matter in issue would cause Intergen commercial harm.21. On the basis of Intergen’s submission that the commercial sensitivity of the matter in issue would continue until the Millmerran project was approved by the Queensland government, the applicant agreed to place his external review application in abeyance until a final decision regarding the project was made. (Such a decision was expected, at that stage, by 30 June 1999.) Intergen’s solicitors conceded that it was likely that their client’s objection to disclosure of the matter in issue would fall away if the project were approved, and their advice in that regard was confirmed by the Deputy Information Commissioner in his letter to them dated 11 June 1999. However, despite that concession, when Intergen’s solicitors finally confirmed on 27 August 1999 that the Millmerran project had received final approval from the Queensland government, they also advised that their client did not agree to withdraw its objection to disclosure of the matter in issue.22. Upon being advised of Intergen’s position and being provided with copies of Intergen’s submissions in support of its case, the applicant advised that he did not wish to lodge submissions or evidence in reply, but that he simply required me to proceed to determine whether or not the matter in issue qualified for exemption under the FOI Act.Application of relevant exemption provisions23. Sections 45(1)(b) and (c) of the FOI Act provide: 45.(1) Matter is exempt matter if-- ... (b) its disclosure-- (i) would disclose information (other than trade secrets) that has a commercial value to an agency or another person; and (ii) could reasonably be expected to destroy or diminish the commercial value of the information; or (c) its disclosure-- (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government; unless its disclosure would, on balance, be in the public interest.24. In my decision in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491, I discussed the relationship between s.45(1)(b) and s.45(1)(c) of the FOI Act (at p.516, paragraph 66):Just as the words of s.45(1)(b) exclude trade secrets from its sphere of operation, the s.45(1)(c) exemption is so worded (see paragraph 25 above) that it applies only to information other than trade secrets or information mentioned in s.45(1)(b). This means that particular information cannot ordinarily be exempt under more than one of the s.45(1)(a), s.45(1)(b) or s.45(1)(c) exemptions. (However, an agency or other participant may wish to argue on a review under Part 5 of the FOI Act that information is exempt under one of those provisions, and put arguments in the alternative as to which is applicable.) Whereas both s.45(1)(a) and (b) require that the information in issue must have an intrinsic commercial value to be eligible for exemption, information need not be valuable in itself to qualify for exemption under s.45(1)(c). Thus, where information about a business has no commercial value in itself, but would, if disclosed, damage that business, s.45(1)(c) is the only one of the exemptions in s.45(1) that might be applicable. For information to be exempt under s.45(1)(c) it must satisfy the cumulative requirements of s.45(1)(c)(i) and s.45(1)(c)(ii), and it must then survive the application of the public interest balancing test incorporated within s.45(1)(c).25. I considered the application of s.45(1) in some detail in Re Cannon. I stated that s.45(1) is the primary vehicle for reconciling the main objects of the FOI Act (i.e., promoting open and accountable government administration, and fostering informed public participation in the processes of government) with legitimate concerns for the protection from disclosure of commercially sensitive information. Its basic object is to provide a means whereby the general right of access to documents in the possession or control of government agencies can be prevented from causing unwarranted commercial disadvantage to:(i) persons carrying on commercial activity who supply information to government, or about whom government collects information; or(ii) agencies which carry on commercial activities.26. Both s.45(1)(b) and (c) include the phrase "could reasonably be expected to". In my reasons for decision in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at pp.339-341 (paragraphs 154-160), I analysed the meaning of the phrase "could reasonably be expected to", by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth. In particular, I said in Re "B" (at pp.340-341, paragraph 160):The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Dictionary, 2nd ed); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993).Section 45(1)(b)Commercial Value27. I discussed the application of s.45(1)(b) at pp.511-516, paragraphs 50-65, of Re Cannon. The first requirement for the application of s.45(1)(b) is that the matter in issue must comprise information which has a commercial value to an agency or another person. There are two meanings of the phrase "commercial value" which are appropriate to the context in which the phrase is used in s.45(1)(b). The first and primary meaning is that information has a commercial value to an agency or person if it is valuable for the purposes of carrying on the commercial activity in which that agency or other person is engaged. The information may be valuable because it is important or essential to the profitability or viability of a continuing business operation, or a pending "one off" commercial transaction.The second meaning is that information has a commercial value to an agency or person if a genuine arms-length buyer is prepared to pay to obtain that information from that agency or person, such that the market value of the information would be destroyed or diminished if it could be obtained under the FOI Act from a government agency which has possession of it.28. The information in question must have a commercial value to an agency or another person at the time that an FOI decision-maker comes to apply s.45(1)(b), i.e., information which is aged or out-of-date has no remaining commercial value (see Re Brown and Minister for Administrative Services (1990) 21 ALD 526, at p.533, paragraph 22). 29. I remain doubtful that any of the matter in issue could ever have been said to have a commercial value within the meaning of that phrase as discussed above. In my letter dated 21 September 1998, I expressed the preliminary view that the only matter which I considered could reasonably be argued to have commercial sensitivity was the reference in the Water Supply Option Agreement to the price per megalitre which the Council was prepared to accept for the sale of it waste water, but that any commercial sensitivity that may have attached to that information appeared to have been negated by media reports which disclosed the income which the Council would receive as a result of the Water Supply Option Agreement (thereby allowing any interested member of the public to calculate an accurate estimate of the price). In any event, now that the Water Supply Option Agreement which is in issue has been superseded by a new agreement, and the Millmerran Power Project has been approved (with Intergen’s and Normandy Pacific’s rights in that respect secured), I am not satisfied that any of the matter in issue has a current commercial value, which could reasonably be expected to be diminished by its disclosure.30. In its submission dated 23 March 1999, Intergen’s solicitors accepted that any commercial sensitivity in the matter in issue would pass once approval of the Millmerran project was granted. They stated:As we have noted above, the information should not be prevented from disclosure for all time.The information however must be kept commercially confidential until such time as our client succeeds in its development of the power station.31. I find that none of the matter in issue qualifies for exemption under s.45(1)(b) of the FOI Act.Section 45(1)(c)32. The correct approach to the interpretation and application of s.45(1)(c) is explained in Re Cannon at pp.516-523 (paragraphs 66-88). In summary, matter will be exempt under s.45(1)(c) of the FOI Act if:(a) the matter in issue is properly to be characterised as information concerning the business, professional, commercial or financial affairs of an agency or another person (s.45(1)(c)(i)); and(b) disclosure of the matter in issue could reasonably be expected to have either of the prejudicial effects contemplated by s.45(1)(c)(ii), namely: (i) an adverse effect on the business, professional, commercial or financial affairs of the agency or other person, which the information in issue concerns; or (ii) prejudice to the future supply of such information to government;unless disclosure of the matter in issue would, on balance, be in the public interest.Business, commercial or financial affairs33. I decided in Re Cannon at p.516, paragraph 67, that the word "concerning", as it is used in s.45(1)(c), means "about, regarding". It is not sufficient that the matter in issue has some connection with the business, commercial or financial affairs of Intergen, Normandy Pacific or the Council. The matter in issue must itself comprise information about those business, commercial or financial affairs, in order to satisfy this requirement. 34. I am not satisfied that all of the matter in issue directly concerns the business, commercial, or financial affairs of Intergen, Normandy Pacific or the Council. For example, parts of the letter dated 5 December 1997 from the Council to the Honourable Di McCauley MLA which are in issue, refer to studies into waste water recycling. I do not consider that such information can properly be characterised as information concerning the Council’s business, commercial or financial affairs. However, given the findings which I have reached below, it is not necessary for me to identify specifically the matter in issue which I consider does and does not satisfy this first requirement for exemption under s.45(1)(c) of the FOI Act. Adverse effect 35. There has (in my view, correctly) been no suggestion that disclosure of any part of the matter in issue could reasonably be expected to prejudice the future supply of like information to government, so my comments on the second requirement to establish exemption under s.45(1)(c) relate to the first limb only of s.45(1)(c)(ii).36. The common link between the words "business, professional, commercial or financial" in s.45(1)(c) is to activities carried on for the purpose of generating income or profits. Thus, an adverse effect under s.45(1)(c) will almost invariably be pecuniary in nature, whether directly or indirectly (see p.520, paragraphs 81-82, of Re Cannon). At p.521, paragraph 84, of Re Cannon, I stated: 84. In most instances, the question of whether disclosure of information could reasonably be expected to have an adverse effect will turn on whether the information is capable of causing competitive harm to the relevant agency, corporation or person. Since the effects of disclosure of information under the FOI Act are, with few exceptions, to be evaluated as if disclosure were being made to any person, it is convenient to adopt the yardstick of evaluating the effects of disclosure to a competitor of the agency which, or person whom, the information in issue concerns. (This yardstick is also appropriate when considering the application of s.45(1)(b).) A relevant factor in this regard would be whether the agency or other person enjoys a monopoly position for the supply of particular goods or services in the relevant market (in which case it may be difficult to show that an adverse effect on the relevant business, commercial or financial affairs could reasonably be expected), or whether it operates in a commercially competitive environment in the relevant market.37. Intergen’s arguments with respect to this limb of s.45(1)(c) were again based on the fact that the Millmerran project had not been approved, and that there were at least five other projects in southern Queensland competing with Millmerran for government approval. Intergen argued that disclosure of the matter in issue would have an adverse effect on its business,financial and commercial affairs as it would enable its competitors to calculate exactly how much water it had been able to negotiate access to, the quality thereof, and at what price. In his statutory declaration dated 23 March 1999, Mr Colbert went on to state:The potential harm will continue at least until such time as our project has achieved financial close and is effectively a "done deal".38. Again, Intergen itself appeared to accept that its submissions in support of exemption of the matter in issue were applicable only until such time as the Millmerran project received approval. Even before approval of the project had been granted, I was doubtful that disclosure of the matter in issue could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of either Intergen, Normandy Pacific or the Council, particularly given that the Water Supply Option Agreement had been executed and the parties’ rights in that respect secured, according to the terms of the Agreement.Furthermore, I was of the view that the Agreement was so site-specific and job-specific as to have no general relevance to any future tenders for the construction of power projects in which Intergen might be involved. I advised the parties that I had difficulty in seeing how a competitor could extract anything of value from the matter in issue which it could then use to Intergen’s disadvantage in a future tendering process.39. In any event, given that the Millmerran project has now been approved, I am unable to identify any adverse effect which disclosure of the matter in issue could reasonably be expected to have on the business, commercial or financial affairs of Intergen, Normandy Pacific or the Council. 40. I find that none of the matter in issue satisfies the test for exemption posed by s.45(1)(c)(ii) of the FOI Act, and hence that the matter in issue does not qualify for exemption under s.45(1)(c) of the FOI Act.Public interest balancing test41. If I had been persuaded that some or all of the matter in issue satisfied the requirements of s.45(1)(c)(i) and (ii), so as to establish a prima facie public interest consideration favouring non-disclosure, it would then have been necessary for me to consider whether there were public interest considerations favouring disclosure of the matter in issue which, on balance, outweighed the public interest in protecting the business, commercial or financial affairs of Intergen, Normandy Pacific or the Council from the apprehended adverse effects of disclosure. Since I have found that the second requirement for exemption under s.45(1)(c) is not satisfied in respect of the matter in issue, it is not strictly necessary for me to discuss the public interest balancing test. However, I will make some brief comments on the issue.42. I consider that there is a public interest in enhancing the accountability of the Council in respect of its decision to enter into the Water Supply Option Agreement on behalf of (in effect) its ratepayers. Government agencies perform their functions on behalf of members of the public, and there is a public interest in the community being able to scrutinise the actions taken on its behalf. In Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60, I said (at p.73; paragraph 37): 37. The information which public officials, both elected and appointed, acquire or generate in office is not acquired or generated for their own benefit, but for purposes related to the legitimate discharge of their duties of office, and ultimately for the service of the public for whosebenefit the institutions of government exist, and who ultimately (through one kind of impost or another) fund the institutions of government and the salaries of officials.43. The applicant submitted as follows in respect of the information in issue concerning the contract price per megalitre for waste water:The cost of the water being sold by [the Council] is a figure that must be revealed to the ratepayers. It has been publicly stated by the Mayor and should not be covered up.44. I consider that the applicant has raised a valid point. The Council has entered into an agreement to sell what is effectively a community asset - waste water. In my view, there is a strong public interest in disclosing to the community the price obtained for that asset, how that price was reached, and under what terms the water will be supplied, so as to allow the community to assess whether the agreement that was reached on its behalf was fair and reasonable in all the circumstances.45. In discussing the public interest balancing test in its submission dated 23 March 1999, Intergen’s solicitors stated: Until such time as our client in fact achieves financial close and commences construction of the power station, the ratepayers’ water will not in fact be being used and as such there is merely an agreement reached in respect of what may happen to the water when and if our client succeeds with the Millmerran proposal.We submit that there is a limited public interest in the community being able to scrutinise the actions of the Council in respect of such an agreement which may or may not ever take effect.In terms of the public interest balancing test, we would have thought it is also in the public interest to protect the information from disclosure until such time as its disclosure will not harm the public interest by ensuring that the Toowoomba City Council receives a substantial sum of money for the use of the water....If the water was in fact being utilised by our client at this point in time, or there was certainty that the water would in fact actually be being used in the future, then the Applicant’s argument may have some merit.However, until such time as our client can conclude a deal to proceed with the power station, the water of the Toowoomba City Council will continue to be dealt with in a manner unrelated to the terms of the Agreement and without any practical relevance to the Agreement.46. This argument is somewhat disingenuous in so far as it suggests that ratepayers have no cause for concern about something that may or may not happen. If a Council will be bound to honour an Agreement, upon the occurrence of a certain event, surely there is a public interest in public scrutiny of the obligations that will apply if and when that event occurs.47. I note that the submissions made on behalf of Intergen at least conceded the public interest in public scrutiny of the Agreement, once it was clear that the Agreement would become operative.48. If the Council or Intergen had been able to establish that the requirements of s.45(1)(c)(i) and (ii) of the FOI Act were satisfied in respect of the matter in issue, I consider that there would have been strong public interest considerations favouring disclosure of the matter in issue, that it would have been necessary to take into account in applying the public interest balancing test incorporated in s.45(1)(c).Conclusion49. I set aside the decision under review. In substitution for it, I decide that none of the matter remaining in issue qualifies for exemption from disclosure under the FOI Act, and that the applicant therefore has a right to be given access to it under the FOI Act..........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

AQU1L6 and the Crime and Misconduct Commission [2011] QICmr 52; 7G5BAL (Third Party) [2011] QICmr 40 (19 October 2011)

AQU1L6 and the Crime and Misconduct Commission [2011] QICmr 52; 7G5BAL (Third Party) [2011] QICmr 40 (19 October 2011) Last Updated: 1 February 2012 Decision and Reasons for Decision Application Number: 310289 Applicant: AQU1L6  Respondent: Crime and Misconduct Commission Third Party: 7G5BAL Decision Date: 19 October 2011 Catchwords: INFORMATION PRIVACY ACT – section 67(1) of the Information Privacy Act 2009 (Qld) – application for access to a workplace investigation report by the complainant – grounds on which access may be refused –– an agency may refuse access to a document of the agency in the same way and to the same extent the agency could refuse access to the document under section 47 of the Right to Information Act 2009 (Qld) were the document to be the subject of an access application under that Act RIGHT TO INFORMATION ACT – section 47(3)(b) of the Right to information Act 2009 (Qld) – grounds on which access may be refused – whether the relevant parts of the investigation report comprise information the disclosure of which would, on balance, be contrary to the public interest under section 49 of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary The access applicant[1] applied to the Crime and Misconduct Commission (CMC) under the Information Privacy Act 2009 (Qld) (IP Act) seeking access to a range of information relating to their former employment including an investigation report dealing with a number of complaints made about other CMC employees (Investigation Report). The CMC notified several third parties about the possible disclosure of the Investigation Report and took steps to obtain their views. A number of third parties objected to disclosure of the Investigation Report. The CMC decided to disclose the Investigation Report to the access applicant subject to the deletion of a small amount of personal information. A number of third parties applied for internal review of the CMC’s decision. On internal review, the CMC refused access to a small amount of additional information in the Investigation Report. One of the third parties applied to the Office of the Information Commissioner (OIC) for external review of the CMC’s internal review decision. For the reasons set out below, I set aside the CMC’s decision and find that disclosure of some information in the Investigation Report would, on balance, be contrary to the public interest under section 49 of the Right to Information Act 2009 (Qld) (RTI Act). Background Significant procedural steps relating to the application are set out in the appendix to this decision. Reviewable decision The decision under review is the CMC’s internal review decision dated 10 June 2010. Evidence considered In making this decision, I have considered the following: the access application to the CMC correspondence between the access applicant and the CMC correspondence between the relevant third parties and the CMC the CMC’s initial decision and internal review decision the external review application to OIC file notes of telephone conversations between the access applicant and a staff member of OIC the access applicant’s submissions to OIC correspondence between the relevant third parties and OIC the Investigation Report relevant provisions of the IP Act and RTI Act; and previous decisions of the Information Commissioner identified in this decision. Issue for determination A number of issues have been informally resolved during the course of this external review and I note that the Investigation Report has been partially disclosed to the access applicant. The only issue remaining for determination is whether access can be granted to the remainder of the Investigation Report. Information in issue The remaining information comprises the following types of information set out in the Investigation Report (Information in Issue): information which would identify the individuals against whom allegations were made information provided in the course of the investigation by third parties opinions or reports about how well other officers perform their duties; and recommendations about action to be taken in response to the allegations. Access applicant’s submissions The access applicant makes submissions including that:[2] whistleblower status is a relevant factor which should be taken into account a complainant is entitled to know if their claims have been substantiated the investigator was not independent[3] the investigation was not conducted according to the principles of natural justice; and disclosure of the Investigation Report would enable the public, including their elected representatives, to scrutinise and ensure that the CMC is accountable for the investigation process and outcome. CMC’s submissions The CMC agrees that disclosure of the Information in Issue would, on balance, be contrary to the public interest. Would disclosure of the Information in Issue be contrary to the public interest? The answer to this question is 'no' for the reasons set out below. Relevant law Section 67(1) of the IP Act provides that access to a document may be refused on the same basis upon which access to a document could be refused under section 47 of the RTI Act. Relevantly, sections 47(3)(b) and 49 of the RTI Act provide a ground for refusal of access where disclosure of information would, on balance, be contrary to public interest. The term ‘public interest’ is not defined in the RTI Act. Instead the RTI Act recognises that many factors can be relevant to the concept of the public interest. The public interest refers to considerations affecting the good order and functioning of the community and governmental affairs for the well-being of citizens. The notion of the public interest is usually treated as separate from matters of purely private or personal interest. Usually, a public interest consideration is one that is available to all members or a substantial segment of the community should they choose to access it. Although, in some circumstances public interest considerations can apply for the benefit of particular individuals. To decide whether disclosure of the Information in Issue would be contrary to the public interest, I must:[4] identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information, on balance, would be contrary to the public interest. Findings In the circumstances, the access applicant’s submissions regarding whistleblower status do not give rise to a relevant public interest factor favouring disclosure. Accordingly, I have not taken this factor into account in making this decision. No other irrelevant factors arise on the information before me. After carefully considering all of the information before me, I am satisfied that the public interest factors favouring disclosure include that disclosure of the Information in Issue could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability;[5] and contribute to the administration of justice (both generally and for a person), including procedural fairness.[6] After carefully considering all of the information before me, I am satisfied that the public interest factors favouring nondisclosure include that disclosure of the Information in Issue could reasonably be expected to: cause a public interest harm if disclosure would disclose personal information of a person, whether living or dead[7] prejudice the protection of an individual’s right to privacy;[8] and prejudice an agency’s ability to obtain confidential information.[9] Balancing the public interest - accountability and procedural fairness I accept in a general sense that there are public interest factors favouring the disclosure of information about the way in which an investigation is conducted, including the evidence relied upon and the conclusions reached. These factors are consistent with ensuring the accountability of agencies expending public funds, monitoring the performance of public servants and ensuring that decisions are fair and based on sound reasoning.[10] In my view the CMC is accountable for the expenditure of public funds in initiating the relevant investigation and for its process and outcomes. I also accept that disclosure of certain information about the investigation may further the CMC’s accountability in this regard. The RTI Act also gives rise to a public interest factor favouring disclosure in circumstances where disclosure could reasonably be expected to contribute to the administration of justice generally, including procedural fairness.[11] In the context of this review, where the access applicant has made complaints against other officers, there is a public interest in providing the complainant with an adequate explanation of the outcomes of the investigation and the basis for those outcomes. In this respect, I am mindful that the CMC has: corresponded directly with the access applicant about the investigation; and provided the access applicant with a partial copy of the Investigation Report. In summary, the access applicant has been provided with: information about how the investigation was conducted (including process issues) copies of correspondence to and from the access applicant information directly related to the access applicant’s performance general information and recommendations about the effectiveness of a CMC work unit a summary of the Commissioner’s determinations the Investigation Report findings including whether each allegation was substantiated; and information about the action taken in response to the access applicant’s complaints. Taking into account the matters set out above, I am satisfied that: disclosure of the Information in Issue could not reasonably be expected to enhance the CMC’s accountability or contribute to the administration of justice (including procedural fairness); and these factors favouring disclosure should be afforded little weight in the circumstances. Balancing the public interest - personal information and privacy The RTI Act gives rise to a factor favouring disclosure where the information is the applicant’s personal information. Personal information is defined as information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.[12] However, the RTI Act also recognises that: disclosure of information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person, whether living or dead;[13] and a factor favouring nondisclosure will arise in circumstances where disclosure of information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[14] Given that the Investigation Report deals with complaints which arose in a workplace context, it is necessary to distinguish between the routine personal work information and non routine personal work information of relevant individuals. In this respect, I am mindful that information which is not wholly related to the routine day to day work activities of a public service officer is considered non routine personal work information, including: complaints made by or about a public service officer opinions about another public service officer; and opinions or reports about how well an officer performs their duties. After carefully considering the content of the Information in Issue, I am satisfied that it comprises the non routine personal work information of various individuals. I also acknowledge that parts of the Information in Issue comprise the access applicant’s non routine personal work information. However, this information is interwoven with that of others in such a way that it cannot be separated and is properly characterised as ‘mutual personal information’. As this information cannot be separated, the access applicant’s information cannot be released without also releasing the non routine personal work information of others. Given the sensitive content of the Information in Issue,[15] it is reasonable to expect that its disclosure would cause significant public interest harm and represent a significant incursion into the privacy of relevant individuals. Taking into account the information which has already been provided to the access applicant and the matters set out above, I am satisfied that: the release of the Information in Issue would not advance the public interest in any significant way; and the factors favouring nondisclosure (including the public interest in preventing prejudice to the privacy of relevant individuals) should be afforded significant weight in the circumstances. Balancing the public interest - confidential information Any undertakings to treat information confidentially or the presence of circumstances giving rise to an implication of confidence will affect the balancing of the public interest. The relevant public interest factor favouring nondisclosure also requires that the decision-maker be satisfied that:[16] the information was of a confidential nature it was communicated in confidence; and disclosure of the information could reasonably be expected to prejudice the future supply of information of this type. In this respect, three relevant third parties advise that the information they provided during the course of the investigation was given on a confidential basis. The Investigation Report also shows that the individuals involved in the investigation were given an assurance of confidentiality by the investigator. On this basis, I am satisfied that there is sufficient evidence to demonstrate that the Information in Issue comprises information of a confidential nature which was communicated in confidence. The sensitivity of the issues raised by the relevant allegations lends weight to the view that release of the Information in Issue could reasonably be expected to prejudice the future supply of information of this type, in that, if this type of information were routinely disclosed, individuals may be far less willing to be forthcoming in future investigations of this nature. On this basis, I am satisfied that disclosure of the Information in Issue could reasonably be expected to prejudice the future supply of information of this type. On the basis of the matters set out above, I am satisfied that this public interest factor favouring nondisclosure should be afforded significant weight in the circumstances. Having carefully considered all of the relevant information before me and on the basis of the matters set out above, I am satisfied in the circumstances that: the public interest factors favouring nondisclosure of the Information in Issue outweigh those favouring disclosure; and on balance, disclosure of the Information in Issue is contrary to the public interest under section 49 of the RTI Act. DECISION For the reasons set out above, I set aside the CMC’s decision and find that: disclosure of the Information in Issue would, on balance, be contrary to the public interest; and access to the Information in Issue should be refused under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________ F Henry Assistant Information Commissioner Date: 19 October 2011 APPENDIX - SIGNIFICANT PROCEDURAL STEPS Date Event 2 March 2010 The access applicant applies to the CMC for a copy of a number of documents including the Investigation Report. 17 March 2010 The CMC takes steps to obtain the views of a number of third parties about possible disclosure of the Investigation Report. 31 March 2010 One of the third parties (the external review applicant) notifies the CMC that they object to disclosure of the Investigation Report and provides submissions in support of their case. 20 April 2010 The CMC notifies the access applicant of its original decision on the requested documents and decides to disclose the Investigation Report in part. 21 April 2010 The CMC notifies the external review applicant of its original decision in relation to the Investigation Report. 17 May 2010 The external review applicant applies to the CMC for internal review of the original decision. 10 June 2010 The CMC notifies the access applicant and the external review applicant of its internal review decision and decides to vary the original decision by refusing access to additional information from the Investigation Report. 8 July 2010 The external review applicant applies to OIC for external review of the internal review decision. 19 July 2010 OIC notifies the CMC and the external review applicant that the external review application has been accepted and requests a copy of the Investigation Report from the CMC. 26 July 2010 The CMC provides OIC with a copy of the Investigation Report. 16 November 2010 The access applicant confirms that access is sought to the Investigation Report in its entirety and applies to be a participant in the external review. 7 December 2010 The CMC provides OIC with further information relevant to the external review. 8 June 2011 OIC notifies two relevant third parties about the possible release of parts of the Investigation Report and seeks their views on the possible disclosure of the information. OIC conveys a preliminary view to the external review applicant, access applicant and the CMC in relation to the relevant parts of the Investigation Report and invites these participants to provide submissions in response to the preliminary view by 21 June 2011. 10 June 2011 The CMC accepts the preliminary view. 16 June 2011 A relevant third party advises OIC that they do not object to disclosure of the relevant parts of the Investigation Report. 17 June 2011 A relevant third party advises OIC that they do not object to disclosure of the relevant parts of the Investigation Report. 20 June 2011 The access applicant notifies OIC by telephone that the preliminary view is not accepted and requests an extension of time to provide submissions. 20 June 2011 OIC agrees to an extension of time and requests any submissions from the access applicant by 29 June 2011. 25 June 2011 The access applicant provides submissions in support of their case. 30 June 2011 OIC asks the CMC to forward a copy of the Investigation Report to the access applicant redacted in accordance with OIC’s preliminary view. [1] The access applicant is the third party in this external review. [2] Some of the access applicant’s submissions are highly sensitive in nature and cannot be set out in any detail in these reasons for decision.[3] Please note that the OIC’s jurisdiction does not extend to investigating and assessing the independence of an investigator. [4] Section 49(3) of the RTI Act. [5] Schedule 4, part 2, item 1 of the RTI Act.[6] Schedule 4, part 2, items 16 and 17 of the RTI Act.[7] Schedule 4, part 4, item 6 of the RTI Act. [8] Schedule 4, part 3, item 3 of the RTI Act. [9] Schedule 4, part 4, item 8(1) of the RTI Act. See also schedule 4, part 3, item 16 of the RTI Act. [10] Pope and Queensland Health [1994] QICmr 16; (1994) 1 QAR 616 at paragraph 96. [11] Schedule 4, part 2, items 16 and 17 of the RTI Act. See also Godwin and Queensland Police Service [1997] QICmr 11; (1998) 4 QAR 70 at paragraph 52; Villanueva and Queensland Nursing Council and Others (2000) 5 QAR 363 at paragraphs 93, 137 and 141; Daw and Queensland Rail (Unreported, Queensland Information Commissioner, 24 November 2010) at paragraph 24 and Jackson and Queensland Health (Unreported, Queensland Information Commissioner, 10 February 2010) at paragraphs 42 and 47.[12] Section 12 of the IP Act. [13] Schedule 4, part 4, item 6 of the RTI Act. [14] Schedule 4, part 3, item 3 of the RTI Act. [15] Which relates to complaints made by the access applicant about others.[16] Schedule 4, part 4, item 8(1) of the RTI Act. See also schedule 4, part 3, item 16 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Criminal Justice Commission and Director of Public Prosecutions [1996] QICmr 12; (1996) 3 QAR 299 (28 June 1996)

Criminal Justice Commission and Director of Public Prosecutions [1996] QICmr 12; (1996) 3 QAR 299 (28 June 1996) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96012Application S 74/95 Participants: CRIMINAL JUSTICE COMMISSION Applicant DIRECTOR OF PUBLIC PROSECUTIONS Respondent GORDON LYLE HARRIS Third Party DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - 'reverse FOI' application - document in issue comprising a covering note and attached document forwarded for the purposes of an investigation- whether the document in issue contains any matter falling within the terms of s.41(1)(a) of the Freedom of Information Act 1992 Qld - whether the document in issue comprises information of a confidential nature communicated in confidence - whether s.132 of the Criminal Justice Act 1989 Qld is relevant to this issue - whether any continuing claim to confidentiality has been negated by subsequent events (a public hearing in respect of the investigation) - whether disclosure of the document in issue could reasonably be expected to prejudice the future supply of such information - application of s.46(1)(b) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - 'reverse FOI' application - document in issue comprising a draft public statement for consideration by the Chairman of the applicant - a public statement with minor variations from the draft subsequently released by the Chairman of the applicant - draft public statement comprises matter of a kind mentioned in s.41(1)(a) of the Freedom of Information Act 1992 Qld - whether disclosure of the draft public statement would be contrary to the public interest - application of s.41(1) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.5(1)(a), s.5(1)(b), s.16, s.41(1), s.41(1)(a), s.46(1)(b), s.48, s.78Criminal Justice Act 1989 Qld s.132"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re [1993] QICmr 2; (1993) 1 QAR 60Trustees of the De La Salle Brothers and Queensland Corrective Services Commission, Re (Information Commissioner Qld, Decision No. 96004, 4 April 1996, unreported) DECISION I affirm the decision under review (being the internal review decision made on behalf of the respondent by Mr L Parker on 10 March 1995).Date of decision: 28 June 1996............................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background 1Relevant provisions of the FOI Act 2Document 5 3 Application of s.41(1) to document 5 3 Application of s.46(1)(b) to document 5 5Document 21 7Conclusion 15 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96012Application S 74/95 Participants: CRIMINAL JUSTICE COMMISSION Applicant DIRECTOR OF PUBLIC PROSECUTIONS Respondent GORDON LYLE HARRIS Third Party REASONS FOR DECISION Background1. This is a 'reverse FOI' application by the Criminal Justice Commission (the CJC) which objects to the respondent’s decision to grant Gordon Lyle Harris access under the Freedom of Information Act 1992 Qld (the FOI Act) to two documents held by the respondent. The documents have been numbered for identification purposes, in the decision under review, as document 5 and document 21. Document 5 was forwarded by a person (referred to in these reasons for decision as Person A, since the person's identity is part of the information claimed by the CJC to be exempt matter) to the Queensland Police Service (the QPS), in connection with a complaint made to the CJC against Mr Harris. Document 21 is a draft public statement, dated 15 March 1991, which was prepared by an unnamed officer of the CJC for the consideration of the then Chairman of the CJC. The CJC contends that document 5 is exempt matter under s.41(1) and s.46(1)(b) of the FOI Act, and that document 21 is exempt matter under s.41(1) of the FOI Act.2. In a letter dated 15 September 1994 to the Director of Public Prosecutions (the DPP), Mr Harris described 21 categories of documents to which he sought access under the FOI Act. Mr Harris is a former police officer who, in 1990, was involved in the laying of charges against another former officer. Those charges were subsequently withdrawn by the DPP.Mr Harris has, however, continued to pursue the matter, both before and after he ceased to be an officer of the QPS. A number of investigations relating to Mr Harris and the matters raised by him have since taken place, conducted by the QPS, the DPP, the CJC, the Parliamentary Criminal Justice Committee, the Senate Select Committee on Unresolved Whistleblower Cases and some segments of the media.3. Following consultation with the CJC concerning Mr Harris' FOI access application, the DPP informed the CJC of its decision that, inter alia, documents 5 and 21 were not exempt matter and would be disclosed to Mr Harris under the FOI Act. The CJC, by letter dated23 February 1995, sought internal review of the DPP’s decision in respect of documents5 and 21. That review was conducted by Mr L Parker who, by letter dated 10 March 1995, affirmed the decision that Mr Harris was entitled to have access to the two documents.4. By letter dated 4 April 1995, the CJC applied to me for external review, under Part 5 of the FOI Act, of Mr Parker's decision. That letter was accompanied by a three page submission supporting the CJC's claims for exemption.5. I contacted both Mr Harris and Person A, advising them of the external review and of the provisions of s.78 of the FOI Act, which allow persons affected by a decision to apply to become participants in the proceedings. Mr Harris applied for, and was granted, the right to participate in this external review. Person A wrote to me objecting to the release of document 5, but otherwise declining the opportunity to participate in the external review.6. I obtained and examined copies of documents 5 and 21. By letter dated 13 September 1995, I wrote to the CJC expressing my preliminary view that neither document was exempt matter under the provisions contended for by the CJC. I invited the CJC, should it not accept my preliminary view, to lodge a written submission and/or evidence in support of its contentions. The CJC replied, indicating that it did not accept my preliminary view, but stating that it did not propose to provide any further submissions or evidence.Relevant provisions of the FOI Act7. Section 41(1) of the FOI Act provides: 41.(1) Matter is exempt matter if its disclosure-- (a) would disclose-- (i) an opinion, advice or recommendation that has been obtained, prepared or recorded; or (ii) a consultation or deliberation that has taken place; in the course of, or for the purposes of, the deliberative processes involved in the functions of government; and (b) would, on balance, be contrary to the public interest.8. Section 46(1)(b) of the FOI Act provides: 46.(1) Matter is exempt if-- ...(b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest.Document 59. Document 5 consists of a single covering page dated 16 July 1990, from Person A to an officer of the QPS, and a one page attachment. The covering page is headed "Confidential". It has a number of handwritten notes on it made by officers of the QPS and the CJC. It is clear that Person A intended that document 5 be passed from the QPS to the CJC, for the purposes of investigation of a complaint made to the CJC. The attachment which forms part of document 5 is a photocopy of a document which was created by Mr Harris.Application of s.41(1) to document 510. A detailed analysis of s.41 of the FOI Act can be found in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at pp.66-72, where, at p.68 (paragraphs 21-22) I said:21. Thus, for matter in a document to fall within s.41(1), there must be a positive answer to two questions:(a) would disclosure of the matter disclose any opinion, advice, or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, (in either case) in the course of, or for the purposes of, the deliberative processes involved in the functions of government? and(b) would disclosure, on balance, be contrary to the public interest?22. The fact that a document falls within s.41(1)(a) (ie. that it is a deliberative process document) carries no presumption that its disclosure would be contrary to the public interest. ...11. An applicant for access is not required to demonstrate that disclosure of deliberative process matter would be in the public interest; an applicant is entitled to access unless an agency can establish that disclosure of the relevant deliberative process matter would be contrary to the public interest. In Re Trustees of the De La Salle Brothers and Queensland Corrective Services Commission (Information Commissioner Qld, Decision No. 96004, 4 April 1996, unreported),I said (at paragraph 34):34. The correct approach to the application of s.41(1)(b) of the FOI Act was analysed at length in my reasons for decision in Re Eccleston, where I indicated (see p.110; paragraph 140) that an agency or Minister seeking to rely on s.41(1) needs to establish that specific and tangible harm to an identifiable public interest (or interests) would result from disclosure of the particular deliberative process matter in issue. It must further be established that the harm is of sufficient gravity that, when weighed against competing public interest considerations which favour disclosure of the matter in issue, it would nevertheless be proper to find that disclosure of the matter in issue would, on balance, be contrary to the public interest.12. The first question I must consider is whether document 5 falls within the terms of s.41(1)(a) of the FOI Act. In his internal review decision, Mr Parker said:... exemption cannot be established under Section 41(1)(a) of the Freedom of Information Act 1992 as these documents do not disclose any opinion, advice or recommendation that is being obtained, prepared or recorded by the Criminal Justice Commission; nor does it disclose any consultation or deliberation that has taken place; nor does it disclose the deliberative processes involved in the functions of Government. This memorandum dated 16 July 1990 merely transmits a copy of a document ... to the Commander of the Queensland Police Service for referral to the Criminal Justice Commission for consideration by the Commission’s investigative officers in relation to a complaint ... .To answer the question as to whether the memorandum and its accompanying document (Document 5) discloses deliberative processes involved in the functions of Government, one looks at the document and one asks what does the document disclose of the deliberative processes involved in the functions of Government? Document No. 5 does not disclose anything about the deliberative processes involved in the functions of Government relating to the Criminal Justice Commission. The highest category that one could place upon the memorandum dated 16 July 1990 and its accompanying document is that it may have been a document which formed part of an ongoing investigation by the Criminal Justice Commission ... In my view, Document 5 tells us nothing of the deliberative processes of the Criminal Justice Commission.13. The CJC did not address this point in the submission attached to its application for external review, choosing rather to respond to Mr Parker’s comments on the application of s.46(1)(b).14. Based on my examination of it, I am not satisfied that any part of document 5 falls within the terms of s.41(1)(a) of the FOI Act. As noted above, the covering page does no more than pass on the attachment to it. Its contents cannot be properly characterised as opinion, advice or recommendation. Its release would not disclose a consultation or deliberation which has taken place. Person A has merely volunteered information which Person A considered may prove useful in the course of a CJC investigation. Brief handwritten notes made on the covering page by officers of the QPS and the CJC merely relate to administrative processes, and could not be properly characterised as falling within the terms of s.41(1)(a). The attachment comprises matter of a factual nature: it contains no matter which can properly be characterised as falling within the terms of s.41(1)(a) of the FOI Act.15. As I do not consider that any part of document 5 falls within the terms of s.41(1)(a) of the FOI Act, it is unnecessary for me to consider the question of whether disclosure would be contrary to the public interest. I am prepared to observe, however, that nothing the CJC has put forward in its letters to the DPP, or in the submission attached to its application for external review, has convinced me that it would be contrary to the public interest to give Mr Harris access to document 5, given the nature of the document, the extent to which the controversy to which it relates has already been made public, and the lapse of time since it was created.Application of s.46(1)(b) to document 516. In Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at p.337 (paragraph 146), I indicated that, in order to establish the prima facie ground of exemption under s.46(1)(b) of the FOI Act, three cumulative requirements must be satisfied:(a) the matter in issue must consist of information of a confidential nature;(b) that was communicated in confidence;(c) the disclosure of which could reasonably be expected to prejudice the future supply of such information. If the prima facie ground of exemption is established, it must then be determined whether the prima facie ground is displaced by the weight of identifiable public interest considerations which favour the disclosure of the particular information in issue.17. In the submission attached to its application for external review, the CJC made the following submissions in relation to the application of s.46(1)(b):The information contained in the document was given to Commander M N Comrie of the Queensland Police Service for the purpose of forwarding on to the Criminal Justice Commission for its consideration in relation to the complaint ...The Commissioners and the Commission’s officers have a statutory duty under section 132 of the Criminal Justice Act 1989 (the CJ Act) to maintain confidentiality in respect of information that comes to their knowledge as a result of their being a Commissioner, an officer of the Commission, or a person engaged by the Commission under section 66 to provide services, information or advice.Pursuant to this provision, the Commission and its officers are required to maintain confidentiality in respect of information provided by complainants and information which may identify complainants.The Commission submits that disclosure of the information and the fact that [Person A] provided the information would reasonably be expected to prejudice the future supply of information from complainants.The Commission also submits that it is in the public interest that the document not be disclosed as it is in the public interest that members of the public, police officers and public officers know that they can complain in confidence to the Complaints Section of the Commission.18. As to requirement (a) referred to in paragraph 16 above, I find that the attachment which forms part of document 5, having been created by Mr Harris, does not have the necessary quality of confidence to be regarded as information of a confidential nature vis-à-vis the applicant for access in this instance. As to the covering page, there is nothing of substance in it which could now be said to be confidential information. The fact that Person A has supplied information to the CJC in relation to a complaint made against Mr Harris is information which is in the public domain, as well as being known to Mr Harris. The handwritten notes by QPS and CJC officers merely deal with administrative matters and their substance would not, in my view, qualify as information of a confidential nature.19. The covering page is headed "Confidential", and it may be that, at the time this information was provided, Person A did not wish it to be known that information had been provided to the CJC in relation to a complaint made against Mr Harris. While an understanding as to the maintenance of confidentiality of Person A’s identity may have existed at the time document 5 was forwarded, it is now clear that Mr Harris is aware that Person A has supplied information to the CJC. This is therefore not a case where the identity of an informant is in issue - the fact of the informant having supplied information to the CJC being already well known to the applicant for access under the FOI Act. In addition, the information which the informant supplied to the CJC was, in fact, created by the applicant for access under the FOI Act. I therefore find that, while there may have been a mutual understanding as to the confidentiality of the information at the time it was supplied, that has been overridden by subsequent events, and document 5 cannot satisfy the initial requirement for exemption from disclosure to Mr Harris under s.46(1)(b) of the FOI Act.20. The CJC has argued that the statutory secrecy obligations imposed on Commissioners and officers of the CJC by s.132 of the Criminal Justice Act 1989 Qld are relevant, but I do not think the CJC can obtain any assistance from that provision in this case. Section 132 of the Criminal Justice Act provides: 132(1) Subsection (2) applies to-- (a) a commissioner; or (b) an officer of the commission; or (c) a person engaged by the commission under section 66 (Engagement of services). (2) A person must not wilfully disclose information that has come to the person's knowledge because the person is or was a person to whom this subsection applies unless the information is disclosed for the purposes of the commission or of this Act. Maximum penalty--85 penalty units or 1 year's imprisonment.(3) A person must not wilfully disclose information that has come to the person's knowledge from the commission because the person is or was a member of the parliamentary committee unless-- (a) the disclosure is in the discharge of a function of the committee under this Act; or (b) the information is contained in a report of the commission that has been ordered by the Legislative Assembly to be printed. Maximum penalty--85 penalty units or 1 year's inprisonment.21. Although it has the somewhat misleading heading "Confidentiality to be maintained", s.132 of the Criminal Justice Act does not, in its terms, purport to regulate the formation or maintenance of obligations or understandings of confidentiality that are binding on the CJC in respect of information conveyed to the CJC. In its terms, s.132 of the Criminal Justice Act binds past and present commissioners and officers of the CJC, not the CJC itself, and binds them not to disclose information (any information at all, rather than merely confidential information) acquired through holding office with the CJC, otherwise than for the purposes of the CJC or the Criminal Justice Act. It is a secrecy provision of a type quite common in Queensland legislation (see The Freedom of Information Act 1992: Review of Secrecy Provision Exemption, Queensland Law Reform Commission, Report No. 46, March 1994) designed to prohibit officers of a specified government agency from disclosing (otherwise than in the course of, or for the purposes of, discharging their duties of office) or taking personal advantage of, information obtained in the performance of their duties of office.Such provisions are not designed to restrict dissemination of information where that is necessary or appropriate in carrying out the functions of, or discharging legal dutiesand obligations imposed on, the relevant government agency or its officers. Section 16 ofthe FOI Act provides that the FOI Act is intended to operate to the exclusion of the provisions of other enactments relating to non-disclosure of information (but subject to the application of s.48 of the FOI Act which makes special provision in respect of a select group of statutory secrecy provisions, of which s.132 of the Criminal Justice Act is not one).Whether particular information communicated to the CJC is exempt under s.46(1) of the FOI Act will depend on whether, having regard to all the relevant circumstances, the requirements for exemption under that provision are satisfied. In this case, the first requirement for exemption under s.46(1)(b) is not satisfied.22. Moreover, as to requirement (c) identified in paragraph 16 above, I do not consider that disclosure of document 5 could reasonably be expected to prejudice the future supply of similar information, given the particular circumstances of this case. Members of the public are or should be aware (from the terms of the Criminal Justice Act itself and a general understanding of criminal investigation and legal processes) that information provided to the CJC may need to be selectively disclosed to enable the effective conduct of an investigation into alleged wrongdoing, and may at some stage be made public, whether in the course of public hearings or by other means (see, for example, s.132(3)(b) of the Criminal Justice Act, set out above). The identity of Person A as a source of information has been made public in this case. I do not consider that the release of document 5 to Mr Harris would have any significant effect on public confidence in the ability of the CJC to keep confidential, information or the identity of sources of information which have been given on a confidential basis, and which have not been disclosed to other persons, or become public knowledge, in accordance with the due processes of the law.23. I find that document 5 is not exempt from disclosure to Mr Harris under s.46(1)(b) of the FOI Act.Document 2124. Document 21 is a draft public statement dated 15 March 1991, created by an unnamed officer of the CJC for consideration by the then Chairman of the CJC. It appears that it was intended that the statement be read at a public hearing relating to allegations that Mr Harris had improperly removed diaries and notebooks, created by another police officer in the course of his duties, from QPS headquarters. The draft statement refers particularly toallegations which were made on Brisbane television station, Channel 7, on 11 and 12 March 1991, and which were based, at least in part, on information obtained from the aforementioned diaries. A statement in a form slightly altered from the document in issue was eventually made public by the Chairman of the CJC. The DPP has indicated (and the CJC has not disputed) that the only difference of substance between the draft which is document 21 and the public statement was the deletion of the final two paragraphs ofthe draft.25. I find that document 21 falls within the terms of s.41(1)(a) of the FOI Act. It is a document which has been prepared by an officer of the CJC for consideration by the Chairman, and by its nature constitutes opinion, advice or recommendation as to the appropriate form of public response which the Chairman of the CJC should make to allegations raised by the media, bearing on the conduct by the CJC of its functions.26. Whether document 21 is exempt under s.41(1) of the FOI Act will therefore turn on whether its disclosure would, on balance, be contrary to the public interest. The matters referred to in paragraph 11 above are relevant in this regard.27. As I noted above, nearly all of the matter contained in document 21 (the exception being the final two paragraphs) has already been made public. In the circumstances, I do not consider that there is any public interest factor which weighs against release of the material already made public. I am satisfied that that material is not exempt matter under s.41(1) of the FOI Act. In light of the arguments made in the CJC's submission, it is necessary to deal in more detail with the final two paragraphs of document 21.28. In his internal review decision, Mr Parker drew the attention of the CJC to what he regarded as material similarities between the two paragraphs omitted from the draft statement before its public release, and other parts which were present in both the draft statement and the statement which has been made public. His view was that the omitted paragraphs could not be regarded as materially different from the document which was published by the Chairman at the hearing. He considered that they did not add significantly to the position the Chairman took at the hearing. He concluded that the public interest in Mr Harris obtaining access to the complete document was not outweighed by the public interest in protecting the deliberative processes of the CJC.29. I must agree with Mr Parker that the tenor of the two omitted paragraphs does not differ greatly from other comments made in the statement as publicly released. It may be that the final two paragraphs of the draft statement were omitted because they were merely repetitious, or, at least, added nothing of substance to points made earlier in the document.This is not entirely irrelevant to the judgment of whether disclosure of the matter in the final two paragraphs of document 21 would be contrary to the public interest.30. In the submission which accompanied its external review application, the CJC raised the following arguments (I have numbered the sub-paragraphs for ease of reference):It is the Commission’s submission that the following considerations weigh heavily against disclosure of that part of the document which has not yet been disclosed, namely, the final two paragraphs on page five:[(a)] The need to protect the integrity and viability of the decision-making processes of government in general, and of law enforcement agencies such as the Commission in particular.[(b)] The possibility that disclosure will significantly affect the efficient and economical performance of an agency.[(c)] The potential for causing detriment to the workings of government in general, and law enforcement agencies in particular, by the public disclosure of decision-making processes.[(d)] The important functions and responsibilities of the Commission as described by the [Criminal Justice] Act, in particular sections 21 and 23, and the commensurate public interest in it meeting those responsibilities.[(e)] The fact that the contents of the entire document but for the two paragraphs objected to is already in the public arena.[(f)] It is not correct to assert (as the Director of Public Prosecutions asserted) that the information already in the public domain, as a result of Sir Max Bingham’s public statement, is in similar terms to the terms of the two paragraphs to which the Commission’s objection relates. Words appearing in those paragraphs do not appear elsewhere in the statement made public. When the decision was made by the Commission to make public the contents of the statement, it was decided not to publish some of the words contained in those paragraphs. The document was prepared by an officer of the Commission for the consideration of the Chairman. Therefore, it was part of the pre-decisional thinking process involved in the Commission exercising its statutory powers. (See Waterford v Department of Treasury No. 2 [1984] AATA 67; [1984] 1 AAR 1).[(g)] The rationale for this exemption is that it does not assist the public to know what opinions, advice or recommendations were considered and rejected. Document 5 falls into the same category as a draft reply to a question asked of a Minister which was held to have been exempt material under the deliberative process category in Re Doohan v Australian Telecommunications Commission (unreported, 2 May 1986).[(h)] The release of the document and in particular the final two paragraphs will be of no advantage or assistance to the applicant or to the public in the sense of assisting their understanding of the processes of government.In further support of its submission, the Commission refers to the following passage from the decision of the Information Commissioner in the matter of Re Eccleston and the Department of Family Services and Aboriginal and Islander Affairs:The common law has long recognised ... that important public interests are secured by the proper and effective conduct of government itself, so that there are likely to be many situations in which the interests of government can for practical purposes be equated with the public interest.The Commission submits that it is in the public interest that the public has confidence in the administration of criminal justice which is secured, in part, by the public being confident that the Commission is properly and effectively discharging its functions and responsibilities. The interests of the Commission in this regard, therefore, can be equated with the public interest.31. The points made in sub-paragraphs (a) to (d), and in the penultimate sentence, of the above submission merely invoke vague and general concepts of potentially relevant facets of the public interest, while in no way explaining how disclosure of the final two paragraphs of document 21 would cause specific and tangible harm to public interests of the general kind to which the CJC refers.32. The contention made in sub-paragraph (h), even if correct, is irrelevant unless it can be demonstrated that disclosure of the final two paragraphs of document 21 would be contrary to the public interest.33. As to sub-paragraph (g), there is simply no foundation to be gathered from a consideration of the terms of s.41(1) itself (as to which see my observations in Re Eccleston at pp.68-69, paragraphs 20-26) or the legislative history of s.41 (or of corresponding exemption provisions in the freedom of information legislation of other Australian jurisdictions) for the remark that the rationale for this exemption is that it does not assist the public to know what opinions, advice or recommendations were considered and rejected. Section 41(1) of the FOI Act is not a vehicle for the introduction of de facto "class claims" for exemption (see Re Eccleston at p.97, paragraph 102, and at p.111, paragraph 149) such as for a class comprising matter considered and rejected in the course of a deliberative process of an agency. The judgment must always be made as to whether disclosure of the particular matter in issue would be contrary to the public interest.34. This contention by the CJC appears to have been influenced by the now largely discredited notion (which can be traced to the 'fourth Howard criterion': see Re Eccleston at p.98, paragraph 105) that disclosure which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest. In Re Eccleston at pp.108-109 (paragraph 137), I quoted the views expressed by the Senate Standing Committee on Legal and Constitutional Affairs, in its "Report on the Operation and Administration of the Freedom of Information Legislation" (1987), in response to the 'fourth Howard criterion', of which the following segment bears repeating in the present context:... The implication is that the Australian community lacks the sophistication to distinguish between a proposal canvassed as an option and a proposal actually adopted. Debate after the event on an option that was not adopted is presumably 'unnecessary debate'.11.12 The Committee regards the Australian community as more sophisticated and robust than the guideline assumes. The Committee acknowledges that documents relating to policy proposals considered but not adopted can be used to attempt to confuse and mislead the public. But the Committee considers that such attempts, if made, will be exposed. The process of doing so will lead to a better public understanding of the policy formation process.11.13 Consistent with its attitude to the basis on which deletions should be able to be made, the Committee records its conclusion that possible confusion and unnecessary debate not be factors to be considered in calculating where the public interest lies.35. My own views on the 'fourth Howard criterion' were stated in Re Eccleston at p.107, paragraphs 136-137. I also note that in the recent joint report of the Australian Law Reform Commission and the Administrative Review Council, "Open government: a review of the federal Freedom of Information Act 1982", it is urged (at pp.96-97 of the report) that guidelines be issued on the application of public interest tests in the Freedom of Information Act 1982 Cth, including as a factor irrelevant to the public interest: "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".36. I am confident that members of the public are sufficiently aware of the procedures adopted by government organisations to be able to distinguish the significance of draft documents from final expressions of the approach of an organisation. Documents prepared to express the position of an organisation on matters of public importance may go through many stages of development before being finally adopted by an agency. Often there will be input from numerous officers of an agency. Divergent ideas will be expressed. Some will be followed up; some will be rejected at an early stage. I do not consider that disclosure of draft documents to the public must be assumed in every case to represent a danger to this process.37. On the contrary, I consider that there may be significant benefits to the public in obtaining access to draft material, so as to further the accountability, and public understanding of, the operations of government organisations (cf. s.5(1)(a) and (b) of the FOI Act). In my view, disclosure of this type of material allows members of the public to examine the processes by which an agency has come to its final conclusion. It shows the alternatives that were considered, the differing views that were taken account of, and the reaction of those within the organisation to those views. In addition, disclosure of drafts and working documents can educate members of the public about the many inputs that can go into the process of government decision-making, thereby promoting a better understanding that working documents do not represent a final agency decision. (And, provided access can be obtained at a timely stage in the process, access by interested members of the public to draft and interim documents relating to policy proposals in development, is essential if the FOI Act is to achieve one of its major objects, namely, fostering informed public participation in the processes of government.)38. It is evident from what I have said above that I do not accept the CJC's contention that the rationale for s.41 is that it does not assist the public to know what opinions were considered and rejected by an agency. Rather, I consider that public access to pre-decisional processes of agencies, even well after the event, may, in appropriate cases, be valuable in furthering accountability, and public understanding, of the operations of government agencies.39. The CJC suggests that there is a public interest in members of the public having confidence that it is properly and effectively discharging its functions and responsibilities. However, it seems to me that such confidence is more likely to be engendered by complying with applications under the FOI Act for disclosure of operational documents, where no specific and tangible harm to recognised public interests is likely to result, rather than by blanket claims for non-disclosure. In saying this, I recognise that there are many areas where the CJC must maintain secrecy of documents, either in the short or long term, for the effective conduct of its operations. However, I do not consider that such restrictions must or shouldbe placed on every document it creates, and I do not consider that the release of the matter in issue in this external review will have any significant effect on the confidence which the public has in the CJC.40. I should also comment on the assertion by the CJC that its interests can be equated with the public interest. In making this claim, the CJC has relied on an extract from Re Eccleston.I set out below a more extensive quotation from that decision (at pp.74-76) in order to place that comment in its full context:41. ... where apparently legitimate interests conflict, as will frequently arise when competing interests of individuals, of government in the conduct of its affairs, and of the public generally (or a substantial segment thereof) are sought to be protected or furthered in disputes over access to information, it is the balance of public interest which determines the particular interest(s) which it will be appropriate to protect, and whether by openness or secrecy. It is inherent in the process of balancing competing interests that one or more interests, whether public, individual or government interests, will in fact suffer some prejudice, but that that prejudice will be justified in the overall public interest.42. Because government is constitutionally obliged to act in the public interest, the protection which government can claim for its own interests cannot exceed that which is necessary to prevent possible injury to the public interest. The common law has long recognised, however, that important public interests are secured by the proper and effective conduct of government itself, so that there are likely to be many situations in which the interests of government can for practical purposes be equated with the public interest: for instance, the High Court of Australia has recently re-affirmed in Commonwealth of Australia v Northern Land Council and Another [1993] HCA 24; (1993) 67 ALJR 405, that the interest of government in the maintenance of the secrecy of deliberations within Cabinet constitutes a public interest that will be accorded protection by the courts in all but exceptional cases.43. By way of contrast, however, an important principle was enunciated by Mason J in Commonwealth of Australia v John Fairfax & Sons Ltd and Ors [1980] HCA 44; (1981) 55 ALJR 45; (1980) 32 ALR 485, which illustrates that the interests of government are not always synonymous with the public interest. The Commonwealth government sought an injunction to restrain the disclosure of confidential information about to be published in a book, with extracts from the book also to be published in the Age and the Sydney Morning Herald. To establish its case for an injunction to restrain the publication of the confidential information, the Commonwealth government had to show that it would suffer detriment from the unauthorised publication of the confidential information.Mason J said (at ALJR p.49, ALR p.493):The question then, when the executive Government seeks the protection given by Equity, is: What detriment does it need to show?The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive Government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that Equity will not protect information in the hands of the Government, but it is to say that when Equity protects Government information it will look at the matter through different spectacles.It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the Government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise Government action.Accordingly, the Court will determine the Government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.The Court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality.Support for this approach is to be found in Attorney-General v Jonathan Cape Ltd [1976] QB 752, where the Court refused to grant an injunction to restrain publication of the diaries of Richard Crossman. Widgery LCJ said (at pp. 770-771):The Attorney-General must show (a) that such publication would be a breach of confidence; (b) that the public interest requires that the publication be restrained, and (c) that there are no other facets of the public interest contradictory of and more compelling than that relied upon. Moreover, the court, when asked to restrain such a publication, must closely examine the extent to which relief is necessary to ensure that restrictions are not imposed beyond the strict requirement of public need.41. There is no doubt that there is a significant public interest in the CJC being able to effectively perform its functions. It plays an important role in the supervision of public administration and parts of the criminal justice system in this State. However, as I noted in Re Eccleston, the interests of government (and certainly the interests of individual government agencies) are not always synonymous with the public interest. There may be many factors which make up the balance of the public interest in a particular case, e.g. the public interest in the accountability of government agencies, the public interest in fair treatment of the individual according to law, the public interest in the proper administration of criminal justice. In the particular circumstances of each case, the relevant public interest considerations telling for or against disclosure must be identified and attributed appropriate weight, the competing considerations must be balanced against each other, and a judgment must be made as to whether disclosure of the particular matter in issue would, on balance, be contrary to the public interest. The public interest in the CJC being able to effectively perform its functions is a significant public interest, but the first step in invoking s.41(1) of the FOI Act must be to demonstrate that specific and tangible harm to that public interest would be caused by disclosure of the particular matter in issue. The CJC has failed to satisfy me on that point in the present case. Even if it had, the public interest in the CJC effectively performing its functions could only be "equated with the public interest" in circumstances where no competing public interest considerations favouring disclosure could be identified in a particular case.42. The CJC has not established any satisfactory basis for a belief that detriment would flow from disclosure of document 21, or its final two paragraphs in particular. I am not satisfied that disclosure of this draft document would cause any significant detriment to the CJC. The two paragraphs not yet published represent an unidentified officer's advice on appropriate closing paragraphs for a public statement by the Chairman of the CJC. That advice was clearly not adopted as the paragraphs did not appear in the version that was publicly disclosed. I do not consider that members of the public would regard the document as doing anything more than displaying part of the process that the CJC went through in determining its response to certain matters raised by the media. I do not consider that the operations of the CJC would be affected in any real way by the disclosure of this information.43. I have referred to the general public interest in disclosure for the purposes of promoting accountability of government agencies. That is not a particularly weighty public interest consideration in this case, having regard to the nature of the particular matter in issue.However, I am not satisfied that disclosure of the matter in issue would, on balance, be contrary to the public interest.44. I find that no part of document 21 is exempt matter under s.41(1) of the FOI Act.Conclusion45. I therefore affirm the decision of Mr Parker that neither document 5 nor document 21 is exempt from disclosure under the FOI Act...........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

SH8Z9M & Ors and Department of Child Safety, Youth and Women [2018] QICmr 40 (27 September 2018)

SH8Z9M & Ors and Department of Child Safety, Youth and Women [2018] QICmr 40 (27 September 2018) Last Updated: 5 October 2018 Decision and Reasons for Decision Citation: SH8Z9M & Ors and Department of Child Safety, Youth and Women [2018] QICmr 40 (27 September 2018) Application Numbers: 313783, 313784, 313785, 313787 & 313788 Applicants: SH8Z9M (Parent One) 3ET8YJ (Parent Two) 45ZJXT (Child A) 8EM2FO (Child B) A03ADP (Child C) Respondent: Department of Child Safety, Youth and Women Decision Date: 27 September 2018 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION - REFUSAL TO DEAL - applicants seeking access to personal information appearing in records of the Department of Child Safety, Youth and Women - whether applications are expressed to relate to all documents that contain information of a stated kind or subject matter - whether all documents to which the applications relate appear to comprise exempt information - whether agency may refuse to deal with applications - section 59 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - EXEMPT INFORMATION - DISCLOSURE PROHIBITED BY ACT - whether exempt - sections 47(3)(a) and 48 and schedule 3, section 12 of the Right to Information Act 2009 (Qld) - whether disclosure prohibited by section 187 of the Child Protection Act 1999 (Qld) REASONS FOR DECISION Summary The Department of Child Safety, Youth and Women (Department) received five separate applications under the Information Privacy Act 2009 (Qld) (IP Act) from five members of the same family. Each applicant sought information about themselves held by the Department for a set date range (Requested Information).[1] In relation to each of the five applications, the Department decided to neither confirm nor deny the existence of documents under section 69 of the IP Act. The applicants applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decisions. On external review, I have decided to vary the Department’s decisions, for the reasons set out below. In summary, I find that all documents to which the applications relate appear to be comprised of exempt information and therefore, I have decided to refuse to deal with the applications under section 59 of the IP Act. Background Significant procedural steps relating to the external review are set out in the Appendix. Reviewable decisions The decisions under review are the Department’s decisions dated 23 February 2018 to neither confirm nor deny the existence of the Requested Information under section 69 of the IP Act. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and Appendix). Parent One provided extensive submissions to OIC on behalf of the family setting out arguments in support of disclosure of the Requested Information.[2] I have carefully reviewed all of Parent One’s submissions, and to the extent they are relevant to the issues in this review, I have taken them into account in reaching my decision. Parts of Parent One’s submissions concern issues which are beyond OIC’s external review jurisdiction under the IP Act. In particular, Parent One raised allegations about the Department’s conduct, the potential effects of the information on the employment of some members of the family, compensation claims against the Department and Parent One’s status as a power of attorney of a related person. As these matters fall outside OIC’s jurisdiction in this external review, they are not addressed in these reasons for decision. Issue to be determined External review by the Information Commissioner is merits review, i.e. an administrative reconsideration of a case which can be described as ‘stepping into the shoes’ of the primary decision-maker to determine what is the correct and preferable decision. As such, the Information Commissioner has the power to decide any matter in relation to an application that could have been decided by the agency, under the IP Act.[3] After conducting an external review of a decision, the Information Commissioner must make a decision affirming, varying, or setting aside and making a decision in substitution for, the decision under review.[4] The Department originally decided to neither confirm nor deny the existence of documents responding to the applications.[5] Generally, that provision will only apply where confirming the very existence of documents is likely to cause the harm that an agency would otherwise seek to avoid by refusing access to the relevant information.[6] However, the applicants were already aware that information exists within the Department concerning their family. On this basis, during the review, OIC conveyed a view to the Department that section 69 of the IP Act could not apply to the applications.[7] The Department accepted OIC’s alternative view that it was entitled to refuse to deal with the five applications under section 59 of the IP Act.[8] Accordingly, section 69 of the IP Act is not examined in these reasons for decision. Rather, I consider the issue for determination to be whether the applications may be the subject of a refusal to deal decision under section 59 of the IP Act. Relevant law If an access application is made to an agency under the IP Act, the agency should deal with the application unless this would not be in the public interest.[9] Section 59 of the IP Act provides one set of circumstances in which Parliament has considered it would, on balance, be contrary to the public interest to deal with an access application. Section 59 of the IP Act allows an agency to refuse to deal with an application if: the application requests all documents, or all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and it appears to the agency that all of the documents to which the application relates are comprised of exempt information. Exempt information is information the disclosure of which Parliament has considered would, on balance, be contrary to the public interest as set out in Schedule 3 of the RTI Act.[10] Relevantly, information is exempt if its disclosure is prohibited by section 187 of the Child Protection Act 1999 (Qld) (CP Act).[11] Section 187 of the CP Act deals with the confidentiality of information obtained by persons involved in administration of the CP Act and prohibits the disclosure of information acquired by, able to be accessed by, or in the custody of, a public service employee performing functions under or in relation to the administration of the CP Act. Information will be exempt if each of the following requirements is met:[12] the information is about another person’s affairs, or is in a document that is about another person’s affairs the information can be accessed by, has been acquired by or is in the custody of, a public service employee performing functions under or in relation to the administration of the CP Act; and the exceptions listed in section 187 of the CP Act and schedule 3, section 12(2) of the RTI Act do not apply.[13] Findings Are the applications expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter? Yes, for the reasons that follow. Each application is framed as a request to access all information held by the Department relating to each applicant. Having considered the applicants’ interactions with the Department, I am satisfied that the applications are designed to capture all documents that contain information of a stated kind, ie. all child safety documents relating to the applicants. Accordingly, I find that the first limb of section 59 of the IP Act is satisfied. Do all of the documents to which the applications relate appear to be comprised of exempt information? Yes, for the reasons that follow. The term ‘person’s affairs’ is not defined in the CP Act or the Acts Interpretation Act 1954 (Qld). The relevant dictionary definitions for ‘affair/s’ are ‘matters of interest or concern’ and ‘a private or personal concern’.[14] The applicants applied for information about themselves held by the Department, therefore, I am satisfied that the Requested Information would concern their ‘personal affairs’. As this is a decision in relation to a stated kind of document, there is no requirement for me to identify the documents that would be within the scope of the applications.[15] However, I have considered the terms of the applications and the background information provided by both the Department and Parent One about the circumstances in which documents were created. On this basis, I am satisfied that the Requested Information would appear to have been acquired by public service employees[16] in performing functions under, or in relation to, the administration of the CP Act. The exceptions in section 187 of the CP Act and schedule 3, section 12(2) of the RTI Act only apply where the information is solely about the applicant.[17] I have carefully considered the background to the applicants’ dealings with the Department, the nature of the information that was acquired by the Department and the context in which information about the applicants appears in the Department’s records. The circumstances of the applications are such that the applicants’ personal information appears intertwined and in the records of individuals other than the applicants. Accordingly, I am satisfied that the Requested Information is not solely about the applicants and that therefore this exception does not apply. On review, Parent One provided a copy of a Power of Attorney and a Statutory Declaration from a related person which supported Parent One’s right to access the Requested Information. However, this is not a relevant consideration for me to take into account when assessing whether section 187 of the CP Act prohibits disclosure of information. There is no exception to the exemption where permission is provided by other people whose personal information is present in the Requested Information. In conclusion, I am satisfied that: the stated kind of information sought by the applicants concerns their personal affairs the information was collected by public service employees in the performance of their functions under or in relation to the CP Act the exceptions in schedule 3, section 12(2) of the RTI Act and section 187(4)(a) of the CP Act do not apply to the Requested Information because it is likely to be intertwined with the information of other individuals, rather than being solely about one of the applicants; and therefore the information sought by the applicants appears to be comprised of exempt information and the second limb of section 59 of the IP Act is satisfied.DECISION For the reasons set out above, I vary the Department’s decisions neither confirming nor denying the existence of documents sought by the applicants. I find instead that section 59 of the IP Act can be relied on to refuse to deal with the applications on the basis that all documents to which the applications relate appear to comprise exempt information under section 48 and schedule 3, section 12(1) of the RTI Act. I have made this decision under section 123 of the IP Act, as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinA/Assistant Information CommissionerDate: 27 September 2018 APPENDIX Significant procedural steps Date Event 2 March 2018 OIC received the external review applications from the applicants. 6 March 2018 OIC received an authority for Parent One to act on behalf of Child A and Parent Two. 6-7 March 2018 OIC acknowledged receipt of the external review applications and asked the Department to provide the relevant procedural documents. 22 March 2018 OIC received the requested procedural documents from the Department. 26 March 2018 OIC notified the applicants and Department that the external review had been accepted. 1 May 2018 OIC conveyed a preliminary view to the Department that section 69 of the IP Act does not apply and requested a copy of the responsive documents. 6 June 2018 OIC received a copy of the responsive documents from the Department. 19 June 2018 OIC conveyed a preliminary view to Parent One that the Department was entitled to refuse to deal with all five applications. OIC conveyed, and the Department accepted, a preliminary view that section 69 of the IP Act did not apply, however section 59 of the IP Act does. 26 June 2018 OIC received submissions from Parent One. 29 June 2018 OIC received submissions from Parent One. 24 July 2018 OIC notified Parent One that a formal written decision would be required to finalise the review. 27 July 2018 OIC received submissions from Parent One. The Department confirmed that it did not object to OIC’s view that the Department was entitled to refuse to deal with all five applications under section 59 of the IP Act. 31 July 2018 OIC received submissions from Parent One. [1] Parent One, Parent Two and Child A made their own access applications, and Parent One made an access application on behalf of Child B and Child C.[2] External review applications dated 2 March 2018, telephone conversations on 26 June 2018 and 27 July 2018 and written submissions dated 29 June 2018 and 31 July 2018.[3] Section 118(1)(b) of the IP Act.[4] Section 123(1) of the IP Act.[5] Section 69 of the IP Act.[6] EST and Department of Family Services and Aboriginal and Islander Affairs [1995] QICmr 20; (1995) 2 QAR 645 at [11] cited with approval in Tolone and Department of Police (Unreported Queensland Information Commissioner, 9 October 2009) at [25].[7] On 1 May 2018 and 19 June 2018.[8] By email to OIC on 27 July 2018.[9] Section 58(1) of the IP Act.[10] The Dictionary in schedule 5 of the IP Act provides that ‘exempt information’ means information that is exempt information under the Right to Information Act 2009 (Qld) (RTI Act). Section 48 of the RTI Act provides that exempt information is information set out in Schedule 3 of the RTI Act. [11] Schedule 3, section 12 of the RTI Act.[12] Section 187 of the CP Act.[13] Under schedule 3, section 12(2) of the RTI Act, the exemption will not apply if the information is only personal information of the applicant, and this requires the information to be ‘about’ the applicant, in accordance with the definition of ‘personal information’ in section 12 of the IP Act: ‘information or an opinion ... whether true or not ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. Similarly, section 187(4)(a) of the CP Act permits disclosure of information about a person’s affairs, to the extent that the information or document is ‘about’ the person to whom the information is being disclosed.[14] 7CLV4M and Department of Communities (Unreported, Queensland Information Commissioner, 21 December 2011) at [30] and Capewell and Department of Communities, Child Safety and Disability Services [2014] QICmr 9 (18 March 2014) at [22].[15] Section 59(2) of the IP Act.[16] Section 187(1)(a) of the CP Act lists a public service employee as a person to whom section 187 applies.[17] Hughes and Department of Communities, Child Safety and Disability Services (Unreported, Queensland Information Commissioner, 17 July 2012) at [26].

queensland

court_judgement

Queensland Information Commissioner 1993-

Tolone and Department of Police [2009] QICmr 51 (9 October 2009)

Tolone and Department of Police [2009] QICmr 51 (9 October 2009) Office of the Information Commissioner Qld Decision and Reasons for Decision Application Number: 220006 Applicant: Mr F Tolone Respondent: Department of Police Decision Date: 9 October 2009 Catchwords: RIGHT TO INFORMATION - INFORMATION AS TO EXISTENCE OF PARTICULAR DOCUMENTS - where agency neither confirms nor denies existence of documents - whether access to documents, if they exist, would be refused under section 47(3) of the Right to Information Act 2009 (Qld) - whether documents, if they exist, would contain prescribed information Contents REASONS FOR DECISION Summary 1. In this decision, I have found that the Department of Police[1] is entitled to neither confirm nor deny the existence of the documents sought by the applicant under section 55 of the Right to Information Act 2009 (Qld) (RTI Act) on the basis that if the documents did exist, access to those documents would be refused under section 47(3) of the RTI Act because they contain prescribed information. Background 2. By application dated 4 July 2009, the applicant applied under the RTI Act to the QPS for access to documents (Access Application) relating to: • a complaint made to the QPS regarding a criminal offence which allegedly occurred in Toowoomba in 1975 • any corresponding admission made by the alleged offender. 3. By letter dated 23 July 2009, Senior Sergeant Martain, Freedom of Information and Privacy Unit, QPS, decided to refuse to deal with the Access Application (Decision) on the basis that if the requested documents did exist, they would not be released to the applicant because: • they would concern the personal information of another individual • their disclosure would on balance, be contrary to the public interest. 4. In the Decision, QPS: • relied on section 40 of the RTI Act to refuse to deal with the Access Application • neither confirmed nor denied the existence of the documents sought by the applicant. 5. The applicant elected not to apply for internal review of the Decision.[2] 6. By letter dated 10 August 2009, the applicant applied to the Information Commissioner for external review of the Decision and provided submissions in support of his case (External Review Application). Decision under review 7. The decision under review is the decision of Senior Sergeant Martain dated 23 July 2009 refusing to deal with the Access Application.[3] Steps taken in the external review process 8. Following receipt of the External Review Application, staff of the Office of the Information Commissioner (OIC) communicated with the QPS to obtain information and clarify issues relating to the Decision. 9. On 14 September 2009, a staff member of the OIC: • conveyed to QPS a preliminary view that the reasons in the Decision did not accord with the requirements of section 40 of the RTI Act • afforded QPS an opportunity to make an alternative submission to support its Decision to refuse to deal with the Access Application. 10. In response to the issues raised in paragraph 9 above, QPS indicated that under section 55 of the RTI Act, it neither confirmed nor denied the existence of the documents sought by the applicant. That submission was accepted on the basis that the reasons set out in the Decision support reliance on section 55 of the RTI Act. 11. By letter dated 16 September 2009, Acting Assistant Commissioner Jefferies conveyed to the applicant a preliminary view (Preliminary View) that: • QPS' reliance on section 40 of the RTI Act should be set aside • QPS was entitled to rely on section 55 of the RTI Act to neither confirm nor deny the existence of documents sought by the applicant because if the documents did exist: o access to the documents would be refused under section 47(3) of the RTI Act, and o they would contain personal information of other individuals, the disclosure of which, on balance, would be contrary to the public interest under section 47(3)(b) of the RTI Act. 12. By letter dated 22 September 2009, the applicant indicated that he did not accept the Preliminary View and provided final submissions and documentary evidence in support of his case. 13. In making this decision, I have taken into account the following: • Access Application • Decision • External Review Application and attached documents • file notes of telephone conversations between a staff member of the OIC and officers of the QPS on 14 September 2009 • applicant's letter dated 22 September 2009 and attached documents • relevant sections of the RTI Act and the Information Privacy Act 2009 (Qld) (IP Act) as referred to in this decision • previous decisions of the Information Commissioner as referred to in this decision. Findings Applicable legislation 14. Section 23 of the RTI Act provides that a person has a right to be given access under the RTI Act to documents of an agency and documents of a Minister. This right of access is subject to other provisions in the RTI Act, including: • chapter 3, part 4 of the RTI Act which sets out particular circumstances in which an entity may refuse to deal with an application, and • section 47 of the RTI Act which sets out grounds on which an entity may refuse access to documents, including where information is exempt or disclosure would be contrary to the public interest. 15. For the purpose of this review, sections 40 and 55 of the RTI Act are relevant. The requirements of these provisions are examined below. Section 40 of the RTI Act 16. As set out in paragraph 4 of this decision, the QPS relied, in the Decision, on section 40 of the RTI Act to refuse to deal with the Access Application. 17. Section 40 of the RTI Act provides: 40 Exempt information (1) This section applies if— (a) an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and (b) it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information. (2) The agency or Minister may refuse to deal with the application without having identified any or all of the documents. [my emphasis] 18. In effect, section 40 of the RTI Act allows an agency to refuse to deal with an access application if: • the application requests documents of a particular class, that contain information of a stated kind or relate to a stated subject matter, and • the agency believes all of the documents to which the application relates are comprised of ‘exempt information’, as defined in section 48 of the RTI Act and described in schedule 3. 19. If an agency relies on section 40 of the RTI Act, it is not required to identify any or all of the documents. The agency is however, required, under section 54(2)(f) of the RTI Act, to set out the following in its decision: • the provision of schedule 3 under which the information in the documents sought is exempt information; and • the reasons for the decision classifying the documents sought as exempt information. 20. In the Decision, QPS did not identify a provision of schedule 3 under which the information in the documents, sought by the applicant, would be exempt information. Instead, the Decision: • states that disclosure of the information would, on balance, be contrary to the public interest under section 49 of the RTI Act • neither confirms nor denies the existence of the documents sought in the Access Application. 21. As the Decision does not: • identify an exemption provision in schedule 3 of the RTI Act • give reasons as to why the documents sought are exempt information, I am satisfied that the Decision does not disclose any basis on which QPS could rely on section 40 of the RTI Act to refuse to deal with the Access Application. 22. Accordingly, I find that reliance on section 40 of the RTI Act should be set aside. Section 55 of the RTI Act 23. As set out in paragraph 10 of this decision, QPS, in substitution for its reliance on section 40 of the RTI Act, relies, in this review, on section 55 of the RTI Act to neither confirm nor deny the existence of documents sought by the applicant. 24. Section 55 of the RTI Act provides: 55 Information as to existence of particular documents (1) Nothing in this Act requires an agency or Minister to give information as to the existence or non-existence of a document containing prescribed information. (2) For an access application for a document containing prescribed information, the agency or Minister may give a prescribed written notice that does not include the details mentioned in section 191(a) or (b) but, by way of a decision, states that— (a) the agency or Minister neither confirms nor denies the existence of that type of document as a document of the agency or a document of the Minister; but (b) assuming the existence of the document, it would be a document to which access would be refused under section 47(3) to the extent it comprised prescribed information. (3) The prescribed written notice may be given in a schedule of relevant documents. [my emphasis] 25. The purpose of including a provision in the nature of section 55 of the RTI Act in information access legislation has been explained as follows:[4] A particular problem that arises in relation to the giving of reasons and particulars ... is the position of the decision-maker when ... confronted with a request for a document which is manifestly exempt from disclosure, but where the character of the document is such that the mere acknowledgment of its existence, albeit accompanied by a denial of access, will itself cause the damage against which the exemption provision is designed to guard. One obvious example would be a request for a Cabinet paper recommending a devaluation of the currency; another might be a request for a criminal intelligence record disclosing the activities of a particular police informant. ... We agree that there will, on occasion, be a need for an agency to refuse to acknowledge the very existence of a document. However ... it ought to be confined to a very narrow set of exemptions, namely those relating to classes of documents which by their very nature are likely to be widely accepted as especially sensitive. Onus 26. In this external review QPS has the onus of establishing that I should give a decision adverse to the applicant.[5] 27. A review in which the agency relies on section 55 of the RTI Act presents procedural challenges. All reviews must be conducted in a procedurally fair manner. Fairness often requires the exchange of submissions. However, in a review involving section 55 of the RTI Act, it will not always be possible for a copy of the agency’s submissions to be provided to the applicant. This issue does not arise in this review as the QPS has not provided written submissions. 28. In circumstances where the documents sought do exist, it will often be appropriate for the Information Commissioner to review copies of those documents. However, in a case such as this, where the nature of any documents, if they do exist, is evident from the terms of the access application, it is unnecessary to require the agency to confirm the existence of any relevant documents. Therefore, in this review, I have not asked QPS to indicate to me whether or not the documents sought actually exist. Prescribed information 29. If an agency relies on section 55 of the RTI Act, it means that the agency is not required to give information as to the existence or non-existence of documents containing 'prescribed information'[6]. However, when relying on section 55 of the RTI Act to neither confirm nor deny the existence of documents, an agency must demonstrate that the information sought by the applicant is 'prescribed information' as that term is defined in the RTI Act. 30. The term 'prescribed information' is defined in schedule 6 of the RTI Act as follows: prescribed information means— (a) exempt information mentioned in schedule 3, section 1, 2, 3, 4, 5, 9 or 10; or (b) personal information the disclosure of which would, on balance, be contrary to the public interest under section 47(3)(b). 31. For the purpose of this review, part (b) of the 'prescribed information' definition is relevant.[7] This part of the definition has two components: (i) personal information (ii) the disclosure of which would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act. 32. These requirements are examined below. (i) personal information 33. The RTI Act defines[8] 'personal information' as follows: Personal information is information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. 34. The Access Application seeks access to documents regarding an alleged complaint of a criminal offence and a corresponding admission. In the Access Application, the applicant names other individuals who he believes the documents will refer to. 35. Given the nature of the documents sought by the applicant and the specific reference to other individuals, I am satisfied that the documents, if they exist, would comprise personal information of individuals other than the applicant. (ii) contrary to the public interest 36. To meet the definition of 'prescribed information', the personal information in question must also be information which, if disclosed, would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act. 37. Section 47(3)(b) of the RTI Act provides: 47 Grounds on which access may be refused ... (3) On an application, an agency may refuse access to a document of the agency and a Minister may refuse access to a document of the Minister— ... (b) to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest under section 49 ... 38. Section 49 of the RTI Act sets out the steps which must be taken when deciding whether disclosure of information would, on balance, be contrary to the public interest. The requirements of section 49 of the RTI Act must be read in conjunction with the public interest factors listed in schedule 4 of the RTI Act. 39. Schedule 4 of the RTI Act sets out factors: • irrelevant to deciding the public interest (Irrelevant Factors) • favouring disclosure in the public interest (Part 2 Factors) • favouring nondisclosure in the public interest (Part 3 Factors) • favouring nondisclosure in the public interest because of public interest harm in disclosure (Part 4 Factors). 40. In determining whether disclosure of information, would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act, I must:[9] • identify any irrelevant factors that apply in relation to the information and disregard them • identify public interest factors favouring disclosure and nondisclosure that apply in relation to the information • balance the relevant factors favouring disclosure and nondisclosure • decide whether disclosure of the information, on balance, would be contrary to the public interest. Irrelevant Factors 41. I have examined the Irrelevant Factors in schedule 4 of the RTI Act and consider that none applies in relation to the information sought in the Access Application. I do not consider that any other irrelevant factors arise in the circumstances of this review. Part 2 Factors 42. In the External Review Application, the applicant submits that withholding the documents is contrary to the public interest as the information in the documents would help him to pursue a legal remedy. The applicant has provided a copy of his father’s death certificate, which indicates that an inquest was held in relation to the death, as well as a transcript of committal proceedings in a Court of Petty Sessions from 1981 concerning charges of culpable driving, which appear to have arisen from the death of the applicant’s father. These charges were dismissed. However, the applicant alleges that there is evidence of a conspiracy to murder his father which has not been acknowledged by relevant authorities, including police. To this end, the applicant has provided copies of extensive documentation through which he attempts to demonstrate evidence of the conspiracy. The applicant implies there is a link between the documents he is seeking and the ‘real’ cause of his father’s death. 43. The applicant's submissions go toward the public interest in disclosing information that may contribute to the administration of justice.[10] 44. I have considered the applicant's submissions and acknowledge that he remains deeply affected by his father’s death, which occurred over 20 years ago, and seeks closure of that matter. A large proportion of the material provided by the applicant seeks to have particular questions answered and to establish a body of evidence for the purpose of commencing an investigation into his late father’s death. As stated in his submissions received on 30 September 2009, the applicant’s main focus is production of “the Original Farm Ute, or Similar Vehicle, at the Coroners Inquest ....” 45. As was explained to the applicant in the OIC letter which conveyed a preliminary view in this matter I am unable to address many of the issues raised by the applicant as they are not matters within my jurisdiction. My role in this external review is to review the Decision not to deal with the applicant’s access application. 46. Based on the information before me in this review, I am satisfied that: • the evidence provided by the applicant does not disclose a correlation between the type of documents sought in the Access Application and his father’s death or any matter that may have contributed to his father’s death • therefore, disclosure of the documents sought, if they exist, could not reasonably be expected to achieve the outcome the applicant seeks, that is, a re-opening of the investigation into the cause of his father’s death. Part 3 and 4 Factors 47. Disclosure of information that could reasonably be expected to prejudice the protection of an individual's right to privacy is a public interest factor favouring nondisclosure.[11] 48. A public interest in favour of nondisclosure is also raised where information, if disclosed, would disclose personal information of a person, whether living or dead. The RTI Act provides that such disclosure could reasonably be expected to cause a 'public interest harm'.[12] 49. Based on the information before me in this review, I am satisfied that if the documents sought in the Access Application exist, disclosing those documents would disclose the personal information of other individuals who the applicant has identified in the Access Application. Balancing the public interest 50. Having identified and examined the public interest factors for and against disclosure, I consider that in the circumstances of this review: • the public interest relating to administration of justice should not be afforded any weight as the information (if it exists) could not reasonably be expected to contribute to the administration of justice • the public interest in protecting other individuals' right to privacy should be attributed substantial weight • the type of personal information that the documents would contain (if they exist) could reasonably be expected to cause a public interest harm, if disclosed. 51. I am satisfied that there are no factors favouring disclosure of the documents sought by the applicant (if they exist) which carry any weight. However, there are significant public interest factors favouring nondisclosure of the documents. Having balanced those factors, I am satisfied that disclosure of the documents (if they exist) would be contrary to the public interest. Findings 52. I find that the documents sought by the applicant (if they exist) would contain information: • that is personal information • the disclosure of which, would, on balance, be contrary to the public interest. 53. Therefore, I find that the documents sought by the applicant (if they exist) would contain 'prescribed information'[13]. 54. As I have found that the documents sought by the applicant contain 'prescribed information', I therefore, find that QPS is entitled to neither confirm nor deny the existence of those documents under section 55 of the RTI Act. I have made this finding on the basis that, if the documents sought by the applicant exist, they would be documents to which access would be refused under section 47(3) of the RTI Act because they contain prescribed information.[14] DECISION 55. I set aside the decision of QPS to refuse to deal with the Access Application based on section 40 of the RTI Act. 56. In substitution, I find that QPS is entitled, under section 55 of the RTI Act, to neither confirm nor deny the existence of the documents sought by the applicant on the basis that if such documents did exist, access to those documents would be refused under section 47(3) of the RTI Act because they contain prescribed information. ________________________ Julie Kinross Information Commissioner Date: 9 October 2009 [1] This department is commonly known as Queensland Police Service and referred to in this decision as QPS. [2] Internal review is optional under the RTI Act. See section 80 of the RTI Act. [3] A decision refusing to deal with an application is a 'reviewable decision' as that term is defined in schedule 6 of the RTI Act, see part (d) of that definition. [4] EST and Department of Family Services and Aboriginal and Islander Affairs [1995] QICmr 20; (1995) 2 QAR 645 at paragraph 11 (citing the 1979 Report by the Senate Standing Committee on Constitutional and Legal Affairs [SSCCLA] on the Freedom of Information Bill 1978 at page 121, point 9.27)[5] Section 87(1) of the RTI Act. [6] This term is examined below in paragraphs 30 to 33 of this decision. [7] Based on the information available to me, none of the exemption provisions identified in part (a) of the definition are relevant to the information sought in the Access Application. [8] The definition in schedule 6 of the RTI Act refers to the definition which appears in section 12 of the IP Act.[9] In accordance with section 49(3) of the RTI Act. [10] See factor 16, part 2, schedule 4 of the RTI Act. [11] See factor 3, part 3, schedule 4 of the RTI Act. [12] See factor 6, part 4, schedule 4 of the RTI Act. [13] As that term is defined in schedule 6 of the RTI Act. See paragraph 30 of this decision. [14] As required by section 55(2)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Sheehan and Queensland Police Service [2017] QICmr 12 (4 April 2017)

Sheehan and Queensland Police Service [2017] QICmr 12 (4 April 2017) Last Updated: 11 August 2017 Decision and Reasons for Decision Citation: Sheehan and Queensland Police Service [2017] QICmr 12 (4 April 2017) Application Number: 312993 Applicant: Sheehan Respondent: Queensland Police Service Decision Date: 4 April 2017 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - NONEXISTENT DOCUMENTS - information about a firearms licence and traffic infringement notice - applicant contends additional documents exist - whether agency has taken all reasonable steps to locate documents but the documents cannot be found or do not exist - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL TO DEAL WITH APPLICATION - LACKING SUBSTANCE - information about an incident - applicant contends incident did not occur - whether the Information Commissioner should decide not to further deal with part of external review application under section 107(1)(a) of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to a range of information relating to a traffic infringement notice issued to him and his firearms licence. QPS located 33 pages and 1 video recording in response to the access application. By its decision dated 16 August 2016, QPS decided to: release 15 pages, parts of 18 pages and 1 video recording; and refuse access to portions of information appearing on 18 pages, on the grounds that the information was exempt information or its disclosure would, on balance, be contrary to the public interest. The applicant sought an internal review of QPS’s decision dated 16 August 2016, on the basis that all relevant documents had not been located. QPS did not make an internal review decision within the 20 business days[1] and was therefore taken to have made a decision on 21 September 2016, affirming the original decision dated 16 August 2016.[2] The applicant applied to the Office of the Information Commissioner (OIC) for an external review, again on the basis that all relevant documents had not been located.[3] For the reasons set out below, I vary the decision deemed to have been made by QPS and find that access to the additional documents the applicant contends should have been located are nonexistent.[4] Also, I have decided not to further deal with the applicant’s external review application insofar as it seeks information about an incident which, according to the applicant, did not occur.[5] Reviewable decision The decision under review is the internal review decision deemed to have been made by QPS on 21 September 2016, refusing access to portions of information appearing on 18 pages. Issue for determination The issue for determination is whether the additional information raised by the applicant should have been located by QPS. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes). The applicant provided a number of submissions to OIC.[6] I have summarised and addressed the applicant’s submissions below, to the extent they are relevant to the issue for determination. In respect of the submissions that are not relevant to the issue for determination, these generally seek answers to a series of questions and relate to the applicant’s concerns about the conduct of certain QPS officers. OIC’s jurisdiction under the IP Act relates only to decisions about access to documents[7] held by agencies and does not extend to any consideration of these questions and concerns. Relevant law An individual has a right to be given access, under the IP Act, to documents of an agency, to the extent the documents contain the individual’s personal information.[8] However, this right is subject to other provisions of the IP Act, including the grounds on which an agency may refuse access to documents. Access to a document may be refused if the document is nonexistent or unlocatable.[9] A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but it cannot be found.[10] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[11] To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience, having regard to various key factors including: the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including, but not limited to, its information management approaches); and other factors reasonably inferred from information supplied by the applicant, including the nature and age of the requested documents, and the nature of the government activity to which the request relates.[12] When proper consideration is given to the above factors, an agency may ascertain that a particular document was not created because, for example, the agency’s processes do not involve creating the specific document. In such instances, it is not necessary for an agency to search for the document. It is sufficient that the relevant circumstances accounting for the nonexistent document are explained. An agency may also rely on searches to satisfy itself that documents do not exist. If searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents.[13] Such steps may include enquiries and searches of all relevant locations identified after consideration of the key factors listed above. In assessing whether a document exists, but is unlocatable, it is necessary to consider whether: there are reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency’s possession; and the agency has taken all reasonable steps to find the document.[14] When considering these matters, regard should again be had to the circumstances of the case and the key factors set out above.[15] An individual’s right to be given access, under the IP Act, to documents of an agency, is also subject to the grounds on which the Information Commissioner may refuse to deal, or further deal, with all or part of an external review application.[16] Such grounds include being satisfied that the external review application, or part thereof, is lacking substance. Analysis QPS searches generally The applicant’s submissions raise general concerns about the adequacy of the searches for responsive documents undertaken by QPS. On external review, OIC made enquiries with QPS about the processing of the access application and the searches conducted for documents responsive to the access application. In responding to those enquiries, QPS identified that, due to an administrative error, the decision-makers did not, when making their decisions, consider a video recording and an audio recording that had been located as responsive to the access application (Two Recordings). QPS released the Two Recordings to the applicant in January 2017. One of the Two Recordings is an audio recording of the applicant’s attendance at the police station on 20 August 2015. The content of that audio recording does not lend itself to an expectation that there would be any further written documentation, such as notes or reports, created about the applicant’s interaction with staff at the police station on that day. In terms of CCTV recordings of the applicant’s attendance at the police station on 20 August 2015, QPS submitted to OIC that: CCTV recordings are only made of the front counter area of the station; and in accordance with general retention and disposal procedures, any recordings from the day the applicant attended the station will have been taped over as they are outside the retention period. QPS also provided OIC with records of searches and certifications, indicating that a senior officer at the relevant police station spent over an hour searching the station’s records. I have carefully considered the searches conducted by QPS, the explanation in its submissions to OIC about CCTV recordings and the content of the information in issue (in particular, the audio recording of the applicant at the police station on 20 August 2015[17]), in light of the key factors as set out above.[18] I have also noted the applicant’s allegation that the officer who conducted the searches had, in effect, a vested interest to avoid finding responsive information.[19] The officer who conducted the searches was, in my view, well placed to conduct them, given the small size and relatively remote location of the business unit (a rural police station) where responsive information would, if it existed, be held. There is nothing in the material before me to suggest that the officer in question withheld, or attempted to withhold, any relevant documents. Taking into account the material provided by the applicant, and having regard to QPS’s submissions regarding its structure, record keeping practices and searches, I consider that QPS ensured that an appropriate officer undertook comprehensive, suitably targeted searches of possible locations for documents responsive to the access application. In these circumstances, I am satisfied that: QPS has taken all reasonable steps to locate documents responsive to the application; and there are reasonable grounds to be satisfied that any further documents responsive to the applicant’s access application are nonexistent, and may be refused on this basis.[20] QPS searches for documents about an incident the applicant contends did not occur The applicant also makes the following specific submissions about QPS’s searches: he spoke with a QPS officer in an interview room when he attended a police station on 20 August 2015 to make a complaint the documents that QPS has released to him contain information which, in his view, records that he was physically removed from the police station that day however, contrary to this information, he was not physically removed from the police station QPS has not located any CCTV, notes or reports which record his physical removal from the police station; and he wishes to know if such documents were lost, destroyed or withheld. It is my understanding that the applicant’s submissions relate to documents that, in his view, do not exist, about an incident which, according to him, did not occur. The applicant considers that OIC should review whether such documents were lost, destroyed or withheld. I consider that requiring an agency to conduct searches for documents known to be nonexistent would be unjustified and contrary to the objects of the IP Act. The information access scheme is not intended to be used to put an agency to a test to attempt to prove a negative or otherwise demonstrate error. An application, or part thereof, may be considered to be lacking substance where ‘the complainant has no arguable case which should be allowed to be resolved at a full hearing’.[21] OIC has previously considered[22] a number of cases in various jurisdictions that have considered the meaning of 'lacking substance',[23] and noted that these cases held that a complainant must demonstrate more than a remote possibility of a well-founded claim, and that a complaint would be lacking substance if the complainant has no arguable case.[24] More recently, a Queensland Civil and Administrative Tribunal decision discussed section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld),[25] which is expressed in terms similar to section 107 of the IP Act.[26] In deciding not to proceed with a matter, the decision noted relevantly that:[27] Section 47 has a valid role to play in ensuring that cases lacking substance do not place the tribunal in the position of having to devote time and resources to proceeding with a case that has no prospects of success. To the extent that the external review application seeks to have QPS conduct further searches for documents the applicant considers do not exist, about an incident which he contends did not occur, I am unable to identify any well-founded claim and consider that the applicant has no arguable case nor prospects of success. Accordingly, I am satisfied that this aspect of the applicant’s external review application it is lacking substance and have decided not to further deal with it.[28] DECISION I vary[29] the decision under review and find that access to the additional information the applicant contends should have been located may be refused on the ground that it does not exist.[30] I have also decided not to further deal with the external review application to the extent it relates to documents about an incident the applicant contends did not occur.[31] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. J MeadActing Information Commissioner Date: 4 April 2017 APPENDIX Significant procedural steps Date Event 6 October 2016 OIC received the external review application. 21 October 2016 OIC notified the applicant and QPS that it had accepted the external review application and asked QPS to provide additional information. 24 October 2016 OIC received the applicant’s further submissions. 27 October 2017 An OIC staff member spoke with the applicant about the review. 25 November 2016 OIC received the requested information from QPS. 8 December 2016 OIC wrote to the applicant about the release of the Two Recordings and conveyed an informal resolution proposal to the applicant. 10 January 2017 OIC received the applicant’s further submissions concerning the adequacy of QPS’s searches. 13 January 2017 QPS released the Two Recordings to the applicant. 2 February 2017 OIC conveyed a preliminary view to the applicant that QPS has taken all reasonable steps to locate documents relevant to the access application. OIC invited the applicant to provide submissions by 17 February 2017 if he did not accept the preliminary view. 21 February 2017 OIC received the applicant’s further submissions. [1] QPS purported to issue an internal review decision to the applicant, affirming the original decision, on 22 September 2016.[2] Under section 97(2) of the IP Act. [3] The applicant did not seek review of the decision to refuse access to portions of information appearing on 18 pages, on the grounds that the information was exempt information or its disclosure would, on balance, be contrary to the public interest. [4] Under section 67(1) of the IP Act and sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) (RTI Act). [5] Under section 107(1)(a) of the IP Act. [6] As set out in the Appendix. [7] And, where relevant, amendment of documents. [8] Section 40(1)(a) of the IP Act. [9] Sections 47(3)(e) and 52 of the RTI Act. [10] Section 52(1)(b) of the RTI Act. [11] Section 52(1)(a) of the RTI Act. [12] PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) at [37]-[38]. The decision in PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld). Section 52 of the RTI Act is drafted in substantially the same terms as the provision considered in PDE and, therefore, the Acting Information Commissioner’s findings in PDE are relevant here. Refer also to Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) (Pryor) at [19], which adopted the Information Commissioner’s comments in PDE. [13] As set out in PDE at [49]. See also section 137(2) of the IP Act. [14] Section 52(1)(b) of the RTI Act. [15] Pryor at [21]. [16] Section 107(1) of the IP Act. [17] Referred to at paragraph 22. [18] At paragraph 13. [19] The applicant submitted: ‘May I suggest that the fox has been put in charge of the hen house?’ (submission received 21 February 2017). [20] Under section 67(1) of the IP Act and section 47(3)(e) and 52(1)(a) of the RTI Act.[21] State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 110 per Ormison JA. Refer also to Ebber and Another v Human Rights and Equal Opportunity Commission and Others (1995) 129 ALR 455. [22] In deVere Lawyers and Whitsunday Regional Council (Unreported, Queensland Information Commissioner, 19 March 2009) (deVere) [23] While the cases referred to in footnote 21 considered the term within the context of complaints made under anti-discrimination legislation, the tests formulated provide guidance in determining whether an application is 'lacking substance' under the IP Act, as both statutes are remedial in nature.[24] de Vere considered section 77(1)(a) of the now repealed Freedom of Information Act 1992 (Qld), which has been replicated in section 107(1)(a) of the IP Act. Refer also to Gapsa and Public Service Commission [2016] QICmr 6 (11 February 2016) at [5]. [25] Saunders and Department of Communities (QCAT, 25 October 2011). [26] Allowing the Tribunal to discontinue a proceeding if it is frivolous, vexatious, misconceived, lacking substance or otherwise an abuse of process. [27] At paragraph [14].[28] Under section 107(1)(a) of the IP Act. [29] The decision is varied because QPS was deemed to have affirmed the Original Decision under section 97(2) of the IP Act. [30] Section 67(1) of the IP Act and sections 47(3)(e) and 52(1)(a) of the RTI Act. [31] Section 107(1)(a) of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Underwood and Department of Housing and Public Works (No. 2) [2016] QICmr 36 (15 September 2016)

Underwood and Department of Housing and Public Works (No. 2) [2016] QICmr 36 (15 September 2016) Last Updated: 6 February 2017 Decision and Reasons for Decision Citation: Underwood and Department of Housing and Public Works (No. 2) [2016] QICmr 36 (15 September 2016) Application Number: 100103 (remitted matter 310531) Applicant: Underwood Respondent: Department of Housing and Public Works Decision Date: 15 September 2016 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION - REFUSAL TO DEAL WITH APPLICATIONS – information subject of earlier access application and completed external review and duplicated information – whether the Information Commissioner should decide to not further deal under section 94(1)(a) of the Right to Information Act 2009 (Qld) with part of external review application concerning information previously considered or duplicated information ADMINISTRATIVE LAW – RIGHT TO INFORMATION – SCOPE OF APPLICATION – application for access to information – agency excluded information falling outside the scope, or irrelevant to the terms, of the access application – whether irrelevant information may be deleted under section 73 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – EXEMPT INFORMATION – LEGAL PROFESSIONAL PRIVILEGE – whether information is exempt on the basis of legal professional privilege under schedule 3, section 7 of the Right to Information Act 2009 (Qld) – whether access may be refused under section 47(3)(a) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – CONTRARY TO PUBLIC INTEREST INFORMATION – access refused to information about other individuals – personal information and privacy – whether disclosure would, on balance, be contrary to public interest – whether access may be refused under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of Communities (Communities) under the Right to Information Act (Qld) (RTI Act) for ‘the complete file’ concerning a specified residential unit. The applicant was a public housing tenant of the unit at the time she made her application. In its decision dated 13 December 2010, Communities advised that it had located ‘1173 pages’ of information across five files in processing the applicant’s access application, and had decided to: Omit one page and parts of eight pages which are not relevant to...[the applicant’s] application; Omit 317 pages which are outside the scope of...[the] application; refuse access to 32 pages; partially release 68 pages; and give full access to 754 pages.[2] The applicant applied[3] to the Office of the Information Commissioner (OIC) for external review of Communities’ decision. OIC did not determine substantive issues arising from the applicant’s external review application, but decided[4] not to further deal with that application, in accordance with section 94(1)(a) of the RTI Act (Original Decision). The applicant appealed OIC’s decision to the Queensland Civil and Administrative Tribunal (QCAT). By order dated 23 October 2014,[5] QCAT set aside the Original Decision and remitted the matter to OIC to be dealt with according to the provisions of the RTI Act. OIC reopened the external review and I have considered the matter afresh. A considerable amount of information originally in issue was released to the applicant during the review. As for the balance, I have decided: not to further deal with parts of the applicant’s external review application under section 94(1)(a) of the RTI Act, on the basis that they are frivolous, vexatious, misconceived or lacking in substance; that segments of information appearing on some pages are irrelevant information which may be deleted from those pages, while other pages fall outside the scope of the applicant’s access application, and may be excluded from consideration; that access may be refused to remaining information, on the grounds it comprises:- legally privileged and therefore exempt information; or information the disclosure of which would, on balance, be contrary to the public interest; or information that is nonexistent or unlocatable. Background The period between OIC’s Original Decision and this decision has seen various machinery of government changes. The respondent agency is now the Department of Housing and Public Works (HPW). Significant procedural steps are set out in Appendix 1 to these reasons. I note that on 28 June 2016 the applicant lodged with OIC a 109-page submission.[6] This lengthy document largely fails to engage with the substantive issues to be determined in this review, much of it comprising irrelevant and excessive detail concerning procedural or other extraneous matters. Nevertheless, I have carefully reviewed the document (together with all other material relied on by the applicant), and endeavoured to distil pertinent submissions where possible. Reviewable decision The decision under review is Communities’ decision dated 13 December 2010. Material considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and appendix). Information in issue The information in issue is identified in Appendix 2.[7] This information includes: information to which Communities originally refused the applicant access (including on the basis of scope and/or relevance); a further ‘File06’, which appears to have been located by Communities during initial processing but was not dealt with in its decision; a number of pages assessed for the first time by HPW in the course of this remitted external review; documents contained on ‘Files07–18’, being files located by Communities in March 2011, during OIC’s original external review (Further Files); and four pages identified as relevant by OIC, and appearing in procedural materials[8] forwarded to OIC by Communities during the original external review (Additional Pages). OIC has forwarded to HPW with these reasons a PDF file containing the information in issue, identifying those pages or parts of pages dealt with in these reasons. In view of the large number of pages in issue, I have adopted a degree of generalisation in these reasons. This is in keeping with the approach to voluminous applications endorsed by Woodward J of the Federal Court of Australia in News Corporation Ltd & Ors v National Companies and Securities Commission,[9] His Honour observing that: ‘... if the Freedom of Information legislation is to remain workable, it must be open to a respondent, and to the AAT [as the independent review tribunal], to deal with large numbers of documents with a degree of generalisation appropriate to the case.’[10] Procedural issues Request for submissions The applicant requested[11] that she be provided with any agency submissions lodged with OIC. Exercising my discretion under 95(1)(a) of the RTI Act, I have declined to do so, in order that participants may focus on issues salient to the review, to ensure compliance with section 108 of the RTI Act, and to endeavour to resolve this matter as expeditiously as possible.[12] I have nevertheless ensured that the applicant has been advised of any preliminary view I have formed in the course of the review, where such view has been adverse to her interests, and apprised her of the material on which I have based such a view. I am satisfied that the applicant has been afforded procedural fairness in the circumstances of this review. Time allowed for making submissions By letter dated 31 May 2016, I wrote to the applicant explaining my preliminary view on the bulk of the issues in this external review.[13] The standard practice of OIC is to allow review participants 10 business days to reply to correspondence of this kind, with extensions often granted if requested. In this case I allowed more time, until 28 June 2016. The applicant’s reply to that letter was in the form of the submissions referred to in paragraph 8, in which, among other things, she contends she was given ‘insufficient time’ to respond to my preliminary view. Despite this, she expressly declined to request additional time in which to lodge any fur[14]er reply.14 Despite her complaints as to ‘insufficient time’ generally and in response to specific substantive matters, the applicant generated an expansive submission traversing a multitude of issues in reply to my preliminary view, many of which are[15]as noted,15 of no relevance to this review. In the circumstances, I am satisfied that the applicant has been given adequate opportunity to put her case in this external review. I turn now to explain the reasons for my findings as summarised in paragraph 5. Decision not to further deal Information dealt with in previous external review Several pages in issue comprise duplicates of documents dealt with previously under the RTI Act, as a result of the applicant’s access application to HPW dated 28 February 2011 and OIC’s external review of HPW’s decision on that access application.[16] That review was finalised by way of formal decision: Underwood and Department of Housing and Public Works (Underwood).[17] The schedule forming Appendix 2 to this decision cross-references pages in issue in this review against corresponding pages dealt with in that earlier matter. For the reasons explained below, I decide not to further deal with the applicant’s external review application, to the extent it concerns ‘repeat’ information (Repeat Information) of the kind described in the preceding paragraph. Application of section 94(1)(a) of the RTI Act Section 94(1)(a) of the RTI Act provides: (1) The information commissioner may decide not to deal with, or not to further deal with, all or part of an external review application if— (a) the commissioner is satisfied the application, or the part of the application, is frivolous, vexatious, misconceived or lacking substance The power prescribed in section 94(1)(a) of the RTI Act is applicable to the extent an external review applicant seeks information that has been dealt with under the RTI Act in the course of prior applications by that applicant.[18] As the Information Commissioner has stated, an application of this kind:[19] ...would clearly be vexatious, and contrary to the principle that a decision by a court or tribunal resolves the issues in dispute between the parties. A litigant cannot seek multiple hearings of the same issues between parties - that is vexatious and oppressive to the other party and to the relevant court or tribunal, and unfair to other citizens waiting their turn to use the dispute resolution services, provided from public funds, by courts and tribunals. Applying the above reasoning, to the extent the applicant’s external review application seeks to revisit information and issues dealt with previously under the RTI Act, I consider that it is frivolous, vexatious, misconceived or lacking in substance. Accordingly, I decide not to deal with, or not to further deal with, that aspect of the applicant’s external review application under s.94(1)(a) of the RTI Act, and to therefore deal no further with repeat pages (or parts) as identified in Appendix 2. In making this finding, I have taken into account the fact that the access application ultimately the subject of this external review no. 100103 was made to Communities, whereas the access application leading to external review no. 310671 was made to HPW.[20] I consider, however, that revisiting information and issues determined pursuant in access and external review applications the subject of external review no. 310671 would essentially involve a re-hearing of issues already finally determined as between the applicant and HPW. As explained by the RTI Commissioner in Underwood (No. 1),[21] HPW was, at the time the applicant made the access applications noted in the preceding paragraph, providing legal services to Communities. Communities sought legal advice from HPW in relation to issues concerning the applicant. Documents and information dealt with in external review no. 310671 were thus derived from HPW’s legal files. The Repeat Information in issue in this review comprises, to quote the RTI Commissioner in Underwood (No. 1), the ‘flip side of the coin’;[22] the same information, as held by Communities and communicated to HPW in the course of the former seeking the latter’s advice. These pages were partly released to the applicant pursuant to her access application dated 28 February 2011 lodged with HPW and through the consequent external review no. 310671. Without fully re-hearing the issue,[23] I consider that the grounds for refusing access in that earlier and completed review would apply equally in this matter. It is also relevant to note that I am required to consider relevant facts and circumstances as they now stand.[24] As a result of machinery of government changes, the documents in issue in this review are HPW documents – as has been the case for some time. HPW was, by the time of the remitting order of Cullinane J, the relevant respondent in QCAT proceedings APL075-12. HPW is: the respondent in this external review; the agency that has collated and assessed all relevant information in response to the access application the subject of this review; and the agency with whom OIC has conducted all meaningful liaison as regards refusal of access and disclosure. HPW is, in short, the respondent agency that did all the ‘legwork’ in review no. 310671, and has done so again in response to the access and external review applications the subject of the current review. To conclude, I consider that revisiting information and issues determined pursuant to the access and external review applications the subject of external review no. 310671 would involve a further hearing of issues already finally determined as between the applicant and HPW, the agency now responsible for relevant documents and for prosecuting a case in relation to same in this external review. I acknowledge that there are not a large number of pages of this kind in this review. Nevertheless, I consider that revisiting them again now would be vexatious and oppressive to OIC, by requiring it to expend finite resources reconsidering the same information and issues that have already been determined and resolved – resources that could be directed toward other external reviews, or meeting other statutory obligations with which OIC is charged. Revisiting relevant issues would also be unfair to HPW, by necessitating that it deal again in this review with matters resolved in review no. 310671. Finally, re-considering the Repeat Information would be unfair to those other members of the community seeking to avail themselves of OIC’s limited, and publicly-funded, resources. For these reasons, I decide not to deal with, or not to further deal with, the applicant’s application for external review under section 94(1)(a) of the RTI Act, insofar as it seeks to revisit the Repeat Information. Decision not to further deal with application as it concerns ‘Same Documents’ During OIC’s original external review, Communities advised OIC that further searches had located the Further Files. Also, as noted above, HPW identified additional pages during this review on remittal. I have examined copies of the Further Files and the additional pages located by HPW. I am satisfied that many of them are the same pages identified by Communities in its initial processing of the applicant’s access application and dealt with in its decision, or in the case of ‘File07’ (supplied by Communities during OIC’s original review), the same pages as pages 1184-1192 identified by HPW during this review on remittal. This is evidenced by indicia such as identical handwritten annotations, with Communities apparently having merely stamped an RTI ‘watermark’ on each duplicated page before re-supplying same to OIC. Each of these documents – the Same Documents – has therefore either been released to the applicant or otherwise forms part of the information in issue dealt with elsewhere in these reasons Dealing further with the Same Documents would entail the repetition of a considerable amount of work already undertaken by OIC and HPW in this review, a significant exercise that would result only in the applicant either being granted access to identical information already released, or, conversely, refused access to identical information. In the circumstances, and contrary to the applicant’s 28 June 2016 submissions, I consider that dealing further with the applicant’s review application as it concerns the Same Documents would achieve no outcome for the applicant other than that she has either already obtained, or will obtain through this decision – a situation that would be both frivolous,[25] and oppressive to OIC and HPW, causing each ‘serious and unjustified trouble’[26] sufficient to amount to vexation. Accordingly, to the extent the applicant’s external review application concerns the Same Documents,[27] I consider it both frivolous and vexatious. I therefore intend not to further deal with that part of her application under section 94(1)(a) of the RTI Act, and the pages to which it relates. I should make it abundantly clear that my adopting this course of action causes the applicant no disadvantage, but conserves the resources of both OIC and HPW, allowing them to be deployed elsewhere in service of the public. Out of scope and irrelevant information A number of documents post-date the applicant’s access application. These are therefore outside the scope of that application, and may be excluded from consideration.[28] Similarly, parts of certain pages contain information post-dating the applicant’s access application. Under section 73(2) of the RTI Act, an agency may give access to a document with irrelevant information deleted, if it considers from the terms of the application or after consultation with the applicant, that the applicant would accept the copy and it is reasonably practicable to give access to the copy. The agency is entitled to make the decision to delete irrelevant information based on the access application itself (i.e., without consulting the applicant) where the information clearly falls outside the scope of the access application.[29] Information post-dating an access application plainly falls outside the temporal scope of that application. Accordingly, as pertinent information in this review relates to a period of time other than that which is relevant to the access application, it may be deleted as irrelevant information under section 73(2) of the RTI Act. Additionally, in an annexure to her access application, the applicant stated that she sought access to information ‘...excepting that already provided under previous applications IP0029 of 22 July 2009 and IP0029/R0247 of 27 November 2009...’. A considerable number of pages were previously released to the applicant pursuant to these earlier access applications.[30] Accordingly, as information ‘already provided under’ applications IP0029 and/or R0247, these pages[31] fall within the exception expressly specified by the applicant in her access application. As she explicitly stated that she was not seeking access to these pages, they are therefore outside the scope of her access application and may be excluded from consideration in this external review. Finally, there is a deal of information that is entirely unrelated to the subject of the applicant’s access application, and thus does not fall within the terms of that application. It, too, is outside the scope of the application and of this external review, and where it appears within an otherwise relevant document, comprises clearly irrelevant information which may be deleted in accordance with the principles discussed above. The applicant contests deletion of information on the ground of irrelevance, partly on the basis she has not been consulted, and partly, as best as I can understand her submissions, because she cannot be satisfied that specific information is irrelevant (or out of scope).[32] In relation to the first point, and explained above, if a view as to the application of section 73(2) of the RTI Act can be formed based on the terms of the application, consultation with an applicant is not required. That is the situation in this case. In relation to the second, whether the applicant is satisfied as to irrelevance, scope, or, indeed, any other matter the subject of these reasons is immaterial – it is sufficient that I, as the delegate of the Information Commissioner charged with decision-making functions under the RTI Act, am so satisfied. Exempt Information The RTI Act gives people a right to access documents of government agencies.[33] This right is subject to other provisions of the RTI Act, including grounds on which access may be refused. Access may be refused to information, to the extent the information comprises ‘exempt information’.[34] ‘Exempt information’ includes information that would be privileged from production in a legal proceeding on the ground of legal professional privilege.[35] Legal Professional Privilege Legal professional privilege attaches to confidential communications between a lawyer and client made for the dominant purpose of seeking or giving legal advice or professional legal assistance, or preparing for, or for use in or in relation to, existing or reasonably anticipated legal proceedings.[36] The privilege extends to copies of unprivileged documents made for the dominant purpose of obtaining legal advice[37] and to internal communications repeating legal advice, whether verbatim or in substance.[38] Relevant information – the ‘Legal Information’ – is noted in the schedule forming Appendix 2 to these reasons. It comprises communications between Communities officers and Communities’ legal service providers as employed by HPW, made for the purposes of conveying instructions and requesting or providing legal advice, and internal departmental communications repeating or summarising the substance of such communications. Having reviewed the Legal Information, I am satisfied that it was created for the dominant purpose of obtaining professional legal assistance from independent legal advisors, or for conveying that assistance. There is nothing before me to suggest that it is anything other than confidential as against the applicant. It therefore attracts legal professional privilege and is thus exempt information to which access may be refused. The applicant has contested the existence of legal professional privilege, submitting that at the time she lodged her access application, ‘I did not know of any legal proceedings – there is no valid reason to claim legal privilege.’[39] Obtaining material for use in legal proceedings is but one of two circumstances in which communications may attract privilege. The other, as the statement of principle set out in paragraph 44 makes clear (and as was explained to the applicant in my letter dated 31 May 2016), is where communications are made for the dominant purpose of seeking or conveying legal advice. It is the latter that is relevant in this case; as explained above, I am satisfied that relevant information was created for the dominant purpose of requesting or providing professional legal assistance. Contrary to public interest information Relevant law It is Parliament’s intention that access should be given to a document unless giving access would, on balance, be contrary to the public interest.[40] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs, for the wellbeing of citizens generally. This means that ordinarily, a public interest consideration is one which is common to all members of the community, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of a particular individual. In deciding whether disclosure would, on balance, be contrary to the public interest, the RTI Act requires a decision-maker to: identify any irrelevant factors and disregard them; identify relevant public interest factors favouring disclosure and nondisclosure; balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosing the information would, on balance, be contrary to the public interest.[41] Schedule 4 of the RTI Act contains non-exhaustive lists of various factors that may be relevant in determining the balance of the public interest. There are three main categories of contrary to public interest information (CTPI Information) in issue, as follows: Category 1: Public servant mobile telephone numbers; Category 2: Body corporate and private sector employee information (including several subcategories, described further below); and Category 3: Third party information.[42] In addition to these categories, the information in issue includes: small segments of information appearing on pages 200, 205 and 1167, concerning a public officer’s domestic affairs and another’s work pattern arrangements; and the residential address of the vendors from whom the Queensland Government purchased the unit the subject of the applicant’s access application. I address these latter segments, and Categories 1-3 of the CTPI Information, below. Consideration I can identify no applicable irrelevant factors, and I have taken none into account in making my decision. I will now consider whether the balance of the public interest favours disclosure or nondisclosure of the CTPI Information. Category 1: Mobile telephone numbers Some of the information in issue comprises the mobile telephone numbers of public servants. The only consideration that I can identify favouring disclosure of this information is the general public interest in promoting access to government-held information.[43] Beyond this, I am unable to identify any further factors telling in favour of release – I cannot see how disclosure of such limited and particular personal contact details could, for example, promote open discussion of public affairs,[44] or contribute to positive and informed debate on important issues or matters of serious interest.[45] The applicant has made various contentions as to why information generally should be disclosed to her, including that she was being denied: ‘the right to have the information amended...to have notations made to the records where they are inaccurate, misleading and/or irrelevant’; and the ‘right to know the details of seemingly fabricated information ie perpetuating and compounding one’s persecution’. [46] The applicant made almost identical submissions to these in both Underwood and Minister and Underwood (No. 1). To paraphrase what the RTI Commissioner said in those cases, insofar as the submissions canvassed in the above paragraph are relevant, they would appear to be meaningfully applicable only to the Category 3 information. I have addressed them in that context below. For present purposes, it is sufficient to note that as regards the Category 1 information, there is no evidence before me to suggest that any of the mobile telephone numbers are incorrect[47] or in any way ‘fabricated’, and I cannot see how mere contact numbers could contribute to alleged ‘perpetuating and compounding [of] one’s persecution’ in any way, least of all so as to merit disclosure. As for factors favouring nondisclosure of public servants’ mobile telephone numbers, the RTI Commissioner analysed relevant considerations in dealing with identical information in Underwood and Minister: A factor favouring nondisclosure arises where disclosure of information could reasonably be expected to prejudice the protection of an individual’s right to privacy. OIC has previously found that disclosure of the mobile telephone numbers of public officers could reasonably be expected to lead to this prejudice. This is because such information allows officers to be contacted directly and outside of work hours. As the Assistant Information Commissioner has noted:I acknowledge that agency employees are provided with mobile telephones to perform work associated with their employment. However, I also consider that a mobile telephone number which allows an individual to be contacted directly and potentially outside of working hours, falls outside the realm of routine work information and attracts a certain level of privacy. I agree. As I have noted, disclosure of mobile telephone numbers permits potential contact with a public officer when off duty and/or engaged in private activity, thus giving rise to a reasonable expectation of intrusion into to the officer’s private life or ‘personal sphere’. (Footnotes omitted.[48]) The reasoning in Underwood and Minister is apposite in this case. I am satisfied that disclosure of public servants’ mobile telephone numbers could reasonably be expected to prejudice the protection of associated individuals’ right to privacy. This gives rise to a factor favouring nondisclosure of this information.[49] In the interests of completeness, I should note that the applicant appears to contest the application of this nondisclosure factor, arguing that ‘[p]ublic service officers and/or others are not entitled to claim privacy when my privacy is not considered’.[50] From her submissions, it appears the applicant may have taken umbrage at circulation of issues concerning her public tenancy amongst various officials with responsibility for community and public housing.[51] There is no objective material before me, however, to suggest that such activity was anything other than ordinary, everyday administrative practice – certainly, outside the applicant’s various assertions and allegations, there is nothing in the information before me to suggest her ‘privacy’ has not been ‘considered.’ In any event, the applicant’s contentions are strictly irrelevant to an application of the privacy nondisclosure factor. The factor arises for consideration in balancing the public interest where, as noted, disclosure of specific information could reasonably be expected to prejudice protection of an individual’s right to privacy – its operation is not contingent on another’s privacy having also been given due regard. It remains then to balance relevant factors against one another. As noted in paragraph 56, I recognise the general public interest in promoting access to government-held information. There are, however, no broader accountability or transparency considerations to be advanced by disclosure of the public servant mobile numbers in issue. In the circumstances I consider this general consideration favouring disclosure warrants only minimum weight. Weighing against disclosure is the public interest in avoiding prejudice to the protection of an individual’s right to privacy. There is a clear public interest in ensuring that government respects personal privacy, including the privacy of its employees. I accord this consideration significant weight. Balancing relevant factors against one another, I consider the substantial public interest in safeguarding individual privacy outweighs the general public interest in promoting access to government-held information. In this regard, I note that government is the custodian of a mass of information relating to the community, and the general public interest in promoting access to information it holds will often conflict with and, generally, yield to specific public interests, such as the public interest in protecting personal privacy. This is such a case. Disclosure of the public servant mobile numbers in issue would, on balance, be contrary to the public interest.[52] For the reasons explained above, access may be refused to the Category 1 information.[53] Category 2: Body corporate information The Category 2 information includes various documents containing information relating to Communities’ proposals for the unit in which the applicant was resident, and the management of the body corporate of the complex to which that unit belonged. Some of these documents contain segments of CTPI Information, generally: names and identifying particulars of private lot owners/occupants and information disclosing their dealings with their properties, such as the manner in which those owners voted on body corporate matters; financial information concerning amounts payable by lot owners and the body corporate representing those owners; and names and/or personal information[54] of: employees of the strata title management company engaged to manage the body corporate and its contractors; and employees of other private entities (particularly as appearing in the Additional Documents). I will address each of the above sub-categories in turn. (a)-(b) Lot owner names/financial information I have carefully reviewed the applicant’s submissions, and this information itself. The only factor favouring disclosure of this information that I can identify is the general public interest in promoting community access to government-held information.[55] Given the nature of this information – genuinely private information concerning the personal and financial affairs of members of the public – this sole consideration favouring disclosure deserves only marginal weight. Telling against disclosure is the fact that this information comprises the personal information of individual proprietors of units in the relevant complex,[56] and/or information disclosure of which could reasonably be expected to prejudice the protection of those proprietors’ right to privacy.[57] I consider that matters concerning an individual’s ownership of residential property, their intentions as to the management of such property, and the financial liabilities attending ownership, comprise information falling within their ‘personal sphere’.[58] In the circumstances, the personal information public interest harm factor and/or the privacy nondisclosure factor weigh against disclosure of this information. Each deserves substantial weight. As I can identify only one factor favouring disclosure – of negligible weight – I am satisfied that disclosure of relevant information would, on balance, be contrary to the public interest. Access to this information may therefore be refused. (c) Employee names/personal information As for the employee names (and occasional segments of related information), OIC has previously found that the fact that an individual works for a private sector business is their personal information, giving rise to the public interest harm factor favouring nondisclosure and the related public interest nondisclosure factor intended to avoid prejudice to the protection of individual privacy.[59] Applying that earlier reasoning, I am satisfied that each of these factors applies to the equivalent information in issue in the present case. I am also satisfied that the mobile telephone numbers of private individuals appearing on page 935 and Additional Page 2 attract the operation of each of these factors weighing against disclosure. Mobile numbers in my view comprise personal information, as by calling them, it would be reasonably possible to ascertain the identity of the individual phone holder associated with each number. Further, I am satisfied that disclosure of this information could reasonably be expected to prejudice protection of the phone holder’s right to privacy, giving rise to a public interest factor favouring nondisclosure.[60] As regards the weight to be accorded these considerations, there is, in my view, a manifest and self-evident public interest in ensuring that government protects personal information and the individual privacy of private citizens. Accordingly, I am satisfied that each of the relevant factors attracts substantial weight. The only factor favouring disclosure of this sub-category of information that I can identify is the general public interest in advancing access to government-held information, noting that the applicant has put nothing before me – either in her original submissions or during this review on remittal – identifying any others meriting genuine consideration.[61] That consideration alone is, in my view, insufficient to displace the privacy interest attaching to this information and the public interest in safeguarding personal information held by government. Accordingly, it is my view that disclosure of relevant names and related information would, on balance, be contrary to the public interest, and access to this information may be refused. Category 3: Third party information A number of pages contain information disclosure of which would identify persons other than the applicant, in a context concerning those persons’ complaints to and/or interactions with Communities (or interactions proposed by Communities), including information describing individual attitudes, opinions, and personal and financial intentions. As identifying information,[62] this information comprises personal information, release of which would occasion a public interest harm.[63] A private citizen’s dealings with a government agency concerns a central aspect of their ‘personal sphere’,[64] and therefore I am further satisfied that, by linking identifiable individuals with such dealings and interactions, disclosure of the Category 3 information could reasonably be expected to prejudice protection of the third parties’ right to privacy.[65] I recognise the public interest in disclosing information that may assist to ensure public agencies operate transparently and accountably, and acknowledge that disclosure of these segments may allow the applicant to be fully apprised of issues concerning her tenancy, and Communities’ management of that tenancy. These considerations enliven the public interest factors favouring disclosure set out in schedule 4, part 2, item 1 and 11 of the RTI Act. I consider, however, that in this case applicable public interests have been adequately served by disclosure to the applicant of information concerning her tenancy, and that she has been provided with sufficient information (including via disclosure made during the course of this review) to allow her to understand associated issues and Communities handling of them. Relevant pro-disclosure factors therefore warrant only moderate weight. I also note that, as information concerning the applicant’s tenancy, some of this information arguably also comprises her personal information (giving rise to the factor favouring disclosure prescribed in schedule 4, part 2, item 7 of the RTI Act). It is not possible, however, to separate this personal information from the personal information of others. Disclosing it would therefore require disclosure of the personal information of a person other than the applicant, and would prejudice protection of an individual’s right to privacy. In the circumstances of this case, my view is that the public interest in safeguarding personal information and privacy of third parties should be preferred to that favouring disclosure to a person of their own personal information. In short, I am not persuaded that disclosure of the Category 3 information would materially advance the pro-disclosure public interest factors I have identified above; certainly, not to an extent sufficient to justify disclosure of the personal information of which this information is comprised. As I have noted above, to the extent the applicant’s submissions regarding the public interest can be meaningfully applied to the information in issue in this review, they appear to have most purchase as regards the Category 3 information. The essence of her submissions is reflected in the extracts set out in paragraph 57 above; ie that information is ‘fabricated’, and ‘inaccurate, incomplete, out of date or misleading’. A factor favouring disclosure will arise for balancing where disclosure of information could reasonably be expected to reveal that the information is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[66] There is, however, nothing before me to suggest that relevant information is inaccurate, incomplete etc. Much of it is merely factual matter – such as names – which clearly present as accurate. As for more substantive ‘complaint’ detail, OIC has previously found that information of this kind: ... is by its very nature, an individual’s particular version of events which is shaped by factors including the individual’s memory and subjective impressions. In my view, this inherent subjectivity does not necessarily mean that the resulting account or statement is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. Rather, it means that complaint information comprises a personal interpretation of relevant events, which an investigator must balance against other (often competing) statements and evidence in reaching a conclusion in a particular case.[67] This analysis is relevant in this case. Applying it, I do not consider that the relevant pro-disclosure factor arises for consideration in this case.[68] Nor does this appear to be a case in which procedural fairness considerations might arise to favour disclosure. The substance of any matters potentially adverse to the applicant have either been disclosed pursuant to related RTI access applications, or by HPW in the course of this review. I note the applicant’s submission that she is ‘being denied the right to have my side of the neighbourhood dispute placed on record.’ It is not, in my view, necessary for the applicant to access third party personal information (nor any other information to which I have decided access may be refused) in order for her to put her ‘side’ of the dispute; indeed, the voluminous amount of correspondence lodged by her with Communities/HPW in relation to relevant ‘neighbourhood’ issues[69] suggests she has not only enjoyed such a right, but exercised it vigorously. In the circumstances, I consider that the public interest in protecting privacy and safeguarding personal information should be preferred to any considerations favouring disclosure of the Category 3 information. As the RTI Commissioner observed in refusing access to analogous information in Underwood (No. 1) (footnotes omitted):[70] Members of the public are generally entitled to expect that personal information collected from them by government agencies will be handled appropriately, and not subject to routine and unconditional disclosure to others. Safeguarding individual privacy and avoiding public interest harm by protecting personal information are public interest considerations warranting relatively substantial weight, and which outweigh any considerations favouring disclosure in this case. Disclosure of the Category 3 information would, on balance, be contrary to the public interest. Access to this information may therefore be refused. Miscellaneous public servant personal information As noted in paragraph 53, in addition to the three categories discussed above, the CTPI Information in issue includes also small segments of information appearing on pages 200, 205 and 1167, concerning a public officer’s domestic affairs and another’s work pattern arrangements. Disclosure of any of these segments would cause a public interest harm by disclosing the personal [71]formation71 of each officer, and prejudice protection of the officers’ right [72] privacy.72 Public servants are entitled to have their personal information protected and their privacy respected, particularly in relation to information about their personal affairs rather than public duties. Each of these considerations favouring nondisclosure attract substantial weight Once again, in favour of disclosure I recognise the general public interest in promoting access to government-held information. This consideration, however, warrants only negligible weight, given the personal nature of these segments of information, and I can identify no other factors favouring disclosure of these segments to the applicant.[73] Applicable privacy interests justifying nondisclosure are therefore not displaced by any considerations in favour of release. In the circumstances I am satisfied that disclosure of these segments would, on balance, be contrary to the public interest. Access to this information may therefore be refused. Vendors’ residential address Additional Page 4 contains the residential address of the private individuals from whom the Queensland Government purchased the unit the subject of the applicant’s access application. Once again, other than the general public interest in advancing access to government-held information, I can identify no considerations favouring disclosure to the applicant of this information. I am unable to see how the disclosure of a private citizen’s residential address would, for example, enhance official accountability or the transparency of government operations. Further, I can identify nothing in any of the applicant’s submissions which would support a case for release to her of this information. As regards the submissions summarised in paragraph 57, for example, I note that there is nothing before me to cause me to question the veracity of this information, and, as factual information concerning individuals other than the applicant, it is not amenable to amendment on application by her. Weighing against any considerations favouring disclosure is the fact that release of this personal information would occasion a public interest harm.[74] Additionally, by revealing the residential address of private individuals, disclosure could reasonably be expected to prejudice the protection of those individuals’ right to privacy.[75] Given the nature of this information – personal information in the possession of government as a consequence of its participation in the residential property market – I consider the general public interest favouring disclosure identified above should be given limited weight only. Any considerations favouring disclosure should be subordinated to the strong public interest in protecting personal information and safeguarding individual privacy. Disclosure of the vendors’ address would, on balance, be contrary to the public interest and access to this segment may therefore be refused. CTPI Information – concluding comments In reaching the above findings in relation to the CTPI Information, I acknowledge that the applicant may be aware of a considerable amount of information concerning identities and events to which the Category 3 and, indeed, other categories of CTPI Information relate – as a consequence, for example, of information released to her pursuant to various RTI access applications and of her involvement in events to which information may pertain. In these circumstances, arguably the privacy interests attaching to some of the personal information embodied in the CTPI Information may not be of the same magnitude as might ordinarily be the case. Nevertheless, members of the community are, as previously noted, entitled to expect that the personal information they convey to a government agency will not be subject to unconditional disclosure to others. In the circumstances, I remain satisfied that the factors favouring nondisclosure discussed retain sufficient weight to justify refusal of access in this case. Sufficiency of search contentions and miscellaneous submissions The Information Commissioner’s external review functions include investigating and reviewing whether agencies have taken reasonable steps to identify and locate documents applied for by applicants.[76] In summary terms, where all reasonable steps have been taken, access may be refused to documents, on the basis they are nonexistent or unlocatable.[77] In an annexure to her application for external review, the applicant puts various statements, questions and assertions suggesting that Communities/HPW have failed to locate and deal with all relevant documents.[78] I had considerable difficulty comprehending these particular submissions, which are repetitive, convoluted and in parts contradictory – and in no way clarified by the applicant’s submissions made during the course of this review. The applicant in this annexure repeatedly asserts, for example, that particular email chains ‘cannot be traced to a conclusion – ie establish the end recipient and whose email box it has been printed from’. My review of relevant material suggests the contrary – emails released to her as pages ‘R0602 File01 pages 29-31’, for example,[79] appear to comprise a complete chain of several emails, printed in their entirety – as evidenced by the text ‘Page 1/2/3 of 3’ (as relevant) appearing in the top right corner of each page. The officer from whose email account the chain was printed, meanwhile, is plainly stated at the top left of page 29, the first page of this chain – a fact the applicant expressly notes at a later point in this submission, stating ‘Printed from email of [officer’s name]’. I can identify nothing in this material tending to indicate that any additional relevant documents exist in any agency’s possession or under its control. The applicant also queries[80] ‘what information is attached?’ to a particular email, a question apparently prompted by the statement in that message reading ‘[p]lease see attached information’. Insofar as this query might be read as a contention that Communities and/or HPW as its successor has failed to identify and deal with the ‘attached’ information, it cannot be sustained: the ‘attached’ information comprises information dealt with elsewhere in these reasons, as information to which access may be refused. No issue as to search adequacy arises from this reference. Elsewhere in her review application,[81] and again in her 28 June 2016 submissions,[82] the applicant claims that there has been an ‘insufficiency of search,’ levelling various assertions as to ‘missing’ documents. An applicant asserting the existence of missing documents bears responsibility for establishing that reasonable grounds exist to suspect the existence of missing documents.[83] The applicant has, however, made no attempt to explain or substantiate her assertions, and I can see nothing on the face of the information in issue itself that points toward the existence of additional relevant documents. I can, then, identify no objective evidence pointing to the existence of additional relevant documents. In any event, even if such evidence existed, I consider that all reasonable steps to locate requested information have been taken. Extensive searches for relevant documents were conducted during the initial processing of the applicant’s access application. Further searches were conducted by Communities during the original external review, and records of both series of searches supplied to OIC during that review.[84] I have reviewed these search records, which certify the performance of extensive and appropriately-targeted searches. I am unable to identify any additional lines of enquiry the respondent agency in this matter might now be reasonably requested to perform. In the circumstances, I consider that all reasonable steps have been taken to locate relevant documents. Access may therefore be refused to any additional information, on the basis that it is nonexistent or unlocatable.[85] Other questions raised in review application The applicant’s external review application poses various questions. As I advised the applicant in my letter dated 31 May 2016, the purpose of the RTI Act is to provide applicants with access to identifiable documents – not to allow interrogation of agencies about the contents or meanings of documents, nor to permit an applicant to ask general questions of agencies about matters that might be of interest or concern to that applicant. Accordingly, to the extent the review application raises questions of this kind, it lacks substance, and I decide not to further deal with it.[86] Request for duplicate copies of emails Finally, the applicant contends that by not identifying and dealing with all iterations of a given email – ie, as appearing in the accounts or ‘mailboxes’ of the sender and all recipients – HPW has failed to take reasonable steps to identify and deal with relevant documents. On page 2 of the annexure to her review application, for example, the applicant states: Details to date of all email addresses of recipients of the emails and/or forwarded emails – print outs of all emails received and/or sent together with any archived emails received and/or sent are required – no exceptions. Reasonable search efforts will in my view ordinarily only require an agency to, as was done in this case, locate and deal with a single copy of an email or email chain, not its duplications as may be located in the mailboxes of recipients.[87] Pursuing further iterations of an email/email chain an instance of which has been identified and dealt with is, in the absence of exceptional circumstances, frivolous.[88] To the extent the applicant’s external review application seeks to do so in this case, I decide not to further deal with it.[89] DECISION The decision under review refused access to information on grounds that were not relied upon by HPW in this review on remittal, nor by me in reaching my decision.[90] Additionally, there is a substantial amount of information dealt with in these reasons that was not addressed in the decision under review. Given this, the appropriate course of action is to set aside the decision under review. In its place, I decide not to deal with, or not to further deal with, the applicant’s application for external review under section 94(1)(a) of the RTI Act, insofar as it seeks to revisit the Repeat Information, relates to the Same Information, seeks answers to questions or concerns repeat iterations of emails. I further find that: information which is not relevant to the terms of the access application may be deleted under section 73 of the RTI Act; some information falls outside the scope of the access application and this external review; and access to other information may be refused under sections 47(3)(a), 47(3)(b) and 47(3)(e) of the RTI Act, in accordance with these reasons for decision. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ L Lynch Assistant Information Commissioner Date: 15 September 2016 APPENDIX 1 Significant procedural steps External review 310531 Date Event 13 September 2010 Communities received the access application under the RTI Act. 13 December 2010 Communities made its decision on the application. 17 January 2011 OIC received the application for external review of Communities’ decision. This was outside the relevant timeframe for applying for external review. 27 January 2011 Given the length and reasons for the delay, the Right to Information Commissioner exercised the discretion to extend the time in which the applicant may apply for external review. OIC advised the applicant and Communities it had accepted the applicant’s application for external review. OIC asked Communities to provide submissions on a number of issues, including information as to searches undertaken in processing the applicant’s access application. 2 February 2011 Communities requested an extension of time to provide submissions. 23 February 2011 OIC agreed to extend the timeframe for Communities to provide submissions. 17 March 2011 Communities lodged requested submissions detailing, among other things, searches undertaken, including additional searches carried out following OIC’s 27 January 2011 letter and copies of the Further Files identified as a consequence of those latter searches. 25 May 2011 OIC wrote to the applicant conveying an update on the review. 19 June 2011 The applicant lodged submissions in reply to OIC’s 25 May 2011 letter. 23 November 2011 OIC issued a preliminary view to the applicant and invited her to provide submissions in support of her case if she did not accept the preliminary view. 8 December 2011 OIC received the applicant’s submissions in response to the preliminary view. 9 February 2012 OIC decided not to further deal with the applicant’s external review application, finalising external review no. 310531. External review 100103 (remitted matter 310531) Date Event 23 October 2014 QCAT set aside OIC’s decision dated 9 February 2012, and remitted the matter to OIC. 24 December 2014 OIC wrote to HPW, advising that it had reopened review 310531 as review no. 100103. OIC requested that HPW provide submissions. 13 January 2015 OIC wrote to the applicant advising that it had opened file no. 100103 (remitted matter 310531). 22 January, 4 February, 3 March 2015 HPW requested and was granted by OIC extensions of time in which to provide its submissions. 19 March 2015 OIC updated the applicant on the status of the review. 30 April 2016 HPW requested further time in which to provide submissions. 5 May 2015 OIC requested HPW provide an update on the status of its submissions. 7 May 2015 OIC updated the applicant on the status of the review. 13 May 2015 HPW provided the update requested by OIC on 5 May 2015. 14 May 2015 OIC wrote to the applicant, advising of the status of the review and requesting the applicant confirm that she wished to proceed with the review. 25 May 2015 The applicant confirmed she wished to proceed with the review. 29 July 2015 OIC received HPW’s submissions. 10 September 2015 OIC updated the applicant on the status of the review. 18 February 2016 OIC issued a preliminary view to HPW as to the status of the information in issue and invited submissions in reply. 8 March 2016 DPW requested further time in which to reply to OIC’s 18 February 2016 preliminary view. OIC granted the DPW’s request. 6 April 2016 OIC received HPW’s reply to OIC’s preliminary view. HPW agreed to release some of the information in issue. 7 April 2016 OIC wrote to HPW, clarifying aspects of OIC’s 18 February 2016 preliminary view. 12 April 2016 OIC requested HPW arrange for release of some information to the applicant. OIC further requested HPW consider release of some additional information. 13 April 2016 HPW advised it would reply to OIC’s 12 April 2016 requests by 14 April 2016. 14 April 2016 OIC updated the applicant on the status of the review. 15 April 2016 HPW provided its reply to OIC’s 12 April 2016 requests, clarifying its position in relation to certain segments of information. 19 April 2016 OIC wrote to HPW, confirming HPW’s 12 April 2016 position and requesting HPW release information to the applicant. 26-28 April 2016 OIC and HPW negotiated further to confirm information to be released to the applicant. 28 April 2016 HPW confirmed relevant information had been released to the applicant. 31 May 2016 OIC issued a preliminary view to the applicant that OIC intended not to deal further with parts of her external review application, and that access may be refused to other information. OIC invited the applicant to provide submissions in support of her case. 28 June 2016 The applicant lodged submissions in reply to OIC’s 31 May 2016 preliminary view. 12 July 2016 OIC wrote to HPW, requesting release of specific segments of information. 14 July 2016 HPW confirmed relevant information discussed in OIC’s 12 July 2016 correspondence had already been released by HPW. 20 July 2016 OIC wrote to the applicant, correcting typographical references in OIC’s 31 May 2016 correspondence. 25 August 2016 OIC wrote to HPW, requesting, among other things, that it release the bulk of the Additional Pages to the applicant. 30 and 31 August 2016 HPW agreed to release relevant parts of the Additional Pages. OIC wrote to the applicant, advising of this release and conveying a preliminary view as to why access may be refused to parts of the Additional Pages. The applicant was invited to provide any response to this correspondence by 22 September 2016. 6 September 2016 The applicant advised OIC she did not intend to make any further submissions. APPENDIX 2 Information in issue Page Original Communities reference (File R0602) Decision 2-10 File01: 2-10 Full out of scope: post application (20-22.09.10) 11 File01: 11 Part irrelevant (post application: 17, 20.09.10)Part Contrary to Public Interest (CTPI) (Category 3) 12 File01: 12 Full CTPI (Category 3) 13-17 File01: 13-17 Full out of scope: post application (14, 16-17.09.10) 18 File01: 18 Part irrelevant (post application: 14.09.10) 21 File01: 21 Part irrelevant (post application: 14.09.10) 29-33 File01: 29-33 Part CTPI (Category 3) 35 File01: 35 Part exempt: Legal Professional Privilege (LPP) (2nd and 3rd segments on page)Part CTPI (Category 3) (Balance segments) 36 File01: 36 Part CTPI (Category 3) 38 File01: 38 Part CTPI (Category 3) (1st segment)Part exempt: LPP (2nd segment) 39 File01: 39 Part exempt: LPP (1st and 2nd segments on page)Part CTPI (Category 3) (Balance segments) 40 File01: 40 Part CTPI (Category 3) 43-44 File01: 43-44 Part CTPI (Category 3) 47 File01: 47 Part CTPI (Category 3) 58 File01: 58 Part CTPI (Category 3) 68 File01: 68 Part CTPI (Category 3) 73 File01: 73 Part exempt: LPP (2nd and 3rd segments on page)Part CTPI (Category 3) (Balance segments) 74-77 File01: 74-77 Part CTPI (Category 3) 79 File01: 79 Part exempt: LPP (2nd and 3rd segments on page)Part CTPI (Category 3) (Balance segments) 80 File01: 80 Part CTPI (Category 3) 104-105 File01: 104-105 Part CTPI (Category 3) 118 File01: 118 Part CTPI (Category 3) 120-121 File01: 120-121 Part CTPI (Category 3) 123 File01: 123 Part CTPI (Category 3) 144 File01: 144 Part exempt: LPP (2nd and 3rd segments on page)Part CTPI (Category 3) (Balance segments) 145 File01: 145 Part CTPI (Category 3) 150 File01: 150 Part CTPI (Category 3) 154 File01: 154 Part CTPI (Category 3) 162 File01: 162 Part CTPI (Category 3) 179 File01: 179 Part CTPI (Category 3) 200 File01: 200 Part CTPI (public servant personal information) 205 File01: 205 Part CTPI (public servant personal information) 267-269 File01: 267-269 Part CTPI (Category 3) 271 File01: 271 Part CTPI (Category 3) 273 File01: 273 Full CTPI (Category 3) 333 File01: 333 Part irrelevant (unrelated information) 430-437 File03: 2-9 Full out of scope: post application (20-23 & 25.09.10) 450 File03: 22 Part CTPI (Category 3) 457-463 File03: 29-35 Prior release, not sought by applicant: R0247 File01 additional documents 7-13 466 File03: 38 Full out of scope: post application (14.09.10) 510 File03: 82 Part CTPI (Category 3) 511 File03: 84 Part CTPI (Category 3) 594 File03: 169 Prior release, not sought by applicant: R0247 File02 3 596-603 File03: 171-178 Prior release, not sought by applicant: R0247 File02 5-12 604-608 File03: 179-183 Prior release, not sought by applicant: R0247 File02 13-17 609-625 File03: 184-200 Prior release, not sought by applicant: R0247 File02 18-34 626-627 File03: 201-202 Prior release, not sought by applicant:R0247 File02 35-36 628-633 File03: 203-208 Prior release, not sought by applicant:R0247 File02 37-42 667 File03: 242 Prior release, not sought by applicant:R0247 File02 77 668-701 File03: 243-276 Prior release, not sought by applicant:R0247 File02 43-76 704-705 File05: 3-4 Full out of scope: post application (17 & 20.09.10) 706 File05: 5 Part irrelevant (post application: 17.09.10)Part CTPI (Category 3) 707-711 File05: 6-10 Full out of scope: post application (17.09.10) 712 File05: 11 Part irrelevant (post application: 14.09.10) 715 File05: 14 Part CTPI (Category 3) 717 File05: 16 Full CTPI (Category 3) 718-719 File05: 17-18 Part CTPI (Category 3) 724-726 File05: 23-25 Full exempt: LPP 727-732 File05: 26-31 Full CTPI (Category 3) 733 File 05: 32 Part CTPI (Category 3) 736 File05: 35 Part exempt: LPP (2nd and 3rd segments on page)Part CTPI (Category 3) (Balance segments) 737-738 File05: 36-37 Part CTPI (Category 3) 742-744 File05: 41-43 Part CTPI (Category 3) 747-751 File05: 46-50 Full CTPI (Category 3) 754-755 File05: 53-54 Full exempt: LPP 769 File05: 68 Full CTPI (Category 3) 770 File05: 69 Part exempt: LPP (2nd and 3rd segments on page)Part CTPI (Category 3) (Balance segments) 771-774 File05: 70-73 Part CTPI (Category 3) 777 File05: 76 Part CTPI (Category 3) 813-818 File05: 112-117 Part CTPI (Category 3) 825-826 File05: 124-125 Full CTPI (Category 3) 870 File05: 169 Part irrelevant (unrelated information) 882-883 File05: 181-182 Prior release, not sought by applicant: R0247 File02 121-122 895 File05: 194 Part CTPI (Category 2(c)) 896 File05: 195 Part CTPI (Category 2(a) - first segment on page)Part CTPI (Category 2(c) - balance) 898 File05: 197 Part CTPI (Category 2(c)) 899 File05: 198 Part CTPI (Category 2(c) - first five segments on page)Part CTPI (Category 2(a) - balance) 901 File05: 200 Part CTPI (Category 2(a)) 902 File05: 201 Part CTPI (Category 2(c) - first segment on page)Part CTPI (Category 2(a) - second segment) 903 File05: 202 Part CTPI (Category 2(c) - first two segments on page)Part CTPI (Category 2(a) - balance) 904-905 File05: 203 Part CTPI (Category 2(c)) 908 File05: 205 Part CTPI (Category 2(a)) 911 File05: 210 Part CTPI (Category 2(a)) 923 File05: 222 Part CTPI (Category 2(c)) 934-935 File05: 234-235 Part CTPI (Category 2(c)) 942 File05: 241 Prior release, not sought by applicant: R0247 File02 78 943 File05: 242 Part CTPI (Category 2(c)) 947-949 File05: 246-248 Part CTPI (Category 2(c)) 951 File05: 250 Part CTPI (Category 2(c)) 953-955 File05: 252-254 Part CTPI (Category 2(c)) 961 File05: 260 Part CTPI (Category 2(c)) 976-978 File05: 275-277 Part CTPI (Category 2(c)) 980 File05: 279 Part CTPI (Category 2(c)) 982 File05: 281 Part CTPI (Category 2(c)) 984 File05: 283 Part CTPI (Category 2(c)) 1000 File05: 299 Part CTPI (Category 2(a)) 1004 File05: 303 Part CTPI (Category 2(a)) 1023 File05: 323 Part CTPI (Category 2(b)) 1034 File05: 333 Part CTPI (Category 2(c)) 1042-1043 File05: 341-342 Part CTPI (Category 2(c)) 1045 File05:344 Part CTPI (Category 2(a)) 1047 File05: 346 Part CTPI (Category 2(a) - first two segments on page)Part CTPI (Category 2(c) - third segment) 1048 File05: 347 Full CTPI (Category 2(a)) 1050 File05: 349 Part CTPI (Category 2(c) - first two segments on page)Part CTPI (Category 1 - third segment) 1051 File05: 350 Part CTPI (Category 2(c) - first two segments on page)Part CTPI (Category 1 - third segment) 1052-1053 File05: 351-352 Part CTPI (Category 2(c)) 1056-1057 File05: 355-356 Part CTPI (Category 2(c)) 1059-1060 File05: 358-359 Part CTPI (Category 2(a)) 1063 File05: 364 Part CTPI (Category 2(c)) 1071 File05: 370 Part CTPI (Category 2(b)) 1078-1087 File05: 377-386 Prior release, not sought by applicant: R0247 File01additional documents 7-16 1088-1094 File05: 387-393 94(1)(a): External review 310671 pages 1130-1136 1097 File04: 2 Full out of scope: post application (16.09.10) 1122 File04: 27 Part exempt: LPP (2nd and 3rd segments on page)Part CTPI (Category 3) (Balance segments) 1123-1124 File04: 28-29 Part CTPI (Category 3) 1125 File04: 30 Full CTPI (Category 3) 1127 File04: 32 Full CTPI (Category 3) 1128 File04: 33 Part exempt: LPP (2nd and 3rd segments on page)Part CTPI (Category 3) (Balance segments) 1129-1130 File04: 34-35 Part CTPI (Category 3) 1160 File04:65 Part CTPI (Category 3) 1165-1166 File04:70-71 Part CTPI (Category 2(c)) 1167 File04:72 Part CTPI (public servant personal information) 1168 File04:73 Part CTPI (Category 2(a)) 1169 File04:74 Part CTPI (Category 2(a)) (1st segment)Part CTPI (Category 2(c) - balance) 1185 Full out of scope: unrelated to access application 1186-1187 Part CTPI (Category 3) 1195-1234 94(1)(a) same document - R0602 File03: 43-82 1235 94(1)(a) same document - R0602 File03: 84 1236 94(1)(a) same document - R0602 File03: 86 1237-1238 94(1)(a) same document - R0602 File03: 88-89 1239-1273 94(1)(a) same document - R0602 File03: 91-125 1274 94(1)(a) same document - R0602 File03:129 1275 94(1)(a) same document - R0602 File03:126 1276 94(1)(a) same document - R0602 File03:128 1277 94(1)(a) same document - R0602 File03: 130 1278-1297 94(1)(a) same document - R0602 File03: 131-150 1298-1304 94(1)(a) same document - R0602 File03:152-158 1305-1313 94(1)(a) same document - R0602 File03:160-168 1314 94(1)(a) same document - R0602 File03:170 1320 Part CTPI (Category 1) 1390 Part irrelevant (unrelated information) 1402 Full out of scope: unrelated to access application 1405 Part CTPI (Category 3) 1409-1425 Full CTPI (Category 3) File06 4-85 Prior release, not sought by applicant:R0247 File02 78-159 87-140 Prior release, not sought by applicant:R0247 File02 160-213 141-155 Prior release, not sought by applicant: P0029 File03 2-16 159-180 Prior release, not sought by applicant:P0029 File03 17-38 185-249 Prior release, not sought by applicant:P0029 File03 43-107 251-276 Prior release, not sought by applicant:P0029 File03 108-133 277-281 Prior release, not sought by applicant:P0029 File03 108-112 282-290 Prior release, not sought by applicant:P0029 File03 124-132 291-298 Prior release, not sought by applicant:P0029 File03 116-123 299-326 Prior release, not sought by applicant:P0029 File03 156-183 328-332 Prior release, not sought by applicant:P0029 File03 185-189 333 Part irrelevant (unrelated information - 1st 3 segments)Part CTPI (Category 3) (4th segment)Balance of page previously released, not sought by applicant:P0029 File03 190 334 Part irrelevant (unrelated information - both segments)Balance of page previously released, not sought by applicant:P0029 File03 191 335-341 Prior release, not sought by applicant:P0029 File03 192-198 File07 1-9 94(1)(a) same document - 1184-1192 File08 2-5 Full out of scope: post application (20.09.10 - 19.01.11) 6 Part irrelevant (post application - first segment: 20.09.10)Part CTPI (Category 3 - balance) 7-8 Part CTPI (Category 3) 14 Part CTPI (Category 2(c)) 16 Part CTPI (Category 2(a)) 17 Part CTPI (Category 2(a)) - first segment)Part CTPI (Category 2(c) - balance) File09 3-49 94(1)(a) same document - R0602 File03: 43-89 50-109 94(1)(a) same document - R0602 File03: 91-150 110-234 94(1)(a) same document - R0602 File01: 152-276 File10 6 Part CTPI (Category 1) 9 Part CTPI (Category 1) 45 Part CTPI (Category 1) 47 Part CTPI (Category 1) 49 Part CTPI (Category 1) 51 Part CTPI (Category 1) 53 Part CTPI (Category 1) 54-86 94(1)(a) same document - R0602 File03: 209-241 94-106 Full out of scope: post application (17-23.09.10) 136-152 Full out of scope: post application (21-27.09.10) File11 1-3 94(1)(a) same document - R0602 File04: 1-3 4-7 94(1)(a) same document - R0602 File01: 322-325 8-75 94(1)(a) same document - R0602 File04: 8-75 File12 1-93 94(1)(a) same document - R06023 File2 1-93 File13 1-61 Full out of scope: unrelated to access application File14 3-4 Part irrelevant (unrelated information) 5-12 Full out of scope: unrelated to access application 20 Part irrelevant (unrelated information) 21-24 Full out of scope: unrelated to access application File16 1-19 Full out of scope: unrelated to access application File17 1 94(1)(a) same document - R0602 File05: 1 4-115 94(1)(a) same document - R0602 File05: 2-113 116-117 Part CTPI (Category 3) 119-181 94(1)(a) same document - R0602 File05: 116-178 184-342 94(1)(a) same document - R0602 File05: 180-338 343-397 94(1)(a) same document - R0602 File05: 340-394 File18 4 Part CTPI (Category 1) 41-43 Full out of scope: post application (17, 23.09.2010) 70-75 Full out of scope: post application (21-22, 27.09.2010 & 1.10.2010) 87-89 Full out of scope: post application (7-8.10.2010) Additional Pages 1 Part irrelevant (first segment – post application – 19-21.10.2010)Part CTPI (Category 2(c) – second segment) 2 Part CTPI (Category 2(c)) 3 Part CTPI (Category 2(c) – segments 1-6 and 10-11)Part irrelevant (unrelated information – segments 7-9) 4 Part CTPI – residential address [1] Application dated 13 September 2010.[2] These figures stated in Communities’ decision only tally on my reckoning to 1172 pages. This appears to be a clerical oversight; 1173 pages were supplied to OIC by Communities for the purposes of external review 310531. Communities also released some information to the applicant administratively prior to making its decision, under cover of a letter to the applicant dated 21 October 2010 (a copy of which letter and its enclosures accompanied the applicant’s application for external review). Given its release, that information is not in issue in this review.[3] Application dated 17 January 2011. This application was received after the prescribed time for making an application for external review under the RTI Act had elapsed. The RTI Commissioner nevertheless exercised the discretion under the Act to extend the time for the making of the application.[4] By decision dated 9 February 2011. OIC in this decision also decided not to deal with three other external review applications lodged by the applicant, each seeking review of decisions made or taken to have been made by Communities or the-then Minister for Communities.[5] Underwood and Department of Housing and Public Works; Minister for Housing and Public Works and Information Commissioner (APL075-12), per Justice Cullinane.[6] Plus enclosures.[7] Which, for the sake of completeness, includes Communities’ original file and page referencing where applicable.[8] Relevantly, records of searches undertaken by Communities in processing the applicant’s access application.[9] (1984) 57 ALR 550.[10] Page 562.[11] Submissions dated 28 June 2016.[12] A position consistent with that adopted by OIC and explained to the applicant in two related reviews: Underwood and Minister for Housing and Public Works [2015] QICmr 27 (29 September 2015) (Underwood and Minister), [18]-[19], and Underwood and Department of Housing and Public Works (No. 1) [2016] QICmr 11 (17 March 2016) (Underwood (No. 1)), [15]-[16].[13] Further correspondence was sent to the applicant on 30 and 31 August 2016. These letters dealt with the Additional Pages, extending the reasoning set out in my 31 May 2016 letter to some of the segments of information deleted from these pages and conveying a preliminary view that access to another segment may be refused. I allowed the applicant to 22 September 2016 to reply to this latter correspondence; by letter dated 6 September 2016, the applicant advised she would not be making any further submissions.[14] See paragraph 57 at page 63 of the applicant’s 28 June 2016 submissions.[15] Paragraph 8.[16] External review no. 310671.[17] (Unreported, Queensland Information Commissioner, 18 May 2012).[18] Price and Local Government Association of Queensland Inc (S 111/01, 29 June 2001, unreported) (Price and LGAQ). This decision concerned section 77(1)(a) of the repealed Freedom of Information Act 1992 (Qld) (FOI Act). Contrary to the applicant’s submissions dated 28 June 2016, I am satisfied that section 77(1)(a) of the FOI Act was the material equivalent of section 94(1)(a) of the RTI Act, differing only in superficial respects. The comments of the Information Commissioner in Price and LGAQ are therefore applicable in this case.[19] Price and LGAQ, at [15]. The Information Commissioner went on to note that ‘[i]t is equally vexatious and oppressive to agencies to make repeated applications for the same documents...’: [16]. The notion that frivolous or vexatious conduct may incorporate ‘oppressive’ conduct as alluded to by the Information Commissioner in this passage has been recognised by the Court of Appeal: Mudie v Gainriver Pty Ltd (No 2) [2002] QCA 546; [2003] 2 Qd R 271, [36]-[37] (Mudie v Gainriver).[20] In her 28 June 2016 submissions, the applicant notes that HPW was, at the time she lodged the access application ultimately the subject of External Review No. 310671 and OIC’s decision in Underwood, the ‘Department of Public Works’. I cannot see that anything of any substance turns on this. In the same submissions, she also insists that this earlier review is ‘irrelevant’; as should be clear from these reasons, I disagree.[21] Citation at note 12. Relevant observations of the RTI Commissioner commence at paragraph [26] of this decision.[22] [27]. [23] Which would defeat the purpose of my invoking section 94(1)(a), and occasion the very prejudice to OIC and others my decision in this regard is intended to avoid.[24] Underwood (No. 1), at [28], applying Woodyat and Minister for Corrective Services [1995] QICmr 1; (1995) 2 QAR 383 and Beanland and Department of Justice and Attorney-General [1995] QICmr 26; (1995) 3 QAR 26.[25] Adopting the ordinary meaning of the word, which includes ‘of little or no weight, worth or importance, not worthy of serious notice...; characterised by lack of seriousness or sense’: Mudie v Gainriver, at [35].[26] Paraphrasing Deane J’s interpretation of this term as explained in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197.[27] Identified in Appendix 2.[28] Section 27(1) of the RTI Act provides that an access application only applies to documents in existence on the day the application is received.[29] 8U3AMG and Department of Communities (Unreported, Queensland Information Commissioner, 15 September 2011) at [15]; Underwood, note 17.[30] See copies of CDs of information previously released to the applicant by Communities, as forwarded by the applicant to OIC under cover of her application for external review.[31] Identified in the schedule at Appendix 2 to these reasons, together with earlier Communities file and page references.[32] Submissions dated 28 June 2016.[33] Section 23 of the RTI Act.[34] Section 47(3)(a) of the RTI Act.[35] Section 48 and schedule 3, section 7 of the RTI Act.[36] Esso Australia Resources Ltd v Commission of Taxation [1999] HCA 67; 201 CLR 49; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 552. An analysis of the principles of legal professional privilege – particularly as they apply in the context of the RTI Act – can be found at [18]-[26] of Underwood.[37] Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.[38] Brambles Holdings v Trade Practices Commission (No. 3) [1981] FCA 83; (1981) 58 FLR 452 at 458-459; Komacha v Orange City Council (Supreme Court of New South Wales, Rath J, 30 August 1979, unreported).[39] Submissions dated 28 June 2016.[40] Section 44(1) of the RTI Act. Where disclosure would, on balance, be contrary to the public interest, access may be refused under sections 47(3)(b) and 49 of the RTI Act. [41] Section 49(3) of the RTI Act.[42] The schedule at Appendix 2 references CTPI Information according to these categories.[43] Implicit in, for example, the objects of the RTI Act.[44] Schedule 4, part 2, item 1 of the RTI Act.[45] Schedule 4, part 2, item 2 of the RTI Act.[46] See, for example, page 13 of the applicant’s 28 June 2016 submissions.[47] And thus no basis on which to reasonably conclude that their disclosure would reveal that they were incorrect, out of date, misleading etc., a factor favouring disclosure: schedule 4, part 2, item 12 of the RTI Act. I also note that even if this Category 1 information was incorrect, refusing the applicant access to it does not ‘deny’ her the opportunity to have it amended (see paragraph 57), as the right to amend information contained in section 41 of the Information Privacy Act 2009 (Qld) only applies to a document to the extent it contains the individual’s personal information. These numbers are not the applicant’s personal information.[48] The OIC decision noted at [66] of the RTI Commissioner’s decision in Underwood and Minister is Kiepe and the University of Queensland (Unreported, Queensland Information Commissioner, 1 August 2012), specifically [18]-[21]. The nested passage quoting the Assistant Information Commissioner appears at paragraph [20] of Kiepe.[49] Schedule 4, part 3, item 3 of the RTI Act. The concept of ‘privacy’ as used in this factor is not defined in the RTI Act. It can, however, be viewed as the right of an individual to preserve their personal sphere free from interference from others: see Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [27] paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 11 August 2008, at paragraph 1.56.[50] Submissions dated 28 June 2016, page 13.[51] The applicant stating that her ‘privacy has not in any way...been considered as seen with seemingly fabricated documentation being sent and/or forwarded to all and sundry...’: as above.[52] In accordance with the balancing exercise prescribed in section 49 of the RTI Act.[53] Under section 47(3)(b) of the RTI Act.[54] Including mobile telephone numbers.[55] Noting, in view of the applicant’s generalised submissions as canvassed in paragraph 57 above, that there is nothing before me to suggest that any of this purely factual information is ‘fabricated’, and/or incorrect, out of date, misleading etc., and therefore no basis on which to reasonably conclude that its disclosure would reveal same so as to enliven schedule 4, part 2, item 12 of the RTI Act. I again note that even if this information was incorrect, refusing the applicant access to it does not deny her any opportunity to have it amended (see paragraph 57), for the reasons explained at note 47.[56] The RTI Act presumes that disclosure of personal information could reasonably be expected to give rise to a public interest harm telling against disclosure: schedule 4, part 4, section 6 of the RTI Act. ‘Personal information’ is ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’: see section 10 and schedule 6 of the RTI Act, and section 12 of the Information Privacy Act 2009 (Qld). Relevant information here comprises information about individuals and whose identity is apparent or could reasonably be ascertained from the information. [57] Schedule 4, part 3, item 3 of the RTI Act.[58] See note 49.[59] Underwood, at [67].[60] Schedule 4, part 3, item 3 of the RTI Act. I am satisfied that contact details such as individuals’ mobile phone numbers fall within their ‘personal sphere’ (note 49).[61] Again noting that there is no objective material before me to suggest relevant information is fabricated and/or in any way incorrect, out of date, misleading etc. As regards possible public interest considerations more generally, I note that it is difficult to see how disclosure of the names of individuals employed outside the public sector could, for example, enhance government accountability or official transparency.[62] Or information disclosing a relationship or proximity to the applicant which could reasonably be expected to identify other individuals.[63] Schedule 4, part 4, section 6 of the RTI Act.[64] 0P5BNI and Department of National Parks, Recreation, Sport and Racing (Unreported, Queensland Information Commissioner, 12 September 2013) at [45]. [65] Remembering that this is a factor favouring nondisclosure: schedule 4, part 3, item 3 of the RTI Act.[66] Schedule 4, part 2, item 12 of the RTI Act.[67] Matthews and Gold Coast City Council (Unreported, Queensland Information Commissioner, 23 June 2011) at [17]-[18].[68] And nor, accordingly, do I consider that the applicant has been denied any right of ‘correction’ or amendment. Some of this information is plainly not the applicant’s personal information (and thus not amenable to amendment on application by her – see note 47), while none of it is, as explained in this paragraph, incorrect etc, which is a ground for refusing a request for amendment: section 72(1)(a)(i) of the Information Privacy Act 2009 (Qld).[69] As dealt with in the course of this review.[70] At [76].[71] Schedule 4, part 4, section 6 of the RTI Act – I am satisfied that relevant segments come within the definition of personal information set out above at note 56, given that they are about ‘individual[s] whose identity is apparent, or can reasonably be ascertained, from the information’.[72] Schedule 4, part 3, item 3 of the RTI Act. I am satisfied that domestic and work pattern arrangements of the kind described in these segments fall within an individual’s ‘personal sphere’: see note 49.[73] Noting that I cannot see how any of the submissions put by the applicant, insofar as they can be read as arguments as to why disclosure of information would advance the public interest, could be meaningfully applied to domestic and work pattern information concerning other individuals. There is no evidence before me to suggest that these segments are ‘fabricated’ or ‘incorrect’, and nothing whatsoever to explain how information concerning the personal affairs of public servants could be said to be ‘perpetuating and compounding one’s persecution’, as asserted by the applicant (see paragraph 57 above) . Further, there is no basis on which it might be said that the applicant is being ‘denied’ the right to have this information amended, given that this information is plainly not her personal information and thus not information that might be amenable to amendment on application by the applicant: note 47.[74] Schedule 4, part 4, section 6 of the RTI Act.[75] Schedule 4, part 3, item 3 of the RTI Act.[76] Section 130(2) of the RTI Act.[77] In accordance with sections 47(3)(e) and 52(1) of the RTI Act.[78] The principles applicable to sufficiency of search issues were explained in OIC’s decision in PDE and The University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009), and recently re-stated in Gapsa and Public Service Commission [2016] QICmr 6 (11 February 2016), at paragraphs [12]-[15] (Gapsa). For present purposes, it is sufficient to note that in the context of this case, relevant principles call me to consider whether agency search efforts have been sufficient – whether it has taken all reasonable steps to locate requested information.[79] These being pages cited by the applicant.[80] Page 9 of the annexure to the applicant’s external review application.[81] Paragraph 16, page 19 of the annexure to the applicant’s external review application.[82] See paragraph 16 on page 14 of these submissions.[83] Gapsa, [15].[84] See Communities’ letter to OIC dated 16 March 2011, together with relevant enclosures. [85] Section 47(3)(e) of the RTI Act.[86] Under section 94(1)(a) of the RTI Act.[87] Or originator, if the agency has located and dealt with a copy fielded by a recipient. Insofar as the applicant refers to ‘archived’ emails, I also note section 29 of the RTI Act, which provides that ‘an access application, however expressed, for a document does not require an agency or Minister to search for the document from a backup system’. [88] ‘Of little or no worth, weight or importance’: Mudie v Gainriver, at [35].[89] Under section 94(1)(a) of the RTI Act. In this regard, OIC did ask HPW to advise as to whether backups of emails from the relevant date period were even retrievable; HPW informed OIC that backups are retained for 12 months. HPW noted that Communities, the agency responsible for relevant email accounts, may have a different retention policy. Given my view that endeavouring to locate further iterations of an email chain would be frivolous, I declined to pursue any inquiries with Communities in this regard. [90] Relevantly, the exemption prescribed in schedule 3, section 10(1)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Smith and Sunshine Coast Regional Council; Diamond Energy Pty Ltd (Third Party) [2017] QICmr 42 (5 September 2017)

Smith and Sunshine Coast Regional Council; Diamond Energy Pty Ltd (Third Party) [2017] QICmr 42 (5 September 2017) Last Updated: 1 December 2017 Decision and Reasons for Decision Citation: Smith and Sunshine Coast Regional Council; Diamond Energy Pty Ltd (Third Party) [2017] QICmr 42 (5 September 2017) Application Number: 313064 Applicant: Smith Respondent: Sunshine Coast Regional Council Third party: Diamond Energy Pty Ltd ACN: 107 516 334 Decision Date: 5 September 2017 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - application for information held by Council about contract for supply of retail electricity services - mobile phone numbers - financial information of private sector company - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to Sunshine Coast Regional Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to the complete contract between Council and Diamond Energy Pty Ltd (Diamond) for the Supply of Retail Electricity Services. The contract relates to a large scale solar generation facility (solar farm) on the Sunshine Coast. Council located 206 pages and decided to grant access to all but 25 part pages, which were refused on the basis that they were exempt or because their disclosure would, on balance, be contrary to the public interest. The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision, seeking full disclosure of the information to which access had been refused. During the external review, the applicant confirmed that he no longer sought access to certain information and Council and Diamond agreed to release some of the information to which access had initially been refused. The remaining information is limited to mobile phone numbers and some financial information appearing on 20 part pages. For the reasons set out below, I vary Council’s decision and find that access to the remaining information may be refused under section 47(3)(b) of the RTI Act on the basis that its disclosure would, on balance, be contrary to the public interest. Background Significant procedural steps taken by OIC in conducting the external review are set out in the appendix to these reasons. Reviewable decision The decision under review is Council’s original decision dated 27 October 2016. Evidence considered Evidence, submissions, legislation, and other material considered in reaching this decision are referred to in these reasons (including footnotes and appendix). Issue for determination The information in issue appears on 20 part pages[1] and comprises mobile phone numbers and some financial information (Information in Issue). The issue for determination in this review is whether access to the Information in Issue may be refused under section 47(3)(b) of the RTI Act on the basis that its disclosure would, on balance, be contrary to the public interest.[2] Relevant law The RTI Act confers a right of access to documents of an agency,[3] subject to limitations, including grounds for refusal of access.[4] Access may be refused to a document where disclosing the information would, on balance, be contrary to the public interest.[5] The RTI Act identifies various factors for and against disclosure that may be relevant to deciding the balance of the public interest[6] and explains the steps that a decisionmaker must take[7] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure would, on balance, be contrary to the public interest. Findings No irrelevant factors arise in the circumstances and I have not taken any into account. Mobile phone numbers The mobile phone numbers belong to a Council officer and an employee of Diamond and appear on six pages.[8] The applicant continues to seek access to these numbers and relevantly submits that:[9] employees in both the public and private sector regularly give out their mobile phone numbers on letters, business cards and in email signature blocks as part of normal business activities and this enables the public to contact them during working hours[10] the fact that these individuals may choose to keep their phone on after business hours is not a relevant consideration in the review; and the Council employee’s mobile phone is funded by the public and is not for private use. I have considered whether there are any public interest factors which favour disclosure of mobile phone numbers, other than the general public interest in furthering access to governmentheld information and the RTI Act’s pro-disclosure bias.[11] I have been unable to identify any factors in the circumstances, and the applicant’s submissions do not assist. I acknowledge that both private sector employees and local council staff are often provided with mobile phones to perform work related to their employment and the associated costs are likely to be paid by their employers.[12] However, this does not lead to the conclusion that disclosing the mobile phone numbers would promote any public interest factors relating to accountability or transparency or ensuring the effective oversight of the expenditure of public funds.[13] I am satisfied that the mobile numbers comprise the personal information of these individuals, even though they appear in an employment context.[14] Accordingly, I have considered whether disclosing this information could reasonably be expected to: prejudice the protection of an individual’s right to privacy;[15] and cause a public interest harm through disclosure of another individual’s personal information.[16] A mobile phone number is different to other contact details (such as email addresses or office phone numbers) in that it allows an individual to be contacted directly and potentially outside of working hours.[17] I agree with the applicant’s submission that employees in both the public and private sector regularly give out their mobile phone numbers on letters, business cards and in email signature blocks as part of normal business activities so that they can be contacted during working hours. However, in these circumstances, the number is provided to specified recipients and voluntarily. I do not accept that this also means a mobile phone number should be routinely released under the RTI Act, where there can be no restriction on its use, dissemination or republication. Disclosing mobile phone numbers permits potential contact with an employee when off duty and/or engaged in private activity, which gives rise to a reasonable expectation of intrusion into the officer’s private life or ‘personal sphere’.[18] I afford moderate weight to both of these nondisclosure factors. I have not identified any factors favouring disclosure of these mobile phone numbers which carry sufficient weight to override the factors favouring nondisclosure. In the circumstances, I find that disclosing the mobile phone numbers would, on balance, be contrary to the public interest and access to this information is refused under section 47(3)(b) of the RTI Act. Fee and other financial information The fee information appears on page 43 and comprises the Pool Price Pass Through management fee, the solar farm Large Generation Certificate management fee, and other monetary figures from which those fees can be calculated. The financial information appears on 13 pages and comprises: figures in Diamond’s statement of comprehensive income and management profit and loss statement for the first half of 2014[19] figures and dividend information appearing in Diamond’s financial statements;[20] and an explanation about aspects of Diamond’s financial statements.[21] In relation to this information, the applicant relevant submits that: [22] the public has a right to know how public money is being spent and to hold Council accountable for its statements and choices the information which has been released to him is without substance and without the fee and other financial information, it has no value disclosing the fee information would not disadvantage Diamond as it simply reveals how much the company will be paid; and disclosing this information would provide background information about Diamond and satisfy the public’s right to know whether Diamond has the financial backing to handle a substantial amount of Council’s funds. Factors favouring disclosure Council is accountable to the public for the performance of services that are paid from ratepayer funds. Private sector companies performing work for Council must also accept an appropriate level of scrutiny in their dealings with Council. This means that in some cases, information they provide to Council during the tender process or in performing the contract may be available under the RTI Act, particularly where this reveals information that would enhance Council’s accountability or transparency. However, this does not mean that all of the information which a company provides about its operations will be released. Rights of access are subject to limitations and the RTI Act recognises that disclosing some information may adversely impact a company’s affairs. In this review, the solar farm project to which the contract relates is significant. The contract between Council and Diamond comprises various parts which total around 206 pages. As noted above, the applicant submits that the information which has been released to him is without substance and without the fee and other financial information, has no value. The basis for the applicant’s submission is unclear – Council has released the contract to the applicant with the exception of the small amount of information identified above.[23] The released information notably includes:[24] Council’s invitation to tender and Diamond’s tender response which includes its terms and conditions for the retail supply of energy, retail authority issued under the Electricity Act 1994 (Qld), evidence of insurance and an auditor’s report on its financial reports correspondence between Council and Diamond which sets out various conditions of the contract imposed by Council; and Diamond’s response to specific queries raised by Council. I am satisfied that the release of this information significantly advances a number of public interest factors under the RTI Act[25] and is the type of information to which the applicant seeks access. In relation to the fee information, Council has provided the applicant with information revealing the general basis for calculating the fees but has redacted the applicable rates. I acknowledge that this prevents the applicant from identifying the total fee applicable but I consider the released information still furthers a number of public interest considerations to some degree.[26] The other financial information appears to have been provided to Council so that it could assess the strength of Diamond’s financial position. Council has released the category headings (e.g. a breakdown of revenue, assets, liabilities and equity) and reporting time periods for the financial statements. Again, I acknowledge that this does not enable the applicant to scrutinise the figures himself, but it does generally reveal the type of financial information which was made available to Council for its consideration during the tender process. In my view, the release of this information also furthers public interest considerations to some degree.[27] The fee and other financial information which remains in issue is limited. I accept that the release of this information would provide the applicant with a complete understanding of the company’s financial position as presented to Council and the applicable rates for calculating some of Diamond’s management fees. However, I do not consider that this necessarily gives rise to public interest factors favouring disclosure which carry significant weight. I have considered whether disclosing this information could reasonably be expected to: enhance Council’s accountability in respect of the tender process[28] contribute to positive and informed debate on important issues or matters of serious interest[29] inform the community of Council’s operations[30] ensure effective oversight of expenditure of public funds;[31] and reveal the reason for a government decision and any background or contextual information that informed the decision.[32] Given that this information would have been considered by Council in deciding to award the contract to Diamond, I accept that these factors are relevant. However, as this information is limited, and does not directly reveal any information about Council’s decision-making process, I consider these factors carry low weight, particularly in view of the other information which has already been released to the applicant which significantly promotes these factors. In the circumstances, I am unable to identify any other relevant factors favouring disclosure which may justify the release of this information to the applicant. Factors favouring nondisclosure The fee and other financial information relates to a private sector company which operates in a competitive market. As this information is not publicly available, I have taken into account the impact release of this information under the RTI Act would have—i.e. where there can be no restriction on its use, dissemination or republication. I have considered whether its disclosure could reasonably be expected to: prejudice Diamond’s business, commercial or financial affairs;[33] or cause a public interest harm because disclosure of the information: would disclose information concerning Diamond’s business, commercial or financial affairs; and could reasonably be expected to have an adverse effect on those affairs or prejudice the future supply of information of this type to government.[34] I am satisfied that the fee and other financial information clearly concerns Diamond’s business, commercial or financial affairs. I must then be satisfied that disclosing this information could reasonably be expected to have an adverse effect on, or cause prejudice to, those affairs. I am satisfied that disclosing the fee information could reasonably be expected to prejudice Diamond’s business and commercial affairs by giving a competitive edge to its competitors in formulating future tenders or in competing in the marketplace generally. Disclosing this information could reasonably be expected to impact negatively on Diamond’s ability to negotiate future agreements on similar projects with other entities. I consider that, in view of the novel character of the project, the pricing in this industry would not have changed to such an extent in the last three years as to substantially diminish the commercial sensitivity of the fee information. The other financial information is relatively current and gives detailed information about Diamond’s financial position at the relevant time. I am satisfied that its disclosure would put Diamond at a commercial disadvantage. This is because when other businesses in comparable situations are competing with Diamond for projects with other entities, those other businesses may not be required to disclose information to the same extent as already revealed in the financial information. For these reasons, I find that disclosing this information could reasonably be expected to have an adverse effect on, or cause prejudice to, those affairs and both of these factors carry significant weight in the circumstances. Balancing the relevant public interest factors I have identified a number of factors which favour disclosure of this information, in addition to the general public interest in furthering access to governmentheld information. However, the weight to be given to these factors is low as the information is limited in nature and does not directly reveal any information about Council’s decision-making process. The weight of these factors favouring disclosure is not sufficient to override the two non-disclosure factors which apply and which carry significant weight in the circumstances. For these reasons, I find that disclosing the fee and other financial information would, on balance, be contrary to the public interest and access to this information is refused under section 47(3)(b) of the RTI Act. DECISION I vary Council’s decision and find that access to the Information in Issue may be refused under section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Tara MainwaringActing Assistant Information CommissionerDate: 5 September 2017 APPENDIX Significant procedural steps Date Event 9 November 2016 OIC received the external review application. OIC notified Council that the external review application had been received and requested procedural documents. 14 November 2016 OIC received the requested procedural documents from Council. 28 November 2016 OIC notified the applicant and Council that the external review application had been accepted. OIC asked Council to provide correspondence with the consulted third party and the documents located in response to the access application. 12 December 2016 OIC received the requested information from Council. 20 December 2016 OIC discussed the review with the applicant. The applicant notified OIC that he did not seek access to certain information. 4 May 2017 OIC asked Council to provide further information relevant to the review. OIC received the requested information from Council. 22 May 2017 OIC conveyed a preliminary view to the third party and invited the third party to provide submissions supporting its case. 31 May 2017 OIC discussed the preliminary view with the third party. 5 June 2017 OIC received a submission from the third party. 13 June 2017 OIC discussed the review with the third party. OIC wrote to the third party to request submissions. 21 June 2017 The third party confirmed to OIC that it accepted OIC’s preliminary view and did not wish to become a participant. 22 June 2017 OIC discussed the preliminary view with Council. 28 June 2017 OIC conveyed a preliminary view to Council and invited Council to provide submissions supporting its case. 4 July 2017 Council confirmed to OIC that it accepted OIC’s preliminary view. 13 July 2017 OIC conveyed a preliminary view to the applicant and invited him to provide submissions supporting his case. OIC asked Council to release agreed information to the applicant. 19 July 2017 OIC discussed the preliminary view with the applicant. 31 July 2017 OIC received a submission from the applicant. [1] Pages 24, 25, 30, 32, 35, 40, 41, 43, 134, 148-151 and 163-169. As noted above, a number of the issues were informally resolved on external review as the applicant agreed to exclude certain information and Council and the third party agreed to release certain information.[2] Council initially decided that some of the Information in Issue comprised exempt information under sections 47(3)(a) and schedule 3, section 8 of the RTI Act, as its disclosure would found an action for breach of confidence. However, OIC formed the view that this exemption did not apply but that access to the information could instead be refused on the grounds that its disclosure would, on balance, be contrary to the public interest. [3] Section 23(1)(a) of the RTI Act.[4] Grounds for refusal of access are set out in section 47 of the RTI Act.[5] Sections 47(3)(b) and 49 of the RTI Act.[6] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, these lists of factors are not exhaustive; in other words, factors that are not listed may also be relevant in a particular case.[7] Section 49(3) of the RTI Act.[8] Pages 24, 25, 30, 40, 41 and 134.[9] Submission received on 31 July 2017.[10] As an example, the applicant submitted that the number of the Diamond employee is available online and provided a link to that information. However, the number which appears in the Information in Issue is not the same as the number which is publicly available and therefore I have not been persuaded to release the particular number as a result of this submission. [11] Section 44 of the RTI Act.[12] It is not necessary, nor relevant, for me to investigate the arrangements between the employee and employer in relation to the use of these mobile phones. [13] Schedule 4, part 2, items 1, 4 and 11 of the RTI Act. [14] Personal information is defined in section 12 of the Information Privacy Act 2009 (Qld) as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. See Kiepe and The University of Queensland (Unreported, Queensland Information Commissioner, 1 August 2012) (Kiepe) at [18]-[21]; and Underwood and Minister for Housing and Public Works [2015] QICmr 27 (29 September 2015) (Underwood) at [66]-[68].[15] Schedule 4, part 3, item 3 of the RTI Act.[16] Schedule 4, part 4, item 6 of the RTI Act.[17] Kiepe at [20]. [18] Underwood at [67]. [19] Page 35.[20] Pages 148-151 and 163-169.[21] Page 32.[22] Submission received on 31 July 2017.[23] The information which has not been released to the applicant comprises the Information in Issue which is the subject of this decision and the information to which the applicant no longer seeks access. [24] This information appears within the 206 pages which Council located and released to the applicant. [25] Including, for example, those set out in schedule 4, part 2, items 1, 2, 3, 4 and 11 of the RTI Act. [26] As identified in footnote 25.[27] As identified in footnote 25. [28] Schedule 4, part 2, item 1 of the RTI Act. [29] Schedule 4, part 2, item 2 of the RTI Act. [30] Schedule 4, part 2, item 3 of the RTI Act. [31] Schedule 4, part 2, item 4 of the RTI Act. [32] Schedule 4, part 2, item 11 of the RTI Act. [33] Schedule 4, part 3, items 2 and 15 of the RTI Act.[34] Schedule 4, part 4, item 7(1)(c) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Together Queensland, Industrial Union of Employees and Department of Transport and Main Roads [2013] QICmr 2 (1 February 2013)

Together Queensland, Industrial Union of Employees and Department of Transport and Main Roads [2013] QICmr 2 (1 February 2013) Last Updated: 27 August 2013 Decision and Reasons for Decision Application Number: 311184 Applicant: Together Queensland, Industrial Union of Employees Respondent: Department of Transport and Main Roads Decision Date: 1 February 2013 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL TO DEAL WITH APPLICATION – applicant seeking all documents in relation to the recruitment for the position of Departmental Liaison Officer within the Department of Transport and Main Roads – whether access application expressed to relate to a stated subject matter – whether all documents to which the application relates appear to comprise exempt information – whether agency may refuse to deal with the application under section 40 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of Transport and Main Roads (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to all documents relating to the recruitment of a named officer for the position of Departmental Liaison Officer within the Department of Transport and Main Roads between 1 March 2012 and 24 July 2012. The Department refused to deal with the application under section 40 of the RTI Act, on the basis that the access application was expressed to relate to all documents that contain information of a stated kind or relate to a stated subject matter and it appeared that all of the requested documents were comprised of exempt information under schedule 3, section 10 of the RTI Act. Schedule 3, section 10 contains various subsections prescribing separate exemption provisions. The Department’s decision did not, however, specify the subsection on which it relied in invoking section 40 of the RTI Act. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision. For the reasons set out below, it appears that all of the requested documents would comprise exempt information under schedule 3, section 10(4) of the RTI Act. The Department is therefore entitled to refuse to deal with the access application under section 40 of the RTI Act. Accordingly, the Department’s decision is affirmed. Background Significant procedural steps relating to the application and external review are set out in the Appendix to these reasons. Reviewable decision The decision under review is the Department’s decision dated 29 August 2012. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). Relevant law Section 39 of the RTI Act provides that where an access application is made, an agency should deal with the application unless this would, on balance, be contrary to the public interest. Section 40 of the RTI Act sets out one of the sets of circumstances in which Parliament has considered it would, on balance, be contrary to the public interest to deal with an access application as follows: Exempt Information (1) This section applies if— (a) an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and (b) it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information. (2) The agency or Minister may refuse to deal with the application without having identified any or all of the documents. In effect, section 40 of the RTI Act allows an agency to refuse to deal with an application if: the application requests all documents, or all documents of a particular class, that contain information of a stated kind or relate to a stated subject matter; and it appears to the agency that all of the documents to which the application relates are comprised of ‘exempt information’, as defined in section 48 of the RTI Act and described in schedule 3 of the RTI Act. If an agency relies on section 40 of the RTI Act, it is not required to identify any or all of the documents. The agency is, however, required under section 54(2)(f) of the RTI Act to set out: the provision of schedule 3 of the RTI Act under which it is said the information in the documents sought would comprise exempt information; and why the documents sought would comprise exempt information under such provision. Exempt information is information the disclosure of which Parliament has proclaimed would, on balance, be contrary to the public interest. Relevantly, information is exempt if it consists of information obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in performing the prescribed functions of the prescribed crime body.[1] Accordingly, if all documents sought by the applicant comprise information obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in performing the prescribed functions of the prescribed crime body, the Department may refuse to deal with the access application under section 40 of the RTI Act. Findings Is the access application expressed to relate to all documents that contain information of a stated kind or relate to a stated subject matter? Yes. The applicant’s access application requests all documents relating to a stated subject matter, being the recruitment of a named officer. Does it appear that all of the requested documents would comprise exempt information? Yes. For the reasons set out below, it appears that all of the requested documents would comprise exempt information under schedule 3, section 10(4) of the RTI Act. For schedule 3, section 10(4) to apply, the following requirements must be satisfied: the information must have been obtained, used or prepared for an investigation; the investigating body or agency must be a prescribed crime body or other agency performing a prescribed crime body’s functions; and the exception set out in schedule 3, section 10(6) of the RTI Act must not apply. Have the requested documents been ‘obtained, used or prepared’ for an investigation? The terms ‘obtained, used or prepared’ are not defined in the RTI Act or the Acts Interpretation Act 1954 (Qld), and so are to be given their ordinary meaning.[2] The relevant term in this case is ‘obtained’, in other words, ‘to come into possession of; get or acquire; procure, as by effort or request’.[3] The applicant’s access application requests copies of all documents relating to a specific recruitment process. The Crime and Misconduct Commission (CMC) has requested[4] that the Department provide it with all documents concerning that process. I understand that the Department has complied with that request.[5] The CMC has thus ‘obtained’ from the Department documents concerning the selection process, which I am satisfied would include all documents requested in the access application. I am further satisfied relevant documents have been obtained by the CMC for an investigation, for the reasons explained below. Are the investigations being conducted by a prescribed crime body, or another agency, in performing the prescribed functions of the prescribed crime body? The CMC is a prescribed crime body[6] under the RTI Act and the CMC’s prescribed functions include its ‘crime function’, ‘intelligence functions’ and ‘misconduct functions’ as defined in the Crime and Misconduct Act 2001 (Qld) (CM Act).[7] OIC has obtained and independently assessed correspondence from the CMC to the Department[8] in which the CMC: advised that a complaint had been made regarding the selection process and that the CMC is performing its misconduct functions under section 33 of the CM Act in handling this complaint; and requested that the Department provide the CMC with all documents relevant to the selection process to allow the CMC to assess the complaint. From my review of this correspondence, I am satisfied the CMC has initiated an investigation[9] into the relevant selection process. I am also satisfied that the balance of the requirements of schedule 3, section 10(4) are met in this case. The CMC, as a prescribed crime body, is performing its misconduct functions in relation to the selection process under section 33 of the CM Act, which is a prescribed function[10] for the purposes of schedule 3, section 10(4) of the RTI Act. Does the exception to schedule 3, section 10(4) of the RTI Act apply? No. The exception to schedule 3, section 10(4) of the RTI Act as contained in schedule 3, section 10(6) only applies where the investigation is finalised and the information is about the applicant. As the information is not about the applicant, the exception does not apply. Conclusion The requirements of schedule 3, section 10(4) of the RTI Act are met and I am satisfied the documents sought by the applicant would comprise exempt information. As the access application is expressed to relate to all documents of a stated subject matter, namely the recruitment of a named Departmental Liaison Officer, and it appears that such documents would comprise exempt information, the Department is entitled to refuse to deal with the application under section 40 of the RTI Act. The applicant’s submissions The substance of my reasoning as set out in paragraphs 9-25 above was conveyed to the applicant by letter dated 17 October 2012, accompanied with an invitation for the applicant to provide submissions in response. In reply, the applicant advised that it did not accept that the Department was entitled to refuse to deal with the application, principally on the basis that the applicant does not accept schedule 3, section 10(4) of the RTI Act operates in the manner I have outlined above, so as to render any request[11] documents exempt.11 The applicant essentially submits that schedule 3, section 10(4) of the RTI Act is not a discrete or ‘stand-alone’ provision, but that it must be read together with section 10(1) of the RTI Act (and the latter’s requirement for a reasonable expectation that disclosure of information would give rise to a specific prejudice). The applicant argues that, consequently, schedule 3, section 10(4) of the RTI Act only operates to exempt information the disclosure of which could reasonably be expected to prejudice a CMC investigation;[12] essentially, information comprising the ‘work product’ of a CMC investigation. The applicant relevantly submits:[13] 5. There is conflict between 10(1) and 10(4) of schedule 3 of the act. 10 (1) clearly states that the access to documents are exempt if they could compromise an investigation about the contravention of law (when read in conjunction with 10 (8) it is clear that this includes investigation of misconduct which is clearly the purview of the CMC. ... 7. The [OIC preliminary view letter dated 17 October 2012] reads this provision widely, however its true construction is to provide an exemption for work product of an investigation, not to prevent the release of public documents already in existence and created for routine functions of public administration that have been provided to the CMC. 8. The decisions referred to us by officers of OIC, namely G8KPL2 and Department of Health and T5Q2EE and Department of Police support this narrow construction of 10 (4) that it is an exemption of work product of the prescribed function not the broad view that all documents looked at by the CMC in performing its prescribed function. The applicant further submits[14] that interpreting schedule 3, section 10(4) so as to encompass anything other than CMC ‘work product’ would result in an interpretation ‘repugnant to the legislative scheme [of the RTI Act] to enable members of the community access to documents created by public agencies’. The applicant argues that ‘thus the Golden Rule of interpretation is enlivened ...’: The classic statement of the Golden Rule is given by Lord Wensleydale in Grey v Pearson [1857] EngR 335; (1857) 6 HLC 61 at 106: ...the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but no farther. The applicant thus, as I understand, essentially contends that I should apply the ‘golden rule’ so as to overlook the wording of section 10(4) and instead adopt a construction that is in keeping with the arguments it advances in paragraph 28 above. The applicant furthe[15]contends15 that as the RTI Act is beneficial legislation, any ambiguity in schedule 3, section 10(4) of the Act (which the applicant argues exists) should be interpreted so as to favour the applicant, as a member of that class of persons – the general community – the Act is intended to assist. Whilst I agree that the RTI Act is beneficial legislation, I do not accept the applicant’s submissions that schedule 3, section 10(4) of the RTI Act must be read together with section 10(1) of the RTI Act, nor do I accept that any ambiguity arises in interpreting this provision. I consider that schedule 3, section 10(4) of the RTI Act comprises a discrete provision to be construed and applied independently of section 10(1). The very use of the word ‘also’ in the provision clearly, in my view, distinguishes the provision from the balance of this section. My view in this regard is confirmed by the Explanatory Memorandum to the Bill[16] inserting the predecessor to schedule 3, section 10(4) of the RTI Act,[17] which expressly records that the purpose of the section was to introduce a ‘new exemption which exempts information obtained, used or prepared for investigations by the Crime and Misconduct Commission (CMC) or another agency.’ As I am satisfied that schedule 3, section 10(4) of the RTI Act is to be read as a specific, discrete provision, and not in conjunction with schedule 3, section 10(1),[18] it is not relevant to assess whether disclosing the information sought could reasonably be expected to have a prejudicial effect, as is required when considering one of the various subsections of section 10(1). Schedule 3, section 10(4) of the RTI Act operates to provide that information falling within a defined class or category will comprise exempt information to which access may be refused, irrespective of whether disclosure of specific information in issue would have any prejudicial consequences. All that is required is satisfaction of the several requirements enumerated in paragraph 16. The applicant’s contentions to the contrary are simply not open on the plain language of the [19]ovision.19 It follows, therefore, that the words ‘obtained, used or prepared’ are to be construed as I have explained at paragraph 17 above. This is the clear, express language of the provision, and there is no ambiguity nor anything else in the text of the section – read as a discrete exemption provision – that in any way permits me to replace these words with ‘work product’ or something similar as argued by the applicant. Due to the way in which schedule 3, section 10(4) of the RTI Act is framed, I acknowledge the potential for the result suggested by the applicant; that is, exemption of a document otherwise in the public domain, where such a document has subsequently been ‘obtained’ by the CMC in the course of conducting an investigation.[20] While I recognise that this may be a somewhat anomalous[21] result, it does not, however, of itself amount to an ‘absurdity’, ‘repugnance’ or ‘ambiguity’ of the kind that would permit me to depart from the otherwise literal meaning of schedule 3, section 10(4) of the RTI Act. While the general intent of the RTI Act is to confer a right of access on persons to government held information, that right is not an unqualified right. There are a number of qualifications and limitations to the right as prescribed in the Act itself. Schedule 3, section 10(4) is one of these qualifications. Although schedule 3, section 10(4) of the RTI Act is framed in broad terms, such breadth does not comprise a ‘repugnance’ of the kind understood to permit a decision maker to depart from what is otherwise clear statutory language. To the contrary, it merely reflects the operation of the access scheme set out in the RTI Act – a right of access the Parliament has seen fit to confer, and, equally, seen fit to qualify, including by way of schedule 3, section 10(4) of the RTI Act. I am satisfied schedule 3, section 10(4) of the RTI Act is to be interpreted and applied according to its plain and literal meaning, in other words, as I have explained at paragraphs 16-17 above. I am further satisfied that, as I have found at paragraphs 18-25, it does so apply in this case, such that any documents requested by the applicant would comprise exempt information. Discretion to release information The applicant also noted the discretion expressly conferred[22] on an agency or Minister to release documents, even where those documents otherwise satisfy the requirements for refusing access, stating:[23] If we are wrong in the construction and interpretation of section 10 of schedule 3 there exists extraordinary circumstances to ensure public confidence that the appointment of senior positions of the Public Service are done so in accordance with the legislation and free of any taint of possible cronyism, so much so that the agency, that is [the Department], should consider the release of the documents sought in conjunction with section 39(3) of the [RTI Act]. The exercise of the discretion to release documents to which access may otherwise be refused is exclusively reserved to agencies such as the Department – I have no such discretion.[24] More significantly, the discretion only arises where an agency has determined to refuse access to documents. That is not the case in this review. As noted above, the Department did not decide to refuse access to documents, but to refuse to deal with the applicant’s application for access to documents, under a provision that allowed it to do so without having identified any documents.[25] In these circumstances, the discretion to release documents under the RTI Act can obviously have no operation. DECISION I affirm the decision under review and find that the Department may refuse to deal with the application under section 40 of the RTI Act on the basis that the access application is expressed to relate to all documents that relate to a stated subject matter, and that all of the documents, where such documents exist, would comprise exempt information under schedule 3, section 10(4) of the RTI Act. I have made this decision as a delegate of the Acting Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Suzette Jefferies Assistant Information Commissioner Date: 1 February 2013 APPENDIX Significant procedural steps Date Event 25 July 2012 The applicant applied to the Department for access to documents relating to the recruitment for the position of Departmental Liaison Officer within the Department. 29 August 2012 The Department issued a notice of decision to the applicant. 21 September 2012 The applicant applied to the OIC for external review of the Department’s decision. 4 October 2012 OIC informed the applicant and the Department that the applicant’s external review application had been accepted. 17 October 2012 OIC conveyed a preliminary view to the applicant and invited the applicant to provide submissions supporting its case by 31 October 2012 if it did not accept the preliminary view. 26 October 2012 OIC received submissions from the applicant. 30 October 2012 An OIC officer discussed the preliminary view with the applicant. 31 October 2012 The applicant lodged further submissions in support of its case for access. 1 November 2012 The applicant submitted a ‘corrected’ version of the 31 October 2012 submissions. 16 November 2012 An OIC officer confirmed the applicant did not accept OIC’s preliminary view. An OIC officer explained the next step would comprise a formal decision. 17 December 2012 An OIC officer confirmed with the Department that it had complied with the CMC request for the Department to supply the CMC with copies of all documents concerning the recruitment process. [1] Schedule 3, section 10(4) of the RTI Act.[2] Springborg, MP and Crime and Misconduct Commission (2006) 7 QAR 77 at [58].[3] Macquarie Dictionary Online (accessed 3 December 2012).[4] By letter to the Department dated 7 August 2012, a copy of which the CMC provided to OIC on 7 September 2012 in the course of a separate external review (involving an access applicant other than the applicant in this review) concerning the same recruitment process.[5] The Department advised an OIC officer on 17 December 2012 that all documents relating to the relevant appointment had been supplied to the CMC.[6] Schedule 3, section 10(9) of the RTI Act. [7] Schedule 3, section 10(9) of the RTI Act.[8] See footnote 4.[9] The definition of 'investigate' in schedule 2 of the CM Act is broad: 'investigate includes examine and consider'.[10] Schedule 3, section 10(9) of the RTI Act. [11] The applicant in its submissions dated 1 November 2012 (originally lodged 31 October 2012 – ‘corrected’ version resubmitted on 1 November 2012) – and again in a telephone conversation with an OIC officer on 16 November 2012 – suggested that it ‘may be prudent’ for the interpretation of the schedule 3, section 10(4) of the RTI Act to be referred under section 118 of the RTI Act to the Queensland Civil and Administrative Tribunal (QCAT). Section 118 confers a discretion on the Information Commissioner to refer questions of law to QCAT on the Commissioner’s own initiative or at the request of a participant. As will be apparent from these reasons, the Commissioner did not consider the interpretation and application of schedule 3, section 10(4) of the RTI Act warranted referral to QCAT.[12] Submissions dated 26 October 2012. The applicant also submitted (in both its submissions dated 26 October 2012 and 1 November 2012 that guidelines prepared by OIC on the operation of schedule 3, section 10(4) of the RTI Act, a copy of which were forwarded to the applicant in the course of this review, were ‘ultra vires’. I do not comprehend the exact nature of this submission, however insofar as it may be intended to suggest I am, in making my decision, preferring these guidelines to the actual text of the RTI Act, I reject it. My decision is based entirely on my interpretation of schedule 3, section 10(4) of the RTI Act, as explained in these reasons.[13] Submissions dated 1 November 2012.[14] As above.[15] As above.[16] Freedom of Information and Other Legislation Amendment Bill 2005 (Qld), a provision equivalent to schedule 3, section 10(4) of the RTI Act having originally been inserted into the now-repealed Freedom of Information Act 1992 (Qld). While, as noted, that latter Act was repealed, this provision was preserved and enacted in materially equivalent terms in the RTI Act, and I am therefore satisfied the Explanatory Memorandum continues to have relevance in considering schedule 3, section 10(4).[17] Into, as noted, the Freedom of Information Act 1992 (Qld) (repealed).[18] A conclusion which also disposes of another of the applicant’s submissions – that ‘the latter general provisions [of] 10(4) do not repeal or implicitly amend 10(1)...’ (submissions dated 1 November 2012). This submission is as I understand founded on the principle that where conflict exists between a general and a specific provision, the latter prevails. It is not a matter I need consider further, on the basis I am, as noted, satisfied that 10(4) is itself a specific provision, which operates entirely independently of (and harmoniously with) schedule 3 section 10(1) of the RTI Act. Accordingly, schedule 3 section 10(4) of the RTI Act does not ‘repeal’, ‘amend’ or otherwise modify schedule 3 section 10(1), but merely inserts a further category or class of exempt information, to which access may be refused. While some of this latter information might conceivably also qualify for exemption under one or more of the subsections of section 10(1), a mere overlap of this kind does not amount to a ‘conflict’ between provisions nor comprise a ‘repeal’ or ‘amendment’ by the later provision of the earlier.[19] And would, if accepted, require me to very much ‘strain or exceed’ the words of the provision, contrary to the authority on which the applicant relies in part in making these submissions: relevantly, AI MacAdam and TM Smith, Statutes – Rules and Examples, 3rd edition, (1993). The applicant’s submissions relevantly refer to page 298 of this text.[20] The applicant in its submissions gave the example of a gazettal notice of an officer’s appointment.[21] Although certainly not, unique or unprecedented – the Cabinet exemption as it applied under the Freedom of Information Act 1992 (Qld), for example, could also operate to exempt from disclosure otherwise public information: see, for example, the Information Commissioner’s observations in Woodyatt and Minister for Corrective Services [1995] QICmr 1; (1995) 2 QAR 383, at [12]. [22] Section 48(3) of the RTI Act.[23] Submissions dated 1 November 2012.[24] Section 105(2) of the RTI Act.[25] Section 40(2) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Leach and Department of Police [2009] QICmr 30 (14 May 2009)

Leach and Department of Police [2009] QICmr 30 (14 May 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210689 Applicant: Mr J Leach Respondent: Department of Police Decision Date: 14 May 2009 Catchwords: FREEDOM OF INFORMATION - section 28A(1) of the Freedom of information Act 1992 (Qld) - Refusal of access – whether reasonable basis for agency to be satisfied documents sought do not exist – database files Contents REASONS FOR DECISION Summary 1. In this external review the applicant asserts that documents responding to his freedom of information application have not been provided to him by the Department of Police, also known as the Queensland Police Service (QPS). 2. Having considered the parties’ submissions and evidence, relevant legislation and decisions I am satisfied that access to the documents sought can be refused under section 28A(1) of the Freedom of Information Act 1992 (Qld) (FOI Act) as there are reasonable grounds for the QPS to be satisfied that the documents requested in the FOI Application do not exist. Background 3. By letter dated 4 September 2008 (FOI Application) the applicant sought access to: Database files from Cairns District Police pertaining to my meeting with Inspector Ian Swan dated 16 March 2007. 4. By letter dated 10 October 2008 the QPS informed the applicant that it had not located any documents responding to the FOI Application and was therefore refusing access under section 28A(1) of the FOI Act (Original Decision). 5. By letter dated 15 October 2008 (Internal Review Application) the applicant sought internal review of the Original Decision. 6. By letter dated 30 October 2008, Assistant Commissioner McCallum, QPS, affirmed the Original Decision (Internal Review Decision). 7. By an undated letter received in this Office on 15 December 2008 (External Review Application) the applicant sought external review of the Internal Review Decision. 8. The External Review Application was received outside the time limits prescribed by the FOI Act. However, given the short time period involved, the lack of likely prejudice to the QPS and the issues raised in the application I decided to exercise the discretion under section 73(1)(d) of the FOI Act to extend the time for the applicant to apply for external review. Decision under review 9. The decision under review in this external review is the Internal Review Decision referred to in paragraph 6 above. Steps taken in the external review process 10. By facsimile dated 17 December 2008 the Office of the Information Commissioner (Office) asked QPS to provide copies of documents relevant to the external review.[1] 11. QPS provided the documents requested at paragraph 10 above by letter dated 6 January 2009. QPS also included its internal correspondence in relation to its administration of the FOI Application which contained the following two significant documents: • a typed submission from the applicant dated 4 December 2008 that had been sent to the QPS providing an explanation as to why he had decided to seek external review in this matter (External Review Submission) and • an email from Inspector Swan 28 October 2008. 12. By letters dated 20 January 2009 I indicated to the: a) applicant that: • the External Review Application had been accepted • it was my preliminary view that there were reasonable grounds for the QPS to be satisfied that documents concerning a meeting between Inspector Swan and the applicant on 16 March 2007 do not exist and • that the QPS were therefore entitled to rely on section 28A(1) of the FOI Act to refuse access to the documents sought b) QPS that: • the External Review application had been accepted • I had communicated a preliminary view to the applicant and had requested a response by 4 February 2009. 13. In a letter dated 25 January 2009 the applicant indicated that he did not accept my preliminary view and made further submissions. 14. On 2 April 2009, a staff member of the Office made further inquiries with QPS regarding its database system. 15. The applicant has had a number of external reviews with the Office which relate to two specific incidents and there is a degree of overlap between the applicant’s submissions to the Office in relation to these various external review applications. I have therefore taken submissions the applicant has made in relation to other reviews into account to the extent that they relate to the documents sought in this review. In particular, in a letter dated 1 February 2009 the applicant makes submissions regarding the events of 16 March 2007 which preceded his meeting with Inspector Swan. 16. In making my decision in this matter, I have taken the following into account: • FOI Application, Internal Review Application and External Review Application • Original Decision and Internal Review Decision • letters from the applicant to this office dated 25 January 2009 and 1 February 2009 and the External Review Submission • email dated 27 October 2008 from Acting Inspector Doyle to the Far Northern Region and email dated 28 October 2008 from Inspector Swan in response • documents released to the applicant in external review 210688 • relevant provisions of the FOI Act as referred to in this decision • decisions of the Information Commissioner as referred to in this decision. Issue in the review 17. The issue to be determined in this review is whether there are reasonable grounds for the QPS to be satisfied that the documents sought by the applicant do not exist and accordingly, whether access can be refused under section 28A(1) of the FOI Act. Relevant law Section 28A(1) of the FOI Act 18. Section 28A(1) of the FOI Act provides: 28A Refusal of access—documents nonexistent or unlocatable (1) An agency or Minister may refuse access to a document if the agency or Minister is satisfied the document does not exist. Example— documents that have not been created 19. In PDE and the University of Queensland[2] (PDE) the Acting Information Commissioner indicates that:[3] Sections 28A(1) and (2) of the FOI Act address two different scenarios faced by agencies and Ministers from time to time in dealing with FOI applications: circumstances where the document sought does not exist and circumstances where a document sought exists (to the extent it has been or should be in the agency’s possession) but cannot be located. In the former circumstance, an agency or Minister is required to satisfy itself that the document does not exist. If so satisfied, the agency or Minister is not required by the FOI Act to carry out all reasonable steps to find the document. In the latter circumstance an agency or Minister is required to satisfy itself that the document sought exists (to the extent that it has been or should be in the agency’s possession) and carry out all reasonable steps to find the document before refusing access. 20. In PDE the Acting Information Commissioner also considered how an agency is to satisfy itself as to the non-existence of documents sought by an applicant and indicated that to be satisfied that a document does not exist, it is necessary for the agency to rely upon its particular knowledge and experience with respect to various key factors including: • the administrative arrangements of government • the agency structure • the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) • the agency’s practices and procedures (including but not exclusive to its information management approach) • other factors reasonably inferred from information supplied by the applicant including: o the nature and age of the requested document/s o the nature of the government activity the request relates to. 21. To be satisfied under section 28A(2) of the FOI Act that a document can not be found an agency must take all reasonable steps to locate a document. Section 28A(1) is silent on the issue of how an agency is to satisfy itself that a document does not exist. When proper consideration is given to the key factors discussed at paragraph 20 above and a conclusion reached that the document sought does not exist, it may be unnecessary for the agency to conduct searches. However, where searches are used to substantiate a conclusion that the document does not exist, the agency must take all reasonable steps to locate the documents sought.[4] 22. Therefore, in applying section 28A(1) of the FOI Act it is relevant to ask whether there are reasonable grounds to be satisfied that the requested documents do not exist and, in doing so, as the QPS used searches to satisfy itself that the documents sought do not exist, it is necessary to consider whether the QPS has taken all reasonable steps to find the documents sought. Applicant’s submissions 23. In the applicant’s correspondence with the QPS and the Office[5] he made the following submissions in support of his contention that documents responding to the FOI Application exist: • the meeting on 16 March 2007 (Meeting) related to a court proceeding • searches performed by the QPS in the Far North Region have nothing to do with an interview held at Cairns Police Station • Inspector Swan advised him that the QPS’ legal services would be examining a flyer he was observed posting near Cairns Police Station[6] • the QPS accept that the Meeting took place, and accordingly a record of the Meeting should exist • he disagrees with the QPS’ categorisation of the Meeting as ‘low-key’ and informal • he is not satisfied that the QPS has searched for documents responding to the FOI Application. 24. In his letter dated 25 January 2009, the applicant states that he requested copies of audio and video tape recordings of the Meeting. I am satisfied however that any requests for audio or video recordings are not within the scope of the applicant’s FOI Application and are the subject of a separate external review. Accordingly, it is not necessary to address that issue in this review. 25. The applicant also submits that sections 21(a) and 30(1)(c) of the FOI Act support his External Review Application. I addressed the applicant’s submissions regarding these sections of the FOI Act at paragraphs 42 to 45 of my decision in Leach and Department of Police (Unreported, Queensland Information Commissioner, 27 February 2009). It is therefore unnecessary for me to address those submissions again as they do not affect the decision in this matter. QPS’ submissions 26. In response to a preliminary inquiry from the Office, by letter dated 6 January 2009 the QPS provided documents to this Office concerning the searches it conducted for documents responding to the FOI Application. In an email dated 27 October 2008, Acting Inspector Doyle, QPS, asked the Far Northern Region: • whether Inspector Swan met with the applicant on 16 March 2007 • whether there are any records of the alleged meeting such as diary notes or custody indices • to confirm the correspondence index contains no details of the alleged meeting • to confirm no correspondence was generated in response to the alleged meeting. 27. Inspector Swan responded to these inquiries by email on 28 October 2008: ...I have viewed my diary and I have no notes on Leach and in particular 16 March 2007. There may have been a meeting with him on that date with C/Superintendent Carroll and myself over him posting photographs of a police officer around town saying he was corrupt. Carroll and I told him to stop [and] he left the station. That is the only time I have spoken to him in Cairns station. There are no indices of the meeting as nothing was generated. Likewise no correspondence. Have spoken to [C/Superintendent Carroll] and she too has inspected her diary and no notes recorded. 28. QPS also submits that: • the Cairns District Police falls within the Far Northern Region of the QPS • each region has its own register and therefore, in this instance, the Far Northern Register is the only database in which a record of the Meeting would potentially be entered • any entry would be made either as an index entry or as an entry in the correspondence register • in response to the applicant’s FOI Application, a search was conducted of the Far Northern Register by a senior police officer and this search failed to locate any entries concerning the Meeting. Findings Are there reasonable grounds for the QPS to be satisfied that the requested documents do not exist? 29. The events involving the applicant on 16 March 2007 are the subject of a number of external reviews. From the submissions provided by both the applicant and the QPS in this review and the documents released by the QPS to the applicant in external review 210688, the following incidents appear to have precipitated the applicant lodging the FOI Application: • On 16 March 2007 the applicant was observed by police officers and a number of members of the public posting A4 flyers (containing a photo of the applicant and his email address and allegations that Police had mistreated and assaulted him) at a construction site opposite the Cairns District Police Station (Flyers). [7] At this time the applicant was subject to a Bail undertaking which restricted his movements in and around Cairns. • A police officer approached the applicant and the applicant subsequently entered the Cairns District Police Station. • Inside the Cairns District Police Station police officers spoke with the applicant concerning the Flyers. • After the discussion concluded the applicant left the Cairns District Police Station. 30. To be satisfied that no QPS documents responding to the FOI Application exist, it is appropriate to have regard to the key factors that relate to the FOI Application. In this instance, those key factors include: • the nature of the request, including the subject matter and date specified in the FOI Application • the persons involved in the matter referred to in the FOI Application • the location at which the requested documents would be recorded and/or stored • the information management system used by the QPS to store the type of information sought by the applicant. 31. The applicant has requested access to ‘[d]atabase files from Cairns District Police pertaining to [his] meeting with Inspector Ian Swan dated 16 March 2007’. 32. The applicant contends that documents responding to his FOI Application should exist because the subject of the meeting was in relation to court proceedings. The applicant also contends that Inspector Swan did not tell the applicant to desist from posting the flyers, but instead told him that QPS’ legal people would be looking at the flyer. I also note the applicant’s submission that he does not consider that his contact with Police on 16 March 2007 was ‘low-key’ or informal. I have understood these submissions to mean that, in the applicant’s view, the nature and seriousness of the subject of the meeting were such that a record of the meeting should have been created. 33. In light of the terms of the FOI Application, to locate documents responding to the application, in my view, it would be appropriate for the QPS to initially identify all databases in which the information sought could potentially be recorded and to search those database files for any entries/documents concerning the Meeting. 34. I am satisfied that the Far Northern Register contains the ‘[d]atabase files from Cairns District Police’ and is the only location in which the information sought by the applicant would be stored. 35. The QPS submit and I accept that a senior police officer searched the Far Northern Register for documents concerning the Meeting and this search failed to locate any documents concerning the Meeting. 36. As the applicant specifically referred to Inspector Swan in his FOI Application, it was appropriate for QPS to make inquiries with Inspector Swan. I note also that Inspector Swan inquired with C/Superintendant Carroll, who it appears had also been present at the Meeting. 37. I acknowledge that the applicant believes the seriousness of the discussion at the Meeting warranted the matter being recorded, however Inspector Swan’s recollection of events and the lack of entries in either his or C/Superintendent Carroll’s diaries are consistent with the search outcomes and suggest that the Meeting was relatively informal. 38. Having carefully considered the submissions made by the parties in this review, I find that: • the Far Northern register is the only location which contains the ‘[d]atabase files from Cairns District Police’ • the applicant met with Inspector Swan and C/Superintendent Carroll at Cairns Police Station on 16 March 2007 but the meeting was unscheduled and relatively informal • the applicant left the Cairns Police Station when the meeting concluded • Inspector Swan did not take notes of the meeting • Inspector Swan did not generate a record of the meeting in the Far Northern Register. 39. The decision as to whether an agency has taken all reasonable steps to find a document must be made on a case by case basis, and where relevant, with reference to: • the key factors in the FOI and internal review applications including the nature of the documents sought • the date the documents may have been created and the personnel who may have been responsible for creating them • the regulatory obligations and/or aspect of service delivery that might be involved • departmental approval processes and delegations in relation to the document or service in respect of which documents are sought • the agency’s record keeping practices, including where and in what form the documents sought may be stored, multiple locations, requirements under the Public Records Act 2002 (Qld) including retention and disposal regimes. 40. In response to the FOI Application the QPS has: • had regard to the key factors in the FOI and internal review applications, including the date and location of the Meeting • identified where the documents sought would be stored if they existed, in this instance, the Far Northern Register • conducted searches of the Far Northern Register • made inquiries with persons who attended the Meeting. 41. I am satisfied that in conducting the searches and making the inquiries listed at paragraph 40 above, QPS has taken all reasonable steps to locate documents that respond to the FOI Application. 42. Given my findings in paragraphs 38 and 41 above I am satisfied that: • the documents requested in the FOI Application do not exist because they were never created • QPS has taken all reasonable steps to determine whether documents responding to the FOI Application exist • there are reasonable grounds for the QPS to be satisfied that the documents requested in the FOI Application do not exist • access to the requested documents can be refused under section 28A(1) of the FOI Act. DECISION 43. I affirm the decision under review by finding that access to the documents requested in the FOI Application can be refused under section 28A(1) of the FOI Act. 44. I have made this decision as a delegate of the Information Commissioner, under section 90 of the Freedom of Information Act 1992 (Qld). ________________________ Suzette Jefferies Acting Assistant Commissioner Date: 14 May 2009[1] Including the FOI Application, Initial Decision, Internal Review Application and the Internal Review Decision. [2] (Unreported, Office of the Information Commissioner, 9 February 2009).[3] At paragraph 34.[4] See PDE. [5] The Internal Review Application, External Review Application, External Review Submission, letter dated 25 January 2009 and letter dated 1 February 2009.[6] See paragraph 29 below.[7] According to a Court Brief (at folio 31) which was released to the applicant in external review 210688. The Court Brief also states that the applicant’s allegations are false. The applicant does not seem to dispute that he was posting the Flyer. In his letter of 25 January 2009 he states that ‘Inspector Swan advised [him] QPS Legal Services would examine my A4 Flyer, never requested I cease my posting of A4 Flyers’.

queensland

court_judgement

Queensland Information Commissioner 1993-

OY76VY and Board of Professional Engineers of Queensland [2019] QICmr 1 (24 January 2019)

OY76VY and Board of Professional Engineers of Queensland [2019] QICmr 1 (24 January 2019) Last Updated: 8 February 2019 Decision and Reasons for Decision Citation: OY76VY and Board of Professional Engineers of Queensland [2019] QICmr 1 (24 January 2019) Application Number: 313999 Applicant: OY76VY Respondent: Board of Professional Engineers of Queensland Decision Date: 24 January 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE - expert engineer report obtained by professional body in course of investigation into member conduct and contemplated disciplinary action - dominant purpose of obtaining report from expert engineer - whether disciplinary proceedings constitute reasonably anticipated litigation - whether report attracts legal professional privilege - whether report is exempt under schedule 3, section 7 of the Right to Information Act 2009 (Qld) - whether access may be refused under section 47(3)(a) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Board of Professional Engineers of Queensland (BPEQ) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a report and associated correspondence regarding the engagement by BPEQ, of an expert engineer to inspect and report upon a seawall built at Toogoom, near Hervey Bay, Queensland. BPEQ decided to refuse access to the requested report on the basis that it comprised exempt information as its disclosure would found an action for breach of confidence.[2] BPEQ also decided to refuse to deal with the part of the application seeking access to associated correspondence, on the basis that the applicant had previously applied to BPEQ to access the same documents. The applicant then applied to the Office of the Information Commissioner (OIC) for external review of BPEQ’s decision.[3] During the external review, the applicant confirmed that he wished to pursue access only to the report prepared by the expert engineer (Expert Report). For the reasons set out below, I affirm BPEQ’s decision to refuse access to the Expert Report under section 47(3)(a) of the RTI Act as it comprises exempt information. I find that the Expert Report is exempt on the ground of legal professional privilege.[4] Background Construction of the seawall at Toogoom began in 2013 to protect coastal properties from erosion. The applicant, a local resident, is concerned that the seawall is unstable and has made a number of complaints requesting investigations into the construction of the seawall. In 2016, BPEQ conducted an ‘own-motion’ investigation into the conduct of engineers involved in construction of the seawall; during this investigation, the Expert Report was prepared. BPEQ is a statutory authority established under the Professional Engineers Act 2002 (Qld) (PE Act) to regulate the profession of engineering in Queensland. BPEQ is empowered to investigate and take disciplinary action against engineers in breach of the PE Act or who demonstrate unsatisfactory professional conduct or service. In investigating the conduct of an engineer, BPEQ is permitted to engage a person with relevant qualifications or experience to help conduct an investigation, including the provision of a written report.[5] The decision under review is BPEQ’s decision dated 18 June 2018 refusing access to the Expert Report under section 47(3)(a) of the RTI Act. Significant procedural steps taken by OIC in conducting the external review are set out in the Appendix. Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). Information in issue The Expert Report is the only document remaining in issue.[6] I am limited in the extent to which I can describe the content of the Expert Report as to do so would disclose information that is claimed to be exempt.[7] Broadly, the Expert Report documents the assistance provided to BPEQ by the expert helper in investigating the conduct of engineer/s in relation to construction of the Toogoom seawall. The issue for determination is whether access to the Expert Report may be refused on the basis that it is exempt information. As noted above, BPEQ decided that the Expert Report was exempt on the basis that its disclosure could reasonably be expected to found an action for breach of confidence. However, for the reasons set out below, I have found that the document is subject to legal professional privilege and is therefore, exempt on that basis.[8] Relevant law Under the RTI Act, an individual has a right to be given access to documents of an agency.[9] However, this right is subject to some limitations, including grounds for refusal of access.[10] Access may be refused to documents which comprise exempt information.[11] Information will be exempt from disclosure if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.[12] This exemption mirrors the requirements for establishing legal professional privilege at common law.[13] In summary, confidential communications between a lawyer and their client will be privileged where the communications were prepared for the dominant purpose of seeking or giving legal advice or professional legal assistance, or, for use in current or reasonably anticipated litigation.[14] Proceedings in administrative tribunals, such as the Queensland Civil and Administrative Tribunal (QCAT), have been found to be analogous to ‘litigation’ and, therefore, capable of attracting legal professional privilege.[15] The courts have also recognised that legal professional privilege will extend to certain communications between a lawyer and a third party relating to litigation. In Trade Practices Commission v Sterling,[16] the Federal Court explained that legal professional privilege includes: Communications and documents passing between the party’s solicitor and a third party if they are made or prepared when litigation is anticipated or commenced, for the purposes of the litigation, with a view to obtaining advice as to it or evidence to be used in it, or information which may result in the obtaining of such evidence. [emphasis added] In Misubishi Electric Australia Pty Ltd v Victorian WorkCover Authority,[17] the Victorian Court of Appeal applied the above principle and stated that: ...the element essential to [the litigation] aspect of privilege, being a privileged for communications to and from third parties, is that there be litigation either pending or in contemplation and, I would add, that the communication come into existence for use in or in relation to the litigation. That purpose must of course be the sole or dominant purpose. The rationale for litigation privilege is, as it seems to me, that the communications to the solicitor are, as Cotton LJ said in Wheeler v Le Marchant, the brief in the litigation, and the communications by the solicitor are for the purpose of preparing that brief. [18] The dominant purpose for which a document has been created is a question of fact.[19] The purpose is usually determined by reference to the intent of the author, however, where a lawyer requests a third party to prepare a document, it is the intention of the lawyer in requesting the document that determines the dominant purpose.[20] In Mitsubishi Electric, Batt JA explained that ‘In its ordinary meaning “dominant” indicates that purpose which was the ruling, prevailing, or most influential purpose’ and further that ‘the element of clear paramountcy should be the touchstone’.[21] Batt JA also found that ‘litigation is reasonably anticipated or in contemplation if its initiation is likely or reasonably probable.’[22] Findings The applicant questions how the Expert Report can attract legal professional privilege when it was prepared by an engineer, not a lawyer.[23] The applicant also rejects the argument that litigation was reasonably anticipated at the time that the Expert Report was commissioned.[24] As demonstrated by the case law referred to above, in certain circumstances, confidential[25] documents prepared by third parties for the dominant purpose of reasonably anticipated litigation can attract legal professional privilege. In Mitsubishi Electric, the relevant issues to consider when deciding whether privilege attaches to third party documents, were framed as follows: when the third party document was commissioned, litigation was reasonably anticipated or in contemplation; and the third party document was relevantly, for use in relation to such prospective litigation and in particular the furnishing of legal advice about it, and that was the dominant purpose of the legal advisors commissioning the third party document.[26] BPEQ provided OIC with a copy of correspondence it sent to the expert engineer, essentially comprising the instructions to the expert and the brief to prepare the Expert Report (Helping Brief). However, to avoid waiver of legal professional privilege and to safeguard the privacy of individuals involved, I am limited in the extent to which I can describe the specific content of the Helping Brief.[27] Having reviewed the evidence available to OIC, I am satisfied it demonstrates that: BPEQ notified a registered professional engineer that it was conducting an investigation into the engineer’s conduct in relation to the Toogoom seawall and that BPEQ may, after the investigation, decide to start disciplinary proceedings; and BPEQ’s lawyers prepared the Helping Brief and sent it to the expert engineer to engage their services under section 45(1) of the PE Act to help BPEQ in conducting the investigation, and in determining whether to start disciplinary proceedings in QCAT. I am satisfied that BPEQ’s lawyers called the Expert Report into existence by providing instructions to, and briefing the expert helper, through the Helping Brief. Therefore, in deciding the dominant purpose, the intent of BPEQ’s lawyers in requesting the Expert Report is relevant. I am satisfied that the dominant purpose of BPEQ’s lawyers commissioning the Expert Report was to assist BPEQ’s internal lawyers in providing legal advice to BPEQ about whether disciplinary proceedings should be commenced in QCAT, and for later use in any such proceedings. While disciplinary proceedings were not ultimately commenced, I am satisfied that the prospects of BPEQ commencing proceedings in QCAT against the engineer proceeded beyond a ‘mere possibility’. It is evident from BPEQ’s correspondence to the registered professional engineer and the Helping Brief that: disciplinary proceedings were a prospective outcome of the investigation into the engineer’s conduct which was commenced by BPEQ on its ‘own motion’; and the expert’s findings in the Expert Report would be used by BPEQ in deciding whether to commence such proceedings. For these reasons, I am satisfied that disciplinary proceedings against the engineer were in reasonable contemplation at the time the Expert Report was created. I am also satisfied that disciplinary proceedings in QCAT are analogous to ‘litigation’ in the context of legal professional privilege.[28] The applicant submits[29] that BPEQ has sought to improperly cloak the Expert Report with privilege, thereby raising the improper purpose exception.[30] As set out above, I have examined BPEQ’s lawyers’ brief to the expert helper which clearly enunciates the purpose of requesting the Expert Report. I find that evidence supports the claim of legal professional privilege and there is no other evidence available to OIC to indicate an improper purpose. For the reasons set out above, I am satisfied that the Expert Report attracts legal professional privilege and constitutes exempt information under schedule 3, section 7 of the RTI Act. I find that access to it may therefore, be refused under section 47(3)(a) of the RTI Act. During the review, the applicant also made submissions regarding public interest factors favouring disclosure of the Expert Report.[31] I acknowledge that the subject matter of the Expert Report concerns a matter of significant importance to the applicant and that generally, the impact of public infrastructure on private citizens may raise legitimate public interest factors. However, where information is found to be exempt, the RTI Act precludes consideration of such factors.[32] For this reason, I have not considered the applicant’s submissions in this regard, nor have I taken into account any public interest factors in reaching my finding at paragraph 25 above. DECISION For the reasons set out above, I affirm BPEQ’s decision to refuse access to the Expert Report under section 47(3)(a) of the RTI Act as it comprises exempt information. I have made this decision under section 110 of the RTI Act, as a delegate of the Information Commissioner under section 145 of the RTI Act.K ShepherdAssistant Information CommissionerDate: 24 January 2019 APPENDIX Significant procedural steps Date Event 26 June 2018 OIC received the external review application dated 25 June 2018. OIC notified BPEQ and the applicant that the review application had been received and requested procedural documents from BPEQ. 28 June 2018 OIC received the requested documents from BPEQ. 17 July 2018 OIC notified BPEQ and the applicant that the external review had been accepted and requested further documents from BPEQ. 25 and 26 July 2018 The applicant provided oral submissions to OIC. 27 July 2018 OIC received the requested documents from BPEQ. 22 August 2018 OIC conveyed an oral preliminary view to BPEQ that it was not entitled to refuse to deal with part of the application. 23 August 2018 OIC confirmed its preliminary view in writing to BPEQ that it was not entitled to refuse to deal with part of the application and requested that BPEQ locate and provide the responsive documents to OIC along with submissions regarding disclosure. 24 August 2018 The applicant provided oral submissions to OIC. 30 August 2018 OIC received the requested documents from BPEQ. 3 September 2018 BPEQ requested and was granted an extension to provide submissions. 12 September 2018 BPEQ provided submissions regarding its views on disclosure of the information in issue. 9 October 2018 OIC requested that BPEQ provide to OIC documents referred to in its submissions. 12 October 2018 BPEQ provided the requested documents. 25 October 2018 OIC conveyed a preliminary view to the applicant that access to the requested information may be refused on the basis that it is exempt due to legal professional privilege and invited the applicant to provide submissions if he contested the view. 29 October 2018 The applicant provided oral submissions to OIC. 1 November 2018 The applicant provided written submissions to OIC. 26 November 2018 The applicant narrowed the scope of the external review solely to the issue of access to the Expert Report and provided oral submissions to OIC on that issue. 27 November 2018 OIC advised BPEQ by telephone that the applicant had limited the scope of the external review to the issue of access to the Expert Report and conveyed OIC’s view that access to the Expert Report may be refused as it is protected by legal professional privilege. BPEQ advised it did not intend to make submissions in response to OIC’s preliminary view. 10 December 2018 BPEQ confirmed to OIC, by telephone, that it is a statutory body and therefore, the relevant agency under the RTI Act. 9 January 2019 OIC provided the applicant with an update on the review. [1] Access application dated 25 April 2018.[2] Section 47(3)(a) and schedule 3, section 8 of the RTI Act. Decision dated 18 June 2018. [3] Application dated 25 June 2018.[4] Schedule 3, section 7 of the RTI Act. [5] Section 45 of the PE Act. [6] The applicant excluded the associated correspondence from the scope of the review in a telephone conversation with OIC on 26 November 2018. [7] Section 108 of the RTI Act. [8] The Information Commissioner has the power, under section 105 of the RTI Act, to decide any matter in relation to an application that could have been decided by the agency. After conducting an external review, section 110 of the RTI Act requires the Information Commissioner to make a decision affirming, varying, or setting aside and substituting a new decision for, the decision under review. In doing so, the Information Commissioner is conducting merits review, i.e. an administrative reconsideration of a case which can be described as ‘stepping into the shoes’ of the primary decision maker to determine the correct and preferable decision: see SH8Z9M & Ors and Department of Child Safety, Youth and Women [2018] QICmr 40 (27 September 2018) at [10].[9] Section 23 of the RTI Act. [10] The grounds for refusal of access are set out in section 47 of the RTI Act. [11] Sections 47(3)(a) and 48 of the RTI Act. [12] Sections 47(3)(a) and 48 and schedule 3, section 7 of the RTI Act. [13] Ozcare and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 May 2011) at [12].[14] Esso Australia Resources Ltd v Federal Commission of Taxation [1999] HCA 67; (1999) 201 CLR 49; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 552. [15] See SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64; (2007) 159 FCR 1; Re Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792; (2007) 97 ALD 788; Re VCA and Australian Prudential Regulation Authority [2008] AATA 580; (2008) 105 ALD 236 (regarding proceedings in the Administrative Appeals Tribunal); and Cianfrano v Director General, Attorney General’s Department [2008] NSWADTAP 10 at [16] (regarding proceedings in the former Administrative Decisions Tribunal of NSW).[16] [1979] FCA 33; (1979) 36 FLR 244 (Sterling) at 246. See also Ensham Resources Pty Ltd v AIOI Insurance Company Ltd [2012] FCAFC 191; (2012) 295 ALR 99 at 107-108.[17] [2002] VSCA 59; (2002) 4 VR 332.[18] Misubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59; (2002) 4 VR 332 (Mitsubishi Electric) at 336 (footnotes omitted).[19] Hartogen Energy Ltd (In liq) v Australian Gas Light Co [1992] FCA 322; (1992) 36 FCR 557 (Hartogen Energy) at 568.[20] Hartogen Energy at 568-569.[21] At 336, citing FCT v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 at 416 and Waugh v British Railways Board [1979] UKHL 2; [1980] AC 521 at 536.[22] At 340.[23] Submission dated 1 November 2018.[24] Ibid.[25] I am satisfied that the details of the investigation and any document created by the expert helper were intended to be kept confidential by both parties. Also, there is nothing available to OIC to suggest that the Expert Report was not treated confidentially. [26] At 337. [27] Further, the Helping Brief does not fall within the scope of the access application and therefore, is not a document in issue in this review.[28] Re Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792; (2007) 97 ALD 788 at [3].[29] In the telephone discussion with OIC on 26 November 2018.[30] A person alleging that privilege has been displaced because of alleged illegal or improper purpose must demonstrate that the claim is made out and the standard of proof required to establish improper purpose is high. In Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 591-592, the High Court observed that it “is a serious thing to override legal professional privilege where it would otherwise be applicable” and “vague or generalised contentions of crimes or improper purposes will not suffice.”[31] In his submission dated 1 November 2018 and in the telephone discussion with OIC on 26 November 2018.[32] Section 48(2) of the RTI Act provides that exempt information is a category of information which the Queensland Parliament has decided would, on balance, be contrary to the public interest to disclose. Therefore, public interest factors which may favour disclosure cannot be taken into account.

queensland

court_judgement

Queensland Information Commissioner 1993-

JM and Queensland Police Service [1995] QICmr 8; (1995) 2 QAR 516 (12 May 1995)

JM and Queensland Police Service [1995] QICmr 8; (1995) 2 QAR 516 (12 May 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 192 of 1993COMMISSIONER (QLD) ) (Decision No. 95008) Participants: JM Applicant - and - QUEENSLAND POLICE SERVICE Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - applicant challenging sufficiency of search by the respondent for requested documents (including a videotape claimed to be in the respondent's possession) - whether there are reasonable grounds for believing that the requested documents exist and are in the possession or under the control of the respondent - whether the search efforts made by the respondent to locate the requested documents have been reasonable in all the circumstances of the case.FREEDOM OF INFORMATION - refusal of access - documents in issue are available for purchase by the applicant under administrative arrangements made by the respondent, but would not be available for purchase by other members of the community - whether the respondent is entitled to refuse the applicant access to the documents in issue pursuant to s.22(b) of the Freedom of Information Act 1992 Qld - meaning of the phrase "reasonably available for purchase by members of the community" - observations on the proper approach to the interpretation and application of s.22(a) and s.22(b) of the Freedom of Information Act 1992 Qld - observations on the meaning of the phrase "reasonably open to public access" in s.22(a) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.7, s.22, s.22(a), s.22(b), s.29(2)Freedom of Information Regulation 1992 Qld s.6(2), s.7(2)Acts Interpretation Act 1954 Qld s.32CAFreedom of Information Act 1982 Vic s.14Justices Act 1886 Qld s.154Recording of Evidence Regulation 1992 QldRegistration of Births, Deaths and Marriages Act 1962 Qld s.22(3)Traffic Act 1949 Qld s.14ATransport Infrastructure (Roads) Regulation 1991 Qld s.4.02Arnold Bloch Leibler and Department of Planning and Housing, Re (1992) 5 VAR 600Cannon and Australian Quality Egg Farms Limited, Re (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported)Shepherd and Department of Housing, Local Government & Planning, Re (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported)Smith and Administrative Services Department, Re [1993] QICmr 3; (1993) 1 QAR 22 DECISIONThe decision under review is set aside, and, in substitution for it, I decide that -(a) following the disclosure to the applicant of further documents during the course of my review, I am satisfied that the respondent has located, and (apart from those referred to in (b) below) given the applicant access to, all the documents in its possession or control which fall within the terms of the applicant's FOI access application; and(b) the respondent is entitled to refuse the applicant access to the applicant's criminal history, and to the Court brief relating to the applicant's trial at the Magistrates Court at Brisbane on 19 October 1988 (to which two Fine Option Orders are annexed), in accordance with s.22(b) of the Freedom of Information Act 1992 Qld.Date of Decision: 12 May 1995...........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS PageBackground 1The external review process 2The "sufficiency of search" issue 3Conclusion on the "sufficiency of search" issue 5Section 22 of the FOI Act 6Application of s.22(b) to the documents in issue 12Conclusion 13OFFICE OF THE INFORMATION ) S 192 of 1993COMMISSIONER (QLD) ) (Decision No. 95008) Participants: JM Applicant - and - QUEENSLAND POLICE SERVICE Respondent REASONS FOR DECISIONBackground1. The applicant seeks review of the respondent's decision to refuse him access under the Freedom of Information Act 1992 Qld (the FOI Act) to certain documents which the respondent contends are available for purchase by the applicant outside the framework of the FOI Act. The applicant also raises a "sufficiency of search" issue in that he claims that the respondent has failed to locate, and give him access to, a videotape and other documents which he asserts are in the respondent's possession.2. By application dated 6 May 1993, the applicant sought access to "all documents in Police possession including Special Branch and other forces in Queensland". In its terms, the application was not even confined to documents which concerned the applicant (let alone specific incidents or subject matters of concern to the applicant); it sought all documents which were in the possession of the Queensland Police Service (the QPS). As was appropriate in the circumstances, by a letter dated 10 May 1993, the QPS requested that the applicant specify the documents he was seeking: see paragraphs 7-8 of my decision in Re Cannon and Australian Quality Egg Farms Limited (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported). The applicant replied to the respondent's request by letter dated 23 May 1993 which stated: The documents I want to see are - any documents that will give me a lead as to why I was secretly on Police files other than when I was arrested and framed in Brisbane some time ago: I will need to know why the Special Branch harassed me and solicited me during their time of operation and taped me in a toilet block adjacent to the corner of William Street and Queen Street, Brisbane.3. In a decision of 18 August 1993, Superintendent J Doyle of the QPS identified four documents as falling within the terms of the applicant's FOI access application, and decided to refuse access to all four documents under s.22(b) of the FOI Act, because the documents (the applicant's criminal history, a Court brief and two Fine Option Order forms) were reasonably available for purchase by the applicant under arrangements made by the QPS.4. By letter dated 10 September 1993, the applicant sought internal review of Superintendent Doyle's decision, saying: "I claim the right to all documents held by Police HQ and also a police tape taken in a toilet by the Special Branch." The internal review was undertaken by Assistant Commissioner G J Williams, who, in a decision dated 20 September 1993, affirmed Superintendent Doyle's decision.5. By application dated 8 October 1993, the applicant sought external review under Part 5 of the FOI Act in respect of Assistant Commissioner Williams' decision.The external review process6. The documents which were the subject of Assistant Commissioner Williams' decision were obtained and inspected. They related to the prosecution of the applicant in the Magistrates Court at Brisbane, on 19 October 1988, on charges of behaving in an offensive manner and resisting a police officer in the execution of his duty. Those documents comprised:? a copy of the applicant's criminal history;? the Court brief in respect of the 1988 charges; and? two Fine Option Orders, which were attached to the Court brief.7. In his application for external review, the applicant also raised a "sufficiency of search" issue, stating that he wanted to obtain a copy of all of the Police records and the videotape which he alleged had been taken of him by the Special Branch.8. After initial consultations with the QPS, some further documents falling within the terms of the applicant's FOI access application were located by the QPS, namely:? a copy of the transcript of the applicant's trial on 19 October 1988 in the Brisbane Magistrates Court;? a letter dated 26 November 1989 from the applicant to the Commissioner of Police;? a letter dated 21 August 1986 from the applicant to the Police Complaints Tribunal;? a letter dated 28 October 1986 from the Police Complaints Tribunal to the applicant in response to his letter.The QPS agreed to give the applicant access to those documents, except for the trial transcript to which access was initially refused in reliance upon s.22 of the FOI Act. The trial transcript remained in issue until quite recently when the QPS decided that it was prepared to give the applicant access, under the FOI Act, to its copy of the trial transcript.9. Details of the searches and inquiries undertaken in response to the applicant's FOI access application were obtained from the QPS. After evaluating these, I wrote to the applicant on 7 April 1994 identifying the issues raised by this external review and communicating my preliminary views in respect of those issues. In telephone conversations with my staff on 27 April and 16 May 1994, the applicant advised that he did not accept my preliminary views, but did not wish to make any submissions in writing other than what he had previously communicated in his earlier letters concerning the existence of the videotape.10. As it was necessary to proceed to a formal decision, I requested evidence by way of statutory declaration or affidavit from relevant officers of the QPS concerning the "sufficiency of search" issue, and also concerning the use of video recording equipment by the QPS in the conduct of investigations. I also requested formal confirmation that, in the event of the applicant seeking to purchase the documents which were the subject of the decision by Assistant Commissioner Williams, those documents would, on payment of the appropriate fee, have been provided to the applicant without deletion.11. The evidence received from the QPS was supplied to the applicant and he was given a further opportunity to make submissions and/or lodge evidence, in response. However, no submissions or evidence have been received from the applicant.The "sufficiency of search" issue12. The "sufficiency of search" issue in the present case concerns a general assertion by the applicant that all requested documents have not been revealed to him, as well as a specific allegation that the QPS holds a videotape of the applicant which he alleges was made of him by the QPS in a public toilet in William Street, using a door specially altered for the purposes of video-taping. I note that, in a letter dated 21 August 1986 to the former Police Complaints Tribunal, the applicant asserted the existence of the videotape, but the Police Complaints Tribunal declined to investigate the applicant's complaint.13. As I indicated in paragraphs 12-61 of my decision in Re Smith and Administrative Services Department (Information Commissioner Qld, Decision No. 93003, 30 June 1993; now reported at [1993] QICmr 3; (1993) 1 QAR 22) and in paragraphs 14-15 of my decision in Re Cannon and Australian Quality Egg Farms Limited (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported), I have jurisdiction to conduct a review under Part 5 of the FOI Act where an applicant, who has applied to an agency for access to a document, complains that access to the document has been denied because of the agency's failure to locate and deal with the document in its response to the relevant FOI access application.14. I explained the principles applicable to "sufficiency of search" cases in my decision in Re Shepherd and Department of Housing, Local Government & Planning (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported) at paragraphs 18 and 19, as follows: 18. It is my view that in an external review application involving 'sufficiency of search' issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act) to which access has been requested. It is provided in s.7 of the FOI Act that: "'document of an agency' or 'document of the agency' means a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes - (a) a document to which the agency is entitled to access; and (b) a document in the possession or under the control of an officer of the agency in the officer's official capacity;" 19. In dealing with the basic issue referred to in paragraph 18, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.15. Despite several requests, the applicant has not provided me with any evidence which objectively supports his assertions that the QPS filmed, or has possession of, a videotape of the kind described above. In a telephone interview with a member of my staff on 4 July 1994, the applicant was asked on what basis he asserted that it was the police who had taken the alleged videotape. The applicant replied that he had no grounds to believe that it was the police. However, he assumed that it was because of his subsequent arrest for behaving in an offensive manner (an incident which occurred in a public toilet at North Quay, but at least two years after the alleged videotaping incident) and subsequent contacts with plain clothes police. However, the applicant is adamant that he was videotaped and insists that it must have been by the police, in particular by the former Special Branch of the QPS.16. The QPS has supplied me with substantial evidence going to both of the issues identified in paragraph 19 of Re Shepherd. In respect of the first issue, i.e., whether there are reasonable grounds to believe that a videotape of the applicant (made in a public toilet in William Street, Brisbane at some time prior to 21 August 1986) exists and is a document of the QPS, I have given consideration to the following evidence:? a statutory declaration of Inspector P J Bull executed on 12 August 1994. Inspector Bull was, in 1986, a Detective Sergeant with the Special Branch of the QPS and was in charge of operational teams performing intelligence gathering and VIP protection duties. He states that the surveillance work undertaken by the Special Branch did not include the use of video cameras, and he could not recall any instances when officers of the Special Branch were employed in surveillance duties involving public toilets.? a statutory declaration of Inspector D P Ferguson executed on 24 August 1994. Inspector Ferguson was assigned to the Special Branch as a Detective between September 1986 and October 1988 and he states that, to his knowledge, the Special Branch never had possession nor use of a video camera and that the video-taping of suspects in public toilets was never a function or duty of the Special Branch.? a statutory declaration of Senior Sergeant B W Cross executed on 12 August 1994. Senior Sergeant Cross has been the officer in charge of the electronic recording and centralised tape storage facility of the QPS for approximately 2 years, and previously, between 1976 and 1991, was attached to the Bureau of Criminal Intelligence (BCIQ). He states that in his 16 years of experience with the BCIQ, he was involved in the performance and command of all manner of intelligence and surveillance duties and that neither he, nor anyone under his command, was involved in surveillance activities targeting individuals behaving in an offensive manner in public toilets. He also states that it was not the policy of the BCIQ to target such behaviour, nor were any physical or technical resources of the BCIQ used to target such behaviour. Finally, Senior Sergeant Cross states that the costs of surveillance, both physical and technical, are extremely high, and, in his professional experience, sections tasked with the performance of such duties on behalf of the QPS are totally involved with far more serious criminal threats to the community.17. In respect of the issue of whether the search efforts made by the QPS to locate the videotape and any other documents concerning the applicant held by the QPS, have been reasonable in all the circumstances of this particular case, I have given consideration to the following evidence:? the statutory declaration of Senior Sergeant Cross in which he states that there is no record of a videotape concerning the applicant currently being held by the Central Tape Storage Facility, nor is there a record of such a recording having previously been held by that facility.? a statutory declaration executed on 23 August 1994 by Detective Inspector P C Coyle, the officer in charge of the Counter Terrorist Section of the Bureau of Criminal Intelligence (which section currently holds the remaining files of the former Special Branch, i.e., those not destroyed in 1989). Detective Inspector Coyle states that there are no ex-Special Branch files held in the Counter Terrorist Section concerning the applicant, nor are there any video recordings or photographs which relate to the applicant.? a statutory declaration of Sergeant M J Fitch of the Police Information Centre executed on 29 August 1994. Sergeant Fitch states that on 7 June 1993 she conducted a search for records held by the Police Information Centre concerning the applicant and located four documents (being those documents which were the subject of Assistant Commissioner Williams' decision dated 20 September 1993), which documents were stored on microfilm. She further states that during her search she did not see any reference or record which indicated the existence of a videotape concerning the applicant.? a statutory declaration executed on 26 August 1994 by Sergeant G Hedges of the Headquarters Property Section of the QPS. Sergeant Hedges states that he made a thorough search of the computer indices used by the Headquarters Property Section and that he did not locate any exhibits which relate to videotapes under the name of the applicant.? a statutory declaration of Ms J Walker, executed on 26 August 1994. Ms Walker is employed as the officer in charge of the Registries Section of the QPS and is responsible for the maintenance and safe keeping of registry files. Ms Walker states that she examined and searched the indices and records of the Registry Section and found no evidence or record of any videotape ever having been filed or recorded on registry files relating to the applicant. Ms Walker states that she has been employed in the Registry Section, and its predecessor, for 16 years and has no recollection of ever filing videotapes relating to the Special Branch or Licensing Branch, or matters relating to the policing of offences such as "behaving in an offensive manner".Conclusion on the "sufficiency of search" issue18. The applicant has not supplied me with any evidence to support his assertions as to the existence, as a document of the respondent agency, of the videotape that he contends was taken of him in a public toilet. The QPS has supplied me with evidence from a number of individuals who were assigned to the Special Branch at the time the applicant first raised his concerns about having been videotaped. The evidence in each case is that the Special Branch never undertook surveillance work of the kind of which the applicant alleges he was the subject. Further, evidence was provided by an officer with some 16 years experience with the Bureau of Criminal Intelligence, Senior Sergeant Cross, who states that it was never the policy of the BCIQ to target such behaviour, nor were any of the physical or technical resources of the BCIQ used to target such behaviour. I accept this evidence which I find to be more credible than the applicant's assertions to the contrary. On the basis of the evidence detailed at paragraphs 16 and 17 above, I find that there are no reasonable grounds to believe that the QPS has, in its possession or control, a videotape of the kind asserted by the applicant. Even if I had concluded that such grounds existed, I am satisfied that the QPS has undertaken all reasonable searches and inquiries to locate a videotape of the kind alleged by the applicant to exist, and that such a videotape cannot be located in the possession or control of the QPS.19. I am also satisfied, on the basis of the searches and inquiries detailed in the evidence lodged on behalf of the respondent, that the respondent has now located and dealt with (by deciding either to grant or to refuse access to) all documents in its possession or control which fall within the terms of the applicant's FOI access application.Section 22 of the FOI Act20. The respondent has refused to give the applicant access under the FOI Act to several documents, in reliance upon s.22 of the FOI Act which provides: Documents to which access may be refused 22. An agency or Minister may refuse access under this Act to - (a) a document that is reasonably open to public access (whether or not as part of a public register) in accordance with another enactment, whether or not the access is subject to a fee or charge; or (b) a document that is reasonably available for purchase by members of the community in accordance with arrangements made by an agency; or (c) a document that is reasonably available for public inspection in the Queensland State Archives or a public library; or (d) a document that - (i) is stored for preservation or safe custody in the Queensland State Archives; and (ii) is a copy of a document of an agency; or (e) adoption records maintained under the Adoption of Children Act 1964.21. Section 22 is one of several provisions in the FOI Act which place qualifications on the legally enforceable right, conferred by s.21 of the FOI Act, to be given access under the FOI Act to documents of an agency and official documents of a Minister. The use of the word "may" in s.22 of the FOI Act means that the power to refuse access under the FOI Act to documents which fall within the terms of s.22(a), s.22(b), s.22(c), s.22(d) or s.22(e) may be exercised, or not exercised, at the discretion of the relevant agency or Minister (see s.32CA of the Acts Interpretation Act 1954 Qld); i.e., an agency or Minister may choose to allow access to documents under the FOI Act even though they fall within one of the paragraphs of s.22 of the FOI Act.22. Section 22(a) and s.22(b) are the only paragraphs of s.22 which require attention for the purposes of the present case, and I propose to make some observations on their intended sphere of operation.23. The FOI Act embodies a self-contained and wide-reaching, though not completely comprehensive (see s.11 and s.11A of the FOI Act), scheme for obtaining access to documents of agencies and official documents of Ministers. That scheme is subject to its own charging regime, one element of which is that an applicant is not required to pay any fees or charges for access to documents which contain information concerning the applicant's personal affairs. Not infrequently, other statutes or statutory instruments make provision for more limited or specialised schemes of access to specific categories of government-held information, often subject to a prescribed charging regime; for example, the register of land titles, the register of vehicles maintained under s.4.02 of the Transport Infrastructure (Roads) Regulation 1991 Qld, the registers maintained by the Registrar of Births, Deaths and Marriages. Persons seeking information under one of these more specialised schemes of access to government-held information may be required to pay a prescribed fee or charge, irrespective of whether the information sought concerns their personal affairs. 24. Section 22(a) of the FOI Act is, in my opinion, obviously designed to ensure that these more specialised access schemes provided for in other enactments ("enactment" is defined in s.7 of the FOI Act to mean an Act or a statutory instrument) need not be overridden by the wide scope of the access regime provided for in the FOI Act.25. Section 22(b) of the FOI Act undoubtedly has a similar object to s.22(a), but whereas s.22(a) is confined to access schemes provided for in other enactments, s.22(b) deals with access schemes established under administrative arrangements made by an agency, i.e., without the backing of an Act of Parliament or statutory instrument.26. Where an agency or a Minister receives an application, made in accordance with s.25 of the FOI Act, for access to a document which is reasonably open to public access under another enactment, or reasonably available for purchase under arrangements made by an agency, s.22(a) and s.22(b), respectively, entitle the agency or Minister to refuse access under the FOI Act to the requested document, thereby forcing the applicant to obtain access to the requested document through the alternative specialised scheme of access, and pay any applicable fee or charge. In my opinion, the object of s.22(a) and s.22(b) is to provide for the continued efficacy of specialised schemes of access to government-held information, and their individual charging regimes, in the face of the broad scheme of access embodied in the FOI Act, and its charging regime.27. That limited object of s.22(a) and s.22(b) must, in my opinion, be given effect in a way that is in harmony with the wider objects of the FOI Act as a whole, i.e., to extend as far as possible the right of the community to have access to information held by Queensland government (s.4), having regard to the reasons for enactment of the FOI Act which are summarised in s.5 of the FOI Act. I note in this regard that the Explanatory Notes provided to Members of the Legislative Assembly by the Attorney-General in respect of the Freedom of Information Bill say this about the provision which became s.22 of the FOI Act: "Clause 22 outlines the situations where access may be refused under the Bill because generally access is already available."28. In my opinion, the words "public access" in s.22(a), and "members of the community" in s.22(b), must be read as having been intended to comprehend at least the particular applicant whose FOI access application is under consideration in any given case. Section 22(a) and s.22(b) cannot, in my opinion, have been intended to apply so as to deny a particular applicant access under the FOI Act to a particular document, in circumstances where the particular document is not reasonably open to access by the particular applicant under the terms of another enactment, or reasonably available for purchase by the particular applicant. (Rather s.22(a) and s.22(b) were intended to be a means for allowing agencies and Ministers a discretion to regulate which scheme of access, with its particular charging regime, is to be used, by an applicant for access under the FOI Act, to obtain access to a document which is available for access under an alternative scheme to the FOI Act.) In my opinion, s.22(a) and s.22(b) are not capable of being invoked in respect of a particular document requested by a particular applicant, unless it is certain that the particular document is reasonably open to access by the particular applicant under another enactment on payment of any applicable fee or charge (s.22(a)), or the particular document is reasonably available for purchase by the particular applicant under arrangements made by an agency (s.22(b)). If that is not the case, there is no justification in principle for interpreting s.22(a) or s.22(b) in a way that would detract from the right of a particular applicant to have a valid FOI access application for a particular document dealt with under the relevant provisions of the FOI Act (other than s.22(a) or s.22(b)).29. An important corollary to the above propositions is this. If - (a) the terms of the other enactment contemplated by s.22(a), or the arrangements for purchase contemplated by s.22(b), place restrictions on the extent of access available to certain kinds of information under the particular specialised scheme of access; and(b) those restrictions would operate to deny access to all or part of a particular document requested by an applicant for access under the FOI Act (even if the restrictions operate vis-à-vis that particular applicant, but not necessarily against other applicants for the same information); then s.22(a) or s.22(b) would not be available, and the agency or Minister would be obliged to deal with the applicant's FOI access application for that particular document, or part thereof, in accordance with other relevant provisions of the FOI Act (i.e., other than s.22(a) or s.22(b)).30. With these general principles in mind, I turn to address another interpretive difficulty which is inherent in the words "open to public access" in s.22(a), and (to a lesser extent) in the words "available for purchase by members of the community" in s.22(b). The issue is whether, to be eligible for consideration under the respective provisions - (a) the document in issue must be open or available to every member of the public/community; or(b) whether it is also sufficient that the document in issue falls within a class of documents which is open or available to members of the public/community, even though particular documents in that class are only open or available to particular persons to whom information in the particular documents relates.31. Some specialised schemes of access to government-held information are open to any and all members of the public, e.g., the register of land titles. Other specialised schemes are open to any member of the public in the sense that any individual may obtain access to information which concerns them, but not to information of the same character concerning other individuals. (This is becoming increasingly common with increasing community concern about privacy safeguards.) I will give some simple examples to illustrate the kind of qualitative difference between specialised schemes of access to which I am referring. The details recorded on the register of land titles in respect of property at a certain address are quite literally "open to public access": not only the owner of that property, but any member of the public, can obtain access to those details, on payment of the applicable fee. On the other hand, while any member of the public can obtain access to his or her own birth details recorded on the register maintained under the Registration of Births, Deaths and Marriages Act 1962 Qld, restrictions apply when a member of the public seeks access to the birth details recorded in respect of another member of the public: see s.22(3) of the Registration of Births, Deaths and Marriages Act 1962. Similarly, while any person may obtain access to information about his or her driver's licence and traffic history, by making an application in accordance with s.14A of the Traffic Act 1949 Qld, information of that kind in respect of one person is not open to access by other persons, except with the first person's written agreement.32. The issue of whether s.22(b) extends to specialised access schemes in the second category described in paragraph 30 above, is of direct relevance in this case. The documents in issue are available for purchase by the applicant under administrative arrangements made by the QPS, but would not be available for purchase by other members of the community. Moreover, under the FOI Act, the applicant would not be obliged to pay any charge to obtain access to the documents in issue, since they contain information which concerns the applicant's personal affairs.33. Until a concession was made by the respondent quite late in the course of this review, the question of whether the respondent was entitled, under s.22(a) of the FOI Act, to refuse the applicant access to a copy of the transcript of the applicant's trial in the Magistrates Court at Brisbane on 19 October 1988, was in issue in this case. Under s.154 of the Justices Act 1886 Qld, a transcript of criminal proceedings before the Magistrates Court is not necessarily available to any member of the public upon request. The Clerk of the Court has the discretion to refuse to supply a copy if he or she is of the opinion that the person making the request does not have a sufficient interest in the proceedings, or in securing a copy of the record of the proceedings. Thus, s.154 of the Justices Act establishes a specialised scheme of access to a particular class of information (i.e., records of proceedings under that Act) which can be availed of by any member of the public, but records of a particular proceeding will only be made available to persons having a sufficient interest in that proceeding or in obtaining a copy of the record thereof. It is thus an example of a specialised scheme of access to information which corresponds to the second category identified in paragraph 30 above.34. Inquiries which I pursued with the Registrar of the Magistrates Court at Brisbane established that there was no doubt that the applicant could obtain from the court a copy of the transcript of his trial, on payment of the applicable charge. However, there is obvious difficulty in arguing that the transcript of the applicant's trial is "reasonably open to public access" within the meaning of s.22(a) of the FOI Act. The natural meaning of the words "public access" suggests access by any member of the public, rather than access by particular individuals having a sufficient interest in, or connection with, the information in the particular document in issue.35. If, on the other hand, the literal interpretation of the phrase "public access" means that trial transcripts, which are subject to restricted access under s.154 of the Justices Act, are not eligible for the application of s.22(a) of the FOI Act, then an application for access under the FOI Act to such a trial transcript, by a person in a position similar to the applicant in this case, must be dealt with under the FOI Act. The person could thereby obtain, free of charge, a transcript for which a charge is ordinarily payable (under s.154 of the Justices Act and the Recording of Evidence Regulation 1992 Qld) so as to recoup some of the costs to government of maintaining its scheme for the recording of court proceedings and the preparation of transcripts on request. Similarly, any existing statutory schemes of access to government-held information, which allow individuals to have access for a fee to documents which concern them, but which documents are not literally "open to public access", may be by-passed by individuals seeking access to those documents under the FOI Act, especially where those documents contain information which can properly be characterised as information concerning the "personal affairs" of the applicant for access under the FOI Act, such that no fee or charge is payable for access under the FOI Act: see s.29(2) of the FOI Act, and s.6(2) and s.7(2) of the Freedom of Information Regulation 1992 Qld.36. Whether the words "open to public access" in s.22(a) must be interpreted according to their ordinary meaning, or whether it is possible to take a purposive approach so as to extend their coverage to access schemes falling with the second category identified in paragraph 30 above, is not an issue which I have to decide for the purposes of this case. It is apparent, however, that s.22(a) of the FOI Act may require review by the legislature to establish whether or not its present wording needs amendment in order to convey, with greater certainty, the sphere of operation which the legislature intended s.22(a) to have. It would be more in accordance with what seems to me to be one of the obvious purposes of s.22(a) and s.22(b) if specialised access schemes falling within the second category identified in paragraph 30 above were eligible for consideration under s.22(a) and s.22(b). In the case of s.22(a), that could be achieved by changing the words "reasonably open to public access", to "reasonably open to access by members of the community". (In the case of s.22(b), I do not think any change is necessary, for the reasons explained in the following paragraph). Such an approach would not restrict the availability of government-held information (the document in issue must be reasonably open to access, or reasonably available for purchase, by the particular applicant for access under the FOI Act before s.22(a) or s.22(b) is able to be invoked - see paragraphs 28-29 above) but it will in many cases affect the fee or charge that is payable for access to particular information: some charging regimes in some specialised access schemes are likely to be more onerous than the present charging regime under the FOI Act. But, in my opinion, the preservation of the efficacy of such specialised access schemes, including their charging regimes, was one of the obvious purposes for the enactment of s.22(a) and s.22(b) of the FOI Act. 37. In the case of s.22(b), the words "members of the community" can, far more easily than the words "public access" in s.22(a), be interpreted in a way that is consistent with what I take to be one of the obvious purposes of the provision (as explained in the preceding paragraph). The ordinary meaning of the words "members of the community", and their context in s.22(b), do not suggest that they need to be interpreted in such a way as to make it a pre-condition to the application of s.22(b) that a document be reasonably available for purchase by any and all members of the community. It is sufficient, in my opinion, to attract the application of s.22(b) that a document is reasonably available for purchase by some members of the community (provided the particular applicant for access under the FOI Act is one of them - see paragraphs 28-29 above). In the present case, I am satisfied that the administrative arrangements made by the QPS for purchase of the documents in issue (which fall within the second category identified in paragraph 30 above) are eligible for consideration under s.22(b) of the FOI Act.38. There is an intended safeguard, against improper or over-zealous reliance by agencies on s.22(a) and s.22(b), in the qualifying word "reasonably": thus a document must be "reasonably open to public access" or "reasonably available for purchase by members of the community". I will not attempt to predict all of the factors which may affect the issue of whether a document is "reasonably open to public access" or "reasonably available for purchase", but I will give some illustrative examples. If a publication is usually available for purchase from an agency, but supplies are out of stock, I think an applicant should be entitled to access, under the FOI Act, to an agency copy of the publication, during the period that the publication is not actually available for purchase. If a document is open to public access by inspection only, then the physical location of the document may affect the issue of whether it is "reasonably open to public access" under s.22(a). If a document is available for inspection only in one location, then (subject to practical considerations which may be present in any particular case) it may be difficult to say that the document is reasonably open to access by members of the public in other regions of Queensland. In such circumstances, an agency may not be entitled to rely upon s.22(a); rather, the applicant may be entitled to insist upon access under the FOI Act in the form of access most convenient to the applicant (cf. s.30 of the FOI Act, especially s.30(2)), e.g., by the provision of a photocopy of the relevant document.39. The legislative history of s.22 suggests that the cost of access to a document under a specialised access scheme is a consideration which might be relevant to a determination of whether access is reasonably available. Clause 15(1) of the model Freedom of Information Bill recommended by the Electoral and Administrative Review Commission (EARC) in its Report on Freedom of Information (December 1990; Serial No. 90/R6) corresponds to s.22 of the FOI Act. In its commentary on clause 15(1), EARC said (at p.88, paragraph 7.240): 7.240 FOI legislation ordinarily confers a right of access to information which is not otherwise available for access. However, an exemption in respect of unwarranted or unnecessary disclosure should not be abused such as to force someone to obtain access by a more onerous process than access under FOI legislation. By the same token, the Commission recognises that government agencies should be able to sell particular information at reasonable market prices. The Commission considers therefore that an exemption in FOI legislation relating to documents otherwise publicly available should operate by reference to a reasonableness test (clause 15(1)(a)-(d)).40. In practice, I consider that reasonableness of the cost of access to documents is more likely to be a significant consideration under s.22(b) rather than s.22(a). If a charging regime for access to government-held information is prescribed in an Act of Parliament or in a statutory instrument which was capable of being, but has not been, disallowed by Parliament, it would not ordinarily be appropriate to question the reasonableness of the charging regime which has received Parliament's express, or de facto, approval.41. The charging regimes set up under administrative arrangements made by an agency will be deserving of more careful scrutiny as to their reasonableness, especially those which post-date the FOI Act and appear to impose more onerous charges than would be applicable for obtaining access under the FOI Act. I have no doubt that Parliament intended that government agencies should be able to sell certain kinds of information, for which there is a public demand, at reasonable market prices. However a charging regime which markedly exceeds reasonable market prices, or reasonable cost recovery for the provision of information, would require careful scrutiny, especially if it appeared to be designed as an obstacle aimed at inhibiting demand for access to particular information.42. Before it would be proper for an FOI decision-maker to refuse access to a particular document under s.22(a) or s.22(b), the decision-maker should establish whether the applicant for access is clearly entitled to obtain full access to the document in issue under the relevant alternative access scheme, or whether that scheme reserves a discretion to the information provider to refuse access to particular applicants or to withhold parts of the particular document in issue (see my comments at paragraph 29 above). If there is any doubt, the FOI decision-maker should seek assurances from the information provider under the relevant alternative access scheme, that the applicant is entitled to full access to the particular document in issue, on payment of any applicable charge (see paragraphs 48-49 below).43. Finally, I note that, according to the terms of s.22(a) and s.22(b), the very document (or part of a document - see the definition of "document" in s.7 of the FOI Act) to which access has been requested under the FOI Act must be available to the applicant under the relevant alternative access scheme, in the circumstances contemplated by s.22(a) and s.22(b), before those provisions can be properly invoked. It is not, for instance, sufficient that information of the kind recorded in the document in issue is available for access outside the FOI Act (cf. s.14 of the Freedom of Information Act 1982 Vic and Re Arnold Bloch Leibler and Department of Planning and Housing (1992) 5 VAR 600). Likewise, if an applicant requests access to a document held by an agency which is reasonably open to public access under another enactment, but there is a copy of the document held by the agency which has handwritten notations recorded on it by officers of the agency, then access to the annotated copy could not be refused in reliance upon s.22(a), because it would not be the same document as is reasonably open to public access under another enactment.Application of s.22(b) to the documents in issue44. The applicant has been refused access to the following documents in reliance on s.22(b) of the FOI Act:? the applicant's criminal history; and? a Court brief, together with two Fine Option Orders which are attached to the Court brief.45. In his decision of 20 September 1993, Assistant Commissioner Williams refused the applicant access to the documents noted above on the basis that the applicant could purchase the documents under administrative arrangements made by the QPS. Assistant Commissioner Williams made reference to a scheme operated by the Information Management Bureau of the QPS whereby individuals could obtain access to criminal offence reports, Court briefs and criminal histories, and stated that the provision concerning the release of such documents is contained in Policy Proposal 7 dated 18 December 1992, as follows: It is the policy of the Queensland Police Service that information pertaining to individual criminal history records will only be released by the Officer in Charge, Information Bureau, on application in the prescribed form and payment of any applicable fees.46. Assistant Commissioner Williams also referred to those parts of the Statement of Affairs of the QPS dated 2 August 1993 (published pursuant to s.18 of the FOI Act) which deal with criminal histories and Court briefs. The material parts of the Statement of Affairs are as follows: Criminal Histories Fee $33.30 Applications for the supply of criminal histories are usually made by an individual or his solicitor or agent. A criminal history will only be supplied to the person whose name appears on the criminal history record or to his/her solicitor or agent, provided that a form of application and indemnification has been received. Generally a criminal history contains a record of previous convictions. Court Briefs Fee $15.00 Copies of Court briefs are provided to applicants or their agents when proceedings before a Court have been finalised and the relevant appeal period has expired. Exempt material is removed from any documents supplied under this scheme. Applicants would include complainants and offenders for the provision of documents concerning their personal affairs. (my underlining)47. The QPS has established administrative arrangements, for access to certain classes of information, which are open to any member of the community, although particular information within each class will only be supplied to the person(s) whom the particular information concerns. For the reasons given in paragraph 37 above, I am satisfied that documents available for purchase under these administrative arrangements are eligible for consideration under s.22(b) of the FOI Act. The terms of the scheme of access also make clear, however, that the QPS reserves a discretion to withhold some information from the documents described above, even from a person who is prima facie entitled under the terms of the scheme to purchase a copy of the document.48. By letter dated 17 November 1994, I requested written confirmation from the QPS that the applicant, upon making application under the administrative arrangements detailed in the QPS's Statement of Affairs, would receive the relevant criminal history and Court brief (with the attached Fine Option Orders) in their entirety, i.e., without any deletions. By letter dated 18 November 1994, the QPS confirmed that the applicant would be given complete copies of those documents if the prescribed fee was paid in accordance with the administrative arrangements. In particular, I was advised that no deletions would be made from the Court brief as the complainant noted on the brief was the Crown.49. In this particular case, as the applicant would be entitled to complete copies of the remaining documents in issue, upon making application to the officer in charge of the Information Management Bureau of the QPS, I am satisfied that the respondent is entitled to refuse the applicant access to the criminal history and the Court brief (with the attached Fine Option Orders) under s.22(b) of the FOI Act. However, had the QPS advised that it considered the Court brief to contain "exempt matter" that would require deletion (as is contemplated in its Statement of Affairs) prior to the applicant receiving the document, I would have required the QPS to deal with that part of the Court brief under the relevant provisions of the FOI Act.Conclusion50. Since the review process has dealt with documents which were not considered in the decision under review, it is appropriate that I set aside the decision under review. In substitution for it, I decide that -(a) following the disclosure to the applicant of further documents during the course of my review, I am satisfied that the respondent has located, and (apart from those referred to in (b) below) given the applicant access to, all the documents in its possession or control which fall within the terms of the applicant's FOI access application; and(b) the respondent is entitled to refuse the applicant access to the applicant's criminal history, and to the Court brief relating to the applicant's trial at the Magistrates Court at Brisbane on 19 October 1988 (to which two Fine Option Orders are annexed), in accordance with s.22(b) of the FOI Act. ..........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

McDonald and Queensland Building and Construction Commission (No 2) [2022] QICmr 18 (1 April 2022)

McDonald and Queensland Building and Construction Commission (No 2) [2022] QICmr 18 (1 April 2022) Last Updated: 19 September 2022 Decision and Reasons for Decision Citation: McDonald and Queensland Building and Construction Commission (No 2) [2022] QICmr 18 (1 April 2022) Application Number: 316297 Applicant: McDonald Respondent: Queensland Building and Construction Commission Decision Date: 1 April 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - DOCUMENTS NONEXISTENT OR UNLOCATABLE - whether agency has conducted reasonable searches - whether access to further documents may be refused on the basis they are nonexistent or unlocatable - sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Queensland Building and Construction Commission (QBCC) under the Right to Information Act 2009 (Qld) (RTI Act) for access to an ‘audio recording, internal emails and notes’[2] regarding a meeting he attended with then QBCC Commissioner Bassett on 19 May 2021 (the Meeting). QBCC located an audio recording of the Meeting and 207 pages of information. QBCC decided[3] to release the audio recording in full and to refuse access to some information on the basis it was subject to legal professional privilege and was therefore exempt information,[4] and to refuse access to other information on the grounds that its disclosure would, on balance, be contrary to the public interest.[5] QBCC also deleted some irrelevant information from the documents.[6] The applicant applied for internal review of QBCC’s decision.[7] As part of his internal review application the applicant noted the responsive documents had not disclosed ‘internal notes taken by participants, copies of internal emails after the meeting on 19 May 2021, and attachments listed in all emails.’[8] The applicant also contested the refusal of certain information on the grounds it was exempt information or contrary to public interest information.[9] QBCC did not issue an internal review decision within the prescribed timeframe and were taken to have issued a deemed decision affirming its original decision issued on 14 July 2021.[10] The applicant then applied to the Office of the Information Commissioner (OIC) for external review.[11] The applicant applied on the same basis as the internal review outlined at [3]. For the reasons set out below, I vary QBCC’s internal review decision. I find that QBCC has taken all reasonable steps to identify and locate responsive documents, and that access to further documents may be refused pursuant to sections 47(3)(e) and 52(1) of the RTI Act. Background During the external review, QBCC agreed to disclose additional information to the applicant.[12] The applicant accepted OIC’s view that the information refused by QBCC on the grounds it comprised exempt information or information that would, on balance, be contrary to the public interest to disclose could be refused on these grounds.[13] Further, the applicant did not contest OIC’s view that the information deleted from the documents by QBCC as irrelevant, was in fact irrelevant to the applicant’s access application.[14] Also, in the course of the external review the applicant accepted OIC’s view that certain documents[15] were nonexistent or unlocatable.[16] Accordingly, these matters, having been resolved during the external review, will not be addressed in this decision. Throughout the external review, the applicant has maintained that he witnessed Commissioner Bassett make notes during the Meeting, and therefore such notes exist and should be located.[17] Reviewable decision The decision under review is QBCC’s internal review decision on 24 August 2021. Evidence considered Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). I have taken account of the applicant’s submissions to the extent that they are relevant to the issues for determination in this review. 12. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[18] I consider a decision-maker will be ‘respecting, and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the Information Privacy Act 2009 (Qld) (IP Act) and the RTI Act.[19] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[20] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[21] Issue for determination The sole issue remaining to be determined in this decision is whether all reasonable steps have been taken by QBCC to identify and locate the notes of Commissioner Bassett from the Meeting (Notes); and whether access to the Notes may be refused on the ground they are nonexistent or unlocatable.[22] Matters outside OIC’s jurisdiction The applicant has expressed concerns about QBCC conduct, corruption within Queensland government, decisions by QBCC, OIC and other government agencies, and possible offences against the Public Records Act 2002 (Qld) (PR Act). These complaints and concerns fall outside OIC’s jurisdiction on external review, which is limited to reviewing access and amendment decisions of an agency or Minister under either the RTI Act or the IP Act. I appreciate these concerns are genuinely held, and they inform the applicant’s submissions and reasons for seeking external review. Given the sole issue for determination in this decision noted at [13], my role under the RTI Act is to consider whether QBCC has taken reasonable steps to locate documents responsive to the access application, namely, the Notes. To the extent that the applicant has made submissions relevant to this issue, I have taken these into account in making my decision. Relevant law Under the RTI Act a person has a right to be given access to documents of an agency.[23] However, this right is subject to provisions of the RTI Act including the grounds on which an agency may refuse access to documents.[24] Relevantly, access to a document may be refused if the document is nonexistent or unlocatable.[25] To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience and have regard to a number of key factors: [26] the administrative arrangements of government the agency’s structure the agency’s functions and responsibilities the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. When proper consideration is given to relevant factors, it may not be necessary for searches to be conducted. However, if searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case as the search and enquiry process an agency will be required to undertake will depend on which of the key factors are most relevant in the particular circumstances. To determine whether a document exists, but is unlocatable, the RTI Act requires consideration of whether there are reasonable grounds to be satisfied that the requested document has been or should be in the agency’s possession; and whether the agency has taken all reasonable steps to find the document.[27] The Information Commissioner’s external review functions include investigating and reviewing whether agencies have taken reasonable steps to identify and locate documents applied for by applicants.[28] Generally, the agency that made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[29] However, where an external review involves the issue of missing documents, the applicant has a practical onus to establish reasonable grounds to be satisfied that the agency has not discharged its obligation to locate all relevant documents. Suspicion and mere assertion will not satisfy this onus.[30] Findings During the external review QBCC submitted that it had, in response to the concerns about the sufficiency of QBCC’s searches, expressed by the applicant in his internal review application:[31] ... completed further search requests due to Mr McDonald’s mention of search issues, however there were no additional documents located in scope of the original application. The applicant submitted:[32]Brett took notes at the meeting on 19 May 2021. I wrote to QBCC to advise of the applicant’s submission and seek further information about its searches.[33] QBCC provided documents, including email threads and signed search declarations, demonstrating the searches undertaken during the original processing and on internal review.[34] In respect of its initial searches, which located the audio recording and 207 pages, QBCC sent search requests to three QBCC employees. The areas searched included: email searches of its Ministerial, Commissioner and employee mailboxes ECM (database) OneNote; and Desktop searches for any relevant documents. Additionally, QBCC submitted that it had contacted two employees, including Commissioner Bassett, to enquire if they took notes during the Meeting that were not yet in the documents. The first employee confirmed she had provided the notes she took during the Meeting along with other documents located in the original searches. Commissioner Bassett responded:[35] ... Not to my recollection. Generally, I don’t take notes as other staff there do so that I can focus on the conversation. I wrote to the applicant to provide this further information about the searches conducted by QBCC.[36] In response, the applicant stated ‘the statement by Mr Bassett is simply not true. I personally saw Mr Bassett taking notes myself - as did all other representatives of the QBCC and the Minister’s Office.’[37] I wrote to QBCC advising of the applicant’s submission, and asked QBCC to search Mr Bassett’s diaries, notebooks, emails, personal drive and any other database or place where records may have been created or stored by Mr Bassett for the time period in question.[38] QBCC undertook further searches and provided a signed search declaration by the QBCC employee who conducted the searches.[39] These searches included: searching Outlook Mimecast, for any scanned notes a physical search of the Commissioner’s office, including notebooks and papers; and a search of OneDrive. QBCC confirmed no further documents had been located and submitted that searches had been undertaken in responding to the original access application, the internal review application and the external review application and no additional documents responsive to the terms of the access application had been located.[40] QBCC also offered the following explanations for the notetaking the applicant stated that he witnessed:[41] Generally, the former Commissioner is not a paper-based person and does not attend meetings with hard copies of papers. I have checked the former Commissioner’s office, and there are no notebooks nor papers that are in there. I have also checked his emails for any scanned copies of any notes that may have been taken, and there is no record of these. I listened to the recording yesterday and today and I note that about 43 minutes into the meeting Brett Bassett asked [QBCC Employee 1] to ask [QBCC Employee 2] to cancel a meeting he had planned. The McDonald meeting went on for over 2 hour 45 minutes, so it is very likely that Brett may have answered important unrelated emails on his phone or laptop in that time period. I wrote to the applicant again[42] and outlined the further searches undertaken by QBCC on the basis of his submission, and the explanations provided by QBCC. The applicant did not accept QBCC’s explanation and submitted:[43] To reiterate, Mr Bassett was making hand written notes on what appears to be the Commissioner's Briefing - see copy obtained under RTI. I observed Mr Bassett referencing details of the briefing so RTI'd the document. Any and all claims that Mr Bassett was not taking notes is dishonest and supports the integrity crisis that is occurring within the Commission at present. The fact that these records are not readily locatable, is very concerning. The applicant’s submission at [32] above was the first time he specified the Commissioner made handwritten notes. The applicant further submitted:[44] I note that Commissioner Bassett may not generally take notes and his recollection is not definitive. He states: "[...] Not to my recollection. Generally, I don’t take notes as other staff there do so that I can focus on the conversation." I witnessed Mr Bassett taking notes during our meeting. It happened in front of me and I am 100% clear on that. There is certainly no doubt that the former Queensland State Archivist has raised very serious concerns about the recording keeping of people within positions of power, such as Mr Bassett. Given my great certainty that Mr Basset made notes, it is my view again that if the QBCC claim to have undertaken all reasonable steps to locate this document, and that it remains unlocatable then this is likely to offend the Public Records Act 2002. Some, but not all, documents of agencies are public records, as defined in the PR Act.[45] The question of whether a document constitutes a public record under the PR Act, and whether there has been a breach of that Act, are not matters that fall within the jurisdiction of the Information Commissioner under the RTI Act or the IP Act. Where a sufficiency of search issue is raised on external review, the issues for OIC to determine are: whether there are reasonable grounds for believing that additional responsive documents exist in the agency’s power or possession; and, if so whether the searches and inquiries conducted by the agency in an effort to locate the additional responsive documents have been reasonable in all the circumstances. The applicant bears the practical onus of establishing reasonable grounds to be satisfied that the agency has not discharged its obligation to locate all relevant documents and that further searches and inquiries ought to reasonably be required.[46] The applicant is certain that he saw Commissioner Bassett taking notes during the Meeting. The Commissioner on the other hand submits that note taking is not his usual practice and that he did not recall taking notes in the Meeting; a position given some support by QBCC’s further submission that the former Commissioner was not a ‘paper based person’.[47] There is, too, the further possibility that both versions may in a sense be correct – the applicant may well have seen the former Commissioner ‘taking notes’, or at least putting pen to paper. The product of that writing activity, however, may well have had no relevance whatsoever to the meeting itself, such that, indeed, no notes relevant to the meeting, falling within the scope of the access application, or even comprising documents of an agency were ever brought into existence. The state of the evidence is such that it is simply not possible to resolve the above issue. Nor is it necessary to do so. That is because what is possible to definitively resolve is the fact that, despite extensive searches, no Notes can be located. The evidence before me demonstrates that QBCC undertook several sets of targeted and thorough searches that included direct enquiries with several staff, including the Commissioner; searches of electronic and email databases; and a physical search of the Commissioner’s office, including hard copy records. Should the Notes exist, these searches were, in my view, reasonably likely to have located same. In conclusion, I am, as a matter of fact, satisfied that QBCC has taken all reasonable steps to identify and locate documents requested by the applicant, namely the Notes. Access to those Notes may be refused on the ground stated in sections 47(3)(e) and 52(1) of the RTI Act.DECISION For the reasons set out above I vary QBCC’s decision and find that the searches and inquiries conducted by QBCC in an effort to locate any Notes taken by Commissioner Bassett during a meeting on 19 May 2021 have been reasonable in all the circumstances. Access to the Notes may be refused, under sections 47(3)(e) and 52(1) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Assistant Information Commissioner CorbyDate: 1 April 2022APPENDIX Significant procedural steps Date Event 2 September 2021 OIC received the application for external review. 3 September 2021 OIC requested preliminary documents and information from QBCC. 6 September 2021 OIC received the preliminary documents and information from QBCC. 22 September 2021 OIC notified the applicant and QBCC that the external review had been accepted. OIC requested copies of the documents in issue from QBCC. 5 October 2021 OIC received the documents in issue from QBCC. 19 and 20 October 2021 OIC asked QBCC to disclose further documents to the applicant. 20 October 2021 OIC conveyed a preliminary view to the applicant. 22 October 2021 OIC received the applicant’s submissions in response to OIC’s preliminary view. 25 October 2021 QBCC disclosed further information to the applicant. 27 October 2021 OIC requested further information from QBCC regarding its searches. 28 October 2021 OIC updated the applicant. OIC received the requested information from QBCC. 23 November 2021 OIC conveyed a second preliminary view to the applicant. OIC received submissions from the applicant. 24 November 2021 OIC requested further searches by QBCC. 8 December 2021 OIC received information from QBCC regarding the further searches. 12 January 2022 OIC conveyed a third preliminary view to the applicant. 16 January 2022 OIC received submissions from the applicant. 3 February 2022 OIC contacted QBCC to seek its consent to an informal resolution proposal. 9 February 2022 QBCC agreed to the informal resolution proposal. 17 February 2022 OIC issued a further preliminary view to the applicant along with a copy of an email, proposing informal resolution of the review. 21 February 2022 OIC received submissions from the applicant. 25 February 2022 OIC closed the review in error. 28 February 2022 OIC reopened the review and notified the applicant and QBCC that the review would proceed to a formal decision. [1] On 21 May 2021.[2] The access application timeframe was from 1 May 2021 to 21 May 2021 (the date the applicant lodged his access application).[3] On 14 July 2021 (the applicant granted QBCC further time to process his application).[4] Sections 47(3)(a), 48, and schedule 3, section 7 of the RTI Act. [5] Sections 47(3)(b) and 49 of the RTI Act.[6] Section 73 of the RTI Act.[7] On 25 July 2021.[8] On 27 July 2021.[9] Internal review correspondence on 25 and 27 July 2021.[10] On 24 August 2021.[11] On 2 September 2021.[12] Disclosed on 25 October 2021.[13] On 22 October 2021.[14] Preliminary view issued on 20 October 2021.[15] Documents the applicant considered should have existed between 19 May 2021 and 21 May 2021; email attachments to documents; and the notes taken by all participants but one in the Meeting.[16] On 22 October 2021 and 23 November 2021.[17] By email to OIC on 22 October 2021, 23 November 2021, 16 January 2022 and 21 February 2022.[18] Section 21(2) of the HR Act. [19] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[20] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [21] XYZ at [573].[22] Sections 47(3)(e) and 52(1) of the RTI Act. [23] Section 23 of the RTI Act.[24] Including section 47(3) of the RTI Act.[25] Sections 47(3)(e) and 52(1) of the RTI Act. A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but it cannot be found—section 52(1)(b) of the RTI Act. [26] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) (Pryor) at [19] which adopted the Information Commissioner’s comments in PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009). [27] Pryor at [20]-[21].[28] Section 130(2) of the RTI Act. The Information Commissioner also has power under section 102 of the RTI Act to require additional searches to be conducted during an external review. [29] Section 87(1) of the RTI Act. [30] Parnell and Queensland Police Service [2017] QICmr 8 (7 March 2017) at [23]; Dubois and Rockhampton Regional Council [2017] QICmr 49 (6 October 2017) at [36]; Y44 and T99 and Office of the Public Guardian [2019] QICmr 62 (20 December 2019) at [38].[31] On 6 September 2021.[32] On 22 October 2021.[33] On 27 October 2021.[34] On 28 October 2021.[35] On 9 August 2021.[36] On 23 November 2021.[37] By email on 23 November 2021.[38] On 24 November 2021.[39] On 8 December 2021.[40] By email on 8 December 2021.[41] On 8 December 2021.[42] On 12 January 2022.[43] On 16 January 2022.[44] On 21 February 2022. I note this email was initially misplaced by OIC and not located until after OIC closed the file on 25 February 2022 on the basis we had not received any further submissions from the applicant by the due date. OIC wrote to the applicant on 28 February 2022 to advise of the error and confirm that we would proceed to a formal decision.[45] See definitions of ‘public record’ in section 6(1) and ‘record’ in schedule 2 of the PR Act.[46] Mewburn and Department of Local Government, Community Recovery and Resilience [2014] QICmr 43 (31 October 2014) at [13].[47] See paragraph 30.

queensland

court_judgement

Queensland Information Commissioner 1993-

Conde and Queensland Police Service [2012] QICmr 51 (18 October 2012)

Conde and Queensland Police Service [2012] QICmr 51 (18 October 2012) Last Updated: 28 May 2013 Decision and Reasons for Decision Application Number: 311014 Applicant: Conde Respondent: Queensland Police Service Decision Date: 18 October 2012 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - application for access to information about allegations of stalking concerning the applicant - whether disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation - section 47(3)(a) of the Right to Information Act 2009 (Qld) - section 48 of the Right to Information Act 2009 (Qld) - schedule 3, section 10(1)(d) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) seeking access to information relating to allegations of stalking. The applicant has been involved in numerous court matters involving the third party since 2008.[2] QPS identified 12 pages responsive to the access application and decided[3] to: grant full access to 2 pages[4] refuse access to certain information on 9 pages[5] on the basis that its disclosure would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act; and delete certain information from 1 page[6] on the basis that the information was irrelevant to the access application under section 73 of the RTI Act. The applicant sought internal review[7] of QPS’s decision. On internal review, QPS affirmed[8] its original decision. The applicant applied to the Office of the Information Commissioner (OIC) for external review.[9] In the circumstances, QPS is entitled to refuse access to the information which remains relevant in this review on the basis that it is exempt under sections 47(3)(a) and 48 of the RTI Act, because its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation under schedule 3, section 10(1)(d) of the RTI Act. Background Significant procedural steps relating to the external review are set out in the appendix to this decision. Reviewable decision QPS purported to make an internal review decision,[10] affirming the original decision. However the purported internal review decision was made by a person less senior than the person who made the original decision. Therefore, under section 80(3) of the RTI Act, the purported internal review decision is not valid and QPS is taken to have made a decision affirming the original decision under section 83 of the RTI Act (Reviewable Decision). Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). Information in Issue During the course of the external review, the applicant: accepted that 3 pages[11] fall outside the scope of the access application; and confirmed he does not seek access to certain information on one relevant page.[12] Accordingly, the information remaining in issue (Information in Issue) is located across 6 pages.[13] Issues in this review In its Reviewable Decision, QPS claimed that the Information in Issue should not be released on the grounds that disclosure would, on balance, be contrary to the public interest. After careful consideration of the Information in Issue, the relevant law, QPS’s Reviewable Decision and the applicant’s submissions,[14] I am satisfied that it is more appropriate to consider the application of schedule 3, section 10(1)(d) of the RTI Act. My reasoning is set out below. Relevant law Under section 23 of the RTI Act a person has a right to be given access to documents of an agency. However, this right is subject to a number of exclusions and limitations, including grounds for refusal of access.[15] Access can be refused under the RTI Act where the information sought in an access application comprises exempt information.[16] Schedule 3 of the RTI Act specifies the types of information the disclosure of which Parliament has determined is exempt because its release would be contrary to the public interest. Relevantly, information is exempt if its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.[17] Could disclosure of the Information in Issue reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation? Yes, for the reasons set out below. For the Information in Issue to be exempt under schedule 3, section 10(1)(d) of the RTI Act, the expected harassment and/or intimidation must be serious in nature. The Information Commissioner has noted that some degree of harassment or intimidation is permissible before this exemption will apply.[18] The RTI Act does not define ‘a serious act of harassment or intimidation’ therefore the terms should be given their ordinary meanings. The Information Commissioner has previously accepted the following dictionary definitions:[19] 'harass' includes 'to trouble by repeated attacks, ... to disturb persistently; torment’; and 'intimidate' includes ‘to make timid, or inspire with fear; overawe; cow ... to force into or deter from some action by inducing fear.’ Relevant dictionary definitions of ‘serious’ include: ‘weighty or important’[20] ‘giving cause for apprehension; critical’[21] ‘having (potentially) important, esp. undesired, consequences; giving cause for concern’.[22] The applicant refers to the Criminal Code Act 1899 (Qld) and submits that this exemption does not apply in the current circumstance because: QPS has investigated numerous and frequent complaints for ‘Stalking, ‘Harassment’, ‘Assaults’, etc., made by [various parties], after the investigations Police always found such complaints totally unsubstantiated and unfounded, meaning that they are malicious, deliberate[ly] false, frivolous and vexatious.[23] As set out above, the Information Commissioner has found that the ordinary meaning of the words ‘serious act of harassment or intimidation’ should be adopted in applying the RTI Act. Therefore the type of behaviour anticipated by schedule 3, section 10(1)(d) of the RTI Act need not involve behaviour that would be considered ‘assault’ or ‘unlawful stalking’ in the criminal sense. It is on this basis that I do not accept the applicant’s submission on this point. What is the basis of the expectation of harassment or intimidation in this case? The applicant hosts a website in which he targets persons against whom he holds grievances, including an individual mentioned in the Information in Issue. On this site, the applicant: identifies individuals by name sets out information about an individual’s family and employment history provides information about court matters involving the applicant and relevant individuals; and makes unsubstantiated criminal allegations against a relevant individual stating that ‘Full details of [that person’s] corruption, criminal mind, acts, behaviour and actions... will be given later.’ I have also had regard to a record of court proceedings involving the applicant in which the applicant’s claims against relevant individuals were stayed under the Vexatious Proceedings Act 2005 (Qld). Further details of the Information in Issue cannot be set out in these reasons because to do so would reveal information which is claimed to be exempt.[24] I am also constrained in the extent to which I can describe the balance of the information before me, as to do so may reveal the identity of relevant individuals. On the basis of the matters set out above, I am satisfied that the past behaviour of the applicant constitutes harassment, as the applicant’s actions consist of repeated attacks that trouble, torment and disturb a relevant individual. I am also satisfied that the applicant’s past actions are acts of intimidation, as the information before me outlines specific incidents which demonstrate that his behaviour has: forced a relevant person into action by inducing fear; or deterred a relevant individual from action by inducing fear. In my view, the applicant’s website, in addition to demonstrating past acts of harassment, constitutes an ongoing act of harassment. Is the expected harassment and/or intimidation serious in nature? I am also satisfied on the information before me that the applicant’s conduct constitutes serious acts of harassment and intimidation because his actions give cause for concern or apprehension and have resulted in distressing and undesired consequences for a relevant individual. Is the expectation reasonably based and does it arise from disclosing the Information in Issue? Yes, for the reasons that follow. In Sheridan the Information Commissioner considered the phrase ‘could reasonably be expected to’ and found that depending on the circumstances of the particular review, a range of factors may be relevant in determining whether an expectation is reasonably based. These factors may include, but are not limited to:[25] past conduct or a pattern of previous conduct the nature of the relevant matter in issue the nature of the relationship between the parties and/or relevant third parties; and relevant contextual and/or cultural factors. The applicant submits that he has been the subject of ‘malicious, deliberate(ly) false, frivolous and vexatious’[26] complaints. I note that the evidence about the applicant’s conduct (which I rely upon in the reasons for this decision) includes information authored by QPS and the applicant. There is nothing before me to suggest that the information I have relied upon is ‘malicious, deliberate(ly) false, frivolous and vexatious’ as claimed by the applicant. I consider that the past occurrences of serious acts of harassment and intimidation detailed in this decision provide a reasonable basis for the individual/s named in the Information in Issue to expect to be subjected to further serious acts of harassment or intimidation should the Information in Issue be disclosed. In order for this exemption to apply, the expectation of harassment or intimidation must arise as a result of disclosure of the Information in Issue, rather than independently or from any other circumstance.[27] The information before me demonstrates a propensity for the kind of behaviour this exemption guards against and reveals the existence of previous and ongoing acts of serious harassment. Given the nature and content of the Information in Issue, I am satisfied that it is reasonable to expect that disclosure of the Information in Issue could result in a person or persons being subjected to further acts of serious harassment or intimidation. For the reasons set out above, I find that there is a reasonably based expectation that disclosing the Information in Issue to the applicant could result in a person being subjected to a serious act of harassment or intimidation [28] and that the Information in Issue is exempt on this basis. DECISION I vary QPS’s decision by finding that QPS is entitled to refuse access to the Information in Issue under sections 47(3)(a), 48 and schedule 3, section 10(1)(d) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ Assistant Information Commissioner Henry Date: 18 October 2012 APPENDIX Significant procedural steps Date Event 12 January 2012 By access application to QPS dated 10 January 2012, the applicant sought access to information about numerous offences allegedly committed by the applicant and information about ‘alleged threatening, abusive and offensive phone calls and letters’ allegedly made or sent by the applicant. 15 February 2012 QPS advised the applicant that it had located 12 relevant pages and decided to: grant full access to 2 pages refuse access in part to 9 pages on the basis that they comprised information that would, on balance, be contrary to the public interest to be disclosed under section 47(3)(b) of the RTI Act; and delete certain information from 1 page on the basis that the information was irrelevant to the access application under section 73 of the RTI Act. 7 March 2012 By correspondence dated 5 March 2012, the applicant applied to QPS for internal review of its decision. 22 March 2012 QPS affirmed its original decision on internal review. 12 April 2012 By correspondence dated 10 April 2012, the applicant applied to OIC for external review of QPS’s internal review decision. 20 April 2012 During telephone conversations between OIC and QPS officers, it was established that the internal review decision maker was a person who was less senior than the person who made the reviewable decision. Therefore, the internal review decision was invalid under section 80(3) of the RTI Act and OIC processed the external review application as if the internal review decision was a deemed decision. 15 June 2012 By correspondence to the applicant, OIC confirmed the scope of the external review and advised that 3 pages were outside the scope of the access application. OIC also informed the applicant that the information which QPS decided to delete on the basis that it was irrelevant to the access application, was information provided to QPS by the applicant and, unless the applicant advised otherwise, OIC would proceed on the basis that the applicant did not seek access to that information. 17 July 2012 By correspondence, OIC conveyed its preliminary view to the applicant that QPS was entitled to refuse access to the Information in Issue on the basis that it comprised exempt information, the disclosure of which could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation. 30 July 2012 By correspondence, the applicant provided a submission to OIC in which he advised that he did not accept OIC’s preliminary view. [1] By application dated 10 January 2012, received by QPS on 12 January 2012.[2] According to publicly available information, including the applicant’s website. [3] By decision dated 15 February 2012.[4] Pages 8 and 9.[5] Pages 1-6 and 10-12.[6] Page 7.[7] On 7 March 2012, by correspondence dated 5 March 2012.[8] See paragraph 9.[9] On 12 April 2012 by correspondence dated 10 April 2012. [10] Dated 22 March 2011[11] Pages 10-12.[12] Information which QPS decided was irrelevant under section 73 of the RTI Act on page 7.[13] Pages 1-6.[14] The applicant made submissions dated 30 July 2012 raising public interest factors, alleged corruption and the application of the ‘Whistleblowers Protection Act 1994 Qld’. There is nothing before me to suggest the applicant is protected by the Public Interest Disclosure Act 2010 (Qld) (this Act superseded the Whistleblowers Protection Act 1994 (Qld)). I have taken into account the applicant’s submissions in so far as they are relevant to the issues under consideration in this external review. [15] As set out in section 47(3) of the RTI Act.[16] Section 47(3)(a) of the RTI Act. [17] Schedule 3, section 10(1)(d) of the RTI Act. This provision is subject to the exception contained in schedule 3, section 10(2). I am satisfied that none of the exceptions apply in this matter. [18] Sheridan at paragraph 187.[19] Ogawa and Queensland Police Service (Unreported, Queensland Office of the Information Commissioner, 21 June 2012) applying Sheridan and South Burnett Regional Council (and others) (Unreported, Queensland Information Commissioner, 9 April 2009) (Sheridan) at paragraphs 194-197 referring to the Macquarie Dictionary Online (Fourth Edition). The decision in Sheridan concerned section 42(1)(ca) of the now repealed Freedom of Information Act 1992 (Qld). Schedule 3, section 10(1)(d) of the RTI Act is drafted in substantially the same terms as the provision considered in Sheridan. Therefore, the Information Commissioner’s findings in that matter are relevant in interpreting schedule 3, section 10(1)(d) of the RTI Act.[20] Macquarie Dictionary Online (Fifth Edition).[21] Macquarie Dictionary Online (Fifth Edition).[22] New Shorter Oxford Dictionary (4Pth Edition), as quoted by the Information Commissioner in Sheridan.[23] At page 2 of the applicant’s submission dated 30 July 2012. [24] Section 108(3) of the RTI Act.[25] Sheridan at paragraph 193.[26] At page 2 of the applicant’s submission dated 30 July 2012.[27] Sheridan at paragraph 307.[28] Sections 47(3)(a), 48 and schedule 3, section 10(1)(d) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Z59 and Queensland Police Service [2023] QICmr 15 (28 March 2023)

Z59 and Queensland Police Service [2023] QICmr 15 (28 March 2023) Last Updated: 14 April 2023 Decision and Reasons for Decision Citation: Z59 and Queensland Police Service [2023] QICmr 15 (28 March 2023) Application Number: 316929 Applicant: Z59 Respondent: Queensland Police Service Decision Date: 28 March 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - documents relating to a third party’s criminal record - personal information and privacy - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for access to all documents since January 2020 relating to three named individuals and one named corporation. QPS decided[2] to neither confirm nor deny the existence of the requested documents under section 55 of the RTI Act on the grounds that, if the requested documents did exist, they would contain ‘prescribed information’ as defined in schedule 5 of the RTI Act: that is, personal information the disclosure of which would, on balance, be contrary to the public interest. The applicant applied[3] for internal review of QPS’s decision. He disputed that QPS was entitled to neither confirm nor deny the existence of the requested information because he stated that he had evidence that one of the individuals named in his application had an extensive criminal history.[4] In its internal review decision,[5] QPS affirmed its initial decision to neither confirm nor deny the existence of the requested information under section 55 of the RTI Act. The applicant then applied[6] to the Office of the Information Commissioner (OIC) for review of QPS’s decision. During the course of the review, QPS withdrew its reliance upon section 55 of the RTI Act as it applies to the information that remains in issue (see paragraphs 17 and 18 below). Section 109 of the RTI Act therefore has no application in these circumstances. For the reasons explained below, I set aside the decision under review. In substitution for it, I find that access to the requested information may be refused under the RTI Act on the grounds that its disclosure would, on balance, be contrary to the public interest. Background It appears from the material provided by the applicant during the course of the review that he engaged the company named in his application (a director of which was one of the individuals named in his application) to carry out certain work at the applicant’s home in Canberra. This work involved roof restoration, the supply and installation of guttering, and the supply and installation of an irrigation system. The applicant paid the company a deposit. However, it appears that the work was not performed. The applicant was successful in obtaining a default judgement against the company in the ACT Civil and Administrative Tribunal for an amount in damages for breach of contract. When that amount was not paid to the applicant, he was successful in his application to wind up the company in the Federal Court. During the course of the review, the applicant provided OIC with a copy of a Public Warning Notice issued by the ACT Commissioner for Fair Trading in relation to the company. The Notice was issued following consumer complaints made about the conduct of the company in accepting deposits for roof repair and maintenance work, and failing to supply those services. It appears that the applicant became aware at some stage that the individual named in his application who was a director of the company (hereinafter referred to as ‘Mr T’) had a criminal record in Queensland. The applicant purchased, from the Queensland Magistrates Court, a copy of a Verdict and Judgment Record (VJR) in relation to Mr T which lists ‘details of trial, sentence or other dealing by the court’. Reviewable decision The decision under review is the internal review decision of QPS dated 12 September 2022. Under section 105(1)(b) of the RTI Act, OIC has the power to decide any matter in relation to an access application that could have been decided by an agency. When conducting a merits review of an agency’s decision, OIC ‘stands in the shoes’ of the agency and makes the correct and preferable decision. The issue for determination is whether access to the information in issue may be refused under the RTI Act on the grounds that its disclosure would, on balance, be contrary to the public interest. Evidence considered Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). I have taken account of the applicant’s submissions to the extent that they are relevant to the issues for determination in this review. 16. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[7] I consider a decision-maker will be ‘respecting, and acting compatibly with’ that right, and others prescribed in the HR Act, when applying the law prescribed in the RTI Act and the Information Privacy Act 2009 (Qld) (IP Act).[8] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[9] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[10]External review process As noted above, as part of his external review application, the applicant provided a copy of the VJR that he had purchased in relation to Mr T. On the basis that this demonstrated that Mr T had a criminal record in Queensland, QPS accepted OIC’s view that it was not entitled to neither confirm nor deny that it held documents relating to Mr T, and withdrew its reliance upon section 55 of the RTI Act in that regard. QPS was also agreeable to OIC informing the applicant that QPS held no documents in relation to the company named in the access application.[11] However, QPS maintained that it was entitled to neither confirm nor deny the existence of documents relating to the other individuals named in the application. The applicant accepted OIC’s preliminary view that QPS was entitled to neither confirm nor deny the existence of documents relating to the other three individuals named in his application and he no longer pursued that issue. However, he continued to pursue access to documents relating to Mr T. During the review, the applicant accepted that disclosure of the documents in issue would, on balance, be contrary to the public interest, except for any court documents held by QPS.[12] He continued to pursue access to court documents, arguing that these documents were publicly available and therefore should be released. Information in issue The information in issue comprises court documents held by QPS in relation to Mr T since January 2020. In his submissions, the applicant stated that he regarded ‘court documents’ as including any document produced in court: In order for [Mr T] to have the VJR that he does, QPS are necessarily in possession of documents that have been produced in court and are therefore publicly available. If [Mr T] plead [sic] not guilty and had a trial, this will be many documents - affidavits, witness statements, expert evidence, evidence that constitutes a document (e.g., CCTV, bank records...). Even if [Mr T] plead [sic] guilty to every charge, there will still be publicly available documents in QPS’ possession. For example, summaries of agreed facts, police statements produced in support of sentencing submissions, victim impact statements, statements and similar from other relevant agencies... .[13] (hereinafter referred to as Information in Issue). Issue for determination The issue for determination is whether access to the Information in Issue may be refused on the ground that its disclosure would, on balance, be contrary to the public interest. Relevant law The RTI Act’s primary object is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give access.[14] The Act must be applied and interpreted to further this primary object,[15] and is to be administered with a pro-disclosure bias.[16] Section 23 of the RTI Act gives effect to the Act’s primary object, by conferring a right to be given access to documents. This right is subject to other provisions of the RTI Act,[17] including grounds on which access may be refused.[18] One of these grounds (which are to be interpreted narrowly)[19] permits an agency to refuse access to a document to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest.[20] The steps to be followed in determining whether disclosure of information would, on balance, be contrary to the public interest,[21] are prescribed in section 49 of the RTI Act. In summary, a decision-maker must: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Schedule 4 of the RTI Act contains non-exhaustive lists of factors that may be relevant in determining where the balance of the public interest lies in a particular case. I have had regard to these factors,[22] and to the applicant’s submissions,[23] in reaching my decision.Applicant’s submissions As noted, during the course of the review, the applicant narrowed his access request to the Information in Issue. Some of the submissions he made earlier in the review are not relevant to disclosure of the Information in Issue. The relevant submissions about disclosure of the Information in Issue can be summarised as follows: Mr T has no residual right to privacy over documents produced in open court even if Mr T did retain a residual right to privacy, he has behaved in a way that waives such residual right: ‘his fraudulent behaviour in the ACT waives his residual right to privacy about his previous fraudulent behaviour’[24] alternatively, any impact on the right to privacy of Mr T and the other individuals referred to in the Information in Issue would be ‘negligible or fair’ if the applicant had been in the court room for the hearing of any/all of the proceedings listed on Mr Brown’s VJR, anything the applicant would have seen or heard in court exists in documentary form, is in QPS’s possession, and must be released given that ‘publication’ of the Information in Issue in open court has already occurred, QPS must show that further publication under the RTI Act would cause Mr T some inappropriate further detriment there are no restrictions upon what a person may do with court documents disclosure is in the public interest because it will contribute to the administration of justice for victims of Mr T in the ACT; and OIC’s decision in Queensland Newspapers Pty Ltd and Department of Justice and Attorney General[25] can be distinguished because disclosure of the Information in Issue in this case would be of public benefit given that Mr T’s offending is not in the past but is continuing. The applicant stated that if OIC required further evidence to support a decision to release the Information in Issue, the applicant could ‘produce [Mr T’s] ACT court records, or perhaps a letter from ACT policing, or a letter from [the company’s] liquidator (which will include findings against [Mr T], such as criminal breaches of director duties)’.[26] Discussion Public interest factors favouring nondisclosure It is clear that the Information in Issue, comprising court documents relating to criminal charges against Mr T, contain Mr T’s personal information,[27] as well as the personal information of other individuals involved in the relevant proceedings, including victims, witnesses, etc. The RTI Act recognises the application to such information of two public interest factors favouring nondisclosure: disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy;[28] and disclosure could reasonably be expected to cause a public interest harm by disclosing personal information of a person. [29] As regards the factor concerned with protecting the right to privacy of Mr T and any other individuals referred to in the Information in Issue, the decision in QN v DJAG[30] recognised that this right may be diminished in respect of information that is in the public domain, but not destroyed. That is, a residual right to privacy remains: There exists a residual privacy interest that must be recognised. In this case, it is necessary to take account of the highly personal and extremely sensitive nature of the information in question and the significant detrimental impact that republication of this information could reasonably be expected to have on the residual privacy interests of the many persons involved in the investigation, including Mr and Mrs Baden-Clay’s children, parents and siblings. Given that the court processes concluded nearly two and a half years ago, with the matter now largely out of the public eye, my view [is] that the public interest in protecting the right to privacy of the persons involved, and referred to, in the recordings, even in respect of information that was disclosed at trial, remains significant.[31] The applicant argues that Mr T is not entitled to any residual right to privacy because of his criminal behaviour. He contends that what he describes as Mr T’s ‘fraudulent behaviour’[32] in the ACT has the effect of Mr T impliedly waiving any right to privacy he may have in respect of information concerning his fraudulent behaviour in Queensland. Quite apart from the fact that the VJR provided by the applicant does not indicate that Mr T was convicted of fraud in Queensland, I reject this argument. The mere fact that, on the applicant’s assertion, Mr T has committed criminal acts in the ACT, does not amount to a waiver of the residual right to privacy he possesses over information concerning prior, unrelated, criminal acts he committed in Queensland and for which he has been sentenced. In QN v DJAG, there was intense public interest in the trial of Mr Baden-Clay, with wide coverage by the media of the proceedings and the evidence presented, including the audio recordings of interviews with witnesses that were the subject of the access request. Despite the public ventilation of this information, the Right to Information Commissioner was nonetheless satisfied that the individuals in question retained a residual right to privacy that would be prejudiced through disclosure of the requested information. The Right to Information Commissioner took account of the sensitivity of the information and the fact that the matter had been finalised and was largely out of the public eye. In the present case, the legal proceedings involving Mr T in the Magistrates Court in Queensland were presumably heard in open court, but beyond that, they did not, as far as I am aware, receive public ventilation, and could not be considered to be widely known of in the community. But even if they were, for the reasons explained in QN v DJAG, I consider that the persons involved in the proceedings, including Mr T, retain a residual right to privacy. Similarly to QN v DJAG, they involve concluded matters where Mr T was found guilty and sentenced. They also involve personal information of a sensitive nature, not only of Mr T, but of the other individuals involved in the prosecution of the crimes committed by Mr T, including witnesses, informants, etc. Accordingly, despite the applicant’s contentions to the contrary, I am unable to identify a basis for distinguishing QN V DJAG as regards the finding that a person may retain a residual right of privacy in respect of sensitive, personal information that is in the public domain. I do not accept the applicant’s contention that he has a legal right to access the Information in Issue under the RTI Act because, if he had been present in court during the hearing of matters involving Mr T, he would have seen or heard the relevant information and it must therefore be regarded as publicly available information.[33] The opportunity for members of the public to attend court on a particular day and hear evidence presented in legal proceedings is an opportunity that exists at a particular time and place. The fact that such an opportunity existed at the relevant time (whether or not it was taken up) does not give rise to an automatic and unfettered right of access under the RTI Act to documents that were produced during the proceedings. I do not accept the applicant’s argument that, because a matter is heard in open court at a particular time, a member of the public has an automatic entitlement to possession of relevant documents under the RTI Act. This is supported by the fact that, if a member of the public who is not a party to a matter were to make an application direct to the relevant court to view the court file and obtain copies of documents, the right of access is not automatic, regardless of whether or not that person was present in court when the matter was being heard. Online applications to access court documents may be made via the Queensland Courts website.[34] Access to criminal documents held by the Magistrates Court in Queensland is governed by the relevant provisions of the Justices Act 1886 (Qld)[35] and the Criminal Practice Rules 1999 (Qld).[36] The clerk of the court considers the application and makes a decision about what documents can be searched or viewed, taking into account the relevant legislative provisions, the nature of the material, and any relevant court orders. Persons who are not a party to the proceedings are ordinarily required to give a reason as to why they are applying to search or copy certain court documents. The Justices Act, for example, provides for certain discretions to be exercised by the court in certain circumstances when deciding whether a particular document may be released to a non-party. For example, the Chief Justice of the Supreme Court said as follows in a 2008 media statement:[37] Judges and magistrates who receive applications to copy and publish exhibits will consider factors such as the public interest, the nature of the proposed publication, the nature of the exhibit and the likely effect of publication on victims and their families. Similarly, as noted at paragraph 22 above, the right of access to personal information of other individuals under the RTI Act is not unfettered, regardless of whether or not the information can be considered to be in the public domain, but is subject to other provisions of the RTI Act, including grounds upon which access may be refused. One such ground is where disclosure of the requested information would, on balance, be contrary to the public interest. In terms of giving weight to the public interest in protecting the residual right to privacy of Mr T and other individuals referred to in the Information in Issue, the applicant submitted that any impact through disclosure of the Information in Issue would be ‘negligible and/or fair’.[38] As noted above, the applicant appears to take the view that, because he asserts that Mr T has engaged in criminal conduct in the ACT, it is fair that he forfeit any right to privacy over documents concerning his past criminal conduct in Queensland. I do not agree. Whether or not Mr T has committed fraud in the ACT does not impact upon the public interest in the protection of the residual right to privacy he has in respect of the Information in Issue. Nor does this argument by the applicant take account of the impact of disclosure under the RTI Act on the residual privacy rights of those other individuals referred to in the Information in Issue. The information is clearly of a personal and sensitive nature. I am not satisfied that the impact on privacy could reasonably be considered to be negligible or fair. There are no restrictions upon what a person may do with information that has been released to them under the RTI Act. It is to be regarded as disclosure to the world at large.[39] The applicant submits that the same is true of documents obtained directly from the courts. That may be so, but I am applying the access scheme established by the RTI Act, which requires me to balance competing public interest factors and, in this case, to take into account the effect of disclosure on the protection of a person’s right to privacy. In his access application, the applicant stated that he was making the application on behalf of ‘A group of victims of the same fraudster’. During the course of the review, the applicant stated that the Information in Issue would assist other victims of Mr T in the ACT in the various civil and criminal actions that the applicant asserts have been, or may be, brought against Mr T. The applicant also stated that the information would be relevant to various government agencies in the ACT, including ACT police, in order to alert them to Mr T’s past criminal conduct, and to press for investigations into his conduct in the ACT. The applicant considered that the information would also be relevant in seeking an investigation by the Australian Securities and Investments Commission into how Mr T was assessed as suitable to be a company director.[40] I acknowledge the applicant’s apparent anger and frustration at the fact that, as he describes it, Mr T was able to move from Queensland to the ACT and ‘continue his drug-fuelled crime spree’.[41] However, the applicant’s intended wide publication in the ACT of the Information in Issue, no matter how justified the applicant and no doubt other law-abiding members of the ACT community might consider it to be, is relevant when considering the impact of release under the RTI Act on the residual right to privacy of Mr T and the other individuals whose personal information is contained in the information. As noted, the Information in Issue concerns past offences committed by Mr T for which he has been sentenced. I am satisfied that ventilation of this information in the ACT, as proposed by the applicant, for the purpose of an attempt to hold Mr T accountable for what the applicant contends are fraud offences committed by Mr T in the ACT, could reasonably be expected to have a detrimental effect on the residual privacy interests of Mr T and the other individuals referred to in the Information in Issue. After giving careful consideration to the applicant’s submissions and all the relevant circumstances described above, as well as taking account of the fact that personal information of individuals other than Mr T is in issue, I afford moderate to significant weight to the personal information and privacy nondisclosure/harm factors. Public interest factors favouring disclosure The applicant made detailed submissions throughout the review regarding the public interest in disclosure. In his submission of 7 January 2023, the applicant relied upon the following factors contained in schedule 4, part 2 of the RTI Act:[42] a) item 1: disclosure could reasonably be expected to promote open discussion of public affairs and enhance Government’s accountability There has been a total failure of any government entity in any jurisdiction to take action against [Mr T] for his ongoing acts of criminal fraud. The documents sought could reasonably be expected to promote open discussion of why that is. b) item 2: disclosure of the information could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest ... the criminal use or liability of corporations is a matter of serious interest. ... In addition, how a director (such as [Mr T]) uses a company, what information was available to ASIC when approving his directorship, and other such information about suitability to be a company director, is relevant to this discussion. Moreover, this discussion inherently requires facts and detail to be effective - the debate will not be positive and informed if there are no case studies to discuss. item 5: disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official ...what about QPS's policies and procedures contributed to their total inaction with regard to [Mr T’s] continual criminal frauds? d) item 10: disclosure could reasonably be expected to advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies ... a failure to release the information will result in unfair treatment of [Mr T's] victims in the ACT in their dealings with agencies, because those agencies will continue to ignore the victims unless those victims can provide the relevant information contained in QPS’ records. It is unfair for [Mr T’s] victims to be denied access to justice. Moreover, access to justice for [Mr T’s] victims (‘positive’ fairness) is of greater public interest than preventing [Mr. T] being held accountable for his actions (‘negative’ fairness). e) item 11: disclosure could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the decision The information can reasonably be expected to reveal why QPS continually refused to investigate or prosecute [Mr T’s] ongoing fraud. Further, it may reveal what action or lack thereof ASIC took if/when QPS referred [Mr T] to ASIC. And/or, the information can reasonably be expected to reveal why QPS did not refer [Mr T] to ASIC. The information will also reveal contextual and background information for those 2 decisions. f) item 15: disclosure could reasonably be expected to contribute to the maintenance of peace and order The information can reasonably be expected to contribute to the maintenance of peace and order, by assisting [Mr. T] to receive the appropriate number and type of criminal convictions, the appropriate sentences for those convictions (as they are repeat offences), and the appropriate civil remedies. ... ... ... it is the fact and detail of the crimes [Mr. T] committed in Qld that will assist in various civil and criminal court actions in the ACT, because the fact and detail is what establishes a pattern of behaviour on the part of [Mr.T]. A VJR for ‘theft’ is of little use; statement of facts in the ‘theft’ matter that shows fraud as part of the theft, for example, is of use. In turn, this materially advances the public interest by government agencies undertaking investigations and [Mr. T] consequently being (1) prevented from committing further crimes, (2) being held accountable for further crimes already committed, and (3) required to abide by the conditions of his existing court orders in Qld... . g) item 16: disclosure could reasonably be expected to contribute to the administration of justice generally, including procedural fairness item 17: disclosure could reasonably be expected to contribute to the administration of justice for a person item 18: disclosure could reasonably be expected to contribute to the enforcement of the criminal law In respect of these nondisclosure factors, the applicant relied upon the submissions he had made above in relation to items 10 and 15 above. Some of these arguments are no longer relevant, given the narrowing of the requested information that occurred after this submission was made. Furthermore, many of them are predicated on the assumption that Mr T was convicted of fraud in Queensland. As already noted, the VJR provided by the applicant does not support this. Taking this, and the nature of the requested information into account, I am not satisfied that disclosure could reasonably be expected to: promote open discussion of why any government entity in any jurisdiction has failed to take action against Mr T for his ongoing acts of criminal fraud give insight into ASIC’s decision to permit Mr T to become the director of a company give insight into what about QPS's policies and procedures contributed to their total inaction with regard to Mr T’s continual criminal frauds contribute to the fair treatment by government agencies of Mr T’s victims in the ACT reveal why QPS continually refused to investigate or prosecute Mr T’s ongoing fraud, or reveal what action or lack thereof ASIC took if/when QPS referred Mr T to ASIC, or reveal why QPS did not refer Mr T to ASIC contribute to the maintenance of peace and order, by assisting Mr T to receive the appropriate number and type of criminal convictions in the ACT; the appropriate sentences for those convictions; and the appropriate civil remedies; or contribute to the enforcement of the criminal law in the ACT. In terms of the applicant’s contentions above that disclosure will: assist in achieving justice for victims of Mr T in the ACT contribute to the fair treatment of victims by ACT government agencies contribute to the maintenance of peace and order in the ACT; and contribute to the enforcement of the criminal law in the ACT, I note that the RTI Act is Queensland legislation that applies to Queensland government agencies and public authorities. Nevertheless, I accept that the concept of ‘public interest’ as referred to the RTI Act is a broad one and is not limited to considerations operating at the level of State or local government. The applicant argues that information about Mr T’s past criminal activity in Queensland is relevant to events occurring in the ACT, and that there is a strong public interest in disclosure not least because, unlike the case of Mr Baden-Clay in QN v DJAG, Mr T’s criminal conduct is not in the past, but is continuing in the ACT. However, I am not persuaded that disclosing information concerning unrelated criminal offences previously committed by Mr T in Queensland, and for which he has been sentenced, would be of relevance to, or materially advance, the public interest factors favouring disclosure identified above. It appears from the information provided by the applicant that ACT agencies, including the police, are already aware of Mr T’s activities in the ACT. The applicant also contends that various legal proceedings have already been instituted against Mr T in the ACT. I am not persuaded by the applicant’s submissions that the Information in Issue would be of particular relevance to ACT agencies in terms of their treatment of victims, or their decisions about what action may be available to take against Mr T. Nor am I satisfied that such information would be admissible in unrelated legal proceedings in the ACT. Ordinarily, evidence about a person’s criminal history is inadmissible due to its prejudicial nature. Furthermore, to the extent that the applicant seeks to bring Mr T’s criminal past to the attention of relevant authorities, so as to alert them to Mr T’s behaviour and press for some kind of action to be taken against him, I am satisfied that the VJR that he already possesses contains sufficient information for such purposes. I do not accept that the applicant requires the ‘facts and details’ behind Mr T’s convictions in order to try to establish a pattern of fraudulent conduct that he considers will add greater weight to the submissions he apparently wishes to make to ACT authorities about Mr T. Again, as noted, the VJR does not indicate a pattern of fraudulent behaviour in terms of Mr T’s offending in Queensland. Nevertheless, I do recognise a general public interest in the administration of justice in terms of enhancing open justice. Open justice is advanced by open trials and by the availability of court transcripts for purchase. But I accept that disclosure of other court documents, of the nature that the applicant seeks, could also reasonably be expected to contribute to the administration of justice to the extent of contributing to scrutiny of open justice. However, giving consideration not only to the type of offences committed by Mr T (as indicated by his VJR), as well as the fact that the VJR indicates that he pleaded guilty to all charges, I would place low weight on the value of enabling such scrutiny. I am not satisfied that disclosure of the Information in Issue would, for example, contribute significantly to scrutinising police or judicial conduct, or the application of the criminal law more generally. Balancing the public interest For the reasons explained above, I afford moderate to significant weight to the public interest factors favouring nondisclosure that are concerned with protection of personal information and privacy, and low weight to the public interest factor favouring disclosure that is concerned with contributing to the administration of justice by enhancing open justice. After weighing the public interest factors both for and against disclosure, I am satisfied that disclosure of the Information in Issue would, on balance, be contrary to the public interest. Access under the RTI Act may therefore be refused on that basis. DECISION I set aside the decision under review. In substitution for it, I find that access to the Information in Issue may be refused under the RTI Act on the grounds that its disclosure would, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.V Corby Assistant Information Commissioner Date: 28 March 2023 APPENDIX Significant procedural steps Date Event 2 October 2022 OIC received the applicant for external review 4 October 2022 OIC requested that QPS provide preliminary documents 11 October 2022 OIC received preliminary documents from QPS 25 October 2022 OIC advised the parties that the application for review had been accepted OIC requested submissions from QPS regarding its NCND decision 10 & 16 November 2022 QPS provided submissions to OIC 1 December 2022 OIC conveyed a preliminary view to the applicant 7 January 2023 OIC received submissions from the applicant, contesting OIC’s preliminary view 12 January 2023 OIC requested further information from QPS 7 February 2023 OIC received an email from QPS advising that it held no documents about the company named in the access application 14 February 2023 OIC conveyed a further preliminary view to the applicant 15 February 2023 OIC received submissions from the applicant, contesting OIC’s preliminary view 16 February 2023 OIC expressed a final preliminary view to the applicant 18 February 2023 OIC received submissions from the applicant, contesting OIC’s preliminary view [1] By application dated 12 July 2022.[2] Decision dated 12 August 2022.[3] On 14 August 2022; received by QPS on 15 August 2022. [4] The applicant did not supply that evidence because he stated that the electronic internal review application form did not make provision for uploading attachments. [5] Dated 12 September 2022. [6] On 2 October 2022. [7] Section 21(2) of the HR Act. [8] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[9] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [10] XYZ at [573].[11] Confirmed by QPS in an email of 7 February 2023 and communicated to the applicant on 14 February 2023. [12] Email of 15 February 2023. [13] Email of 15 February 2023. [14] Section 3(1) of the RTI Act.[15] Section 3(2) of the RTI Act.[16] Section 44 of the RTI Act.[17] Section 23(1) of the RTI Act.[18] Section 47 of the RTI Act.[19] Section 47(2)(a) of the RTI Act.[20] Sections 47(3)(b) and 49 of the RTI Act. [21] The ‘public interest’ ‘...is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interests of an individual or individuals’: Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The concept refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests, although there are some recognised public interest considerations that may apply for the benefit of an individual: Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12, 14.[22] Taking care to disregard irrelevant factors.[23] Contained in his internal and external review applications and in correspondence of 7 January 2023, 15 February 2023, and 18 February 2023. [24] See the applicant’s email of 18 February 2023. [25] [2018] QICmr 52 (18 December 2018) (QN v DJAG). [26] Email of 18 February 2023. [27] ‘Personal information’ is defined in section 12 of the IP Act: ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’ [28] Schedule 4, part 3, item 3 of the RTI Act. The concept of ‘privacy’ is not defined in either the IP Act or RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others (paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 12 August 2008, at paragraph 1.56).[29] Schedule 4, part 4, section 6 of the RTI Act. [30] This decision dealt with an application by the media to access police investigative material associated with the high-profile prosecution and conviction of Gerard Baden-Clay for the murder of his wife, including police audio recordings of interviews with witnesses. Some of these recordings had been tendered in evidence during the trial and were the subject of intense media scrutiny during the trial. [31] At [31]. [32] I acknowledge the applicant’s description based upon his experience with Mr T. I would simply note that there is no material before me to establish that Mr T has been convicted of fraud in the ACT. [33] I would simply note that I do not necessarily accept that a member of the public who is in court when a matter is being heard is aware of all evidence that is presented. For example, a statement of agreed facts may simply be read into evidence, without being discussed any further. [34] It was noted to the applicant during the course of the review that, if it could be established which documents in QPS’s possession would be made available to a member of the public by a decision of the court made pursuant to the Justices Act and Criminal Practice Rules, QPS would then be entitled to refuse access to such documents under section 53 of the RTI Act – other access available. Section 53 (together with section 47(3)(f)) of the RTI Act provides that an agency may refuse access to a document if the applicant can reasonably access the document under another Act, or under arrangements made by an agency, whether or not the access is subject to a fee or charge. The applicant was advised that, as access to court files is made available under arrangements established by the Department of Justice and Attorney-General, section 53 of the RTI Act would apply to such documents. The applicant disputed that he could reasonably access court documents under these arrangements as he lived in Canberra. However, the Queensland Courts website indicates that online applications can be made, with the option of having documents that the court decides may be released, emailed or posted to the applicant, without requiring personal attendance at the court registry. [35] See section 154. [36] See Rules 3, 31, 56 and 56A.[37] Media Release Chief Justice 14 March 2008 (courts.qld.gov.au)[38] Submission of 7 January 2023. [39] Noting that ‘There is no provision of that Act which contemplates any restriction or limitation on the use which that person can make of that information, including by way of further dissemination’ – see FLK v Information Commissioner [2021] QCATA 46 at [17] per McGill J. [40] See the applicant’s submission of 7 January 2023. [41] Internal review application dated 14 August 2022.[42] The submission was prepared prior the applicant being advised that QPS held no documents relating to the company named in the access application. To the extent that the submission discusses why information about the company should be disclosed, it is no longer relevant to the issues for determination in this review.

queensland

court_judgement

Queensland Information Commissioner 1993-

Alpert and Brisbane City Council [1995] QICmr 17; (1995) 2 QAR 618 (15 June 1995)

Alpert and Brisbane City Council [1995] QICmr 17; (1995) 2 QAR 618 (15 June 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) L 17 of 1993COMMISSIONER (QLD) ) (Decision No. 95017) Participants: GARY ALPERT Applicant - and - BRISBANE CITY COUNCIL Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - documents in issue relate to building approvals for a home on land adjoining the applicant's land - whether the documents in issue comprise information concerning the personal affairs of the neighbouring landowners for the purposes of s.44(1) of the Freedom of Information Act 1992 Qld - whether disclosure of the information to the applicant would, on balance, be in the public interest.FREEDOM OF INFORMATION - applicant challenging sufficiency of search by the respondent for requested documents - whether there are reasonable grounds for believing that the requested documents exist and are in the possession or under the control of the respondent - whether the search efforts made by the respondent to locate the requested documents have been reasonable in all the circumstances of the case.Freedom of Information Act 1992 Qld s.44(1)Robbins and Brisbane North Regional Health Authority, Re (Information Commissioner Qld, Decision No 94019, 19 August 1994, unreported)Shepherd and Department of Housing, Local Government & Planning, Re (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported).Smith and Administrative Services Department, Re [1993] QICmr 3; (1993) 1 QAR 22 Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227Woodyatt and Minister for Corrective Services, Re (Information Commissioner Qld, Decision No. 95001, 13 February 1995, unreported) DECISIONI affirm the decision under review, being the decision made on behalf of the respondent by Mr R N Metcalfe on 30 July 1993.Date of Decision: 15 June 1995...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) L 17 of 1993COMMISSIONER (QLD) ) (Decision No. 95017) Participants: GARY ALPERT Applicant - and - BRISBANE CITY COUNCIL Respondent REASONS FOR DECISIONBackground1. Mr Alpert seeks review of the respondent's decision to refuse him access to documents relating to a building application for a domestic residence. The building application was lodged with the respondent by the owners of land adjoining a block of land which was owned by Mr Alpert at the time he made his application for access under the Freedom of Information Act 1992 Qld (the FOI Act) (the land has subsequently been sold by Mr Alpert). In these reasons for decision, I will refer to the owners of the adjoining block as the "third parties". The documents in issue are claimed by the Brisbane City Council (the Council) to be exempt under s.44(1) of the FOI Act (the personal affairs exemption). Mr Alpert also claims that the Council has failed to locate and deal with all documents falling within the terms of his FOI access application.2. On 8 June 1993, the Council received from Mr Alpert an application for access to documents relating to the property owned by the third parties, in the following terms: In relation to the above property which borders on my property and with which we share a common retaining wall, I would like full access to all of the building application plans and such other documents, plans, requirements etc. that were filed in relation to the putting on of fill, building of the house and retaining wall on this property which is owned by [the third parties] ... Further in relation to this property, I also want all information that is available regarding the sub-divisional plans that were filed ... to split this land off from the original piece that it was part of. Please note I would ask to see all formal applications, all correspondence from the Council as well as from the owners of Lot 2 [i.e., the third parties] and the original sub-dividers/developers and all Council diary notes of any meetings and/or verbal discussions. 3. By letter dated 3 July 1993, the Principal Officer of the Council, Mr R N Metcalfe, decided to grant Mr Alpert access to all material regarding the original subdivision of the land of which the third parties' property formed part, but refused access to what he described as the building application and building plans for the third parties' property, on the basis that this matter was exempt under s.44(1) of the FOI Act.4. After examining the material which was released to him, Mr Alpert applied for review under Part 5 of the FOI Act in respect of the Principal Officer's decision. In that application for review dated 30 September 1993, Mr Alpert referred for the first time to his interest in documents relating to a swimming pool which had been constructed on the third parties' property. He also indicated that he was particularly interested in documents relating to the construction of the retaining wall which faced his property, saying: I have subsequently learned from various sources that in relation to the retaining wall this information File "may be missing" but that "no-one is exactly sure" and that at the same time, there may not have been any approval for the retaining wall at all ever obtained ...5. Mr Alpert's application for review therefore raises three issues for my consideration:(a) whether documents relating solely to the swimming pool fall within the scope of his FOI access application;(b) whether the Council has carried out sufficient searches to identify and deal with all documents which fall within the terms of his FOI access application; and(c) whether the documents to which Mr Alpert has been refused access by the Council are exempt under s.44(1) of the FOI Act.The external review process6. The documents claimed by the Council to be exempt were obtained and examined. The documents consist of an application for building approval for a house, and ancillary documents including plans, amended plans and supplementary plans; the approval and conditions attached to it; correspondence between the Council and the third parties relating to the application; consultants' reports and reports of Council officers relating to the application and the progress of construction work.7. I contacted the third parties to establish whether they objected to Mr Alpert obtaining access to the documents in issue and whether they sought to become participants in this application. The third parties wrote to me stating that they objected to release of the documents, and outlining the reasons for their objection, but indicated that they did not wish to become participants.8. I also obtained further information from Council officers regarding the claim that the documents in issue are exempt and Mr Alpert's claim that further documents exist which fall within the terms of his FOI access application.9. A member of my staff held a conference with Mr Alpert on 12 May 1994 to discuss the nature of the exemption claimed and the public interest factors which might be relevant to the operation of s.44(1) of the FOI Act in this case. On 31 May 1994, I wrote to the applicant advising him of my preliminary views in relation to the matters in issue in this review and inviting him, if he did not agree with those views, to provide me, by 24 June 1994, with any evidence and submissions he might wish to make in support of his application for review. No response was received. Despite further correspondence and telephone contact (in which Mr Alpert informed my staff that he wished to pursue access to the documents in issue, and intended to forward a submission) nothing further was received from Mr Alpert by the final deadline which I set for him to lodge a submission (7 November 1994).Scope of the FOI access application10. In his application for external review, Mr Alpert indicated that he wished to obtain access to documents concerning a swimming pool which had been built on the third parties' property. As can be seen from paragraph 2 above, Mr Alpert's initial FOI access application did not refer to a swimming pool. While the original building application appears to have contemplated that a swimming pool might be built at some stage in the future (a swimming pool was included in site plans, but was clearly marked "not in this building application"), the approval granted by the Council did not relate to the construction of a swimming pool.11. Insofar as documents relating to the original building application refer to a swimming pool, they fall within the terms of Mr Alpert's FOI access application. This has been accepted by the Council, and documents of this type referring to a swimming pool were considered in the Principal Officer's decision of 30 July 1993.12. However, any documents which may have been created in the course of a separate building application for the construction of a swimming pool raise an entirely different question for my consideration. I cannot, on any fair reading of Mr Alpert's FOI access application, interpret it to include a request for documents relating to a separate building application for the construction of a swimming pool. My jurisdiction to review Mr Metcalfe's decision is limited to a review of his decision to refuse Mr Alpert access to documents falling within the terms of Mr Alpert's FOI access application dated 8 June 1993. It is not possible for an applicant to unilaterally extend the terms of an FOI access application at the external review stage: see Re Robbins and Brisbane North Regional Health Authority (Information Commissioner Qld, Decision No. 94019, 19 August 1994, unreported). I therefore find that I have no jurisdiction, in this review, to deal with Mr Alpert's request, in his application for review, for documents relating to the subsequent construction of a swimming pool on the third parties' property.Sufficiency of search13. I have previously considered my jurisdiction, and powers on review, in respect of sufficiency of search issues in my decisions in Re Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 and Re Shepherd and Department of Housing, Local Government & Planning (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported). In Re Shepherd, I said at paragraphs 18-19: 18. It is my view that in an external review application involving 'sufficiency of search' issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act) to which access has been requested. It is provided in s.7 of the FOI Act that: "'document of an agency' or 'document of the agency' means a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes - (a) a document to which the agency is entitled to access; and (b) a document in the possession or under the control of an officer of the agency in the officer's official capacity;" 19. In dealing with the basic issue referred to in paragraph 18, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.14. In his application for external review, Mr Alpert referred to the possible existence of other documents which related to the retaining wall built on the third parties' property (see paragraph 2 above). In response to this assertion, Mr Metcalfe, in a letter dated 21 October 1993, stated: At [the time Mr Alpert inspected those documents to which access was granted], it was explained to Mr Alpert that, apart from a reference to a retaining wall on the exempt building plans (which was originally interpreted as a brick wall solely within the [third parties'] property and not the subject retaining wall), no files or other documents regarding the retaining wall had been located. 15. Mr Metcalfe went on to state that, nevertheless, a further search was carried out by the Department of Development and Planning of the Council, for records which might relate specifically to the retaining wall and any additions thereto, but that no further documents were located.16. Mr Metcalfe did, however, advise that a file had been mislaid which related to an application for approval of a fence which was built on the Group Title Subdivision of which the third parties' property formed a part. It may be that Mr Alpert misinterpreted a reference to this Minor Building Plan as being a reference to a missing file which fell within the terms of his application. Mr Metcalfe has indicated that it is highly unlikely that a file relating to construction of a fence on a Group Title Subdivision (which may or may not have been built on the third parties' property) would fall within the terms of Mr Alpert's FOI access application. I accept that it is unlikely that such a file would contain documents which fall within the terms of Mr Alpert's application and in any event I am satisfied that the Council has carried out all reasonable searches to locate the file.17. I do not, therefore, consider that there are any reasonable grounds to believe that further documents exist which fall within the terms of Mr Alpert's FOI access application. I am further satisfied that the search efforts made by the Council to locate any further documents have been reasonable in all the circumstances.Section 44(1) of the FOI Act 18. The Council has claimed that the documents in issue are exempt under s.44(1) of the FOI Act. Section 44(1) provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest.19. In my reasons for decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, I identified the various provisions of the FOI Act which employ the term "personal affairs", and discussed in detail the meaning of the phrase "personal affairs of a person" (and relevant variations thereof) as it appears in the FOI Act (see paragraph 79-114 of Re Stewart). In particular, I said that information concerns "the personal affairs of a person" if it relates to the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase "personal affairs", that phrase has a well accepted core meaning which includes: • family and marital relationships; • health or ill-health; • relationships and emotional ties with other people; • domestic responsibilities or financial obligations.Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, based on a proper characterisation of the matter in question.20. The documents in issue relate to the construction by the third parties of their home, including the construction of a retaining wall which it appears, on the evidence available to me, is situated wholly within the third parties' property, but very close to its boundary with the adjoining property formerly owned by Mr Alpert. The documents in issue are a record of the third parties' dealings with the Council and various consultants in obtaining necessary approvals for the construction of their home. As such, they seem to me to fall within that zone of domestic affairs which is central to the concept of "personal affairs".21. When consulted by the respondent in accordance with s.51 of the FOI Act, the third parties, understandably, objected to disclosure of detailed plans of their home: On receipt of the requested documents a person could discover the layout of the residence, particularly disclosing details of sleeping arrangements of our teenage daughters, storage of valuables, details of door and window locking devices, security alarm position and operation of same, electrical switchboard detailing the point of entry and distribution of power in the residence, along with other personal information. 22. I think there can be little doubt that this constitutes information concerning the personal affairs of the third parties, for the purposes of s.44(1) of the FOI Act, and it is difficult to conceive of circumstances in which the public interest might favour disclosure of information of this kind to an unrelated person. In his application for review, Mr Alpert seems to accept this, focussing on other parts of the documents in issue. ... I believe it is quite unreasonable for access to be refused on this information because "it affects the personal affairs of this owner" and as it has been explained to me would be invading his privacy and cause concern to the individual regarding the release of information on his physical surroundings. It should be noted in the case of the retaining wall and the fill area (swimming pool complex), this area is open to public view and the height of the wall, the swimming pool and fill area is certainly not a "secret" which this person has to retain his privacy for. Indeed, one would assume that if this has been done properly, that the approval for the wall and the fill area merely confirms and is an exact copy of the details that are plainly in sight for the public to see anyway. I do appreciate that the actual building plans for this person's house do involve a somewhat different situation regarding the interior of the house and whether or not this person has a bidet in every bathroom and where his bedrooms are. Again, certainly this could easily be overcome for his concern for privacy and security by releasing the information on the exterior of the house regarding its position and height.23. I do not accept that the fact that aspects of the exterior construction of a residence are in public view detracts from the proper characterisation of documents concerning the construction of the residence as comprising information concerning the personal affairs of the owners who reside in it. On the other hand, where construction work on a property is liable to affect, or has affected, the amenity of the property of neighbouring landowners, it is certainly arguable that there may be public interest considerations which favour disclosure of relevant documents to neighbouring landowners who may be, or have been, affected.24. This may have been a relevant issue in the present case insofar as Mr Alpert asserts that construction of the retaining wall on the third parties' property has had an adverse effect on the amenity of the property which he owned at the time of lodgment of his FOI access application. However, I do not need to deal with this issue for two reasons.25. The first is that the Council, having been alerted by Mr Alpert to his particular interest in the construction of the retaining wall, has made additional searches and inquiries to locate any documents in its possession or control which deal with the construction of the retaining wall. It was unable to locate any such documents. The details of the Council's searches and inquiries were explained in a letter to me from Mr Metcalfe dated 21 October 1993. They were confirmed in the course of follow-up inquiries made by members of my staff with officers of the Council. I am satisfied that there are no reasonable grounds for believing that Council has possession or control of any documents regarding the retaining wall apart from incidental references on the building plans, which in my opinion are exempt under s.44(1) of the FOI Act.26. The second reason is that, within six months of lodging his FOI access application, Mr Alpert had sold the land adjoining the third parties' property, to a corporation apparently engaged in construction and development. Mr Alpert is no longer a neighbouring landowner whose interests may be affected to a degree sufficient to warrant consideration of whether the public interest balancing test incorporated in s.44(1) might favour disclosure to him of relevant documents (if they existed). I note in this regard that, when exercising my jurisdiction under Part 5 of the FOI Act, I am to apply the relevant provisions of the FOI Act in light of the material facts and circumstances as they exist at the time I come to make a decision: see Re Woodyatt and Minister for Corrective Services (Information Commissioner Qld, Decision No. 95001, 13 February 1995, unreported) at paragraph 35.27. During the course of the review, Mr Alpert raised a number of additional public interest considerations said to favour disclosure to him of relevant documents, which it is necessary for me to briefly address.28. In his application for external review, Mr Alpert made the following statement in support of his claim that he should be granted access to the documents in issue: I should further point out, however, that I do believe that any concern for privacy in this case is now more than overridden by the need for there to be full information available on this matter because of what seems to be numerous discrepancies on what is alleged to have been approved and not approved. As accountability and the ensuring of equal treatment for all in dealing with Government bodies is one of the main objects of the FOI Act, I do believe it is important that all of this information be released.29. Mr Alpert expanded on this submission in discussions with members of my staff in the course of this external review. The factors which he asserted give rise to a public interest in disclosure to him of the documents in issue are summarised below:• The construction of a large retaining wall near the boundary of his property adversely affected the sale price of his property. Disclosure of the documents in issue would allow him to assess the prospects of success in a legal action to recover the loss he claims to have suffered in the sale of his property.• Mr Alpert has a continuing business relationship with the corporation which purchased his property and therefore has an interest in taking action which would benefit the new owners of the property. Access to the documents in issue would allow him to take such action.• There is a public interest in detecting whether offences have been committed in the illegal erection or extension of the retaining wall. Access to the documents in issue would assist him in establishing whether this is the case and in reporting any offence to the relevant authorities.• There is a public interest in ensuring public safety and the retaining wall at its present height constitutes a risk to safety of persons who may approach the retaining wall.30. As to the first point raised above, I recognise that, in an appropriate case, there may be a public interest in an individual who has suffered an actionable wrong obtaining access to relevant information concerning the actionable wrong. However, in the circumstances of the present case it is by no means clear to me that Mr Alpert has suffered an actionable wrong. I raised my concern with Mr Alpert in a letter dated 31 May 1994, but he has not taken the opportunity to provide any evidence or submission to support his case in this regard. In the circumstances, I do not feel able to give any weight to a public interest consideration of this kind. 31. As to the second point raised by Mr Alpert, I note that he has provided no evidence or details of a business relationship with, or of action that might be taken to benefit, the new owners of the property. I have also sighted a letter dated 3 February 1994 to the Council from the corporation which purchased Mr Alpert's property, stating that the corporation has no objection to the retaining wall as it presently stands. In these circumstances, I do not feel able to give any credence or weight to this claimed public interest consideration.32. As to the third and fourth points raised above, I acknowledge that there is a significant public interest in bringing to the notice of public authorities situations where offences have been committed, and situations where there is potential danger to members of the public. However, it is clear from my examination of the documents in issue that there is no information in them, the disclosure of which would further the public interest in the manner suggested. To the extent that there may have been, as alleged by Mr Alpert, construction work undertaken without the lodgment of proper documentation or the seeking of required approvals, Mr Alpert's actions have already resulted in Council officers investigating the retaining wall and the circumstances of its construction. In that sense, Mr Alpert's inquiries have already achieved their end and the public interest in Mr Alpert being able to raise these matters with the Council has been satisfied.33. However, I recognise that on another level there is a public interest in enhancing public scrutiny of the Council to ensure the accountability of local government. In this case there are two relevant Council activities in which there is a public interest in allowing public scrutiny. The first is the public interest in ensuring that the Council has acted properly in granting building approvals and in the inspection of building work carried out pursuant to those approvals. The second is whether the Council has taken appropriate action in relation to subsequent investigation of claims by Mr Alpert that there may have been a breach of Council bylaws and that the retaining wall presents a potential danger. With regard to the first Council activity, there is nothing in the documents in issue to indicate that the Council acted improperly in granting building approvals. While there remains a public interest in disclosure of documents relating to this activity, I do not consider that it is sufficient in the circumstances of this case to outweigh the prima facie public interest in the non-disclosure of information concerning the personal affairs of the third parties. With respect to the Council's investigation of Mr Alpert's complaint, none of the documents in issue deal with this matter. All the documents in issue relate to the original building approval sought by the third parties. The Council's investigations have been prompted by Mr Alpert's FOI access application, but documents detailing the results of those investigations do not fall within the terms of his FOI access application.34. Having considered all the factors put forward by Mr Alpert in favour of disclosure of the documents in issue, I find that they do not outweigh the prima facie public interest in non-disclosure of information concerning the personal affairs of the third parties. I am therefore satisfied that the documents in issue are exempt under s.44(1) of the FOI Act.Conclusion35. I find that there are no reasonable grounds to believe that the Council has failed to locate and deal with all documents falling within the terms of Mr Alpert's FOI access application, and I affirm Mr Metcalfe's decision dated 30 July 1993 that the documents in issue are exempt under s.44(1) of the FOI Act.F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Kalman and Queensland Police Service [2016] QICmr 17 (13 May 2016)

Kalman and Queensland Police Service [2016] QICmr 17 (13 May 2016) Last Updated: 24 January 2017 Decision and Reasons for Decision Citation: Kalman and Queensland Police Service [2016] QICmr 17 (13 May 2016) Application Number: 312536 Applicant: Kalman Respondent: Queensland Police Service Decision Date: 13 May 2016 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - audio recording relating to alleged assault of applicant - audio recording includes personal information of other individuals - whether disclosure would, on balance, be contrary to the public interest - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - UNLOCATABLE AND NONEXISTENT DOCUMENTS - CCTV footage recorded after alleged assault of applicant - whether the agency has taken all reasonable steps to locate the documents but the documents cannot be located or do not exist - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to an audio recording and closed circuit television (CCTV) footage relating to an incident that occurred in the foyer of the Cairns Police Station (Station) on 19 June 2014 (Incident). The applicant alleged that, during the Incident, he was assaulted when a package of nappies was thrown in his direction by an individual known to him. The applicant had made a previous IP Act application to QPS for access to certain CCTV footage of the Incident and been granted access to that footage.[1] The application the subject of this review sought access to additional CCTV footage of the Incident from CCTV cameras inside the Station and outside the Station. He also sought an audiotape of a specified conversation. In response to the application, QPS[2] located an audio recording and some additional CCTV footage taken by CCTV cameras inside the Station (Inside CCTV Footage), and decided[3] to: release parts of the audio recording, and refuse access to the remainder of it on the ground that disclosure of this information would, on balance, be contrary to the public interest partially release the Inside CCTV Footage, subject to the pixelation of some information on the ground that disclosure of this information would, on balance, be contrary to the public interest; and refuse access to CCTV footage taken by CCTV cameras outside the Station (Outside CCTV Footage) on the grounds that it is nonexistent or unlocatable. On internal review, QPS affirmed its decision. The applicant applied to the Office of the Information Commissioner (OIC) for an external review. In his application for external review, the applicant: objected to the deletion of the identifying information of individuals other than himself in the audio recording did not take issue with the deletions made in the Inside CCTV Footage provided to him[4]; and submitted that the Outside CCTV Footage should exist and QPS had failed to locate it. On external review, I find that: access to the identifying information of individuals in the audio recording remaining in issue[5] can be refused on the ground that disclosure would, on balance, be contrary to the public interest; and access to the Outside CCTV Footage can be refused on the basis that it is nonexistent. Background Significant procedural steps relating to the external review are set out in the Appendixto this decision. Reviewable decision The decision under review is QPS’s internal review decision dated 28 July 2015. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). The applicant provided submissions[6] to OIC supporting his case. Whilst I have carefully considered all of the applicant’s submissions, not all matters raised are relevant to the issues for determination. I have summarised and addressed the applicant’s submissions below to the extent they are relevant to the issues for determination. Issues for determination On external review, QPS released to the applicant the names of QPS officers contained in the audio recording.[7] This information was released on the basis it comprised information recorded in the course of the QPS officers’ routine work as public officers, and its disclosure would not, on balance, be contrary to the public interest.[8] Accordingly, the issues remaining for my determination in this review are whether: disclosure of identifying information regarding individuals other than the applicant and QPS Officers (Identifying Information) in the audio recording would, on balance, be contrary to the public interest; and the Outside CCTV Footage is nonexistent or unlocatable. I will deal with each of these matters in turn. Identifying Information Relevant law Under the IP Act, an individual has a right to be given access to documents of an agency to the extent the documents contain the individual’s personal information. However, this right is subject to limitations, including grounds for refusal of access.[9] An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[10] and explains the steps that a decision-maker must take[11] in deciding the public interest. To determine the balance of the public interest a decision-maker must: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest. Findings No irrelevant factors arise in the circumstances of this case. I will now consider the factors favouring disclosure and nondisclosure of the Identifying Information. Personal information of individuals other than the applicant Personal information is defined[12] as “information or an opinion... whether true or not... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion”. The Identifying Information in the audio recording is comprised of the names of individuals, other than the applicant and QPS officers, and other descriptive information about those individuals from which their identity can reasonably be ascertained. Thus the Identifying Information is the personal information of those individuals. In accordance with the RTI Act, disclosure could therefore reasonably be expected to cause a public interest harm.[13] The concept of ‘privacy’ is not defined in the RTI Act. It can, however, be viewed as the right of an individual to preserve their personal sphere free from interference from others.[14] In this case, disclosure of the Identifying Information would intrude upon the ‘personal sphere’ of the named individuals and thus prejudice their right to privacy. As such, I consider that disclosure of the Identifying Information could reasonably be expected to prejudice the right to privacy of those individuals. Given the nature of the information in the audio recording, disclosure of the Identifying Information would reveal the marital acrimony, family discord and legal matters of the individuals in question. In these circumstances, I consider the Identifying Information is at the higher end of the spectrum of personal information and the harm caused by disclosure and the impact on privacy is high. I consider that the weight to be given to these public interest factors in favour of nondisclosure is significant. I have taken into account the fact that the Identifying Information will be generally known to the applicant and accept that this reduces the weight of the factors favouring nondisclosure to some degree. However, I consider that the public interest in the protection of the personal information and privacy of others remains of significant weight in relation to this information. Personal information of the applicant I acknowledge the importance of providing individuals with access to their personal information held by public authorities.[15] However, I note that QPS has granted access to the part of the recording which contains the applicant’s personal information and the names of QPS officers. The Identifying Information contains only the personal information of other individuals. Therefore, I consider that the public interest in the applicant having access to his personal information has been discharged and this public interest factor in favour of disclosure does not apply in this case. Accountability and transparency The RTI Act gives rise to factors favouring disclosure in circumstances where disclosing information could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability;[16] and reveal the reason for a government decision and any background or contextual information that informed the decision.[17] Except for the Identifying Information, QPS has released the entirety of the audio recording to the applicant. In these circumstances, I consider the partly disclosed audio recording provides a contemporaneous record of some of the enquiries made by QPS regarding the Incident, and the public interest in accountability has been significantly discharged by the information released. Disclosure of the Identifying Information would have very little additional effect. According, I afford these factors low weight in favour of disclosure.Administration of justice In his submissions to OIC, in addition to alleging that he was assaulted, the applicant expressed the view that QPS may have breached a duty of care owed to him, because the alleged assault occurred in a QPS police station foyer, metres away from QPS officers. Given these submissions, it is necessary that I consider whether disclosure of the Identifying Information could reasonably be expected to contribute to the administration of justice for a person[18] – namely, the applicant. In Willsford and Brisbane City Council,[19] the Information Commissioner found that this factor will arise if an applicant can demonstrate that: they have suffered loss or damage or some kind of wrong, in respect of which a remedy is, or may be available under the law they have a reasonable basis for seeking to pursue the remedy; and disclosing the information would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available or worth pursuing. As noted above, in the present circumstances, QPS has released the audio recording relating to the Incident in which the applicant alleges he was assaulted to the applicant, except for the Identifying Information of individuals identified in the recording, including his alleged assailant. I further note from the applicant’s submissions that he is aware of the alleged assailant’s identity. Accordingly, I am satisfied that the applicant has before him both information about his alleged assault and knowledge of the identity of his alleged assailant. Taking these considerations into account, I am satisfied that disclosure of the Identifying Information would not assist the applicant to pursue any remedy, or assess whether doing so is possible or worthwhile. Accordingly, I consider that the third requirement set out in Willsford is not satisfied, and that it is therefore unnecessary to consider the first two requirements. In these circumstances, I am satisfied that this public interest factor in favour of disclosure of the Identifying Information does not apply in this case. Balancing the relevant factors I consider that releasing an unedited version of the audio recording would involve disclosure of the personal information of individuals other than the applicant and QPS officers, giving rise to a public interest harm. I am also of the view that such disclosure would prejudice the protection of those individuals’ right to privacy. There is a clear public interest in ensuring that Government protects privacy and respects the personal information it collects from members of the community. Given these considerations, I am satisfied that the factors favouring nondisclosure of the Identifying Information are deserving of significant weight. In contrast, I consider that the factors favouring disclosure of the Identifying Information related to accountability and transparency have been significantly discharged by the information that QPS has released to the applicant, and therefore carry low weight. In conclusion, I consider that the release of the Identifying Information of individuals other than the applicant and QPS officers in an unedited version of the audio recording would disclose sensitive personal information of persons other than the applicant, and in doing so, cause significant prejudice to their privacy, while having relatively little positive effect in terms of advancing the public interest. Accordingly, I find that QPS is entitled to refuse access to the Identifying Information, as disclosure of the audio recording in an unedited form would, on balance, be contrary to the public interest. Outside CCTV Footage The applicant submits:[20] ...“searches undertaken failed to locate any CCTV footage for the incident date” is a gross misrepresentation of the truth. And to say “After 180 days the system automatically deletes the recordings” in this instance I submit that CCTV footage for the incident date was not automatically deleted... Relevant law Access to a document may be refused if the document is nonexistent.[21] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[22] To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience and have regard to a number of key factors.[23] When proper consideration is given to relevant factors, it may not be necessary for searches to be conducted. However, if searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case as the search and enquiry process an agency will be required to undertake will depend on which of the key factors are most relevant in the particular circumstances. Findings The scope of the applicant’s access application is set out at paragraph one above. It was made under the IP Act, rather than the RTI Act, and therefore only applies to documents which contain the applicant’s personal information.[24] During the processing of the applicant’s access application, QPS performed searches for documents responsive to the access application in the following locations: Police Notebooks Electronic Logs QPRIME;[25] and Tapes. As a result of these searches, QPS located the audio recording and the Inside CCTV Footage. In the course of the external review QPS provided the following: information from the QPS officer with conduct of the investigation that there were no further documents and no notes in her notebook or in the electronic log signed search certifications which identify the searches performed and state that all documents responsive to the applicant’s application in QPS’s possession have been located; and policies[26] regarding retention periods for CCTV footage recorded by QPS. I note: the QPS Retention and Disposal Schedule requires that CCTV tapes be retained for 6 months and are then destroyed the QPS Building Design Manual requires that the relevant CCTV footage be retained for 28 days, after which time the footage is recorded over by new footage the information of a QPS officer, provided in his search certification, that the CCTV footage outside the Station was “only retained for 3 months before (being) deleted”; and the Public Records Act 2002 (Qld) imposes obligations on agencies such as QPS in relation to the retention and disposal of documents. QPS records are subject to various retention periods, dependent on the type of record, with the exception of the records being required for use in court proceedings which have been commenced but not yet finalised. It would appear there is some inconsistency in QPS’s policy documents concerning the timeframe for which CCTV footage is to be retained. However, I am satisfied on the evidence before me that QPS’s practice at the Cairns Station is not to retain CCTV footage, except for footage which is required for use in court proceedings which have been commenced but not yet finalised. In the course of the review the applicant expressed concern[27] that the Outside CCTV Footage was deleted by QPS, as he considers it may serve as evidence to be relied upon in court proceedings he may commence in relation to the Incident. In this regard, I note that on 2 July 2014, approximately two weeks after the Incident, QPS’s investigation was finalised and report number QP1400878311[28] states: On the 23rd June 2014 the vcitm (sic) has completed an Affidavit in relation to the incident...CCTV footage from the front counter has been requested...Prosecutions have reviewed the facts in relation to this matter and concur with the outcome that no offence has occurred and there is insufficient evidence to proceed with any complaint. This matter is therefore finalised. Based on this information, I am satisfied that within the two weeks following the Incident, QPS determined that: the Outside CCTV Footage was not required to be retained for investigation purposes; and there was insufficient evidence to proceed with any criminal prosecution and therefore any footage recorded at the time of the Incident (including the Outside CCTV Footage) was not required to be retained for use in court proceedings. Accordingly, I am satisfied that the Outside CCTV Footage was deleted by QPS in accordance with its usual practices. Having reviewed all of the material before me, and in view of the nature of the searches undertaken in processing the access application, I find that: QPS has taken all reasonable steps to locate the Outside CCTV Footage there is a reasonable basis to be satisfied that the Outside CCTV Footage does not exist as it has been deleted in accordance with QPS’s usual practice;[29] and access to the Outside CCTV Footage may therefore be refused under sections 47(3)(e) and 52(1)(a) of the RTI Act. DECISION For the reasons set out above, I vary QPS’s decision and find that: access to the Identifying Information in the audio recording can be refused on the ground that disclosure of it would, on balance, be contrary to the public interest;[30] and access to the Outside CCTV Footage can be refused on the ground that it is nonexistent.[31] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________ A Rickard Acting Assistant Information Commissioner Date: 13 May 2016 APPENDIX Significant procedural steps Date Event 25 May 2015 QPS received the applicant’s valid access application. 30 June 2015 QPS issued its decision to the applicant. 30 June 2015 QPS received the applicant’s application for internal review. 28 July 2015 QPS issued its internal review decision to the applicant. 29 July 2015 OIC received the application for external review of QPS’s decision. 29 July 2015 OIC notified QPS that the external review application had been received and requested it provide relevant procedural documents by 6 August 2015. 5 August 2015 OIC received the requested procedural documents from QPS. 14 August 2015 OIC notified the applicant and QPS that it had accepted the external review application. OIC requested QPS provide a copy of the relevant documents by 28 August 2015. 1 September 2015 OIC received the requested information from QPS. 4 September 2015 OIC requested that QPS provide a copy of documents not in issue on external review by 18 September 2015 to complete its preliminary assessment. OIC also conveyed its preliminary view to QPS regarding disclosure of QPS officers’ names contained in the audio recording in issue and requested QPS advise by 18 September 2015 whether it was agreeable to releasing the audio of the QPS officers names to the applicant. 18 September 2015 QPS advised it accepted OIC’s preliminary view regarding disclosure of QPS officers names contained in the audio recording in issue and was agreeable to releasing the audio of the QPS officers’ names to the applicant. 1 October 2015 OIC received the requested documents not in issue from QPS. 1 October 2015 OIC requested that QPS provide further documents not in issue on external review by 20 October 2015. 6 October 2015 QPS provided a further copy of the audio recording, including the additional audio of the QPS officers’ names, to the applicant. 6 October 2015 The applicant provided submissions supporting his case. 19 October 2015 OIC received the further requested information from QPS. 6 October 2015 The applicant confirmed that he had received the further copy of the audio recording, including the additional audio of the QPS officers’ names. 26 November 2015 The applicant provided submissions supporting his case. 13 January 2016 The applicant provided submissions supporting his case. 18 January 2016 The applicant provided submissions supporting his case. 4 May 2016 OIC conveyed its preliminary view to the applicant and invited him to provide submissions supporting his case by 18 May 2016 if he did not accept the preliminary view. 4 May 2016 The applicant provided submissions supporting his case. [1] With the identifying features (faces) of individuals other than the applicant and QPS officers pixelated.[2] Through the Public Safety Business Agency (PSBA), which provided corporate and business services on behalf of QPS through the processing of the access application and external review. [3] In its initial decision dated 29 June 2015.[4] Accordingly, access to the information deleted from the Inside CCTV Footage is not considered further in this decision.[5] As set out at paragraphs 11 and 12.[6] By telephone discussion with an officer of OIC on 6 October 2015 and by email to OIC on 26 November 2015, 13 January 2016, 18 January 2016 and 4 May 2016.[7] Under PSBA’s cover letter dated 6 October 2015.[8] Sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) (RTI Act). The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. [9] Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent it could refuse access to the document under section 47 of the RTI Act were the document to be the subject of an access application under the RTI Act. [10] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant. [11] See section 49(3) of the RTI Act. [12] In section 12 of the IP Act.[13] Schedule 4, part 4, item 6 of the RTI Act.[14]Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [27], paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 11 August 2008, at paragraph 1.56. [15] Schedule 4, part 2, item 7 of the RTI Act.[16] Schedule 4, part 2, item 1 of the RTI Act. [17] Schedule 4, part 2, item 11 of the RTI Act. [18] Schedule 4, part 2, item 17 of the RTI Act.[19] Unreported, Queensland Information Commissioner, 27 August 1996 (Willsford) at [17].[20] In his external review application dated 29 July 2015.[21] Section 67(1) of the IP Act and sections 47(3)(e) and 52(1)(a) of the RTI Act. [22] Section 52(1)(a) of the RTI Act. [23] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [19] which adopted the Information Commissioner’s comments in PDE and the University of Queensland [2009] QICmr 7 (9 February 2009) regarding section 28A of the repealed Freedom of Information Act 1992 (Qld), given the requirements of that section are replicated in section 52 of the RTI Act. The key factors include: the administrative arrangements of government; the agency structure; the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it); the agency’s practices and procedures (including but not exclusive to its information management approach) and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. [24] As defined in section 12 of the IP Act.[25] QPRIME stands for Queensland Police Records and Information Management Exchange and is the database used to capture and maintain records for all police incidents in Queensland.[26] Namely, QPS Retention and Disposal Schedule and QPS Building Design Manual.[27] From his telephone discussion with an OIC officer on 6 October 2015. [28] Comprising 2 full pages and 5 part pages released to the applicant by PSBA in accordance with their decision dated 10 November 2014 in response to the applicant’s access application dated 8 October 2014.[29] Sections 47(3)(e) and 52 of the RTI Act.[30] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. [31] Section 67(1) of the IP Act and sections 47(3)(e) and 52(1) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Q84 and Queensland College of Teachers [2021] QICmr 40 (10 August 2021)

Q84 and Queensland College of Teachers [2021] QICmr 40 (10 August 2021) Last Updated: 12 January 2022 Decision and Reasons for Decision Citation: Q84 and Queensland College of Teachers [2021] QICmr 40 (10 August 2021) Application Number: 315755 Applicant: Q84 Respondent: Queensland College of Teachers Decision Date: 10 August 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST - personal information of other individuals - safeguarding personal information and the right to privacy of other individuals - flow of information to law enforcement agency - agency’s ability to obtain confidential information - fair treatment of individuals - whether disclosure would, on balance, be contrary to the public interest - whether access may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied[1] to the Queensland College of Teachers (QCT) under the Right to Information Act 2009 (Qld) (RTI Act) for access to the written responses provided by a named subject teacher in response to complaints made by the applicant and his wife about the subject teacher. 2. While QCT located two statements of the subject teacher (Statements), QCT did not make a decision within the relevant processing period[2] and was therefore deemed to have made a decision refusing access to the Statements in full. 3. The applicant applied to the Office of the Information Commissioner (OIC) for external review of QCT’s deemed decision. 4. For the reasons set out below, I vary QCT’s deemed decision and find that access to the Statements may be refused on the ground that disclosure would, on balance, be contrary to the public interest. 4. Background 5. In late 2014, the applicant’s son and a small number of other students from the same school participated in an excursion to another country which was supervised by two teachers, one of whom was the subject teacher. During the excursion, the students and teachers were involved in a motor vehicle accident which resulted in the death of the applicant’s son as well as the other teacher. 6. In early 2019, the applicant and his wife filed a complaint with QCT[3] about the subject teacher alleging negligence in relation to the excursion. 7. Following an investigation, the applicant was provided with a copy of QCT’s Professional Capacity and Teacher Conduct Committee’s (PC&TCC) Decision and Reasons for Decision regarding the outcome of the complaint.[4] Reviewable decision 8. The decision under review is the decision QCT is deemed to have made refusing access to the Statements. Evidence considered 9. In reaching my decision, I have had regard to the submissions, evidence, legislation, and other material referred to throughout these reasons (including footnotes and Appendix). 10. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[5] I consider a decision-maker will be ‘respecting, and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the RTI Act.[6] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[7] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[8] Information in issue 11. The information in issue in this review is the Statements.[9] Issue for determination 12. The issue for determination is whether access to the Statements can be refused on the ground that their disclosure would, on balance, be contrary to the public interest. Relevant law 13. Under the RTI Act, access to information may be refused where its disclosure would, on balance, be contrary to the public interest.[10] 14. In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[11] identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest. 15. Schedule 4 of the RTI Act contains non-exhaustive lists of factors that may be relevant in determining where the balance of public interest lies in a particular case. I have carefully considered these lists, together with all other relevant information, in reaching my decision. Additionally, I have kept in mind the RTI Act’s pro-disclosure bias[12] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly.[13] Findings Irrelevant factors 16. I am satisfied that no irrelevant factors arise in the circumstances of this case. Factors favouring disclosure 17. There is a general public interest in advancing public access to government-held information, and the RTI Act is administered with a ‘pro-disclosure bias’, meaning that an agency should decide to give access to information, unless giving access would, on balance, be contrary to the public interest.[14] 18. Factors favouring disclosure will arise if disclosure could reasonably be expected to enhance the accountability and transparency of the Queensland government.[15] Here, the relevant government agency is QCT. Accordingly, I must consider the extent to which disclosure of the Statements would enhance the accountability and transparency of disciplinary proceedings conducted by QCT’s PC&TCC, for example, by revealing background or contextual information to decisions.[16] The Statements were provided to the investigator assisting QCT’s PC&TCC in the context of a disciplinary proceeding arising as a result of the complaint made by the applicant and his wife about the subject teacher. I consider that disclosing the Statements would advance these factors to some degree. However, I consider that the information contained within the PC&TCC’s Decision and Reasons, a copy of which was provided to the applicant, provides him with an understanding of what information was considered relevant by the PC&TCC, sets out background information from the Statements and the oral hearing which informed the PC&TCC’s decision, and discharges their accountability obligations and provides transparency to the process. 19. The applicant contends that due to the loss of his son, he and his wife ‘have the inalienable right to know all the facts of the circumstances that contributed to the death of our innocent son, rather than a filtered and sanitised version from The Queensland College of Teachers.’[17] I acknowledge that the applicant and his wife wish to know all information about the circumstances which lead to their son’s death. However, the requirement for a government agency to be accountable and transparent in the conduct of disciplinary investigations does not oblige it to provide the complainant/s with access to its entire investigation file nor reveal all of the information it gathered in dealing with the investigation.[18] 20. Accordingly, in these circumstances, I afford the three factors favouring disclosure relating to enhancing accountability and transparency and providing contextual information low weight. 21. A factor favouring disclosure will also arise if disclosure could reasonably be expected to contribute to positive and informed debate on important issues.[19] The standard of behaviour expected of teachers is clearly an important issue for the community. Given the Statements comprise information considered by the relevant disciplinary body in Queensland when it considered the behaviour of a particular teacher, I am satisfied that disclosing the Statements would contribute to community debate on the standard of behaviour expected of teachers to some degree. However, it is the PC&TCC’s Decision and Reasons which, by identifying the information considered to be relevant, discussing this information and reaching conclusions, demonstrates the standards being applied by that body. Having carefully considered the content of both the Statements and the PC&TCC’s Decision and Reasons, I am satisfied that the Statements themselves would have relatively little further effect on advancing the public debate about teacher behaviour. Consequently, I afford this factor low weight. 22. Small portions of information within one of the Statements comprises the personal information of the applicant’s wife or son, which raises factors favouring disclosure relating to access to personal information.[20] I acknowledge that information within the Statement about the applicant’s wife and son is a matter at the core of their personal sphere. In these circumstances, these factors deserve high weight with respect to the relevant portions of information within the Statements. This information, however, is intertwined with the personal information of other individuals such that it cannot be separated. The personal information of others is addressed at paragraphs 29 to 31 below. 23. I have also considered the applicant’s submission that he is seeking release of the Statements so that ‘an independent and thorough investigation’ of the subject teacher’s behaviour during the excursion can be undertaken.[21] 24. Factors favouring disclosure will arise if disclosure could reasonably be expected to: allow or assist inquiry into possible deficiencies in the conduct or administration of an official[22] reveal or substantiate that an agency or official has engaged in misconduct, or negligent, improper or unlawful conduct[23] advance fair treatment in accordance with the law in dealings with agencies;[24] or contribute to the administration of justice generally (including procedural fairness) or for a person.[25] 25. I acknowledge the applicant’s submission that the Statements are required ‘so that an independent and thorough investigation of [the subject teacher’s] behaviour as a field staff member and the second teacher not “just as a number” can take place for the safety of all school children in [the subject teacher’s] care on outdoor educational excursions.’[26] 26. I have considered these submissions, and accept to a certain extent, disclosure of the Statements may allow for greater scrutiny of the subject teacher’s alleged wrongdoing. However, in terms of the weight to be afforded to the factors listed at paragraph 24 above, the information already provided to the applicant in the PC&TCC’s Decision and Reasons provides him with detailed information about the subject teacher’s actions during the excursion. Further, there is no evidence before me to suggest that the PC&TCC did not conduct a thorough independent and unbiased investigation into the allegations arising from the applicant’s complaint. While I acknowledge that the applicant does not agree with the outcome of the PC&TCC’s investigation, this does not mean that the investigation was inappropriate or that a further investigation needs to be conducted. 27. I consider that the information already available to the applicant assists the applicant’s inquiry into his allegations about the subject teacher’s conduct during the excursion, and provides insight into QCT’s handling of his complaint, thereby advancing his fair treatment in his dealings with QCT. In terms of the factors concerning the administration of justice, assuming that the applicant has a reasonable basis for pursuing a remedy, my view is that he would already have the information needed to do so. Accordingly, in the circumstances, I afford each of the factors at paragraph 24 above low weight. Factors favouring nondisclosure 28. QCT identified factors favouring nondisclosure where disclosure could reasonably be expected to prejudice the flow of information to police or another law enforcement or regulatory agency[27] and an agency’s ability to obtain confidential information.[28] I consider that these factors apply in relation to the Statements, but only attract low weight, given it is in a subject officers’ best interests to respond to allegations made against them when involved in disciplinary proceedings. 29. The RTI Act recognises that disclosing an individual’s personal information to someone else can reasonably be expected to cause a public interest harm.[29] The term ‘personal information’ is defined as follows in the RTI Act:[30] ...information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. 30. While the Statements were provided to the PC&TCC in the context of an investigation arising as a result of complaints made by the applicant, I am satisfied that they comprise the personal information of the subject teacher and other individuals mentioned by the subject teacher within the Statements. Noting the sensitive nature of the information and the circumstances of its provision, I afford this factor significant weight. 31. A further factor favouring nondisclosure arises if disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[31] The concept of ‘privacy’ is not defined in the RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others.[32] For the reasons stated in paragraph 30 above, I am satisfied that disclosure of the Statements would interfere with the personal sphere of the subject officer and other individuals mentioned within the Statements. I acknowledge the applicant’s[33]ubmission33 that the subject teacher has ‘forfeited [their] right of protection and to have [their] statements made to the Professional Practice and Teacher Conduct Committee secreted from scru[34]ny’34 due to the substantiated allegation and the subject teacher’s alleged conduct during the excursion. However, I do not consider that the fact that one of the allegations investigated by the PC&TCC arising from the applicant’s complaint was substantiated lessens the impact that disclosure of the Statements would have on the interference with the personal sphere of the subject officer and other individuals mentioned within the Statements. Accordingly, I afford this factor significant weight. 32. A further factor favouring nondisclosure arises where disclosure could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct.[35] As mentioned above, the Statements were provided to the investigator assisting the PC&TCC in the context of a disciplinary proceeding arising as a result of complaints made by the applicant and his wife. Following the investigation of the allegations, the PC&TCC decided that most of the allegations were not substantiated.[36] Bearing in mind that OIC’s functions, in the circumstances of this review, relate only to review of decisions about access to[37] documents and that I must take the PC&TCC’s decision on face value, it is my view that disclosure of the Statements, which relate to unsubstantiated allegations, has the potential to prejudice the fair treatment of the subject teacher and other individuals mentioned by the subject teacher within those Statements. In these circumstances, this factor warrants significant weight. Conclusion 33. I have considered the pro-disclosure bias in deciding access to information.[38] On balance, I consider the nondisclosure factors outweigh the disclosure factors in relation to the Statements. Accordingly, I am satisfied that access to the Statements may be refused on the basis that their disclosure would, on balance, be contrary to the public interest.DECISION 34. I vary QCT’s deemed decision and find that access to the Statements may be refused under section 47(3)(b) of the RTI Act as disclosure would, on balance, be contrary to the public interest. 35. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Assistant Information Commissioner CorbyDate: 10 August 2021 APPENDIX Significant procedural steps Date Event 27 November 2020 OIC received the applicant’s application for external review. 1 December 2020 OIC received an emailed submission from the applicant. 2 December 2020 OIC advised QCT and the applicant that the application for external review had been received and requested procedural documents from QCT. 10 December 2020 OIC received the requested procedural documents from QCT. 17 December 2020 OIC advised QCT and the applicant that the application for external review had been accepted and requested a copy of the Statements and a copy of the documents provided to the applicant on 15 June 2020[39] from QCT. 20 January 2021 OIC received a copy of the requested documents from QCT. 25 March 2021 OIC conveyed a preliminary view to the applicant. 14 May 2021 OIC received submissions from the applicant. [1] By access application received on 29 January 2020.[2] Under section 46(1)(a) of the RTI Act. I note that QCT provided the applicant with a purported decision by letter dated 2 November 2021.[3] Under section 87 of the Education (Queensland College of Teachers) Act 2005 (QCT Act).[4] As required by section 123(5) of the QCT Act.[5] Section 21 of the HR Act. [6] XYZ v Victoria Police (General) [2010] VCAT 255 (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 at [111].[7] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [8] XYZ at [573].[9] Comprising the statements made by the subject teacher dated 23 July 2019 and 13 August 2019, as described at page 2 of QCT’s decision.[10] Section 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. See Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ AIAL FORUM (48) April 2006; p 12 – 25 AIALF 12.[11] Section 49(3) of the RTI Act. [12] Section 44 of the RTI Act.[13] Section 47(2) of the RTI Act.[14] Section 44(1) of the RTI Act.[15] Schedule 4, part 2, items 1 and 3 of the RTI Act.[16] Schedule 4, part 2, item 11 of the RTI Act. [17] Page 2 of submission to OIC dated 14 May 2021.[18] 8A3BPQ and Queensland Police Service [2014] QICmr 42 (30 October 2014) (8A3BPQ) at [23]-[24]. In his submissions to OIC dated 14 May 2021, the applicant ‘object[s] to the relevance of 8A3BPQ and Queensland Police Service because the death of [his] son whilst participating in the ... Excursion occurred outside the jurisdiction of the Queensland Police Service.’ (Applicant’s emphasis) This submission by the applicant is misconceived as my reference to 8A3BPQ is in relation to the principle that an agency is not obliged to provide a complainant with the entire investigation file nor reveal all of the information gathered. The fact that the agency in 8A3BPQ is the Queensland Police Service is irrelevant to my application of this principle in this matter.[19] Schedule 4, part 2, item 2 of the RTI Act.[20] Schedule 4, part 2, items 7 and 9 of the RTI Act.[21] At page 1 of the applicant’s submission to OIC dated 14 May 2021.[22] Schedule 4, part 2, item 5 of the RTI Act.[23] Schedule 4, part 2, item 6 of the RTI Act.[24] Schedule 4, part 2, item 10 of the RTI Act.[25] Schedule 4, part 2, item 16 and item 17 of the RTI Act.[26] Page 1 of submissions to OIC dated 14 May 2021. Applicant’s emphasis.[27] Schedule 4, part 3, item 13 of the RTI Act.[28] Schedule 4, part 3, item 16 of the RTI Act.[29] Schedule 4, part 4, section 6(1) of the RTI Act. [30] See schedule 5 of the RTI Act which refers to section 12 of the Information Privacy Act 2009 (Qld).[31] Schedule 4, part 3, item 3 of the RTI Act. [32] Paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 12 August 2008, at [1.56]. Cited in Balzary and Redland City Council; Tidbold (Third Party) [2017] QICmr 41 (1 September 2017) at [28].[33] Page 3 of submissions to OIC dated 14 May 2021.[34] Applicant’s emphasis.[35] Schedule 4, part 3, item 6 of the RTI Act.[36] I note that allegation 1(c)(iii) was substantiated and the PC&TCC decided to ‘not take further action against’ the subject teacher.[37] And amendment of. [38] Section 44 of the RTI Act. [39] As referred to on page 1 of QCT’s decision.

queensland

court_judgement

Queensland Information Commissioner 1993-

Manning and Queensland Police Service [2013] QICmr 13 (16 May 2013)

Manning and Queensland Police Service [2013] QICmr 13 (16 May 2013) Last Updated: 27 August 2013 Decision and Reasons for Decision Application Number: 311242 Applicant: Manning Respondent: Queensland Police Service Decision Date: 16 May 2013 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – GROUNDS ON WHICH ACCESS MAY BE REFUSED – NONEXISTENT DOCUMENTS – an agency may refuse access to a document because the document is nonexistent or unlocatable – whether there are reasonable grounds for the agency to be satisfied that further documents do not exist – whether the agency has taken all reasonable steps to locate the documents but the documents cannot be found – sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied under the Right to Information Act 2009 (Qld) (RTI Act) to the Queensland Police Service (QPS) for access to the ‘transcript’, ‘audio file’ and ‘log of call’ of an identified 000 call made on 21 May 2007. QPS identified two pages in response to the access application and decided to refuse access to those pages on the grounds that it could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.[1] QPS did not locate any other documents in response to the request. The applicant applied to the Office of the Information Commissioner (OIC) for external review of QPS’ decision to refuse access to the two pages located. During external review, sufficiency of search issues were also considered. In the circumstances, QPS’ decision is varied and access to the two pages located is refused on the basis that the two pages are outside the scope of this review and QPS is entitled to refuse access to the documents requested on the basis that they are nonexistent or unlocatable. Background Significant procedural steps relating to the application are set out in the appendix to this decision. Reviewable decision The decision under review is QPS’ decision dated 12 October 2012. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). What is the scope of this application? The applicant requested access to the ‘transcript’, ‘audio file’ and ‘log of call’ of an identified 000 call made on 21 May 2007. I have reviewed the two pages located by QPS and although they relate to the identified 000 call, I am satisfied that these pages cannot properly be described as a ‘transcript’, ‘audio file’ or ‘log of call’. Rather these pages relate to police action taken following, and as a result of, the 000 call. Therefore, I am satisfied that the two pages located by QPS are not within the scope of the access application. On 20 March 2013, OIC conveyed a view to the applicant that the two pages located by QPS were not within the scope of the access application. In response to OIC’s view the applicant submitted[2] that: [OIC has] not considered the grounds of the appeal, but rather go off on [its] own agenda and refuse the documents ... on grounds that were not up for inspection in this appeal process.... This is not the matter that this has been brought to [OIC] for...It was not put to [OIC] to decide the relevance of these documents in question. I do not accept the applicant’s submissions on this issue. I acknowledge that QPS initially decided that the two pages responded to the access application. However, on external review section 105 of the RTI Act empowers OIC to consider whether documents are within the scope of an access application, regardless of whether the agency decided that the documents were within scope or whether the issue was raised by the applicant on external review. The applicant also submitted that:[3] In [OIC’s] determination of whether the information contained in the documents was relevant to my request I would argue that there could not be a document with out a complaint from the number to 000 or there would not have been a charge laid. A transcript or any information related to the 000 call... must have been logged somewhere or again the event did not happen and no charges would have been laid. In the access application the applicant did not request access to, nor do I have any evidence before me that QPS agreed to expand the scope of the applicant’s application to all documents referencing or referring to the identified 000 call. An agency is only required to conduct searches which respond to the terms of the access application and it is not possible for an applicant to unilaterally expand the scope of the access application.[4] I am therefore satisfied that the scope of the access application is limited to the ‘transcript’, ‘audio file’ and ‘log of call’ of the identified 000 call made on 21 May 2007. The two pages located by QPS do not fit this description so cannot be considered in this review. I have considered whether QPS is entitled to refuse access to the ‘transcript’, ‘audio file’ and ‘log of call’ on the basis that they are nonexistent or unlocatable below. Is there a reasonable basis to be satisfied that no additional documents responding to the access application exist? Yes, for the reasons that follow. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[5] However, this right is subject to other provisions of the RTI Act including the grounds on which an agency may refuse access to documents.[6] Relevantly, the RTI Act provides that access may be refused to documents that are nonexistent or unlocatable.[7] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[8] A document is unlocatable if it has been, or should be, in the agency’s possession and all reasonable steps have been taken to find the document but it cannot be found.[9] The RTI Act is silent on how an agency or Minister can be satisfied that a document does not exist. However in PDE and the University of Queensland[10] (PDE), the Information Commissioner explained that, to be satisfied that a document does not exist, an agency must rely on its particular knowledge and experience, having regard to various key factors including: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including: the nature and age of the requested document/s; and the nature of the government activity the request relates to. When these factors are properly considered and a conclusion reached that the document does not exist, it may be unnecessary for searches to be conducted. Alternatively, an agency may rely on searches to justify a decision that the document sought does not exist. If an agency relies on searches, all reasonable steps must be taken to locate the requested document. In determining whether all reasonable steps have been taken, regard should be had to the factors listed in PDE. Findings The applicant requested access to the ‘transcript’, ‘audio file’ and ‘log of call’ of an identified 000 call made on 21 May 2007. As discussed above, QPS located two pages which I have decided are not in scope. QPS did not locate any other documents, in particular, QPS did not locate a transcript or audio recording of the identified 000 call (Audio Recording). During the processing of the access application, QPS searched the following areas: Maryborough Station Maryborough District Radio Electronics Section; and Maryborough District Information Management System. As well as conducting the searches set out at paragraph 20, QPS made the following submissi[11]s to OIC:11 QPS keeps an audio log of 000 calls and there was an audio recording of the 000 call the applicant was seeking. Although QPS keeps an audio log of 000 calls, it is not standard practice to keep a separate written log of these calls. QPS’ Retention and Disposal Schedule provides that voice logging tapes of telephone calls must be retained for six months. Following this six month period the tapes can be destroyed by re-using the tape. This does not apply if the tape is required for use in yet to be finalised court proceedings or appeal processes. Inquiries with the Officer in Charge, Radio and Electronics Section, Maryborough District, reveal that the 000 calls for the relevant time period would no longer be held because the timeframe had expired, making the Audio Recording, and any details about it, unavailable. Searches of the Maryborough Station RACAL Audio Tap Log Book confirm that the audio tape holding the Audio Recording was re-used in January 2009. QPS have no record of any request from an investigating officer for a copy of the Audio Recording to be made. If a copy of the Audio Recording was made, the investigating officer or prosecutor would have been required to retain the copy until the 28 day appeal period had elapsed following the hearing of the applicant’s matter. After the 28 day appeal period had elapsed, all arresting officers have an obligation to dispose of all exhibits. Therefore, if a copy of the Audio Recording was made, it is likely that it would have been disposed of once the 28 day appeal period had elapsed. It is not standard practice to transcribe 000 calls; 000 calls are only transcribed if a specific request is made to the Maryborough District Radio Electronics Section. QPS have no record of any request for the Audio Recording to be transcribed. In addition, we have carefully reviewed the Transcript of Proceedings of the applicant’s related matter held at Maryborough Magistrates Court and there is no reference to any transcript of the Audio Recording being made or the Audio Recording being played in, or admitted as evidence to, the Court. Based on the above information, I am satisfied that QPS has taken all reasonable steps to locate the requested documents, having regards to its searches and its record-keeping practices and procedures and therefore QPS is entitled to refuse access to: the Audio Recording because it is unlocatable; and the remaining documents sought because they are nonexistent. DECISION For the reasons set out above, I vary the decision under review and find that access may be refused on the basis that the two pages located by QPS are not within the scope of the access application and QPS is entitled to refuse access to the documents requested on the basis that they are nonexistent or unlocatable. I have made this decision as a delegate of the Acting Information Commissioner, under section 145 of the RTI Act. ________________________ Lisa Meagher Acting Assistant Information Commissioner Date: 16 May 2013 APPENDIX Significant procedural steps Date Event 26 September 2012 QPS received the access application. 12 October 2012 QPS made its decision under the RTI Act. 1 November 2012 OIC received the application for external review. 9 November 2012 OIC notified QPS and the applicant that the external review application had been accepted. OIC also asked QPS to provide copies of the documents to which access was refused and the evidence QPS relied on to reach its decision regarding a serious act of harassment or intimidation. 3 December 2012 OIC received the requested information and documents. OIC asked QPS to provide submissions detailing the nature and extent of its searches for documents relating to the access application. 20 December 2012 OIC received QPS’ partial submissions. 16 January 2013 OIC received QPS’ remaining submissions. 21 January 2013 OIC asked QPS to provide further information. 24 January 2013 OIC received the requested information. 8 March 2013 OIC asked QPS to provide further information. 18 March 2013 OIC received the requested information. 20 March 2013 OIC conveyed a view to the applicant about the sufficiency of search and scoping issues in this review and invited the applicant to provide submissions supporting his case by 5 April 2013 if he did not accept OIC’s view. 4 April 2013 OIC received the applicant’s submissions in response to OIC’s view. 1 May 2013 OIC conveyed a further view to the applicant confirming and clarifying our view. 2 May 2013 OIC received the applicant’s submissions in response to OIC’s further view. [1] In accordance sections 47(3)(a) and schedule 3, section 10(1)(d) of the RTI Act.[2] By email dated 2 May 2013.[3] By email dated 4 April 2013.[4] See for example Bade and Gympie Regional Council (Unreported, Queensland Information Commissioner, 14 February 2012) at paragraph 15 and Fennelly and Redland City Council (Unreported, Queensland Information Commissioner, 21 August 2012) at paragraph 11.[5] Section 23 of the RTI Act.[6] As set out in section 47 of the RTI Act.[7] Sections 47(3)(e) and 52 of the RTI Act.[8] Section 52(1)(a) of the RTI Act.[9] Section 52(1)(b) of the RTI Act.[10] (Unreported, Queensland Information Commissioner, 19 February 2009) at paragraph 28. Although PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are replicated in section 52 of the RTI Act. [11] By letters dated 28 November 2012, 18 December 2012 and 11 January 2013 and by phone conversation on 18 March 2013.

queensland

court_judgement

Queensland Information Commissioner 1993-

Nash and Queensland Police Service [2012] QICmr 45 (18 September 2012)

Nash and Queensland Police Service [2012] QICmr 45 (18 September 2012) Last Updated: 28 May 2013 Decision and Reasons for Decision Application Number: 310929 Applicant: Nash Respondent: Queensland Police Service Decision Date: 18 September 2012 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NONEXISTENT DOCUMENTS - whether there are reasonable grounds for agency to be satisfied that further documents do not exist - whether access to documents can be refused under section 47(3)(e) of the Right to Information Act 2009 (Qld) on the ground set out in section 52(1)(a) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NONEXISTENT DOCUMENTS - whether agency has taken all reasonable steps to find the document but the document can not be found - whether access to documents can be refused under section 47(3)(e) of the Right to Information Act 2009 (Qld) on the ground set out in section 52(1)(b) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - application for access to various police documents relating to applicant - access refused to personal information of other individuals - whether information is routine personal work information of public servants - whether public interest in applicant obtaining personal information of witnesses and complainants involved in police investigations - whether access to information may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) on the basis that disclosure would, on balance, be contrary to the public interest REASONS FOR DECISION Summary On 24 October 2011 the applicant and her son made a joint access application to the Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for access to 17 categories of documents.[1] The documents sought by the applicant relate to a number of incidents during which she and her son were arrested or subsequently investigated and, according to the applicant, assaulted by QPS.[2] The applicant states that she has a particular interest in obtaining access to video footage of these incidents, which she believes is held by QPS and is being withheld.[3] The applicant and her son also sought access to their ‘police files’. QPS conducted searches, located 113 documents (112 pages and one compact disc containing audio recordings) and made a decision on access to these documents on 18 January 2012. QPS refused access to 33 documents in their entirety and 23 documents in part. The remainder of documents were released in full, subject to the deletion of some irrelevant information relating to other QPS matters under section 73(2) of the RTI Act. QPS refused access to several[4] of the categories of documents requested by the applicant under section 47(3)(e) of the RTI Act, on the basis that documents responsive to those categories were nonexistent. The applicant sought external review of this decision on 30 January 2012. OIC sought submissions from QPS on the searches it conducted and its reasons for deciding that no further documents were existent or locatable. OIC conveyed a preliminary view to the applicant that QPS’s searches were sufficient, and provided her with copies of QPS’s submissions.[5] The applicant was invited to make submissions, but chose not to. It is the decision of this Office that QPS’s searches were sufficient. QPS is entitled to refuse access to documents responsive to categories 1, 3, 4, 5, 6, 7, 9, 12, 13, 14 and 15, on the basis that they do not exist for the reasons stated at paragraphs [17]-[58] below. OIC reviewed the documents that QPS decided not to disclose, and conveyed a preliminary view to QPS that information that merely disclosed the identity of public officials should not be withheld, on the basis that it is not ‘routine personal work information’. QPS agreed to release some additional information within 9 documents. That information is no longer in issue. OIC conveyed a preliminary view on the remaining information in issue to the applicant and invited her to provide submissions,[6] but she chose not to. It is the decision of this Office that QPS is entitled to refuse access to the remaining information in issue, on the basis that disclosure would be contrary to the public interest, for the reasons stated at paragraphs [59]-[76] below. Background Significant procedural steps relating to the application are set out in Appendix B. Reviewable decision The decision under review is QPS’s decision of 18 January 2012. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and appendices). Refusal of access to nonexistent documents Relevant law The RTI Act provides that access to a document may be refused if the document is nonexistent or unlocatable.[7] A document is nonexistent if there are reasonable grounds for the agency or Minister dealing with the access application to be satisfied that the document does not exist.[8] The RTI Act is silent on how an agency or Minister can be satisfied that a document does not exist. In PDE and the University of Queensland[9] (PDE), the Information Commissioner explained that, to be satisfied that a document does not exist, an agency must rely on its particular knowledge and experience, having regard to various key factors including: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including: ○ the nature and age of the requested document/s; and ○ the nature of the government activity the request relates to. When these factors are properly considered and the decision maker is satisfied on reasonable grounds that the document does not exist, then it is unnecessary for searches to be conducted. Alternatively, the decision maker may rely on searches to justify a decision that the document sought does not exist. If an agency relies on searches, all reasonable steps must be taken to locate the requested document. In determining whether all reasonable steps have been taken, regard should be had to the factors listed in PDE. Is QPS entitled to refuse access on the basis that documents are nonexistent? QPS refused access to document categories 1, 3, 4, 5, 6, 7, 9, 12, 13, 14 and 15 (as numbered in the applicant’s access application) under section 47(3)(e) of the RTI Act, on the basis that documents responsive to those categories were nonexistent. QPS provided submissions on 12 March 2012 that detailed its search for documents. Following further enquiries from OIC, QPS provided further submissions on 15 May 2012. On 26 June 2012 the applicant was provided with access to QPS’s submissions on the nonexistence of these categories of documents, and OIC’s preliminary view that QPS’s searches were sufficient. The applicant was invited to provide submissions in response, such as her reasons for believing that the requested documents are held by QPS or where she believed they might be located, but declined to do so. I address each of the categories of information that QPS refused access to under section 47(3)(e) below. Category 1 The applicant sought access to all CCTV footage held by QPS relating to an incident in which she and her son were arrested in the Queensland Parliamentary precinct on 25 November 2010. In particular, her request referred to ‘footage from inside the police van’, footage ‘showing [her son] being searched and arrested at parliament’, ‘footage from the public gallery, outside public gallery doors, staircase’ and from ‘cameras in the front courtyard during the incident that day’. In relation to the applicant’s request for footage from inside the police van, QPS has provided OIC with a memo submitting that the police vehicle in question is not fitted with CCTV equipment.[10] Although I note that QPS has installed CCTV cameras in some police vehicles,[11] I have no reason to doubt the accuracy of this submission in relation to the particular police vehicle in question. Given that there are no CCTV cameras installed in the police vehicle in question, I am satisfied that there are reasonable grounds to conclude that no footage was captured inside the police van, and that no such footage exists. In relation to the applicant’s request for footage captured at Parliament, QPS provided a memo submitting that QPS ‘has no CCTV equipment at Parliament House.’[12] The three pieces of footage that the applicant was previously provided with, and which she referred to in her access application, were given to QPS by parliamentary services in the course of QPS’s investigations. Even if parliamentary services holds further footage of the incident (and I have no information before me suggesting that it does) QPS is only obliged under the RTI Act to provide access to documents that it holds; not documents in the possession of other agencies. In general, if a person applies to an agency for access to a document that is held by another agency, the agency in receipt of the application can transfer part or all of it to the other agency.[13] However, that option was not open to QPS in this matter, as parliamentary services is not subject to the RTI Act.[14] Because QPS does not have control of any cameras in the parliamentary precinct, and because all footage that it received from parliamentary services has been located and released to the applicant, I am satisfied that there are reasonable grounds to conclude that QPS does not hold any further CCTV footage[15] and that such footage does not exist. Category 3 The applicant requested copies of any arrest warrants relating to her. Information from QPS shows that QPS searched its information system, QPRIME, and conducted physical searches of the Police Information Centre, which QPS states hold hard copy warrants. No warrants were identified. During the course of this external review the applicant was invited to provide information about what type of arrest warrant or warrants QPS held for her in order to assist QPS’s searches. She declined to do so. I am satisfied on the basis of the information before me that QPRIME and the Police Information Centre are the appropriate places for QPS to have searched for information of the type sought by the applicant. In the absence of further information about the warrant the applicant believes is held by QPS, I am satisfied that QPS has taken all reasonable steps to locate any relevant warrants and that no such warrants exist. Category 4 The applicant requested access to video footage and audio recordings of the incident referred to in category 1, above. In relation to video footage, for the reasons outlined in category 1, I am satisfied that no relevant footage exists (except that to which the applicant has already been provided access). In relation to audio recordings, a QPS officer present on the day provided submissions stating ‘no audio or video footage was taken by Queensland Police at Parliament House or during the transport of [the applicant and her son]’.[16] I have no reason to doubt the accuracy of this submission. I am satisfied that the submissions of this officer, in the absence of any information that suggests that audio recordings or video footage should exist, provide reasonable grounds for concluding that no relevant audio or footage exists. Category 5 The applicant sought access to CCTV footage captured by QPS subsequent to her son’s transportation to a police station on 25 November 2010 including any electronic record of interview (EROI) involving the applicant or her son. In relation to the EROI, QPS provided OIC with records from QPRIME that indicated that the applicant’s son had refused to participate in an interview on that day. QPS also conducted a search of its central tapes facility to confirm that no EROI was held. No relevant records were found. I am satisfied on the basis of the information before me that QPRIME and the central tapes facility are the appropriate places for QPS to have searched for this information. I am satisfied that QPS has taken all reasonable steps to locate any EROI that was created on 25 November 2010 involving the applicant or her son, and that no such document exists. In relation to CCTV footage captured at the station, QPS submits that station CCTV footage is periodically taped over unless there is some requirement for it to be retained.[17] QPS provided specific submissions about the period that tape is routinely retained for.[18] Given the significant passage of time between 25 November 2010 and the date on which the applicant made her access application, I accept QPS’s submission that any footage captured would have been taped over.[19] Having regard to QPS’s practices and procedures with respect to the retention of CCTV footage, I am satisfied that there are reasonable grounds to conclude that no relevant footage is held by QPS. Category 6 The applicant sought access to footage of ‘the arrest of [the applicant’s son] and detention of [the applicant] by police at Toowoomba on 13 March 2011’.[20] In relation to the applicant’s request for footage, an EROI was located during the course of this external review and provided to the applicant.[21] QPS provided a statement from the officer who arrested the applicant’s son certifying that no footage (other than the EROI) was captured by QPS during the arrest or detention of the applicant’s son.[22] I am satisfied that the submissions of this officer, in the absence of any information that suggests that video footage should exist, provide reasonable grounds for concluding that no relevant footage exists. I am satisfied that there are reasonable grounds to conclude that no relevant footage, other than that already provided to the applicant, is held by QPS. Category 7 The applicant sought access to footage of her removal from Parliament on 23 April 2009.[23] QPS has submitted that it has no record of any investigations or prosecution following the applicant’s removal.[24] QPS submits that it would obtain footage from Parliament for the purpose of an investigation or prosecution, but that no investigation or prosecution occurred in relation to the incident on 23 April 2009.[25] As noted in relation to category 1, above, QPS does not operate CCTV cameras at Parliament. On this basis, I am satisfied that there are reasonable grounds to conclude that no relevant footage is held by QPS. Category 9 The applicant sought access to ‘CCTV, video and audio footage from Browns Plains police station in relation to the arrest of [the applicant] on 5 March 2011.’[26] The Officer in Charge of Browns Plains Station conducted a search for relevant documents. This search is recorded in a memo provided to OIC by QPS.[27] No documents were located. The Officer in Charge also noted that it is standard procedure for CCTV footage to be periodically taped over.[28] I am satisfied that QPS has taken all reasonable steps to locate any responsive documents. I am satisfied that no such documents exist. Category 12 The applicant sought access to footage of a ‘law and order forum at parliament on 14 September 2011’. The QPS RTI unit has provided OIC with a file note dated 12 December 2011 which sets out a conversation between an officer of the RTI unit and a QPS media officer who attended the forum. The media officer advised that he was the only QPS employee to attend the forum (other than Deputy Commissioner Barnett, who was speaking), and that he did not capture any footage of the forum. There is nothing before me that makes me doubt the accuracy of this information. On the basis of the information of the QPS media officer that no footage was captured by QPS at the forum, and in the absence of any information that suggests that such footage should exist, I am satisfied that there are reasonable grounds to conclude that no relevant footage is held by QPS. Requests for lists of names – categories 6, 7, 9, 13, 14 and 15 The applicant requested lists of individuals present at the various incidents alluded to in her access application (in categories 6, 7, 9, 13, 14 and 15). QPS refused access to each of these categories on the basis that no responsive documents exist. I note that some documents that partially satisfy the applicant’s request for names were located. Category 8 of the applicant’s request sought access to ‘All internal and external emails, memos and correspondence in relation to the incident on 23 April 2009 and 25 November 2010 in parliament and 13 March 2011 at Toowoomba involving [the applicant] and [the applicant’s son].’ Numerous documents were located in response to category 8 that disclose the identity of police officers and some other individuals present at the incidents referred to in the access application. These documents partially satisfy the applicant’s request for lists of names, even if they are not in a form as convenient or comprehensive as she would like QPS to provide. The RTI Act creates an obligation to provide access to documents in existence, not to create documents or to answer questions.[29] Accordingly, QPS is not obliged to compile a list of individuals who were present at the incidents. However, if it held such lists, it would be obliged to disclose them. Although QPS has not provided specific submissions about searches that it conducted for the requested lists, I am satisfied that its other searches were sufficient to locate such lists should they exist. QPS conducted searches in its Security Intelligence Branch,[30] Brisbane City Station,[31] Logan Police District,[32] Palm Beach Police Station,[33] and Browns Plain Police Station.[34] I understand that these are the areas in QPS that have interacted with the applicant and her son in relation to the incidents to which her access application refers. I am satisfied that these are the appropriate locations for QPS to have searched. I am satisfied that QPS has taken all reasonable steps to locate the lists of names requested by the applicant, and is entitled to refuse access to the lists on the basis that they do not exist. QPS decision to refuse access to particular located documents and information I will now consider whether QPS is entitled to refuse access to the documents that it located but did not disclose to the applicant. Information in issue OIC obtained copies of the documents that QPS refused to release. OIC issued a preliminary view to QPS that some of the information should be disclosed. QPS accepted OIC’s preliminary view in relation to some additional information that in its initial decision it had initially claimed would be contrary to the public interest to release[35] and some information that it had initially claimed was irrelevant.[36] That information is no longer in issue in this review. The remaining documents that QPS had located but refused to disclose comprise the information in issue, which can be divided into the following categories: (a) the names, contact details, and some photographs of individuals who participated in police investigations of the applicant and her son, and signatures and dates of birth of various individuals (identifying information)[37] (b) witness statements provided to QPS in the course of its investigations (witness statements);[38] and (c) information concerning police investigations that were unrelated to the applicant or her son (irrelevant information).[39] This information is contained in a variety of documents created and gathered by QPS. The identifying information was deleted by QPS under section 75 of the RTI Act. The witness statements were withheld in full by QPS under section 47(3)(b) and section 49 of the RTI Act. The irrelevant information was deleted by QPS under section 73 of the RTI Act. Is QPS entitled to refuse access to the identifying information and the witness statements? Yes, for the reasons stated below. Relevant law Under the RTI Act, a person has a right to be given access to documents held by an agency.[40] However, this right is subject to limitations including grounds on which access may be refused.[41] One ground for refusing access is where disclosure would, on balance, be contrary to the public interest.[42] The RTI Act lists factors which may be relevant to deciding the balance of the public interest and sets out the following steps to decide where the public interest lies in relation to the disclosure of information:[43] identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure would, on balance, be contrary to the public interest. Irrelevant factors I have considered the irrelevant factors listed in schedule 4, part 1 of the RTI Act, and consider that none arise in this matter. Factors favouring disclosure and nondisclosure The RTI Act provides that a factor in favour of disclosure arises where disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability. I consider that release of the information in issue would to a small degree promote open discussion and enhance the accountability of QPS. For example, disclosure of the information in issue would reveal to the applicant which witnesses QPS obtained information from, which would go to the question of whether or not QPS conducted an appropriate investigation. The applicant made submissions alleging that her son had been ‘tortured’ by QPS officers, and that QPS is ‘conspiring’ to cover up an abuse of power. Having carefully considered the information in issue, I am satisfied that there is nothing within the information that supports these allegations. If there were, then factors favouring disclosure regarding the proper conduct of public administration[44] and the disclosure of negligent, improper or unlawful conduct[45] might arise. However, because the information in issue does not support the applicant’s allegations, I am satisfied that these factors do not arise. Although the information in issue would to a small degree promote open discussion and enhance the accountability of QPS, it does not disclose any inappropriate conduct on the part of QPS. I afford the factors in favour of disclosure only a small weight. On the other hand, the identifying information and witness statements[46] meet the definition of personal information in the Information Privacy Act 2009 (Qld).[47] Therefore, a factor favouring non-disclosure because of public interest harm arises under schedule 4, part 4, item 6 of the RTI Act. I also consider that the release of this information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[48] Disclosing this information would reveal the identity of witnesses and complainants who provided information to QPS during the course of its investigations. While I consider that, in general, individuals who make complaints or provide witness statements to QPS would expect that their statements might be disclosed to the person to whom it relates through appropriate prosecution and investigation processes, they would not have an expectation that it would be disclosed in other circumstances (such as in response to an RTI application). In assessing the weight to attach to these factors weighing against disclosure, I have considered whether this information is the routine personal work information of public servants.[49] Although some of the individuals identified are public servants, their interactions with police in these circumstances are, in my opinion, outside the course of their ordinary duties. Public officials who make a complaint to police or act as police witnesses outside the course of their ordinary duties have the same legitimate privacy interest in their identity being protected as any ordinary citizen. In contrast, if a public servant produced a witness statement as part of their core duties (this would often be the case, for example, for police officers) the fact that they produced such a statement would be routine personal work information to which only a minimal privacy interest would attach. Because of the legitimate privacy interest that complainants and witnesses have in having their identity protected by QPS, I attach a moderate weight to these factors favouring nondisclosure. Balancing the relevant factors I consider that the factors weighing against disclosure of the identifying information outweigh those in favour of disclosure. QPS is therefore entitled to refuse access to the witness statements and the identifying information. Is QPS entitled to refuse access to the irrelevant information? If giving access to a document will disclose information that an agency ‘reasonably considers’ is not relevant to the access application, then the agency may delete that information before releasing the document to the applicant.[50] I have considered the information deleted by QPS on this basis. I consider that this information is irrelevant to the access application as it relates to other police matters that do not involve the applicant, her son, or the incidents alluded to in the access application. This information was therefore correctly deleted under section 73 of the RTI Act. DECISION I vary the decision of QPS and find: access is refused to the categories of documents numbered 1, 3, 4, 5, 6, 7, 9, 12, 13, 14 and 15 in the access application under section 47(3)(e) of the RTI Act access is refused to the identifying information (as described in paragraph 61) under section 47(3)(b) of the RTI Act access is refused to the witness statements (as described in paragraph 61) under section 47(3)(b) of the RTI Act; and access is to be given to documents containing irrelevant information (described at paragraph 60) with the irrelevant information deleted under section 73 of the RTI Act. I have made this decision as a delegate of the Information Commissioner under section 145 of the Right to Information Act 2009 (Qld). ________________________ Assistant Information Commissioner V Corby Date: 18 September 2012APPENDIX A Categories of information requested in the access application For the date range 23 April 2009 to 24 October 2011: 1. CCTV footage from inside the police van showing [the applicant’s son] being searched and arrested at parliament on 25.11.2010, ALL CCTV footage from the public gallery, outside public gallery doors, staircase and footage from ALL the CCTV cameras in the front court yard during the incident that day. We received the following DVDs but require everything: 25-11-10 STAIRS 11 (16.5 MB), 25-11-10 QUT (204 MB), 25-11-10 chamber (34.7 MB) 2. Copies of all arrest warrants against [the applicant’s son] between 17 November 2010 and 29 October 2011. 3. Copies of all arrest warrants against [the applicant] between 17 November 2010 and 29 October 2011. 4. All audio and video recordings involving [the applicant’s son] and [the applicant] taken by Queensland Police on 25.11.2010 at Queensland Parliament and in transit to the police station. 5. All CCTV footage, all video and audio recordings of [the applicant] and [the applicant’s son] from Charlotte Street Police Station on 25 November 2010 including the EROI. 6. DVD copy of the arrest of [the applicant’s son] and detention of [the applicant] by police at Toowoomba on 13 March 2011, including all audio/video and CCTV footage including from inside the unmarked police car taking [the applicant’s son] to the Toowoomba watch house. Including names of all witnesses involved in that operation, including those who helped handcuff and take [the applicant’s son] to the unmarked police car. 7. DVD copy of [the applicant] being evicted from parliament on 23 April 2009, including all audio/video and CCTV footage, including the name of police, who ejected her and forced her downstairs and witnesses present. 8. All internal and external emails, memos and correspondence in relation to the incident on 23 April 2009 and 25 November 2010 in parliament and 13 March 2011 at Toowoomba involving [the applicant] and [the applicant’s son]. 9. All CCTV, video and audio footage from Browns Plains police station in relation to the arrest of [the applicant] on 5 March 2011. And names of all police involved in the arrest and pat down search of [the applicant] at the station. 10. All internal and external memos, emails and correspondence in relation to the arrest of [the applicant] at Browns Plains on 5 March 2011. 11. Copies of the special authority forcing [the applicant] and [the applicant’s son] to give a DNA sample. 12. DVD copy of the law and order forum at parliament on 14 September 2011, where [the applicant’s son] addressed Deputy Police Commissioner Ross Barnett. 13. List of all staff and their position present when [the applicant’s son] and [the applicant] were ejected from the public gallery. Including staff, who were present outside the public gallery door, on the internal staircase and later outside in the court yard. 14. Name and position of the man to whom DSC Adam Hankinson is speaking to approx 1- seconds before he begins searching [the applicant’s son] and arresting him for no reason near the park bench, front court yard of parliament on 25.11.2010. 15. Names of staff, who helped in the pat down search of [the applicant’s son], who handcuffed him, took him to the rear of the police van and locked him in the police cage. Names of staff who held down [the applicant] at that time on 25.11.2010. 16. Copy of [the applicant’s son]’s police file. 17. Copy of [the applicant]’s police file. APPENDIX B Significant procedural steps Date Event 24 October 2011 The applicant made an access application under the RTI Act to QPS for the documents listed in Appendix A. 18 January 2012 QPS issued their access decision granting access to the majority of documents located, but refusing access to some documents on the basis that their disclosure would be contrary to the public interest. Access to categories of documents for which nothing was located were refused on the basis that the documents were nonexistent or unlocatable. 30 January 2012 The applicant applied to OIC for external review of QPS’s decision. 2 February 2012 The applicant provided verbal submissions to OIC. 15 February 2012 QPS provided copies of the documents in issue to OIC. 5 March 2012 Following a large amount of correspondence from the applicant, OIC wrote to the applicant directing her under section 95(2) of the RTI Act not to send any correspondence to OIC unless requested to do so. 12 March 2012 QPS wrote to OIC providing submissions on the sufficiency of search issues in the review. 16 April 2012 OIC wrote to QPS requesting further submissions. 15 May 2012 QPS wrote to OIC providing further submissions on sufficiency of search issues in the review. 5 June 2012 QPS wrote to OIC providing further submissions on sufficiency of search issues in the review. 26 June 2012 OIC wrote to the applicant conveying a preliminary view on the issues in the review. 5 July 2012 The applicant stated that she did not accept the preliminary view. 24 July 2012 OIC wrote to QPS conveying a preliminary view on the issues in the review. 6 August 2012 QPS indicated to OIC that it accepted the preliminary view in part, and disagreed with it in part. 23 August 2012 QPS made further submissions to OIC. 27 August 2012 OIC conveyed a revised preliminary view to the applicant. 28 August 2012 The applicant stated that she did not accept the revised preliminary view. [1] The list of documents requested is reproduced at Appendix A.[2] Telephone submission to OIC on 2 February 2012.[3] Telephone submission to OIC on 2 February 2012.[4] Numbered 1, 3, 4, 5, 6, 7, 9, 12, 13, 14 and 15 in the access application.[5] By letter dated 26 June 2012.[6] By letter dated 27 August 2012.[7] Sections 47(3)(e) and 52 of the RTI Act.[8] Section 52(1)(a) of the RTI Act.[9] (Unreported, Queensland Information Commissioner, 9 February 2009). Although PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are replicated in section 52 of the RTI Act. [10] Memo from Detective Superintendent, State Security Operations Group dated 7 March 2012. [11] QPS, QPS launches In-Car Camera trial (Media release, 13 November 2009), available online at http://www.police.qld.gov.au/News+and+Alerts/Media+Releases/2009/11/QPS+launches+In-Car+Camera+trial.htm.[12] Memo from Officer in Charge, Brisbane City Station dated 27 February 2012.[13] Section 38 of the RTI Act.[14] As it is an entity listed in schedule 2, part 1 of the RTI Act.[15] Other than the three videos, identified in her access application, that were provided to her previously.[16] Memo from Detective Superintendent, State Security Operations Group dated 7 March 2012.[17] Memo from Officer in Charge, Brisbane City Station dated 27 February 2012.[18] Memo from Officer in Charge, Brisbane City Station dated 27 February 2012.[19] Memo from Officer in Charge, Brisbane City Station dated 27 February 2012.[20] This category also included a request for a list of names. That part of this category is discussed separately below.[21] The applicant’s son had already been provided with a copy of this EROI previously outside the RTI Act.[22] Memo from Detective Senior Constable, Security Intelligence Branch dated 5 March 2012; Memo from Detective Superintendent, State Security Operations Group dated 7 March 2012.[23] This category also included a request for a list of names. That part of this category is discussed separately below.[24] Letter from Superintendent, Right to Information and Privacy Unit, dated 15 May 2012.[25] Letter from Superintendent, Right to Information and Privacy Unit, dated 15 May 2012.[26] This category also included a request for a list of names. That part of this category is discussed separately below.[27] Memo from Officer in Charge, Browns Plains Station, dated 2 March 2012.[28] Memo from Officer in Charge, Browns Plains Station, dated 2 March 2012.[29] Pearce and Legal Services Commissioner; Various Landholders (Third Parties) (1999) 5 QAR 242 [6]-[9] and McLean and Central Queensland University (Unreported, 18 March 2009, Queensland Information Commissioner) [51]-[59]. Although these decisions relate to the Freedom of Information Act 1992 (Qld), the relevant statutory framework is equivalent to that in the RTI Act: sections 28 and 30 of the FOI Act correspond with sections 52 and 60 of the RTI Act respectively.[30] Memo from Detective Senior Constable, Security Intelligence Branch, enclosing document search declaration, dated 14 December 2011.[31] Memo from Assistant Commissioner, Metropolitan North Region, dated 23 December 2011.[32] Memo from District Officer, Logan District, dated 3 January 2012.[33] Memo from Officer in Charge, Palm Beach Division, dated 29 December 2011.[34] Memo from Officer in Charge, Browns Plains Station, dated 2 March 2012.[35] Parts of pages 3, 4, 7, 8, 12, 13, 76,100 and 103.[36] Parts of pages 111 and 112.[37] Pages 3, 4, 8, 12, 13, 76, 79-81, 83-84, 100, 101 and 103-110.[38] Pages 14-31 and 85-99. The witness statements that QPS refused access to were statements of third parties. QPS disclosed all witness statements made by police officers in full (except for signatures and date of birth, which were deleted).[39] Pages 59, 61, 63-65, 111 and 112.[40] Section 23 of the RTI Act.[41] As set out in section 47 of the RTI Act.[42] Sections 47(3)(b) and 49 of the RTI Act[43] In section 49(3) of the RTI Act.[44] Schedule 4, part 2, item 5 of the RTI Act.[45] Schedule 4, part 2, item 6 of the RTI Act.[46] Identified at [61] above.[47] Being ‘information or an opinion ... about an individual whose identity is apparent, or can reasonably ascertained, from the information in question’ – section 12 of the Information Privacy Act 2009 (Qld).[48] Schedule 4, part 3, item 3.[49] Such information is ‘information that is solely and wholly related to the routine day to day work duties and responsibilities of a public sector employee’. The public interest harm which would be caused by the disclosure of routine personal work information of a public servant would usually be minimal or none. For further information, see the OIC Guideline: Routine personal work information of public sector employees, available at http://www.oic.qld.gov.au/information-and-resources/guidelines-ip/routine-personal-work-information-public-sector-employees.[50] Section 73 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

TerraCom Limited and Department of Natural Resources, Mines and Energy; Lock the Gate Alliance Limited [2018] QICmr 31 (2 July 2018)

TerraCom Limited and Department of Natural Resources, Mines and Energy; Lock the Gate Alliance Limited [2018] QICmr 31 (2 July 2018) Last Updated: 27 August 2018 Decision and Reasons for Decision Citation: TerraCom Limited and Department of Natural Resources, Mines and Energy; Lock the Gate Alliance Limited [2018] QICmr [31] (2 July 2018) Application Number: 313446 Applicant: TerraCom Limited Respondent: Department of Natural Resources, Mines and Energy Third Party Lock the Gate Alliance Limited Decision Date: 2 July 2018 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - DISCLOSURE PROHIBITED BY AN ACT - documents considered in making a decision to grant indicative approval for the transfer of a mining lease - whether disclosure prohibited by an Act - sections 47(3)(a) and 48 and schedule 3, section 12 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - BREACH OF CONFIDENCE - documents considered in making a decision to grant indicative approval for the transfer of a mining lease - whether disclosure would found an action for breach of confidence - sections 47(3)(a) and 48 and schedule 3, section 8(1) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - documents considered in making a decision to grant indicative approval for the transfer of a mining lease - accountability, transparency and informed public debate on important issues - impact of disclosure on business affairs, deliberative process and future supply of information - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The access applicant (the third party in this external review) applied to the Department of Natural Resources and Mines (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a range of documents relating to a decision to grant indicative approval for the transfer of the mining lease for the Blair Athol coal mine to the applicant’s subsidiary, Orion Mining Pty Ltd (Orion). During the Department’s processing of the application, the third party agreed[1] to narrow the scope of the application to: The Final Briefing Package relating to the decision to grant indicative approval for the transfer of the mining lease for the Blair Athol coal mine from Rio Tinto to TerraCom subsidiary Orion Mining Pty Ltd. The Department located 209 pages of responsive information. The Department consulted with the applicant under section 37 of the RTI Act in respect of the proposed release of 204 pages (documents in issue), seeking the applicant’s views as to possible disclosure of that information to the third party. The applicant objected to the disclosure of the documents in issue. Notwithstanding the applicant’s objections, the Department decided[2] to grant the third party access to the documents in issue,[3] subject to the deletion of signatures and mobile telephone numbers appearing in six pages. The applicant sought internal review of that decision and, on internal review, the Department affirmed the original decision. The applicant then applied to the Information Commissioner for external review of the Department’s decision. Initially, the applicant indicated that its disclosure objections only related to ‘confidential components’ of the documents in issue. In an attempt to informally resolve aspects of the review,[4] the Office of the Information Commissioner (OIC) sought the applicant’s confirmation of what it understood to be the parts of the documents which should not be disclosed. However, the applicant did not provide that requested confirmation and, in its subsequent submissions to OIC, the applicant confirmed that its disclosure objections related to all information in the documents in issue. During the course of the review, the third party was joined as a participant in the review.[5] For the reasons set out below, I affirm the Department’s decision and find that there is no basis under the RTI Act to refuse access to the information in issue in this review. Background The resource authority issued for the Blair Athol mine is ML1804 (Mining Lease), which commenced on 1 December 1978 and has an expiry date of 30 November 2024. In September 2016, an application was made to the Minister under the Mineral Resources Act 1989 (Qld) (MR Act) seeking indicative approval for an assessable transfer of the Mining Lease to Orion (IA Application).[6] In deciding whether or not to give indicative approval under the MR Act, the Minister was required[7] to consider: the IA Application and any additional information accompanying the application whether the transferee had the human, technical and financial resources to comply with the conditions of the Mining Lease; and the public interest. In an ASX Announcement dated 3 February 2017, the applicant stated it had received advice that the Department was minded to grant indicative approval for the Mining Lease transfer and attached a copy of a referenced letter from the Department dated 1 February 2017. On 20 February 2017, the Minister (by its delegate) granted indicative approval for the transfer of the Mining Lease to Orion, subject to certain conditions. The applicant’s ASX Announcement dated 20 February 2017 attached a copy of that indicative transfer approval. In ASX Announcements dated 1 and 2 May 2017, the applicant stated that Orion had satisfied the conditions of the indicative transfer approval. Transfer of the Mining Lease to Orion occurred on 12 May 2017 and the applicant’s ASX Announcement, dated 16 May 2017, confirmed that the Mining Lease transfer to Orion had been completed. The applicant’s subsequent ASX Announcements confirm that Orion has undertaken coal production and rehabilitation activities on the Mining Lease. Significant procedural steps relating to the external review are set out in the Appendix. Reviewable decision The decision under review is the Department’s internal review decision dated 14 July 2017. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and the Appendix). Information in issue On external review: the third party confirmed that they did not seek access to signatures; and the applicant accepted OIC’s view that there was no basis under the RTI Act to refuse access to 20 pages of the documents in issue,[8] and these pages were disclosed to the third party. The information remaining for consideration in this review (information in issue) comprises information, other than signatures and mobile telephone numbers, in 184 pages. That information generally falls into two broad categories: documents created by agencies in connection with the Department’s consideration of the IA Application—being a tenure assessment,[9] a Queensland Treasury Corporation (QTC) assessment report and two QTC memoranda,[10] an email between the applicant and officers of the Department of Environment and Heritage Protection[11] and a Department letter addressed to Orion requesting further information[12] (Category One Documents); and documents submitted to the Department by the applicant to support the IA Application—being a draft plan of operations,[13] a development plan,[14] a map titled ‘Blair Athol Mine Waterway Diversions 05/12/2013’,[15] the applicant’s correspondence to the Department[16] and an equity support deed[17] (Category Two Documents). Issues for determination In this review, the Department determined that the information in issue should be disclosed. As the decision under review is a disclosure decision,[18] the applicant bears the onus of establishing that a decision not to disclose the information in issue is justified or that the Information Commissioner should give a decision adverse to the third party (as access applicant).[19] The applicant provided a number of submissions to OIC to support the nondisclosure of the information in issue,[20] which I have carefully considered. In summary, the applicant considers that recent Supreme Court decisions support its disclosure objections and disclosure of the information in issue would, on balance, be contrary to the public interest. While the applicant confirmed to OIC that its disclosure objections relate to all the information in issue, it has referred to confidential material and sensitive internal information[21] that was provided to the Department on a commercial in confidence basis[22] and on the ‘premise that the information being provided was to be kept confidential’.[23] For this reason, although not specifically argued by the applicant, I have also considered whether the information in issue is exempt information, on the basis that its disclosure would found an action for breach of confidence. Therefore, the issues to be determined are whether: recent Supreme Court decisions support nondisclosure of the information in issue under the RTI Act the information in issue is exempt information; and disclosure of the information in issue would, on balance, be contrary to the public interest. Before considering these issues, it is necessary to deal with the following preliminary matters. As noted in paragraph 2 above, the applicant was consulted under section 37 of the RTI Act about the disclosure of the documents in issue. That section provides that an agency may give access to a document that contains information the disclosure of which may reasonably be expected to be of concern to a government, agency or person—the relevant third party—only if the agency has taken the steps that are reasonably practicable to obtain the views of the relevant third party about whether: the document is a document to which the RTI Act does not apply; or the information is exempt information or contrary to the public interest information. The grounds of objection which the applicant, as a consulted party, may raise under section 37 of the RTI Act are therefore limited. The applicant submitted[24] that certain parts of the information in issue[25] ‘should not be contemplated when considering whether to grant an indicative approval for a mining lease’. To the extent this submission argues that parts of the information in issue fall outside the scope of the access application, I cannot take it into account as it does not address either of the dot points set out in paragraph 26 above. However, for the sake of clarity and having carefully considered the terms of the access application and the information in issue, I am satisfied that all of the information in issue does fall within the scope of the access application in any event. As noted in paragraph 19 above, the Category One Documents include a QTC report and memoranda. QTC is the Queensland Government’s central financing authority and corporate treasury service provider. It was established under the Queensland Treasury Corporation Act 1988 (Qld) (QTC Act) as a ‘corporation sole’, that consists solely of a nominated office holder, being the Under Treasurer of Queensland.[26] QTC has responsibility for sourcing and managing debt funding to finance Queensland’s borrowing requirements in the most cost-effective manner and providing financial and risk management advice and services to the Queensland Government and Queensland public sector bodies.[27] Under the RTI Act: a person has a right to be given access to the documents of an agency, however, an agency does not include entities to which the Act does not apply[28] ‘an entity to which this Act does not apply’ is defined as the entities listed in schedule 2, part 1 and the entities mentioned in schedule 2, part 2 in relation to the function mentioned in that part;[29] and QTC is an entity to which the RTI Act does not apply in relation to QTC’s borrowing, liability and asset management related functions.[30] To inform itself about whether the applicant had the necessary financial resources to meet the Mining Lease conditions, the Department engaged QTC to provide a financial assessment. I am satisfied that the QTC report and memoranda in the Category One Documents relate to QTC’s financial risk management advisory function and are not documents relating to QTC’s borrowing, liability and asset management functions. Accordingly, schedule 2, part 2, item 9 does not operate to exclude the QTC report and memoranda from the operation of the RTI Act. The front page of the QTC report in the Category One Documents contains a footnote, which relevantly states ‘Copyright: This paper is Copyright© the State of Queensland (Queensland Treasury Corporation), all rights reserved under Australian laws’. If giving access in the form requested by an applicant would involve an infringement of the copyright of a person other than the State, section 68(4) of the RTI Act allows an agency to refuse access in the requested form and give access in another form (such as by inspection). In this regard, I note that the Department decided to give access by inspection to 18 pages of the information in issue which it considered were subject to copyright. Section 7 of the QTC Act provides that QTC represents the Crown and, subject to the QTC Act, has and may exercise and claim all the powers, privileges, rights and remedies of the Crown. Taking this and the structure of QTC into consideration, I am satisfied that the provisions of section 68(4) of the RTI Act do not apply to the QTC report in the Category One Documents and there is no basis to refuse access to the QTC report in the form requested by the applicant, that is, a copy of the document. In summary, on these preliminary issues, I find that: I am unable to take into account the applicant’s submissions to the extent they argue that parts of the information in issue fall outside the scope of the access application, however, I am satisfied that all of the information in issue does fall within the scope of the application in any event; and there is no basis under the RTI Act to refuse access to the QTC report in the form requested by the applicant. I will now address each of the issues for determination in turn. Effect of Supreme Court decisions The applicant has referred to the following Supreme Court decisions (Court Decisions) in support of its disclosure objections: Lock the Gate Alliance Ltd v The Minister for Natural Resources and Mines [2018] QSC 21; and Lock the Gate Alliance Ltd v Chief Executive under the Environmental Protection Act 1994 [2018] QSC 22. The applicant submitted[31] that: the outcomes of these Court Decisions have created ‘case law precedence [sic] for withholding information pertaining to both the indicative approval and mining operations activities’; and ‘The applications made by [the third party] were made under a relevant Act and a Judge dismissed both cases. Pursuant to Schedule 4, Part 3, item 22, disclosure of information can be withheld if prohibited by an Act. A conclusion can be drawn that all information being requested under this external review should be withheld as a judge dismissing both cases under relevant Acts has the capability to be deemed prohibited by an Act through the Judge’s interpretation of the facts and circumstances presented to them’. I understand the applicant’s submissions detailed above to have threefold meaning. Firstly, that the Information Commissioner, applying the doctrine of precedent, is required to determine that access to the information in issue should be refused. Secondly, the Court Decisions have the effect of expanding the definition of exempt information in schedule 3, section 12 of the RTI Act—I will take this aspect of the applicant’s submissions into account in considering whether the information in issue is exempt information. Thirdly, the Court Decisions should be taken into account when considering the factor favouring nondisclosure in schedule 4, part 3, item 22 of the RTI Act—I will consider this aspect of the applicant’s submissions in my consideration of whether disclosure of the information in issue would, on balance, be contrary to the public interest. Findings - Legal precedent Under the doctrine of precedent, a lower court is bound to follow decisions that have been made by higher courts on similar facts and issues. This ensures that cases of a similar nature (for example, with similar facts or similar questions of law) are decided using the same principles as previous similar cases. As a decision-maker, the Information Commissioner applies the doctrine of precedent. The issue to be determined in this external review is whether there is a basis under the RTI Act to refuse access to the information in issue, which comprises information in a final briefing package relating to the Department’s decision to grant indicative transfer approval for the Mining Lease. The Court Decisions concern the third party’s applications, under section 38 of the Judicial Review Act 1991 (Qld) (JR Act), for orders that the respondents in the Court Decisions provide the third party with statements of reasons in relation to: the decision made under the MR Act to grant indicative approval for transfer of the Mining Lease; and a decision made under the Environmental Protection Act 1994 (Qld) (EP Act) concerning the amount and form of financial assurance required under a condition of the environmental authority for the Blair Athol mine. Under the JR Act: a person who is aggrieved by a decision to which the JR Act applies may request a written statement in relation to the decision;[32] and where the written statement is not provided within 28 days, the person may apply to the court for an order under section 38 of the JR Act. Section 7 of the JR Act defines who will be a ‘person aggrieved by a decision’. In the Court Decisions, Justice Bowskill determined that the third party was not a person aggrieved by a decision and, therefore, the third party was not entitled, under the JR Act, to request the statements of reasons sought in those proceedings. The Court Decisions therefore involved questions of standing, under the JR Act, in judicial review proceedings concerning statements of reasons requested under section 32 of the JR Act. In contrast, matters before the Information Commissioner on external review concern the jurisdiction of the RTI Act and the Information Privacy Act 2009 (Qld) (IP Act)—legislation designed to facilitate open and transparent government through access to information. A person’s standing and right to access documents of an agency is established in the RTI Act[33] and IP Act and an agency should decide to give access to information unless giving access would, on balance, be contrary to the public interest.[34] This right of access is distinct from the right to seek the statements of reasons considered in the Court Decisions. The question of standing is not an issue in the matter before me—the third party has satisfied the requirements of the RTI Act to seek access to the information in issue. I have carefully reviewed the Court Decisions and I am satisfied that the facts and issues being considered in this external review are different to the facts and issues that were considered by Justice Bowskill in the Court Decisions. Accordingly, I consider that the reasoning in the Court Decisions is not binding authority for either a refusal of access to the information in issue under the RTI Act, or refusal to deal with the access application under the RTI Act. Exempt information Relevant law As noted in paragraphs 31 and 47 above, a person has a right under the RTI Act to be given access to documents of an agency. There are some limitations on the right of access, including grounds for refusal of access.[35] It is Parliament’s intention that these grounds are to be interpreted narrowly.[36] One such ground for refusal of access is where documents include exempt information.[37] Relevantly in this review, information will qualify as exempt information[38] if its disclosure: is prohibited by one of the legislative provisions listed in schedule 3, section 12 of the RTI Act; and would found an action for breach of confidence (Breach of Confidence Exemption).[39] Findings - Prohibited by an Act The Court Decisions dismissed the third party’s applications under the JR Act for orders that statements of reasons be provided to the third party. In those decisions, Justice Bowskill did not consider or address schedule 3, section 12 of the RTI Act (or any other provision of the RTI Act). The applicant submitted[40] that: the JR Act is a ‘relevant Act’; and the dismissal of the applications under a relevant Act deems disclosure of the information in issue to be prohibited by an Act. The Court Decisions did not prohibit the disclosure of information to the third party under the JR Act or the RTI Act. Instead, they determined that the third party was not a person entitled under the JR Act to request the statements of reasons sought in the applications. No provision of the JR Act is listed in schedule 3, section 12 of the RTI Act or prohibits the disclosure of information.[41] Taking these matters, and the requirement to narrowly interpret the grounds on which access may be refused under section 47 of the RTI Act,[42] I am satisfied that the Court Decisions have not expanded the definition of exempt information in schedule 3, section 12 of the RTI Act. I therefore find that the information in issue is not exempt information under the provisions of schedule 3, section 12 of the RTI Act. Findings - Breach of confidence The Breach of Confidence Exemption requires consideration of whether an equitable obligation of confidence exists. The test for this exemption is to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff, in respect of information in the possession or control of the agency faced with an application under the RTI Act for access to the information in issue.[43] The following cumulative requirements must be established to give rise to an equitable obligation of confidence:[44] (a) the information must be capable of being specifically identifiable as information that is secret, rather than generally available (b) the information must have the necessary quality of confidence (c) the circumstances of the communication must create an equitable obligation of confidence (d) disclosure of the information to the access applicant must constitute an unauthorised use of the confidential information; and (e) disclosure must cause detriment to the confider. If any of the five cumulative elements enumerated above cannot be satisfied, then a claim for exemption based on this provision must fail. In relation to the information in issue, I do not consider that requirement (c) can be satisfied. Requirement (c) - the circumstances of the communication must create an equitable obligation of confidence During the processing of the access application, the applicant argued that all documents it provided in support of the IA Application were submitted ‘commercial in confidence, in a draft form’ and that such information contained confidential material and sensitive internal information about the ongoing business affairs of the applicant’s group of companies. The applicant reiterated those submissions on external review[45] and further submitted that the information it provided in support of the IA Application remains confidential and sensitive ‘beyond the indicative approval process’[46] and it was provided to Government on a confidential basis.[47] I note that these submissions relate to part only of the information in issue (being information the applicant provided to the Department, which primarily comprises the Category Two Documents). The information in issue, on its face, does not identify that it is confidential or that it contains the applicant’s confidential or commercial in confidence information, or that the applicant’s information was being provided to the Department in confidence. It is information, prepared or received by the Department, for the purpose of the Minister deciding whether or not to give indicative transfer approval. As noted in paragraph 10 above, the Minister is required to consider a number of matters under the regulatory framework for the IA Application. There is nothing in the MR Act which imposes any obligation of confidentiality on the Department in relation to information created or obtained by the Department under that regulatory framework. I note that the information in issue records that: the Department specifically requested certain information from the applicant in order to progress consideration of the IA Application;[48] and the Department’s request for information gave no undertaking to receive the requested information in confidence and in fact stated: ‘To ensure that completeness and natural justice is provided to all relevant parties, DNRM requires Orion’s response to these queries within 20 business days of the date of this letter’. I also note that, when providing information to the Department in response to the specific request referred to in paragraph 62 above, the applicant did not seek any undertaking to receive the information in confidence from the Department and did not identify that the information it was providing (or any part of it) was confidential or commercial in confidence or that it was providing information on the basis that it was to be kept confidential by the Department.[49] Other information the applicant provided to the Department to progress the IA Application addressed matters raised in QTC’s assessment report and memoranda, which the Department obtained in order to inform itself about whether the applicant had the necessary financial resources to comply with the Mining Lease conditions. Again, in providing this information to the Department, the applicant did not identify that it was confidential or commercial in confidence or that it was being provided on the basis that it was to be kept confidential by the Department. There is nothing in the material before me, apart from the applicant’s submissions, which would have enlivened any expectation that information the applicant provided in support of the IA Application was being provided on the premise that it would be kept confidential by the Department. In these circumstances, and taking the regulatory framework into account, I am not satisfied that any reasonable person, receiving information on the same basis as the information was received by the Department, would have thought that the information was being provided by the applicant in confidence. Further, I consider that any unilateral expectation by the applicant that the information it provided to the Department would be kept confidential beyond the indicative approval process is not sufficient to establish a reasonable expectation that the information was disclosed in circumstances which created an equitable obligation of confidence. As the applicant has noted,[50] the QTC memoranda, which form part of the Category One Documents, state that QTC’s advice in those documents, as it relates to the applicant, was provided to the Department ‘for its exclusive use and is not for the [sic] distribution to third parties’. The QTC memoranda specifically respond to additional information the applicant provided to the Department which, as noted above, was not identified at the time of its provision as being confidential or commercial in confidence. Accordingly, while I have considered the referenced notation on the QTC memoranda in determining whether requirement (c) is satisfied, I do not consider it is determinative. I also note that under both the original and the internal review decisions, the Department decided to disclose the information in issue to the third party under the RTI Act. I consider that the Department’s willingness to disclose the information lends further support to the view that there was no mutual understanding of confidence between the Department and the applicant, or the Department and QTC, regarding the information created or obtained by the Department under the regulatory framework in respect of the IA Application. Having carefully considered the information in issue, the regulatory framework and the applicant’s submissions, I am not satisfied that the applicant has met the onus of establishing that any part of the information in issue is information which was communicated in circumstances which created an equitable obligation of confidence owed by the Department to the applicant. Accordingly, requirement (c) is not made out, and the information in issue therefore cannot comprise exempt information under schedule 3, section 8 of the RTI Act. Contrary to the public interest information Relevant law Under the RTI Act, access may also be refused to information if its disclosure would, on balance, be contrary to the public interest.[51] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[52] identify factors irrelevant to the public interest and disregard them identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. I have addressed each category of the information in issue below. Findings - Category One Documents Irrelevant Factors The applicant submitted[53] that disclosure of some of the Category One Documents ‘has the potential to cause conflict’ and that some information in the Category One Documents contains ‘misleading comments’. Under the RTI Act, irrelevant factors arise where disclosure of information could reasonably be expected to: cause embarrassment to the Government or cause a loss of confidence in the Government;[54] and result in an access applicant misinterpreting or misunderstanding the document.[55] Accordingly, to the extent these submissions could be interpreted as contending that disclosure of the Category One Documents could cause embarrassment or a loss of confidence or lead to misinterpretation or misunderstanding, I have not taken these, or any other irrelevant factor, into account. Factors favouring disclosure The applicant’s submissions do not focus to any great extent on the factors favouring disclosure, however, the applicant has submitted[56] that ‘The basis of the reasons for disclosure are flawed as there appears to have been more favoured weighting to disclosure of the information without considering the cumulated weighting for the factors contributing to non-disclosure of the information’. As noted in paragraph 69 above, section 49(3) of the RTI Act requires that I consider factors favouring disclosure and nondisclosure in determining whether disclosure would, on balance, be contrary to the public interest. In accordance with those requirements, I set out below my consideration of the factors I have taken into account, and the weighting I attribute to them, in deciding whether it would be contrary to the public interest to release information. Accountability and transparency factors The Government must be accountable to the public for the decisions it makes under the regulatory framework for dealing with applications to transfer mining tenements. The Category One Documents are documents prepared by agencies, which were considered under the regulatory framework in determining whether to grant indicative transfer approval for the Mining Lease. They specifically include: a document titled ‘Tenure assessment for the indicative approval of the transfer of mining Lease 1804’—this document records the Department’s assessment of the IA Application against the requirements of the regulatory framework; and an assessment the Department requested from QTC in order to determine whether the applicant’s group of companies had the financial resources to comply with the conditions of the Mining Lease. Given the significance of mining projects to the Queensland and Australian economy and the local community (which is recognised in the applicant’s ASX Announcements), the following public interest factors in favour of disclosure of the Category One Documents arise for consideration (I have referred elsewhere in this decision to these factors collectively as the accountability and transparency factors): promote open discussion of public affairs and enhance the Government’s accountability[57] contribute to positive and informed debate on important issues or matters of serious interest[58] inform the community of the Government’s operations, including, in particular, the policies, guidelines and codes of conduct followed by Government in its dealings with members of the community;[59] and reveal the reason for a government decision and any background or contextual information that informed the decision.[60] I note that the Queensland Government has recently undertaken a review of Queensland’s financial assurance framework (conducted by QTC).[61] It was noted in the review that: under current arrangements, the State obtains financial assurance from the companies that undertake mining activities to mitigate the financial risk that the State will bear the cost of rehabilitating land disturbed by mining activities; and there are key disadvantages with the current arrangements, which include that it does not protect the State’s financial interest and does not promote good environmental outcomes; and certain initiatives would improve the outcome for the State through reduced exposure and proactive management of the remaining risk. I also note the Queensland Government’s recent invitation for public submissions about its discussion paper entitled ‘Better Mine Rehabilitation for Queensland’, which outlined a proposed new policy for mine rehabilitation in Queensland and sought feedback from the public on the proposed reform measures.[62] In my view the observations within the review of the financial assurance framework and the release of the discussion paper on mine rehabilitation demonstrate that the Government’s handling of such matters are matters of serious interest; that they are matters about which Government considers the public should be well informed; and they are matters about which the Government must be transparent and accountable. The indicative transfer approval, the applicant’s acquisition of the Blair Athol Mine and the recommencement of mining activities on the Mining Lease are matters that have received media attention.[63] I also note that the applicant’s ASX Announcements also address the decision-making process for the indicative transfer approval and the perceived public benefits of the Mining Lease transfer to Orion.[64] In particular, I note the applicant’s ASX Announcement dated 1 May 2017 quotes the following statement made by Orion’s Chairman: “The transfer has been subject to an extensive and exhaustive process of review with numerous State Government agencies confirming that TerraCom has the human, technical and financial capacity to operate Blair Athol. Coupled with $93.1 million in financial assurances, the approval is positive proof that TerraCom has the capacity to successfully rehabilitate and mine Blair Athol.” I consider this further demonstrates that the indicative transfer approval, the conditions of that approval and the decision-making process that led to that approval are matters of serious interest. The applicant submitted[65] that, to the extent the Category One Documents include or reference the information it provided in support of the IA Application, such information included working drafts, which were ‘at a point in time preparation of the documents’, provided for information purposes. While I note that certain updated documents were later provided by the applicant in connection with other legislative requirements, I am satisfied that disclosure of these parts of the Category One Documents would provide a complete picture of the information that was submitted for consideration of the IA Application within the regulatory framework and which was taken into account in the government decision to grant indicative approval for transfer of the Mining Lease to Orion. In light of the above, I consider that the accountability and transparency factors are enlivened in favour of disclosure of the Category One Documents because disclosure of those documents could reasonably be expected to: promote open discussion and accountability of the Government in relation to the approval process for the IA Application and the information obtained and considered in that process[66] contribute to positive and informed debate on the government’s decision-making process relating to the IA Application, which is a matter of serious interest[67] enable scrutiny of the government’s reasons for granting indicative transfer approval under the regulatory framework and the conditions imposed in that approval;[68] and inform the community about the basis upon which the Department assessed and was satisfied about Orion’s ability to meet the Mining Lease obligations (including that Orion had the human, technical and financial resources to comply with the conditions of the Mining Lease and address rehabilitation obligations relating to historic mining activities).[69] In terms of the weight to be afforded to these factors, I consider there is a strong public interest in facilitating appropriate public scrutiny of government decisions made under the legislative framework for providing indicative transfer approval for mining leases. Mining tenement conditions include rehabilitation obligations. The inability of mining tenement holders to discharge their rehabilitation obligations could place a large financial burden on the State and this is a matter of great public concern. Here, significant historical mining activities had been conducted on the Mining Lease prior to the IA Application. While the conditions the Department imposed in its indicative transfer approval may be publicly accessible, there is a significant public interest in the Department being accountable for and transparent about the basis upon which the Minister decided that Orion had the technical and financial capability to meet the Mining Lease obligations, including rehabilitation obligations related to the historical mining activities. In this regard, I also note that there has been recent media reporting about the applicant’s financial capability.[70] Taking into consideration the nature of the Category One Documents, the public interest in open and accountable decision making in the regulatory framework under which the indicative transfer approval decision was made, I afford significant weight to each of the accountability and transparency factors favouring disclosure.[71] Disclosure would reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant A public interest factor favouring disclosure arises where disclosure could reasonably be expected to reveal that information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[72] Given the applicant’s submissions[73] that particular statements in the Category One Documents are misleading or factually incorrect, I have considered whether this factor favouring disclosure is relevant to the Category One Documents. As noted in paragraph 10 above, the regulatory framework identifies what the Minister is required to consider in deciding whether or not to give indicative transfer approval under the MR Act. The Category One Documents record assessments conducted by government officers of the matters that required consideration under the regulatory framework. Ultimately, indicative transfer approval was granted after taking the Category One Documents into consideration. The applicant may not agree with particular components of these assessments and may consider that certain conclusions are inconsistent with matters dealt with in the applicant’s ASX Announcements, however, there is no objective evidence before me to indicate that, at the time the Category One Documents were created, the information in them was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. Accordingly, I do not consider that this factor favouring disclosure applies to the Category One Documents. Factors favouring nondisclosure The applicant’s submissions raise a number of factors favouring nondisclosure of the Category One Documents, which broadly concern its business affairs, confidentiality and deliberative process. Specifically, the applicant identified the factors favouring nondisclosure of the Category One Documents that it considers relevant, namely, where disclosure could reasonably be expected to: prejudice the private, business, professional, commercial or financial affairs of entities (business affairs prejudice factor)[74] impede the administration of justice generally, including procedural fairness[75] impede the administration of justice for a person[76] prejudice the economy of the State[77] intergovernmental relations[78] prejudice an agency’s ability to obtain confidential information;[79] and prejudice a deliberative process of government.[80] As noted in paragraph 40 above, I have also considered the applicant’s submission that the Court Decisions should be taken into account when considering the factor favouring nondisclosure in schedule 4, part 3, item 22 of the RTI Act (that is, where disclosure is prohibited by an Act). Business affairs In addition to the business affairs prejudice factor, the RTI Act recognises that disclosure of information concerning the business, professional, commercial or financial affairs of an agency or another person could reasonably be expected to cause a public interest harm where the disclosure could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of information of this type to government (business affairs harm factor).[81] Apart from asserting the business affairs prejudice factor applies to the Category One Documents and that it has ‘stringent controls and policies in place to ensure information is kept confidential and/or disclosed to all stakeholders on the ASX to ensure a free market’,[82] the applicant has not enunciated what prejudice could be expected, in the circumstances of this review, to arise from disclosure of the Category One Documents (or its business and financial affairs information within the Category One Documents). The Category One Documents record agency assessments of matters required to be considered under the regulatory framework in respect of the IA Application. In assessing the IA Application and whether Orion had the human, technical and financial resources to comply with the Mining Lease conditions, the government officers who prepared the Category One Documents referred to, and commented on, information the applicant provided for the purpose of progressing the IA Application within the regulatory framework, including information about the business and financial affairs of the applicant’s group of companies. I am therefore satisfied that parts of the Category One Documents can be characterised as information about the business and financial affairs of the applicant and its subsidiaries. Given this business and financial affairs information is information the applicant provided in order to progress consideration of the IA Application under the regulatory framework and indicative transfer approval for the Mining Lease was granted, I am not satisfied that disclosure of such business and financial affairs information could reasonably be expected to prejudice the future supply of information of this type to government. However, to the extent the Category One Documents comprise such business and financial affairs information, I consider the disclosure of that information could reasonably be expected to cause some level of prejudice or adverse effect on those commercial and financial affairs and the prejudice factor and harm factor favouring nondisclosure are relevant. In determining the weight to be afforded to the factors favouring nondisclosure, I have taken into consideration the publicly accessible information about the business and financial affairs of the applicant’s group of companies; the historical mining activities conducted on the Mining Lease; the financial assurance conditions of the indicative transfer approval; and the Mining Lease conditions. I also note that there is no evidence before me which indicates that the applicant’s competitors would be in a position to use such commercial and financial affairs information to their own advantage or of any corresponding disadvantage it would cause to the applicant’s group of companies. In these circumstances, I consider that moderate weight should be afforded to the business affairs prejudice and harm factors[83] in respect of the business and financial affairs information within the Category One Documents. Trade secrets and commercial value While not specifically raised by the applicant, given the applicant’s submissions that information it provided in support of the IA Application contains confidential and sensitive internal information, I have also considered whether disclosing the Category One Documents could reasonably be expected to: prejudice trade secrets, business affairs or research of an agency or a person;[84] and/or cause a public interest harm because it would disclose trade secrets of an agency or another person or information or other information that has a commercial value to an agency or another person, and could reasonably be expected to destroy or diminish the commercial value of the information.[85] In the context of this review, a trade secret refers to a method, process, knowledge or technology used by a company which it intends to keep confidential.[86] While the Category One Documents may refer to information provided by the applicant about its business and financial affairs, which is primarily information in the Category Two Documents, I consider that such information cannot be characterised as the applicant’s trade secrets. Taking into consideration the content of the Category One Documents, the Mining Lease conditions, the indicative transfer approval conditions and the applicant’s extensive ASX Announcements about its acquisition of and activities on the Mining Lease, I am not satisfied that disclosing the Category One Documents would prejudice, destroy or diminish the applicant’s trade secrets or information that has commercial value to the applicant or its subsidiaries. Accordingly, I do not consider these factors favouring nondisclosure[87] apply to the Category One Documents. Deliberative process The RTI Act contains two public interest factors concerning the deliberative processes of government which favour nondisclosure of information. Firstly, where disclosure of information could reasonably be expected to prejudice a deliberative process of government (deliberative process prejudice factor);[88] and secondly, the RTI Act recognises that disclosure of information could reasonably be expected to cause a public interest harm through disclosure of an opinion, advice or recommendation that has been obtained, prepared or recorded or a consultation or deliberation that has taken place in the course of, or for, the deliberative processes involved in the functions of government (deliberative process harm factor).[89] The applicant submitted[90] that the deliberative process prejudice factor is relevant and has referred to the extensive deliberative process ‘that was undertaken’ and that the indicative approval process ‘took a total of 5 months’. However, the applicant has not enunciated what prejudice to a deliberative process could be expected, in the circumstances of this review, to arise from disclosure of the Category One Documents. Deliberative processes involved in the functions of government have been defined as ‘...thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action’.[91] For the deliberative process prejudice factor to apply, a reasonable expectation of prejudice to the relevant deliberative process must be established. As noted in paragraphs 12 and 14 above, indicative approval for transfer of the Mining Lease to Orion was issued and, following satisfaction of relevant transfer conditions, the Mining Lease was transferred to Orion. I also note that an environmental authority for the Mining Lease, which provides the required authorisation to undertake environmentally relevant activities (such as resource and mining activities), has been issued to Orion.[92] The applicant’s ASX announcements also confirm that, post transfer, various activities have been undertaken on the Mining Lease. In this case, the relevant deliberative process is the process relating to the IA Application or, more broadly, the transfer of the Mining Lease to Orion. That relevant deliberative process has concluded and there is no outstanding government decision to be made. I am therefore satisfied that no reasonable expectation of prejudice to the deliberative process arises from disclosure of the Category One Documents. Accordingly, I do not consider that the deliberative process prejudice factor applies to the Category One Documents. The Category One Documents: do contain opinions, advice and recommendations that were obtained, prepared or recorded and a consultation that took place in the course of the deliberative processes associated with the IA Application; and are not information of the type referred to in schedule 4, part 4, sections 4(3) and 4(4) of the RTI Act.[93] However, given indicative transfer approval was granted and the Mining Lease has now been transferred to Orion, I consider any public interest harm that could reasonably be expected to occur from disclosure of the Category One Documents would be minimal. I also note that the Department did not raise concerns that disclosure of the opinions, advice and recommendations in the Category One Documents, which were obtained or prepared within the regulatory framework, could cause a public interest harm. I consider this lends further weight to any reasonably expected harm being very minimal. Accordingly, I afford the deliberative process harm factor low weight. Confidential information The Category One Documents were prepared by agencies within the regulatory framework for considering the IA Application. I therefore consider that this factor favouring nondisclosure can only be considered in respect of information in the Category One Documents which references or comments on the information provided by the applicant in support of the IA Application. As noted in paragraphs 61 to 67 above in relation to the Breach of Confidence Exemption: when providing information to the Department, the applicant did not seek any undertaking from the Department to keep information it provided confidential and did not identify that the information it was providing (or any part of it) was confidential or commercial in confidence or that it was providing information on the basis that it was to be kept confidential by the Department; and there is nothing in the MR Act which imposes any obligation of confidentiality concerning information created or obtained by the Department under the regulatory framework for determining whether to grant indicative transfer approval for the Mining Lease. However, even if the Category One Documents (or the parts of them comprising information provided to the Department by the applicant and QTC) were considered to be confidential information, for this nondisclosure factor to apply, I must also be satisfied that disclosure of such information could reasonably be expected to prejudice the future supply of similar information. Here, the applicant, and QTC, provided information to the Department for the specific purpose of progressing consideration of the IA Application under the regulatory framework. Some of that information was provided in response to specific Department requests. However, other information provided by the applicant which appears in the Category One Documents was information the applicant itself considered would support the IA Application under the regulatory framework and was unsolicited by the Department (and which would address matters raised during the assessment process about its financial resources). As noted in paragraph 10 above, the Minister was required under the MR Act to consider a number of matters in deciding whether or not to grant indicative transfer approval. In light of this and the fact that, under the MR Act, an application for indicative approval to transfer a mining lease must be accompanied by ‘the information the Minister requires to make a decision’, it is unlikely that disclosure of information provided to the Department for consideration under the regulatory framework would have any impact on the Department’s ability to obtain similar information in the future. Accordingly, I afford low weight to this factor[94] favouring nondisclosure. Prejudice the economy of the State and intergovernmental relations The RTI Act contains a number of public interest factors concerning disclosure impacts on the economy of the State and intergovernmental relations. The applicant has argued that in this case the public interest factors favouring nondisclosure arise because disclosure of the Category One Documents could reasonably be expected to prejudice the economy of the State or intergovernmental relations (prejudice factors).[95] I note that in addition to these prejudice factors, the RTI Act also recognises that disclosure of information could reasonably be expected to cause a public interest harm where disclosure could cause damage to relations between Queensland and another government, divulge confidential information communicated by or for another government, have a substantial adverse effect on the ability of the government to manage the State’s economy or expose persons to unfair advantage by premature disclosure of information concerning proposed government action or inaction in the course of or for managing the State’s economy (harm factors).[96] While the applicant submitted[97] the prejudice factors are relevant, it did not identify the nature of the expected prejudice or enunciate how such prejudice could be expected to arise from disclosure of the Category One Documents. Nevertheless, I have given consideration to these prejudice factors and also the harm factors below. As I have previously noted, indicative transfer approval for the Mining Lease was granted and, following satisfaction of relevant transfer conditions, the Mining Lease has been transferred to Orion. The relevant government action in this case is therefore finalised. The Category One Documents do not relate to intergovernmental relations and do not contain confidential information communicated by or for another government. They instead record agency assessments, within a regulatory framework, of the IA Application which sought indicative approval for transfer of the Mining Lease between non-government entities. While royalties associated with the recommencement of mining and extractive activities on the Mining Lease may be of some relevance to the State’s economy, there is nothing before me which evidences that any prejudice to the State’s economy or adverse effect on the ability of the government to manage the State’s economy could reasonably be expected to arise from disclosure of the Category One Documents. In these circumstances, I am satisfied no prejudice or harm to Queensland’s economy and no prejudice or harm to intergovernmental relations could be anticipated from disclosing the Category One Documents. Accordingly, I find that both these prejudice and harm factors favouring nondisclosure[98] do not apply. Procedural fairness and administration of justice Before the Court Decisions were published, the applicant submitted[99] that disclosure of the Category One Documents could impede the outcome of those court proceedings and, therefore, these factors favouring nondisclosure were relevant. Given the referenced proceedings have been finalised by the Court Decisions, there is no material before me which indicates disclosure of the Category One Documents could be expected to impede the administration of justice or procedural fairness for the applicant or any other individual or entity. I therefore find that these factors favouring nondisclosure[100] do not apply. Personal information Two of the Category One Documents include contact details for public sector employees (email addresses and one landline telephone number)[101] and one private individual (an email address).[102] This information comprises the personal information of those individuals.[103] I have therefore considered, in respect of those portions of personal information, the public interest factors favouring nondisclosure which relate to protection of personal information and privacy.[104] Information relating to the day-to-day work duties and responsibilities of a public sector employee may generally be disclosed under the RTI Act, despite it falling within the definition of personal information. This is because the potential harm from disclosing routine personal work information is, in most circumstances, minimal or nonexistent.[105] For this reason, I afford no weight to these factors favouring nondisclosure in respect of the contact details of Departmental officers. The email address of the private individual is publicly accessible in the attachment to Terracom’s ASX Announcement dated 3 February 2017. I consider this reduces the prejudice to that individual’s privacy that could be expected from disclosure of that email address and minimises the extent of the harm that could be anticipated from disclosure. For this reason, I afford low weight to these factors favouring nondisclosure in respect of one private individual’s email address. Prohibited by an Act As noted in paragraphs 52, 54 and 55 above: the Court Decisions did not consider or address any provision of the RTI Act or prohibit the disclosure of information to the third party; and no provision of the JR Act, being the Act under which the applications considered in the Court Decisions were made, prohibits disclosure of information of the nature of the information in issue. Taking this and the requirement to narrowly interpret the grounds on which access may be refused under section 47 of the RTI Act, I am satisfied that this factor favouring nondisclosure[106] does not apply to the Category One Documents. Other factors favouring nondisclosure I have carefully considered all factors listed in schedule 4, parts 3 and 4 of the RTI Act, and can identify no other public interest considerations telling in favour of nondisclosure of the Category One Documents. Taking into consideration the nature of the Category One Documents, I cannot see how its disclosure could, for example, impede the protection of the environment.[107] Balancing the public interest I have taken into account the general pro-disclosure bias of the RTI Act.[108] I also consider that there are a number of public interest factors favouring disclosure of the Category One Documents. I am satisfied that the government’s accountability and transparency will be enhanced by informing the public about the decision-making process for the IA Application, the information obtained and considered in that process and the reasons for granting the indicative transfer approval (and its conditions). The accountability and transparency factors carry significant weight. Certain nondisclosure factors relating to the applicant’s business and financial affairs information within the Category One Documents apply, however, I consider these factors carry only moderate weight. I also consider that the nondisclosure factors relating to the Department’s ability to obtain confidential information and the protection of personal information and privacy deserve only low weight in respect of certain parts of the Category One Documents. On balance, I find that the factors favouring disclosure of the Category One Documents outweigh the factors favouring nondisclosure. Accordingly, I find that disclosure of the Category One Documents would not, on balance, be contrary to the public interest. Findings - Category Two Documents Irrelevant factors I do not consider that any irrelevant factors arise in respect of the Category Two Documents and I have not taken any irrelevant factors into account. Factors favouring disclosure As noted in paragraph 73 above, the applicant’s submissions do not focus to any great extent on the factors favouring disclosure. I have carefully reviewed the Category Two Documents (being documents the applicant submitted in support of the IA Application). For the reasons set out in paragraphs 77-85 above in respect of the Category One Documents, I afford the same weight to the accountability and transparency factors favouring disclosure[109] regarding the Category Two Documents.[110] Factors favouring nondisclosure I refer to the applicant’s submissions set out at paragraph 89 above regarding the public interest factors favouring nondisclosure which it considers are relevant to the Category One Documents. While the applicant submitted[111] that particular nondisclosure factors apply to most of the Category Two Documents, it has also generally submitted[112] that the public interest factors favouring nondisclosure of the Category One Documents are also relevant to the Category Two Documents. Business affairs The applicant generally submitted[113] that the Category Two Documents contain confidential and sensitive information about its ongoing business affairs and their disclosure would prejudice the business and commercial affairs of Orion. In respect of the equity support deed, the applicant submitted[114] that this deed references Orion and its other Australian subsidiaries and its disclosure would therefore also disclose the commercial arrangements of those other entities—I understand this submission to mean that disclosure of the equity support deed would prejudice the business and commercial affairs of the applicant, Orion and the applicant’s other subsidiaries. Beyond this, however, the applicant has not elaborated on what prejudice or adverse effect could reasonably be expected to occur as a result of disclosing the Category Two Documents. As noted in paragraph 91 above, the RTI Act contains two public interest factors concerning business affairs which favour nondisclosure of information—the business affairs prejudice factor and the business affairs harm factor. The map titled ‘Blair Athol Mine Waterway Diversions 05/12/2013’,[115] on its face, is a document prepared by one of the prior holders of the Mining Lease. The applicant has not identified how this map is the applicant’s business and financial affairs information or how its disclosure would cause any prejudice to, or have an adverse effect on, the applicant’s business and financial affairs. Nor can I discern any impact to the applicant of disclosing a document prepared by the former owner of the mine. I therefore consider that the business affairs prejudice and harm factors[116] do not apply to this document. In respect of the Category Two Documents other than the map referenced above, I am satisfied that they can be characterised as information about the business and financial affairs of the applicant and its subsidiaries. In respect of the equity support deed in the Category Two Documents, I note that the applicant’s publicly accessible ASX Announcement dated 3 February 2017, which attached a copy of the Department’s letter dated 1 February 2017, contains the following statement: TerraCom Limited (TerraCom or the Company) (ASX: TER) is pleased to announce that its wholly owned and operated subsidiary, Orion Mining Pty Limited, has received advice from the Queensland Government Department of Natural Resources and Mines that it is “...minded to grant an indicative approval subject to conditions ...” for the transfer of the mining lease for the Blair Athol Coal Mine, Central Queensland. TerraCom has advised the Queensland Government that it can meet the conditions, which the TerraCom Board does not believe are onerous. Condition 3 of the Department’s letter dated 1 February 2017 states: Orion to provide a copy of the ‘parent company guarantee’ given by TerraCom Limited (TerraCom) in favour of Orion indicating that TerraCom has guaranteed that it will provide Orion with any necessary financial assistance Orion may request in order to comply with their statutory obligations connected with ML 1804 including obligations under the Mineral Resources Act 1989, the Environmental Protection Act 1994, the Coal Mining Safety and Health Act 1999 and the Water Act 2000. I also note that the Department decided to provide access by inspection to the 18 pages which comprise the equity support deed. The provision, and the general effect, of parent company guarantees in arrangements for commercial undertakings is not novel. Taking into consideration the applicant’s public statements about the indicative transfer approval conditions and the context in which the equity support deed was provided to the Department, I find that there is no evidence before me which supports a reasonable expectation that providing the third party with an opportunity to inspect the equity support deed could cause any prejudice or adverse effect to the business and commercial affairs of the applicant, Orion or any of the applicant’s other subsidiaries or prejudice the future supply of such information to the Department (in circumstances where such information is required in order to obtain a benefit from government). Accordingly, I do not consider that providing access by inspection to the equity support deed gives rise to the business affairs prejudice or harm factors. For the reasons set out in paragraph 94 above, I am not satisfied that disclosure of the remaining Category Two Documents—being a draft Plan of Operations for the period November 2016 to December 2017 (Plan of Operations)[117] and a draft Amended Later Development Plan for the period 1 December 2016 to 1 December 2023 (Development Plan)[118] and the applicant’s correspondence to the Department—could reasonably be expected to prejudice the future supply of information of this type to government. The applicant submitted[119] that these remaining Category Two Documents were provided to the Department for ‘information purposes only’. Under that regulatory framework, in determining whether to grant indicative transfer approval, the Minister was required to consider any additional information accompanying the IA Application. The applicant’s correspondence to the Department, which forms part of the remaining Category Two Documents, notes that the applicant was providing this information to support consideration of the IA Application within the regulatory framework. In these circumstances, I am unable to conclude that the remaining Category Two Documents were submitted for ‘information purposes only’ or that the Department considered they were submitted on that basis. In the mining and extractive industry in Queensland, plans of operations, development plans and rehabilitation strategies are not unique documents and they necessarily address the conditions of the mining lease they relate to. The applicant’s ASX Announcements also extensively reference many of the matters that are addressed in the remaining Category Two Documents (such as its resource estimates, production forecasts and the activities being undertaken on the Mining Lease, including rehabilitation activities). The applicant also submitted[120] that the Plan of Operations and the Development Plan were ‘point in time preparations’ and not the final versions submitted by the applicant. However, the applicant has not enunciated what prejudice or adverse effect to its ongoing business affairs could be expected from the disclosure of draft documents of this nature. The Plan of Operations states, on its title page, that: it is a ‘Re-submission of an updated plan of operations to facilitate payment of Financial Assurance post-transfer of title on ML1804’; and it highlights changes the applicant made to the then current plan of operations (that is, the previous tenement holder’s approved plan)—it is noted that these highlighted changes are not extensive and do not alter the previous document in any substantive way. I also note that the Action Program section of the Plan of Operations[121] (which sets out how the environmental authority holder will comply with the conditions of the environmental authority and implement relevant control strategies during the term of the plan) contains only the applicant’s inconsequential changes to the previous tenement holder’s action program and specifically notes that ‘Updated Terracom and Orion Mining documentation will be used in achieving and complying with the Action Plan’. A care and maintenance plan was in place for the Mining Lease at the time the Development Plan was submitted in support of the IA Application. The Development Plan identified its principal objectives, which include providing the Department with an understanding of the nature and extent of the development and production proposed by the applicant to allow the Department to assess the proposed development and whether it was appropriate. I note that certain information from the applicant’s two ASX Announcement dated 7 November 2017 appears in the Development Plan, including information from a JORC Reserve and Resource Statement,[122] reserve estimates, seam maps and a summary of the applicant’s proposed mining operation. In these circumstances, there is nothing before me to demonstrate that disclosure of the Plan of Operations and Development Plan could reasonably be expected to provide any commercial advantage to the applicant’s competitors or a corresponding disadvantage to the applicant and Orion. I acknowledge that disclosure of the Plan of Operations and Development Plan may enable the public to identify changes that occurred between the applicant’s submitted drafts and final versions, as well as the changes the applicant proposed to make to the previous tenement holder’s plans. However, taking into consideration the extensive information which is publicly available about the applicant’s reserve estimates and its planned and actual operations on the Mining Lease, there is nothing before me to indicate that any prejudice or adverse effect on the applicant’s business and financial affairs could flow from this potential comparison process. I have taken these matters and the publicly accessible information about the applicant’s business and financial affairs (such as its financial arrangements and its planned, and actual, activities on the Mining Lease) into account. I accept that the remaining Category Two Documents relate to the business and commercial affairs of the applicant and Orion. However, given the nature of these documents and the context in which they were provided, I consider that any prejudice or adverse effect that could reasonably be expected to flow from their disclosure would be relatively limited and, accordingly, I afford moderate weight to the business affairs prejudice and harm factors.[123] Prejudice intergovernmental relations As noted in paragraph 109 above, two public interest factors favouring nondisclosure of information are recognised in the RTI Act concerning intergovernmental relations—firstly, where disclosure could reasonably be expected to prejudice intergovernmental relations (prejudice factor)[124] and secondly, where disclosure could reasonably be expected to cause a public interest harm because it could cause damage to relations between Queensland and another government or divulge confidential information communicated by or for another government (harm factor).[125] In the external review application, the applicant submitted that the prejudice factor concerning intergovernmental relations[126] is relevant to most of the Category Two Documents. For the reasons set out in paragraphs 111-112 in respect of the Category One Documents, I find that the prejudice and harm factors relating to intergovernmental relations which favour nondisclosure do not apply to the Category Two Documents. Confidential information The applicant submitted[127] that this factor is relevant to most of the Category Two Documents. The reasons set out in paragraphs 106-108 relate to the components of the Category One Documents which reference or comment on the information provided by the applicant in support of the IA Application. Given the Category Two Documents comprise information the applicant submitted in support of the IA Application, the reasoning in paragraphs 106-108 also applies to the Category Two Documents. Accordingly, I consider that it is unlikely that disclosure of the Category Two Documents, which were provided to the Department for consideration under the regulatory framework, would have any impact on the Department’s ability to obtain similar information in the future. I afford low weight to this factor[128] favouring nondisclosure of the Category Two Documents. Deliberative process The RTI Act contains, as noted in paragraph 99 above, two public interest factors concerning deliberative process which favour nondisclosure of information—the deliberative process prejudice factor and the deliberative process harm factor. As noted in paragraph 102 above: indicative approval for the transfer was issued and the Mining Lease has been transferred to Orion; and the deliberative process in respect of the IA Application (and more generally the transfer of the Mining Lease to Orion) has concluded and there is no outstanding government decision to be made. I am therefore satisfied that no reasonable expectation of prejudice to any deliberative process arises from disclosure of the Category Two Documents. For these reasons, I do not consider that the deliberative process prejudice factor[129] applies to the Category Two Documents. The Category Two Documents comprise information the applicant provided in support of the IA Application. As noted in paragraph 62 above, some of the Category Two Documents were provided by the applicant in response to a specific Department request to enable consideration of the IA Application to be progressed. I am therefore satisfied that they contain opinions, advice and recommendations that were obtained, prepared or recorded and a consultation that took place in the course of the deliberative processes associated with the IA Application. However, given the issuing of the indicative transfer approval finalised those deliberative processes, I consider any harm to deliberative process that could reasonably be expected to occur from disclosure of the Category Two Documents would be minimal. Accordingly, I afford the deliberative process harm factor low weight. [130] Other factors favouring nondisclosure For the reasons set out in paragraphs 98, 111-112, 114 and 118-119 in respect of the Category One Documents, I find that: the nondisclosure factors concerning destroying or diminishing the commercial value of information and impeding procedural fairness and the administration of justice do not apply to the Category Two Documents[131] the nondisclosure factors relating to prejudice to the economy of the State and trade secrets do not apply to the Category Two Documents;[132] and the Court Decisions do not give rise to the factor favouring nondisclosure where disclosure of information is prohibited by an Act in relation to the Category Two Documents.[133] I have carefully considered all factors listed in schedule 4, parts 3 and 4 of the RTI Act, and can identify no other public interest considerations telling in favour of nondisclosure of the Category Two Documents. Balancing the public interest For the reasons outlined above, I consider that disclosure of the Category Two Documents will enhance the government’s accountability and transparency by informing the public about the decision-making process concerning the IA Application and the documents required to be considered in that decision-making process. I have afforded these accountability and transparency factors significant weight. Certain factors favouring nondisclosure apply as the Category Two Documents relate to the business and financial affairs of the applicant and its subsidiaries, however, I have afforded these factors only moderate weight. I also consider only low weight should be afforded to the nondisclosure factor relating to the Department’s ability to obtain confidential information in the future. I find that, on balance, the factors favouring disclosure outweigh the factors favouring nondisclosure of the Category Two Documents and, therefore, disclosing those documents would not, on balance, be contrary to the public interest. Conclusion For the reasons outlined above, I find that the information in issue should be disclosed to the third party as it is not exempt information and its disclosure would not, on balance, be contrary to the public interest. I am satisfied that the applicant has not discharged the onus, imposed by section 87(2) of the RTI Act, of establishing that the information in issue should not be released to the third party or that the Information Commissioner should give a decision adverse to the third party. DECISION I affirm the Department’s internal review decision to grant access to the information in issue as the information in issue is neither exempt information under the RTI Act and nor would its disclosure, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. Assistant Information Commissioner CorbyDate: 2 July 2018 APPENDIX Significant procedural steps Date Event 10 August 2017 OIC received the external review application. 18 August 2017 OIC notified the applicant and the Department that it had accepted the external review application and asked the Department to provide information. 23 August 2017 OIC received requested information from the Department. 30 August 2017 The third party confirmed to OIC that they continued to seek access to the documents in issue. 30 October 2017 OIC spoke to the applicant about identifying what information the applicant’s disclosure objections related to. 23 November 2017 OIC asked the Department to send to the applicant a copy of the documents in issue, marked up to reflect OIC’s understanding of the information which was the subject of the applicant’s disclosure objections. OIC asked the applicant to confirm if the marked up documents correctly identified the information which the applicant considered should not be disclosed and that the applicant did not object to disclosure of the remaining information. 18 December 2017 OIC received the applicant’s submissions which clarified that it objected to disclosure of all information in the documents in issue and argued that, to ensure the outcomes of proceedings before the Supreme Court were not impeded, the documents in issue should not be disclosed. 8 February 2018 The third party confirmed that, notwithstanding the proceedings before the Supreme Court, they continued to seek access to the documents in issue. OIC requested further information from the Department. 12 February 2018 OIC spoke with the applicant and conveyed a preliminary view that there was no basis under the RTI Act to refuse disclosure of certain documents in issue which were in the public domain. 22 February 2018 The Court Decisions were published by the Supreme Court. 27 February 2018 OIC wrote to the applicant, confirming the preliminary view about disclosure of documents in the public domain and invited the applicant to provide submissions if it did not accept the preliminary view. 1 March 2018 OIC received requested information from the Department. 21 March 2018 OIC confirmed to the applicant that it was taken to have accepted the preliminary view about disclosure of documents in the public domain and those documents would be released to the third party. OIC conveyed a preliminary view to the applicant about the remaining documents in issue and invited the applicant to provide submissions if it did not accept that preliminary view. OIC asked the Department to release certain documents to the third party in accordance with OIC’s preliminary view about disclosure of documents in the public domain. OIC spoke to the third party and confirmed that the Department was releasing some documents to the third party in accordance with OIC’s preliminary view about disclosure of documents in the public domain. The third party confirmed that it did not seek access to signatures within the remaining documents in issue. 6 April 2018 OIC received the applicant’s submissions. 18 April 2018 OIC acknowledged the applicant’s submissions and confirmed that a formal decision would be issued to finalise the external review. 2 May 2018 OIC spoke with the applicant and confirmed that its disclosure objection related to all information in the remaining documents in issue. OIC spoke to the third party and confirmed that a formal decision would be issued to finalise the external review. The third party confirmed that it wished to participate in the external review. 11 May 2018 OIC confirmed to the third party that it was a participant in the external review and did not seek access to signatures in the remaining documents in issue. [1] By email date 20 March 2017. [2] By decision to the third party dated 17 May 2017 and decision to the applicant dated 22 May 2017. [3] The Department decide to grant inspection access to 18 pages of the documents in issue. [4] Under section 90 of the RTI Act, the Information Commissioner is required to identify opportunities and processes for early resolution of an external review. [5] Under section 89(3) of the RTI Act. [6] Before the Minister made a decision about the IA Application, the provisions of the MR Act relevant to regulating dealings with mining leases were replaced under the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (Common Provisions). However, under section 213(2) of the Common Provisions, Chapter 7, Part 1 of the MR Act continued to apply to the IA Application. References in this decision to the MR Act provisions are therefore references to the provisions that were applicable to the IA Application and not the current provisions of the MR Act. [7] Under sections 318AAV and 318AAX of the MR Act. [8] OIC conveyed a preliminary view to the applicant on 27 February 2018. The applicant was advised that if OIC did not receive a response to the preliminary view within a specified period, the applicant would be taken to have accepted the preliminary view and have no objection to the 20 pages being released to the third party. The applicant did not respond to OIC’s preliminary view within the specified period. [9] Pages 6-18 in File A. [10] Pages 20-30 in File A. [11] Page 133 in File A. [12] Pages 168-169 in File A. [13] Pages 31-94 in File A.[14] Pages 95-111, 113-121 and 124-132 in File A. [15] Page 144 in File A. [16] Pages 145-165, 170-182 and 185-190 in File A. [17] Pages 191-208 in File A. [18] ‘Disclosure decision’ is defined in section 87(3) of the RTI Act as ‘a decision to disclose a document or information contrary to the view of a relevant third party obtained under section 37’ of the RTI Act.[19] Section 87(2) of the RTI Act.[20] As set out in the Appendix. [21] External review application. [22] Submissions dated 6 April 2018, reiterating submissions made to the Department on internal review, dated 16 June 2017. [23] Submissions dated 6 April 2018. [24] External review application. [25] Being pages 31-94 and 95-132 in File A. [26] QTC’s functions are set out in section 17 of the QTC Act. [27] https://www.qtc.com.au/about-qtc/. [28] Sections 23 and 14 of the RTI Act. [29] Section 17 of the RTI Act. [30] Schedule 2, part 2, item 9 of the RTI Act. [31] Submissions dated 6 April 2018. [32] Section 32 of the JR Act. Section 4 of the JR Act defines the types of decisions the JR Act applies to. [33] Section 23(1) of the RTI Act. I also note that the requirements for a valid access application are set out in section 24 of the RTI Act. [34] Section 44 of the RTI Act. This is referred to as the ‘pro-disclosure bias’. [35] Set out in section 47(3) of the RTI Act.[36] Section 47(2)(a) of the RTI Act. [37] Section 47(3)(a) of the RTI Act. Schedule 3 of the RTI Act sets out the types of information that comprise exempt information: section 48 of the RTI Act. [38] Schedule 3 of the RTI Act contains a number of exemption provisions and these two are relevant in this review. [39] Schedule 3, section 8 of the RTI Act. [40] Submissions dated 6 April 2018. [41] I note that even if a provision of the JR Act did prohibit disclosure, the RTI Act overrides such a provision—section 6 of the RTI Act. [42] Section 47(2)(a) of the RTI Act. [43] See B and Brisbane North Regional Health Authority [1994] QICmr 1; [1994] 1 QAR 279 (B and BNRHA), a decision of the Information Commissioner analysing the equivalent exemption in the repealed Freedom of Information Act 1992 (Qld) at [44]. For a restatement of the criteria in the context of the RTI Act, see TSO08G and Department of Health (unreported, Queensland Information Commissioner, 13 December 2011) (TSO08G). [44] See B and BNRHA at [60] to [118]. The criteria stated in B and BNRHA have been consistently applied in the context of the RTI Act, see TSO08G at [13] and more recently in Edmistone and Blackall-Tambo Regional Council [2016] QICmr 12 (15 April 2016) at [14]; Australian Workers Union and Queensland Treasury; Ardent Leisure Limited (Third Party) [2016] QICmr 28 (28 July 2016) at [16]; and Glass Media Pty Ltd and Department of the Premier and Cabinet; Screen Queensland Pty Ltd (Third Party); The Walt Disney Company (Australia) Pty Ltd (Fourth Party) [2016] QICmr 30 (18 August 2016) at [38]. [45] External review application. [46] External review application. [47] Submissions dated 6 April 2018. [48] Pages 168-169 in File A. [49] For example, pages 170-182 in File A. [50] External review application. [51] Sections 47(3)(b) and 49 of the RTI Act. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. [52] Section 49(3) of the RTI Act. [53] External review application. [54] Schedule 4, part 1, item 1 of the RTI Act. [55] Schedule 4, part 1, item 2 of the RTI Act. [56] Submissions dated 6 April 2018. [57] Schedule 4, part 2, item 1 of the RTI Act. [58] Schedule 4, part 2, item 2 of the RTI Act. [59] Schedule 4, part 2, item 3 of the RTI Act. [60] Schedule 4, part 2, item 11 of the RTI Act. [61] This report may be accessed via <https://www.treasury.qld.gov.au/growing-queensland/improving-rehabilitation-financial-assurance-outcomes-resources-sector/better-mine-rehabilitation-queensland/>.[62] This paper may be accessed via <https://www.treasury.qld.gov.au/growing-queensland/improving-rehabilitation-financial-assurance-outcomes-resources-sector/better-mine-rehabilitation-queensland/>. It is noted that the Mined Land Rehabilitation Policy has been approved by the Queensland Government following consultation with stakeholders who provided feedback to this discussion paper. [63] For example, <http://www.afr.com/business/mining/former-rio-tinto-executive-buys-blair-athol-coal-mine-for-1-20160703-gpxsa9> and <https://www.brisbanetimes.com.au/politics/queensland/almost-5-million-transferred-for-blair-athol-mine-bought-for-1-20180124-p4yyt6.html>. [64] The applicant’s ASX Announcements are publicly accessible at <http://terracomresources.com/investors/asx-announcements/> . It is noted that the ASX announcements dated 3 February 2017, 31 May 2017, 18 July 2017 refer to the generation of taxes and royalties for the State and additional benefits to the local community such as ‘[p]rogressive rehabilitation of one of Queensland’s oldest coal mines’ and ‘[t]he Resumption of coal mining and export sales from the Blair Athol Coal mine providing the local, state and federal economies with increased economic activity, employment, royalties and taxation’. [65] External review application. [66] Schedule 4, part 2, item 1 of the RTI Act. [67] Schedule 4, part 2, item 2 of the RTI Act. [68] Schedule 4, part 2, item 3 of the RTI Act. [69] Schedule 4, part 2, item 11 of the RTI Act. [70] Such as <http://www.abc.net.au/news/2018-01-24/blair-athol-company-given-millions-in-surplus-enviro-funding/9353802> , which references the Independent Auditor’s Report included in the applicant’s ASX Announcement dated 28 February 2018. [71] Schedule 4, part 2, items 1, 2, 3 and 11 of the RTI Act. [72] Schedule 4, part 2, item 12 of the RTI Act. [73] External review application. [74] Schedule 4, part 3, item 2 of the RTI Act. [75] Schedule 4, part 3, item 8 of the RTI Act. [76] Schedule 4, part 3, item 9 of the RTI Act. [77] Schedule 4, part 4, item 12 of the RTI Act.[78] Schedule 4, part 4, item 14 of the RTI Act. [79] Schedule 4, part 3, item 16 of the RTI Act. [80] Schedule 4, part 3, item 20 of the RTI Act. [81] Schedule 4, part 4, section 7(1)(c) of the RTI Act. [82] Submissions dated 6 April 2018. These submissions also refer to the redaction of certain information released in respect of a separate access application (which is not the subject of an external review). As the issues requiring determination in each external review are necessarily considered on the particular facts and circumstances of each review, I do not consider the redaction of information released in response to a separate access application is a relevant consideration in this review. [83] Schedule 4, part 3, item 2 and part 4, item 7(1)(c) of the RTI Act.[84] Schedule 4, part 3, item 15 of the RTI Act. [85] Schedule 4, part 4, sections 7(1)(a) and (b) of the RTI Act. [86] In Cannon and Australian Quality Egg Farms Ltd (1994) QAR 491 at [43], the Information Commissioner cited a statement in the decision of Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VicRp 7; (1967) VR 37 which referred a trade secret as ‘any formula, pattern or device or compilation of information which gives an advantage over competitors who do not know or use it’. [87] Schedule 4, part 3, item 15 and schedule 4, part 4, sections 7(1)(a) and (b) of the RTI Act. [88] Schedule 4, part 3, item 20 of the RTI Act. [89] Schedule 4, part 4, section 4(1) of the RTI Act. The deliberative process harm factor does not apply in the circumstances specified in Schedule 4, part 4, sections 4(2)-(4) of the RTI Act. [90] Submissions dated 6 April 2018. [91] Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 (Eccleston) at [28-30] citing with approval the definition given in Re Waterford and Department of Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588 at [606]. [92] This document may be accessed at <https://environment.ehp.qld.gov.au/env-authorities/pdf/epml00876713.pdf>. [93] In particular, I am satisfied that the QTC report and memoranda within the Category One Documents was commissioned by the Department in the course of the deliberative process for the IA Application and QTC is not a body or organisation established within an agency or prescribed under a regulation. I am also satisfied that the provisions of schedule 4, part 4, section 4(2) do not apply to the Category One Documents. [94] Schedule 4, part 3, item 16 of the RTI Act. [95] Schedule 4, part 2, items 12 and 14 of the RTI Act. [96] Schedule 4, part 4, sections 1 and 9 of the RTI Act. [97] External review application and submissions dated 18 December 2017. [98] Schedule 4, part 3, items 12 and 14 and schedule 4, part 4, sections 1 and 9 of the RTI Act. [99] Submissions dated 18 December 2017.[100] Schedule 4, part 3, items 8 and 9 of the RTI Act. [101] Page 133 in File A. [102] Pages 133 and 168 in File A. [103] Personal information is information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion—schedule 5 of the RTI Act and section 12 of the Information Privacy Act 2009 (Qld).[104] Schedule 4, part 3, item 3 and schedule 4, part 4, section 6(1) of the RTI Act. [105] In Australian Broadcasting Corporation and Psychologists Board of Australia (Unreported, Queensland Information Commissioner, 3 January 2012) the Assistant Information Commissioner explained (at paragraph 20) that this is due to a number of factors including that: (i) public service officers are employed in the business of government which delivers services to the public and the public is generally entitled to know the identity of the service deliverers, advice givers and decision-makers and (ii) a reasonable public service officer would expect that information that is solely their routine personal work information would be made available to the public. Refer also to Mewburn and Department of Natural Resources and Mines [2016] QICmr 31 (19 August 2016). [106] Schedule 4, part 3, item 22 of the RTI Act. [107] Schedule 4, part 3, item 11 of the RTI Act. [108] Section 44 of the RTI Act. [109] As listed in paragraph 76.[110] The applicant’s submissions referred to in paragraph 86 did not relate to the Category Two Documents. For the sake of clarity, I consider that there is no evidence before me which indicates that the factor favouring disclosure in schedule 4, part 2, item 12 of the RTI Act is relevant to the Category Two Documents and, accordingly, I have not considered it in relation to the Category Two Documents. [111] External review application. [112] In submissions dated 18 December 2017 and 6 April 2018. [113] External review application. [114] Submissions dated 6 April 2018. [115] Page 144 in File A. [116] Schedule 4, part 3, item 2 and part 4, item 7(1)(c) of the RTI Act.[117] Pages 31-94 in File A. [118] Pages 95-132 in File A. [119] External review application. [120] External review application. [121] Pages 47-94 in File A. [122] This ASX Announcement is referenced in the Development Plan. [123] Schedule 4, part 3, item 2 and part 4, item 7(1)(c) of the RTI Act.[124] Schedule 4, part 2, item 14 of the RTI Act. [125] Schedule 4, part 4, section 1 of the RTI Act. [126] Schedule 4, part 3, item 14 of the RTI Act. [127] External review applicant. [128] Schedule 4, part 3, item 16 of the RTI Act. [129] Schedule 4, part 3, item 20 of the RTI Act. [130] Schedule 4, part 4, section 4 of the RTI Act. [131] Schedule 4, part 3, items 8 and 9 and schedule 4, part 4, sections 7(1)(a) and (b) of the RTI Act. [132] Schedule 4, part 3, items 12 and 15 and schedule 4, part 4, sections 7(1)(a) and (b) of the RTI Act. [133] Schedule 4, part 3, item 22 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

D77 and Gold Coast Hospital and Health Service [2020] QICmr 28 (3 June 2020)

D77 and Gold Coast Hospital and Health Service [2020] QICmr 28 (3 June 2020) Last Updated: 19 August 2020 Decision and Reasons for Decision Citation: D77 and Gold Coast Hospital and Health Service [2020] QICmr 28 (22 May 2020) Application Number: 315052 Applicant: D77 Respondent: Gold Coast Hospital and Health Service Decision Date: 22 May 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LAW ENFORCEMENT OR PUBLIC SAFETY INFORMATION - information relating to Examination Authority - whether disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment – documents relating to processes under Mental Health Act 2016 (Qld) - whether information exempt under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48, and schedule 3, section 10(1)(i) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - information provided by other individuals regarding the applicant - personal information and privacy - whether information would, on balance, be contrary to the public interest to disclose under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Gold Coast Hospital and Health Service (Health Service) under the Information Privacy Act 2009 (Qld) (IP Act) for access to his medical records. The Health Service decided[2] to refuse access to some of the requested information on the basis that it comprised exempt information,[3] the disclosure of which would found an action for breach of confidence;[4] prejudice a system or procedure for the protection of persons, property or the environment;[5] or information that would be, on balance, contrary to the public interest to disclose.[6] The applicant then applied[7] to the Information Commissioner for an external review. On external review, I considered that there was insufficient evidence before me to establish that disclosure of some of the information in issue may found an action for breach of confidence. However, I was satisfied that the information refused by the Health Service on this basis may still be refused on the basis that its disclosure would be, on balance, contrary to the public interest. The Health Service did not object to this view.[8] For the reasons set out below, while I agree with the Health Service’s decision to refuse access to the information in issue, I have varied the basis on which access is refused. I am satisfied that access to the information in issue can be refused on the grounds that it comprises exempt information disclosure of which would reasonably be expected to prejudice a system for the protection of persons, property or the environment[9] or would, on balance, be contrary to the public interest to disclose.[10]Evidence considered Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). 8. I have also had regard to the Human Rights Act 2019 (Qld),[11] particularly the right to seek and receive information.[12] I consider a decision-maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the IP Act and the RTI Act.[13] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[14] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[15]Reviewable decision The decision under review is the Health Service’s decision dated 27 November 2019.Information in issue The Information in Issue consists of: 55 part pages; and 3 full pages. The Information in Issue can be generally categorised as follows: Category Description Examination Authority Information[16] Exempt information related to an Examination Authority refused on the basis its disclosure would prejudice a system or procedure for the protection of persons, property or the environment.[17] Third Party Information[18] Personal information[19] of individuals other than the applicant, including names, email addresses, telephone numbers, and opinions. In some segments this information is intertwined with the personal information of the applicant. Issues for determination The issues for determination are whether access to the information in issue may be refused on the basis that it comprises: exempt information disclosure of which would prejudice a system or procedure for the protection of persons, property or the environment;[20] or personal information of individuals other than the applicant and disclosure would, on balance, be contrary to the public interest.[21] Examination Authority Information Relevant law Under the IP Act, a person has a right to be given access to documents of an agency to the extent they contain the individual’s personal information.[22] That right is subject to certain limitations set out in the IP Act and RTI Act, with the relevant provisions in this matter, examined below. Where information satisfies the criteria for any of the categories of exempt information set out in Schedule 3 of the RTI Act, Parliament has determined that the disclosure of this information is contrary to the public interest, and access may therefore be refused.[23] Relevantly, information is exempt if its disclosure could reasonably be expected to[24] prejudice a system or procedure for the protection of persons, property or the environment.[25] This exemption will apply if each of the following requirements are met:[26] there exists an identifiable system or procedure it is a system or procedure for the protection of persons, property or environment; and disclosing the information in issue could reasonably be expected to prejudice that system or procedure. Findings Requirement A – Identifiable System Firstly, having closely considered the Examination Authority Information, I am satisfied that it comprises information gathered under a system established by the Mental Health Act 2016 (Qld) (MH Act)[27] for the assessment of an individual who may have a mental illness. Requirement B – For the protection of Persons In line with previous decisions of the Information Commissioner, I am satisfied that the process of applying for and implementing an Examination Authority under the MH Act is an identifiable system that exists for the protection of persons who may be suffering mental illness, and the community more broadly.[28] Requirement C – Disclosure could reasonably be expected to cause prejudice The Information Commissioner has previously found that granting an individual access to information provided in the context of a mental health assessment, could reasonably be expected to prejudice the system by impeding the flow of information to relevant agencies or the willingness of parties to engage with those agencies.[29] The Examination Authority process operates by relying on the information provided by third parties to initiate an assessment process under the MH Act. The Information Commissioner has previously explained that individuals involved in this type of process provide information on the understanding that it is confidential and will only be used for the limited purpose of ensuring the proper administration of the MH Act and the appropriate care and treatment of the subject individual.[30] I agree with that view and consider that ensuring the confidentiality and careful handling of the information provided by third parties is essential to the effectiveness of the Examination Authority process. Disclosing information that identifies, either directly or indirectly, an individual who has requested an Examination Authority could reasonably be expected to impact on the likelihood that individuals seeking to utilise this system will raise concerns in the future. Particularly, given the highly sensitive and personal nature of mental health concerns, it is reasonable to expect some level of apprehension from individuals who provide information to mental health authorities. I also consider that the quality of the information provided by individuals may be impacted if they are not able to provide full and frank information to mental health services without concern as to the negative consequences resulting from the subject of their concern receiving the information. The Examination Authority Information identifies third parties and the information supplied by those third parties in support of the application for an Examination Authority. I am satisfied that the disclosure of this information could reasonably be expected to prejudice the effectiveness of the system for obtaining an Examination Authority established by the MH Act for the protection of individuals and the community. Exceptions In evaluating whether the Examination Authority Information is subject to the exemption outlined above, I have considered the exceptions outlined in schedule 3, section 10(2) of the RTI Act, in line with Commissioner of the Police Service v Shelton & Anor.[31] Her Honour Chief Justice Holmes held that:[32] ‘an agency cannot reach the view necessary...in relation to information which may be exempt under sch 3 s 10 without a consideration of the documents the subject of the application to ascertain whether they fall within s 10(2)’. I have closely reviewed the Examination Authority Information to determine this question of fact and am satisfied that the information does not consist of any of the types of specific information referred to in schedule 3, section 10(2) of the RTI Act. Applicant submissions The applicant has made submissions in support of disclosure of the Examination Authority Information. In summary, the applicant contends that: he sought this information to assist him in an appeal to the Workcover Regulator the information provided in the Examination Authority application was false; and he wants to know the names of the people who caused himself and his family great distress (by making the Examination Authority application).[33] I have carefully considered the applicant’s submissions. I do not consider the applicant’s submissions have any impact on requirement (c) – prejudice to a system or procedure. The prejudice I have described above relates to the system as a whole and not to an individual case. I am satisfied that the applicant’s contentions regarding the accuracy of the information in the Examination Authority application do not negate the prejudice to the system I have explained above that is reasonably expected to result from disclosure of the Examination Authority Information. While the applicant’s reasons for seeking the Examination Authority Information are understandable and raise public interest considerations, I cannot take these submissions into account. There is no scope for me to consider public interest arguments once I am satisfied that the information qualifies as exempt information. This is because Parliament has decided that it would always be contrary to the public interest to disclose this type of information.[34] While I acknowledge that the applicant is greatly distressed by the circumstances and events relating to the Examination Authority, I do not have the power to direct that access be given to this information[35] where I am satisfied that it comprises exempt information. Conclusion Having regard to all the matters outlined above, I am satisfied that the Examination Authority Information comprises exempt information as it meets each of the requirements of schedule 3, section 10(1)(i) of the RTI Act and does not consist of any information specified in schedule 3, section 10(2) of the RTI Act.[36] Accordingly, I find that access to the Examination Authority Information may be refused.[37] Contrary to the public interest information Relevant law Access to information may also be refused if its disclosure would, on balance, be contrary to the public interest.[38] The term ‘public interest’ is not defined in the legislation, but is widely accepted to refer to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens.[39] A public interest consideration is generally common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests.[40] In deciding where the balance of the public interest lies, a decision-maker is required to take specific steps[41] and consider relevant factors for and against disclosure.[42] I have set out below my assessment of, and findings in relation to, the public interest factors which I consider are relevant in this case.[43] Findings Factors favouring disclosure The Third Party Information is mostly intertwined with the applicant’s own personal information. It records the observations and opinions of third parties in relation to the applicant and is provided for the purpose of assisting in the applicant’s medical assessment, care and treatment. This gives rise to a factor in favour of disclosure of the applicant’s own personal information.[44] I consider that given the context in which it appears, that is the applicant’s own medical records, this particular factor in favour of disclosure is deserving of significant weight. However, I also note that the segments of the applicant’s personal information are intertwined with the personal information of other individuals. Having carefully considered these segments, I am satisfied that they are intertwined with the personal information of others to such an extent that they cannot be disclosed without also disclosing the personal information of others. Given this position, the mechanism in section 90 of the IP Act, which enables the deletion of contrary to public interest information, including the personal information of other individuals, cannot be used to afford the applicant access to his own personal information. Rather, the factor favouring disclosure of an applicant’s personal information, and the harm factor and privacy factor favouring nondisclosure considered below, all apply to the segments of the applicant’s personal information, and these factors must be considered, along with other relevant factors, in the balancing process regarding those segments. I acknowledge that disclosure of the Third Party Information would enhance the accountability and transparency of the Health Service. This gives rise to a number of factors favouring disclosure.[45] However, I consider that the weight of these factors is reduced by the volume and nature of the information that has already been released to the applicant by the Health Service. I also note that the Third Party Information provides minimal, if any, information about the Health Service’s actions and decision-making processes and is limited to the information that is about or provided by third parties. On that basis, I consider that these factors each carry low weight in favour of disclosure of the Third Party Information to the applicant. The applicant also submitted that the Examination Authority was taken out based on false information. If the Third Party Information is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant, this will give rise to a further factor favouring disclosure.[46] I have carefully considered the applicant’s submissions, and I acknowledge that his views differ from those of other individuals involved in obtaining the Examination Authority. Having considered the Third Party Information, it is clear that the recorded information is the opinions, observations and views of other individuals. While the applicant may dispute the accuracy of this information, there is no objective evidence before me to suggest that this information was in fact incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. While I am prevented from revealing the Third Party Information,[47] I have considered the application of this particular nondisclosure factor, and I am not satisfied that it applies in the circumstances. The applicant has submitted he requires the refused information, including the Third Party Information, to assist with his appeal to the Workcover Regulator. He advised that ‘WorkCover Queensland based their whole assessment on these records’ which he says was verbally advised to him by a review officer.[48] The applicant has not provided any evidence to OIC during the external review to support his assertion that the Third Party Information will assist him in his appeal, including, for example, copies of the correspondence from WorkCover Queensland to him regarding their decision and their reasons. However, given his submission, I have considered whether disclosing the Third Party Information could reasonably be expected to contribute to the administration of justice for a person[49]— for example, by allowing a person to access information that may assist them in legal proceedings. In determining whether this public interest factor in favour of disclosure applies, I must consider whether:[50] the applicant has suffered loss, or damage, or some kind of wrong, in respect of which a remedy is, or may be, available under the law the applicant has a reasonable basis for seeking to pursue the remedy; and disclosing the information held by an agency would assist the applicant to pursue the remedy, or evaluate whether a remedy is available or worth pursuing. I have carefully considered all material before me, including the applicant’s submissions and the Third Party Information itself. The applicant’s submissions arguably suggest he has suffered a legal loss in relation to his Workcover claim, although he has not provided any material to support this assertion. In order for this disclosure factor to apply, the Third Party information itself must comprise some information that would be reasonably expected to contribute to a legal remedy for the applicant, or assist the applicant in pursuing any remedy or evaluating whether a remedy is available or worth pursuing. Given the specific nature of the Third Party Information I am not satisfied it has any bearing on his Workcover claim, nor would provide any assistance in an appeal to the Workers’ Compensation Regulator. Accordingly, and in the absence of supporting evidence from the applicant, I afford this factor only minor weight in the circumstances. The applicant also submitted that he held safety concerns and a belief that private individuals have taken certain action to silence him. The applicant has raised corruption in the context of the conduct of these private individuals. The RTI Act recognises that the public interest will favour disclosure of information that would allow inquiry into the conduct of an agency or official,[51] advance the fair treatment of individuals in their dealings with agencies,[52] reveal an agency or official has engaged in misconduct[53] and reveal measures relating to public health and safety.[54] However, these provisions are aimed at protecting individuals from corrupt or unfair treatment by the government. I consider that these factors do not apply in the circumstances of this case. I have carefully considered all other factors listed in schedule 4, part 2 of the RTI Act, and have not identified any public interest considerations telling in favour of disclosure of the Third Party Information,[55] beyond those identified above. Factors favouring nondisclosure As part of the public interest balancing test,[56] I have also evaluated the factors favouring nondisclosure that arise in the circumstances. The Third Party Information largely contains the personal information of other individuals, both solely and intertwined with the personal information of the applicant. The Third Party Information is sensitive in nature, provided in the context of health concerns about the applicant. This gives rise to two factors favouring nondisclosure relating to protecting the personal information[57] and safeguarding the right to privacy of those individuals.[58] I am satisfied that if the Third Party Information were disclosed, the public interest harm and prejudice that would arise would be significant. I afford significant weight to each of these nondisclosure factors. I have also considered whether disclosure of the Third Party Information could reasonably be expected to prejudice the health service’s ability to obtain confidential information relevant to the treatment of its patients.[59] I am satisfied that people who provide information to healthcare professionals, particularly in the mental health context, do so with an expectation of confidentiality. Even in circumstances where the applicant disputes the veracity of the information provided, as in this matter, disclosure could reasonably be expected to discourage other individuals from coming forward with confidential information in similar circumstances in the future. Consequently, I consider that a public interest harm is also reasonably expected to result from disclosure of the Third Party Information[60] in addition to the prejudice to the agency’s ability to obtain confidential information. Given the importance of healthcare professionals obtaining information from the community in order to make informed assessments and provide appropriate care to individuals, I afford each of these nondisclosure factors high weight. I have also considered the prejudice reasonably expected to result from disclosure of the Third Party Information, to the effectiveness of the public mental health system and Examination Authority process.[61] This process continues the framework provided by the previous Justices Examination Order (JEO) process,[62] to manage mental health issues in the community, and to provide a clear system by which individuals with concerns about the mental health of another person can raise those concerns with the appropriate health authorities. I consider that disclosure of the Third Party Information could reasonably be expected to deter individuals from openly communicating with authorities as part of this process. As an Examination Authority is part of a system protecting the community and public safety, I am satisfied this factor applies to the Third Party Information and afford it high weight in the circumstances.[63] Balancing the factors In determining the balance of the public interest in this case, I acknowledge the pro-disclosure bias contained in section 58 of the IP Act. I have also attributed significant weight in favour of the public interest in the applicant accessing his own medical record. I have also attributed some minor weight in the public interest factors relevant to the Health Service being accountable and transparent and the applicant accessing information that may potentially assist him evaluate whether he has a legal remedy available to him. On the other hand, I have attributed substantial and high weight to the factors favouring nondisclosure that seek to protect the personal information and privacy of third parties. I have also attributed high weight to the nondisclosure and public interest harm factors relating to the Health Service’s ability to obtain confidential information, and prejudice to public safety, if the Third Party Information is disclosed. On balance, the significant weight I have attributed to the factors favouring nondisclosure, including the identified public interest harm factors, outweigh the weight attributed to the factors in favour of disclosure. Accordingly, I am satisfied that disclosure of the Third Party Information would, on balance, be contrary to the public interest and access may be refused on this basis.[64]DECISION For the reasons set out above, I vary the Health Service’s decision dated 27 November 2019 and find that: access to the Examination Authority Information may be refused as disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment;[65] and access to the Third Party Information may be refused on the basis that disclosure would, on balance, be contrary to the public interest.[66] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinAssistant Information Commissioner Date: 22 May 2020 APPENDIX Significant procedural steps Date Event 24 October 2019 The Health Service received the access application. 27 November 2019 The Health Service issued its decision on the access application. 4 December 2019 OIC received the external review application. 6 December 2019 OIC requested procedural documents from the Health Service. 11 December 2019 OIC received the procedural documents from the Health Service. 23 December 2019 OIC requested the information in issue from the Health Service. 30 December 2019 OIC received the information in issue from the Health Service. 10 February 2020 OIC received an emailed submission from the applicant. 11 February 2020 OIC received three emailed submissions from the applicant. 4 March 2020 OIC issued a preliminary view to the applicant and invited him to make submissions. 5 March 2020 OIC received an emailed submission from the applicant. 20 April 2020 OIC conveyed a preliminary view to the Health Service. 27 April 2020 OIC received an emailed submission from the applicant. [1] On 24 October 2019.[2] On 27 November 2019.[3] Section 67(1) of the IP Act and sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) (RTI Act).[4] Section 67(1) of the IP Act and section 47(3)(a) and schedule 3, section 8 of the RTI Act.[5] Section 67(1) of the IP Act and section 47(3)(a) and schedule 3, section 10(1)(i) of the RTI Act.[6] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.[7] On 4 December 2019.[8] By email on 20 April 2020.[9] Section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 10(1)(i) of the RTI Act.[10] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.[11] Referred to in these reasons as the HR Act, and which came into force on 1 January 2020.[12] Section 21 of the HR Act. [13] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [11].[14] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [15] XYZ at [573].[16] 3 full pages and 16 part pages.[17] Section 67(1) of the IP Act and sections 47(3)(a) and 48, and schedule 3, section 10(1)(i) of the RTI Act.[18] 39 part pages.[19] ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. [20] Section 67(1) of the IP Act and sections 47(3)(a) and 48, and schedule 3, section 10(1)(i) of the RTI Act.[21] Under section 67(1) of the IP Act and sections 47(3)(b) and 49, schedule 4, part 3, item 3 and schedule 4, part 4, section 6(1) of the RTI Act.[22] Section 40 of the IP Act.[23] Section 48(2) of the RTI Act. [24] The term ‘could reasonably be expected to’ requires that the expectation be reasonably based, that it is neither irrational, absurd or ridiculous, nor merely a possibility. The expectation must arise as a result of disclosure, rather than from other circumstances. Whether the expected consequence is reasonable requires an objective examination of the relevant evidence. It is not necessary for a decision‑maker to be satisfied upon a balance of probabilities that disclosing the document will produce the anticipated prejudice. See Nine Network Australia Pty Ltd and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 14 February 2012) at [31].[25] Section 67(1) of the IP Act and sections 47(3)(a) and 48, and schedule 3, section 10(1)(i) of the RTI Act.[26] Ferrier and Department of Police [1996] QICmr 16; (1996) 3 QAR 350 at [27]- [36].[27] The MH Act establishes a process for applying for mandatory mental health assessments, or Examination Authorities, in Queensland.[28] See section 3(1)(a) and Chapter 12, Part 8 of the MH Act. This system requires an application of a specific form to the Mental Health Review Tribunal. In practice, such an application may be made following concerns raised by a member of the public to a doctor or mental health practitioner.[29] See, for example: VA6Q6J and Sunshine Coast Hospital and Health Service [2015] QICmr 18 (14 August 2015); E9IH9N and Metro South Hospital and Health Service [2016] QICmr 18 (27 May 2016) (E9IH9N) and B7TG4G and Gold Coast Hospital and Health Service [2015] QICmr 11 (1 May 2015) (B7TG4G). These decisions were made with respect to the similar provisions of the now repealed Mental Health Act 2000 (Qld) and what was previously known as a Justices Examination Order, which also served to allow the assessment of individuals suspected of having a mental illness.[30] SQD and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 2 September 2010) (SQD) at [17]; see also ROSK and Brisbane North Regional Health Authority; Others (Third Parties) [1996] QICmr 19; (1996) 3 QAR 393 at [21]. As above, these decisions were made with respect to the similar provisions of the now repealed Mental Health Act 2000 (Qld).[31] [2020] QCA 96 (Shelton).[32] Shelton at [47] per Holmes CJ.[33] By email on 4 December 2019, 10 February 2020, 11 February 2020 and 5 March 2020.[34] Section 48(2) of the RTI Act. [35] Section 118(2) of the IP Act. [36] Shelton at [47] per Holmes CJ.[37] Section 67(1) of the IP Act.[38] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. [39] Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12, 14.[40] However, there are some recognised public interest considerations that may apply for the benefit of an individual. [41] Section 49(3) of the RTI Act. The steps include: disregarding any irrelevant factors, identifying relevant factors favouring disclosure and nondisclosure and balancing the relevant factors.[42] Including the non-exhaustive list of factors in schedule 4 of the RTI Act. [43] No irrelevant factors arise in the circumstances of this case. I have however, taken into account the pro-disclosure bias in section 64 of the IP Act. [44] Schedule 4, part 2, item 7 of the RTI Act.[45] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [46] Schedule 4, part 2, item 12 of the RTI Act.[47] Section 121(3) of the IP Act.[48] Email received on 10 February 2020.[49] Schedule 4, part 2, item 17 of the RTI Act.[50] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 at [17]. See also 1OS3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011). [51] Schedule 4, part 2, item 5 of the RTI Act. [52] Schedule 4, part 2, item 10 of the RTI Act. [53] Schedule 4, part 2, item 6 of the RTI Act. [54] Schedule 4, part 2, item 14 of the RTI Act. [55] Having carefully considered all factors favouring disclosure listed in schedule 4, part 2 of the RTI Act, I can identify no other relevant public interest considerations telling in favour of disclosure. Taking into consideration the nature of the information remaining in issue in the Third Party Information I cannot see how its disclosure could, for example, ensure effective oversight of expenditure of public funds (schedule 4, part 2, item 4 of the RTI Act); advance the fair treatment of the applicant in future dealings with agencies (schedule 4, part 2, item 10 of the RTI Act) or contribute to the maintenance of peace and order (schedule 4, part 2, item 15). [56] Section 49(3) of the RTI Act.[57] Schedule 4, part 4, section 6 of the RTI Act. [58] Schedule 4, part 3, item 3 of the RTI Act. [59] Schedule 4, part 3, item 16 of the RTI Act. [60] Schedule 4, part 4, section 8(1) of the RTI Act; see B7TG4G at [35]-[37].[61] Schedule 4, part 3, item 7 of the RTI Act.[62] See SQD; E9IH9N; and B7TG4G which dealt with the previous JEO system.[63] Schedule 4, part 3, item 7 of the RTI Act. [64] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. [65] Section 67(1) of the IP Act and sections 47(3)(a) and 48, and schedule 3, section 10(1)(i) of the RTI Act.[66] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Q13 and Department of Children, Youth Justice and Multicultural Affairs [2021] QICmr 66 (14 December 2021)

Q13 and Department of Children, Youth Justice and Multicultural Affairs [2021] QICmr 66 (14 December 2021) Last Updated: 29 August 2022 Decision and Reasons for Decision Citation: Q13 and Department of Children, Youth Justice and Multicultural Affairs [2021] QICmr 66 (14 December 2021) Application Number: 316241 Applicant: Q13 Respondent: Department of Children, Youth Justice and Multicultural Affairs Decision Date: 14 December 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - DISCLOSURE PROHIBITED BY ACT - documents about child safety concerns, assessments and outcomes - whether disclosure prohibited by sections 186-188 of the Child Protection Act 1999 (Qld) - whether exempt information - whether access may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 and schedule 3, section 12(1) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - CONTRARY TO PUBLIC INTEREST - mobile phone numbers of agency officers - disclosure of personal information - whether disclosure would, on balance, be contrary to the public interest - whether access may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 and schedule 4 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - IRRELEVANT INFORMATION - information duplicated or repeated in located documents - information ruled out of scope with applicant during processing - whether deleted information was irrelevant to the access application - section 88(2) of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant in this matter is a child.[1] The applicant applied[2] under the Information Privacy Act 2009 (Qld) (IP Act), to the Department of Children, Youth Justice and Multicultural Affairs (Department) for access to child safety records concerning the applicant. The Department located 36 pages and decided[3] to refuse access to: two full pages and parts of 23 pages on the ground that this information comprised exempt information, as its disclosure is prohibited by sections 186-188 of the Child Protection Act 1999 (Qld) (Child Protection Act); and part of one page on the ground that disclosure of the information would, on balance, be contrary to the public interest. The Department also deleted parts of five pages on the basis that they were irrelevant to the access application pursuant to section 88 of the IP Act as the deleted information was duplicated or repeated elsewhere in the located pages. During the processing of the application the Department wrote to the applicant’s father to indicate that it would not consider duplicated or repeated information as relevant to the terms of the request,[4] and the applicant’s father did not object to this approach. The applicant applied[5] for internal review of this decision, and the Department affirmed its original decision.[6] The applicant then applied[7] to the Office of the Information Commissioner (OIC) for external review of the Department’s decision. For the reasons set out below, I vary the Department’s decision. Reviewable decision The decision under review is the Department’s internal review decision dated 3 August 2021. Evidence considered Significant procedural steps relating to the external review are set out in the Appendix. Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and the Appendix). The applicant’s father has sent a large volume of email correspondence to OIC during this and other reviews. To the extent that that material contains information that is relevant to the issues for determination in this review, I have taken account of it. I have had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[8] A decision maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act when applying the law prescribed in the IP Act and Right to Information Act 2009 (Qld) (RTI Act).[9] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[10] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[11] Information in issue The information in issue is contained within: two full pages[12] and parts of 24 pages[13] (Category A information) part of one page[14] (Category B information); and parts of three pages[15] (Category C information). While I cannot provide details of the information in issue,[16] it generally comprises information relating to child protection matters involving the applicant child and others. Issues for determination The issues for determination are whether: access to the Category A information may be refused on the ground that it comprises exempt information, namely information the disclosure of which is prohibited by sections 186 - 188 of the Child Protection Act access to the Category B information may be refused on the ground that disclosure would, on balance, be contrary to the public interest; and the Category C information may be deleted from copies of the documents disclosed to the applicant on the basis that it is irrelevant to the terms of the access application. Applicant’s submissions Since the commencement of this external review, the applicant’s father has sent voluminous correspondence to OIC. To ensure that I considered the applicant’s relevant submissions, on 10 September 2021, Assistant Information Commissioner Martin wrote to the applicant’s father[17] and directed him to identify the external review reference number in his correspondence and to limit his correspondence to submissions relating to the issues on external review.[18] The applicant’s father did not follow these directions and continued to provide OIC with voluminous correspondence in relation to his interactions with numerous other government agencies and court processes. Having assessed the applicant’s father’s correspondence, I understand that, in relation to the issues in this review, he submits that:[19] the records held by the Department are ‘100% false except a few minor details such as names and dates or reports from [the applicant’s father] etc.’, and that there is evidence to ‘show undeniably that what they state happened or was said was NOT fact and DID NOT happen anything like what they allege’. the applicant’s father does not agree with the actions of the Department and considers them to be unlawful the applicant’s father’s interactions with the Department demonstrate wrongdoing by the Department; and OIC and the Department staff had ‘falsely alleged that [the applicant’s father has] not carried out the stated guidelines and that [the applicant’s father has] no basis or substance for [his] claims’ without having investigated and analysing the ‘evidence provided’. In response to an update from OIC regarding the status of this and other external reviews the applicant’s father submitted the following:[20] Thank you for your response, I look forward to reading the Justice obstructing continually relentlessly Rigidly thinking repeated and fixated Mental Gymnastics and illogical Cognitive Dissonance to support their unlawful Ad Hominem as soon as possible... I will unpack it all and reply in a "Timely Manner". (sic) For the most part it is unclear to me how the applicant’s father’s submissions relate to the issues for my consideration on external review. I acknowledge that broadly the submissions raise public interest concerns, particularly with respect to Department actions and decisions and the accuracy of the relevant records. As I have explained in more detail below, such public interest arguments do not impact on my assessment of whether the Category A information to which access was refused can be considered exempt information. This is because Parliament has determined that the disclosure of exempt information[21] is contrary to the public interest, and access may therefore be refused.[22] The applicant’s father’s submissions do not provide information that would impact on the application of the exemption, nor do they directly contest the refusal of access to a mobile telephone number (the Category B information) or the issue of irrelevance. Category A information Relevant law Under the IP Act an individual has a right to be given access to documents of an agency to the extent they contain the individual’s personal information. [23] This right is subject to other provisions of the IP Act and the RTI Act, including the grounds on which an agency may refuse access to information.[24] Relevantly, access to information may be refused to the extent it comprises exempt information.[25] Schedule 3, section 12 of the RTI Act provides that information is exempt information if its disclosure is prohibited by sections 186-188 of the Child Protection Act. Relevantly, disclosure of information is prohibited under the Child Protection Act if the information: identifies a person making a notification of a suspicion that a child has been or is likely to be harmed;[26] or is about the affairs of another person[27] and was acquired by a person performing particular functions under the Child Protection Act.[28] The prohibition on disclosure is subject to certain exceptions in the Child Protection Act.[29] Further, an exception to information qualifying as exempt information under schedule 3, section 12(1) of the RTI Act is set out in schedule 3, section 12(2) of the RTI Act. Findings Would the Category A information identify any person/s who made a notification? Having assessed the Category A information, I am satisfied that some parts of it identify a person/s who made a notification/s under the Child Protection Act. Accordingly, I am satisfied that these parts of the Category A information: are subject to the prohibition on disclosure in section 186(2) of the Child Protection Act; and qualify as exempt information under schedule 3, section 12(1) of the RTI Act – unless any of the exceptions apply (as discussed below). Is the remaining Category A information about another person’s affairs and received under the Child Protection Act? The term ‘person’s affairs’ is not defined in the Child Protection Act or the Acts Interpretation Act 1954 (Qld). The relevant dictionary definitions for ‘affair/s’[30] are ‘matters of interest or concern’ and ‘a private or personal concern’.[31] Having assessed the remaining Category A information, I am satisfied it comprises information about the interests and concerns of individuals other than the applicant. These individuals may be known to the applicant; however, this does not impact on my assessment that it comprises the personal affairs of these other individuals. I am also satisfied that this information was received or obtained by Departmental officers under the Child Protection Act. Relevantly, the Child Protection Act lists a public service employee[32] as a person to whom section 187 applies. On the basis of the above findings, I am satisfied that the remaining Category A information is about other persons’ affairs and was given to, or received by, a person performing functions under or in relation to the administration of the Child Protection Act. Accordingly, I am satisfied that the remaining parts of the Category A information are: subject to the prohibition on disclosure in section 187(2) of the Child Protection Act; and qualify as exempt information under schedule 3, section 12(1) of the RTI Act – unless any of the exceptions apply (as discussed below). Do any of the exceptions apply? Sections 187 and 188 of the Child Protection Act contain a number of exceptions to the prohibition on the disclosure of information given or received under the Child Protection Act. Of relevance to this review, section 187(4)(a) provides that access may be given to another person to the extent that the information is about the other person. In addition, schedule 3, section 12(2) of the RTI Act provides that information is not exempt information under schedule 3, section 12(1) if the information is only personal information of the applicant. Where information is not about the applicant, or where the information is about the applicant but is not solely about the applicant,[33] or where an applicant’s personal information[34] cannot be separated from the personal information of other individuals, the exceptions will not apply, and the information will remain exempt. The Category A information is about individuals other than the applicant. In some instances, the Category A information is also about the applicant, but is intertwined with the information of others. After careful assessment, I find that the Category A information is not solely about the applicant or only the personal information of the applicant. I am therefore satisfied that the exceptions in section 187(4)(a) of the Child Protection Act and schedule 3, section 12(2) of the RTI Act do not apply to the Category A information because it is not only about the applicant. In seeking an external review, the applicant’s father stated that he was the person who reported the child harm to the Department. The IP Act prohibits me from disclosing the information in issue in these reasons[35] and, given the context in which the Category A information appears, I am unable to directly respond to the applicant’s father’s submissions in this regard. Having considered all documents identified by the Department, including the released documents, I note that information relating to the applicant child only has been disclosed to the applicant’s father. I have considered the applicant’s father’s submission that he was the relevant notifier of harm, however, I do not consider this submission impacts on this assessment. The applicant’s father also submitted that the records held by the Department contain incorrect information, which the applicant requires in order to have it amended, and contains false allegations made against the applicant’s father by the Department, which are ‘criminally unlawful’.[36] The submissions raise issues relative to public interest factors that may favour disclosure of the Category A information. However, I cannot take these submissions into account. There is no scope for me to consider public interest arguments once I am satisfied that the information qualifies as exempt information. This is because Parliament has determined that disclosure of the types of information set out in schedule 3 of the RTI Act is contrary to the public interest, and access may therefore be refused.[37] As I consider the requirements of sections 186 and 187 of the Child Protection Act are met, and no exceptions in the Child Protection Act or schedule 3, section 12(2) of the RTI Act apply, I find that the Category A information is exempt information under schedule 3, section 12(1) of the RTI Act. Accordingly, I find that access to the Category A information may be refused under section 47(3)(a) of the RTI Act. Category B information Relevant law Access to information may also be refused to the extent it comprises information the disclosure of which would, on balance, be contrary to the public interest.[38] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[39] identify factors irrelevant to the public interest and disregard them identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Schedule 4 of the RTI Act contains non-exhaustive list of factors that may be relevant in determining where the balance of the public interest lies in a particular case. I have carefully considered these lists, together with all other relevant information, in reaching my decision. Additionally, I have kept in mind the RTI Act’s pro-disclosure bias[40] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly,[41] and have not taken into account any irrelevant factors. Findings The Category B information comprises the mobile telephone number belonging to a staff member of another Queensland government department. Factors favouring disclosure The applicant’s father’s submissions have at no stage raised matters that could reasonably be viewed as necessitating my consideration of the public interest factors listed in schedule 4, part 2 of the RTI Act, or any other public interest factors favouring disclosure not listed in the RTI Act,[42] for the Category B information. Having considered the Category B information, I have not identified any factors listed in schedule 4, part 2 of the RTI Act favouring disclosure of this information. Factors favouring nondisclosure The RTI Act recognises that disclosing an individual’s personal information to someone else can reasonably be expected to cause a public interest harm[43] and that a further factor favouring nondisclosure arises if disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[44] As noted above, the Category B information is a mobile telephone number. It solely comprises the personal information of a person other than the applicant. However, the Category B information relates to a public service officer, which necessitates a consideration of whether the information is routine personal work information. Routine personal work information is information that is solely and wholly related to the routine day to day work duties and responsibilities of a public sector employee, such as the fact of authorship of a work document or a work responsibility. Generally, it is not considered to be contrary to the public interest to disclose routine personal work information.[45] In this case, I do not consider that the Category B information is routine personal work information as it allows an officer to be contacted directly and outside of work hours. Disclosure of this type of information permits potential contact with a public service officer when off duty and/or engaged in private activity, thus giving rise to a reasonable expectation of intrusion into the officer's private life or personal sphere.[46] I consider that disclosure of the Category B information could reasonably be expected to prejudice the protection of the right to privacy of an individual other than the applicant and cause a public interest harm by disclosing their personal information. Given the nature of the information and the context in which it appears, I afford moderate weight to both of these factors in respect of the Category B information. Balancing the public interest I have considered the pro-disclosure bias in deciding access to information.[47] As outlined above, I have identified no factors favouring disclosure. On the other hand, I afford the factors favouring nondisclosure regarding the personal information and privacy of an individual other than the applicant moderate weight. On balance, I consider the nondisclosure factors outweigh the disclosure factors. Accordingly, I find that access to the Category B information may be refused under section 47(3)(b) of the RTI Act on the basis that its disclosure would, on balance, be contrary to the public interest. Category C information Relevant law Under the IP Act, an agency may delete information that is irrelevant to the terms of the access application.[48] This is not a ground for refusal of access, but a mechanism to allow irrelevant information to be deleted from documents which are identified for release to an applicant. In deciding whether information is irrelevant, it is necessary to consider the scope of the access application, as agreed between the applicant and the relevant agency. Findings In this case, the deleted information appears, on its face, to be information relevant to the access application. However, having considered this information, I note that it comprises duplicates of information appearing elsewhere in the located documents, or repetition of the exact same information in Department records. In a letter to the applicant[49] acknowledging receipt of the access application, the Department stated: Duplicates and duplicated information The IP Act requires an agency to make a decision in relation to all documents which fall within the scope of an application; this includes duplicate documents, documents containing duplicated information and each email in a chain of emails. However, for the purposes of your application, where relevant the following will be excluded unless you advise otherwise: duplicate documents; information which is duplicated across a number of different documents with no change to the content of the information. In these cases, a decision will be made on only one instance of this information and any subsequent copy of the information will be removed (where this information is contained in a document which is otherwise within scope of the application, the information will be removed as irrelevant); and where email chains fall within the scope of your application, only the last unique email in the chain will be provided and earlier emails will be excluded. There is nothing before me to suggest that the applicant’s father objected to the Department’s proposed approach to consider any duplicated information as irrelevant to the scope of the access application. I have examined the Category C information and am satisfied that it comprises copies of information already released to the applicant or Category A information which I have already found is exempt from disclosure. There is no change to the content of this information between where it originally appeared in the documents. In the context that this information appears, it is clear to me that it has been duplicated or repeated. As the Department advised the applicant of its intention to remove the Category C information as irrelevant and, given the lack of any objection to this course of action by the applicant, I find that the Category C information may be deleted under section 88(2) of the IP Act on the basis that it is not relevant to the access application. DECISION I vary[50] the Department’s decision and find that: access to the Category A information may be refused on the ground that it comprises exempt information[51] the disclosure of which is prohibited by the Child Protection Act the Category B information may be refused on the ground that disclosure would be, on balance, contrary to the public interest;[52] and the Category C information may be deleted on the basis that it is not relevant to the access application.[53] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.A RickardActing Right to Information CommissionerDate: 14 December 2021 APPENDIX Significant procedural steps Date Event 4 August 2021 OIC received the applicant’s application for external review. OIC notified the Department that the application for external review had been received and requested procedural documents from the Department. 5 August 2021 OIC notified the applicant that the application for external review had been received. 11 August 2021 OIC received the requested procedural documents from the Department. 12 August 2021 OIC notified the applicant and the Department that it had accepted the application for external review and requested the information in issue from the Department. 27 August 2021 OIC received oral submissions from the applicant. 1 September 2021 OIC received emailed submissions from the applicant. 2 September 2021 OIC received a copy of the located documents from the Department. 10 September 2021 OIC conveyed a preliminary view to the applicant. OIC received emailed submissions from the applicant. 27 September 2021 OIC wrote to the applicant about his submissions received on 10 September 2021. OIC received three emailed submissions from the applicant. 11 November 2021 OIC received emailed submissions from the applicant. 12 November 2021 OIC wrote to the applicant about submissions received on 11 November 2021. OIC received emailed submissions from the applicant. [1] The child’s father made an access application and sought external review on behalf of the child. In this decision, references to the applicant include references to the child’s father when acting on behalf of the child in relation to the access application. Section 45 of the Information Privacy Act 2009 (Qld) provides that a child’s father is a parent who may make an access application for the child. In such circumstances the applicant is taken to be the child rather than the parent (see the definition of ‘applicant’ in schedule 5 of the Information Privacy Act 2009 (Qld)).[2] Application dated 1 June 2021.[3] Decision dated 30 June 2021.[4] Letter dated 8 June 2021.[5] By email dated 6 July 2021.[6] Internal review decision dated 3 August 2021.[7] On 4 August 2021.[8] Section 21 of the HR Act.[9] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[10] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).[11] XYZ at [573].[12] Pages 17 and 31.[13] Pages 1-4, 8, 11-14, 16, 19-20, 22, 25-30 and 32-36.[14] Page 25.[15] Pages 3, 4 and 5.[16] Section 121(3) of the IP Act prohibits the Information Commissioner from including information that is claimed to be exempt in reasons for a decision on external review.[17] Pursuant to section 108(2) of the IP Act.[18] I repeated this direction in my email to the applicant’s father dated 12 November 2021.[19] Emails from the applicant’s father dated 10 September 2021 and 27 September 2021.[20] Email from the applicant’s father dated 12 November 2021.[21] The categories of exempt information are set out in schedule 3 to the RTI Act.[22] Section 48(2) of the RTI Act.[23] Section 40 of the IP Act.[24] Section 67(1) of the IP Act and section 47 of the RTI Act.[25] Section 47(3)(a) of the RTI Act.[26] Section 186(2) of the Child Protection Act. [27] That is, not the person seeking to access the information. [28] Section 187(2) of the Child Protection Act.[29] Section 187(3) and (4) and 188(4) of the Child Protection Act.[30] Butler, S. (Ed.). (2017). ‘Affairs’. In The Macquarie Dictionary (7th ed.). Macquarie Dictionary Publishers. [31] As established in 7CLV4M and Department of Communities (Unreported, Queensland Information Commissioner, 21 December 2011) at [30]. [32] Section 187(1)(a) of the Child Protection Act.[33] In Hughes and Department of Communities, Child Safety and Disability Services (Unreported, Queensland Information Commissioner, 17 July 2012), Assistant Information Commissioner Corby considered whether the exception in section 187(4)(a) of the Child Protection Act applies to shared information about the applicant and other persons. She observed at paragraph 26: ‘The [Child Protection Act] exception only applies where the information is solely about the applicant. Thus where information is simultaneously about the applicant and others, the [Child Protection Act] exception will not apply’. [34] ‘Personal information’ comprises ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’: schedule 5 of the RTI Act, and section 12 of the IP Act. [35] Section 121(3) of the IP Act.[36] Submission dated 10 September 2021.[37] Section 48(2) of the RTI Act.[38] Section 47(3)(b) of the RTI Act.[39] Section 49(3) of the RTI Act.[40] Section 44 of the RTI Act.[41] Section 47(2) of the RTI Act.[42] Which I must also consider, given that the public interest factors listed in the RTI Act are non-exhaustive—see section 49(3)(a), (b) and (c) of the RTI Act.[43] Schedule 4, part 4, section 6(1) of the RTI Act.[44] Schedule 4, part 3, item 3 of the RTI Act.[45] However, it is considered to be contrary to the public interest to disclose sensitive personal information of public sector employees, such as complaints made by or about a public sector employee.[46] See for example, L78 and Queensland Health [2020] QICmr 5 (10 February 2020). This decision was upheld at the Queensland Civil and Administrative Tribunal: Webb v Information Commissioner [2021] QCATA 116.[47] Section 64 of the IP Act. [48] Section 88(2) of the IP Act.[49] Dated 8 June 2021.[50] This decision varies the Department’s decision because I have found that access to parts of pages 19-20 may be refused on the ground they comprise exempt information, whereas the Department found that these pages were irrelevant to the application. [51] Under section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 12 of the RTI Act.[52] Under sections 67(1) of the IP Act and sections 47(3)(b) and 49 and schedule 4 of the RTI Act.[53] Under section 88(2) of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

V17 and Department of Transport and Main Roads [2021] QICmr 34 (30 June 2021)

V17 and Department of Transport and Main Roads [2021] QICmr 34 (30 June 2021) Last Updated: 19 August 2021 Decision and Reasons for Decision Citation: V17 and Department of Transport and Main Roads [2021] QICmr 34 (30 June 2021) Application Number: 315784 Applicant: V17 Respondent: Department of Transport and Main Roads Decision Date: 30 June 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - CABINET INFORMATION - documents attached to Cabinet submission - whether information disclosure of which would reveal Cabinet consideration or prejudice confidentiality of Cabinet considerations or operations - whether exempt information to which access may be refused - sections 47(3)(a) and 48 and schedule 3, section 2(1)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied to the Department of Transport and Main Roads (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to: Options Analysis for the Coomera Connector project undertaken as part of Preliminary Evaluation phase and 2015 Joint Study completed by the Department of Transport and Main Roads and Gold Coast City Council for the Coomera Connector. 2. The Department refused access to the requested ‘Options Analysis’[1] and ‘2015 Joint Study’[2] (Information in Issue), on the ground that these documents comprised exempt information, to which access may be refused.[3] The Department’s decision[4] explained both that the Information in Issue had informed the content of earlier Cabinet submissions, and that the Minister for Transport and Main Roads had requested preparation of a Cabinet submission incorporating the Information in Issue. 3. The applicant applied[5] to the Office of the Information Commissioner (OIC) for external review of the Department’s decision. 4. During the review, the Department advised[6] that the prospective submission referred to in its decision had been finalised, ie that the Information in Issue had formed part of a submission considered by Cabinet. 5. Taking all the above into account, I am satisfied that the Information in Issue comprises exempt information, as information the disclosure of which would reveal a consideration of Cabinet, or otherwise prejudice the confidentiality of Cabinet considerations or operations within the meaning of schedule 3, section 2(1)(b) of the RTI Act. I affirm the Department’s decision. Background 6. Significant procedural steps are set out in the appendix to this decision. Reviewable decision 7. The decision under review is the Department’s internal review decision dated 13 November 2020. 8. This decision is somewhat unclear in its intent. While stating that it is a decision to ‘confirm’ the Department’s initial decision to ‘refuse disclosure’ of the Information in Issue, it also cites section 40 of the RTI Act,[7] which allows an agency to refuse to deal with an application (as distinct from refusing access to information requested in that application), where, in short, it appears that all documents requested comprise exempt information. 9. I did initially consider that section 40 of the RTI Act was the provision on which the Department had relied in making the decision under review, ie that it was a refusal to deal with an application, rather than a refusal of access to information. Having again appraised the decision, and information conveyed to me by the Department during the review,[8] I now consider the Department’s intention was to refuse access to documents under section 47(3)(a) of the RTI Act, and have proceeded on that basis.[9] Evidence considered 10. Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix).Application of the Human Rights Act 11. In making this decision I have had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[10] A decision maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act when applying the law prescribed in the RTI Act.[11] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[12] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[13] Information in issue 12. As noted above, the Information in Issue comprises the documents requested by the applicant: the ‘Options Analysis’ and ‘2015 Joint Study’. Issue for determination 13. The issue for determination is whether the Information in Issue comprises exempt information to which access may be refused, as information the disclosure of which would reveal any consideration of Cabinet or would otherwise prejudice the confidentiality of Cabinet considerations or operations. Relevant law 14. The RTI Act confers a right of access to documents of government agencies such as the Department.[14] This right is subject to other provisions of the RTI Act, including grounds on which access may be refused.[15] Section 47(3)(a) of the RTI Act permits an agency to refuse access to documents to the extent they comprise exempt information.[16] 15. Types of exempt information are stated in schedule 3 to the RTI Act. Parliament has provided that one such type of exempt information is information meeting the requirements of schedule 3, section 2(1) of the RTI Act. Schedule 3, section 2 of the RTI Act relevantly provides: 2 Cabinet information brought into existence on or after commencement (1) Information is exempt information for 10 years after its relevant date if— ... (b) its disclosure would reveal any consideration of Cabinet or would otherwise prejudice the confidentiality of Cabinet considerations or operations ... (2) Subsection (1) does not apply to— (a) information brought into existence before the commencement of this section; or (b) information officially published by decision of Cabinet. (3) Without limiting subsection (1), the following documents are taken to be documents comprised exclusively of exempt information under subsection (1)— (a) Cabinet submissions ... ... (4) A report of factual or statistical information attached to a document mentioned in subsection (3) is exempt information under subsection (1) only if— (a) its disclosure would have an effect mentioned in subsection (1)(b) ... ... (5) In this section— ... consideration includes— (a) discussion, deliberation, noting (with or without discussion) or decision; and (b) consideration for any purpose, including, for example, for information or to make a decision. relevant date, for information, means— (a) for information considered by Cabinet—the date the information was most recently considered by Cabinet; or (b) for other information—the date the information was brought into existence. Findings 16. As noted, the decision under review explains that the Information in Issue informed Cabinet submissions pre-dating that decision. By email dated 29 April 2021, the Department further advised that the Information in Issue was attached to a submission considered by Cabinet earlier this year.[17] 17. While I note the applicant’s dissatisfaction with his dealings with the Department,[18] I have no reason to go behind or gainsay either the finding of fact made in the decision under review, or the Department’s 29 April 2021 advice. I accept both. 18. Cabinet submissions are conclusively presumed to comprise exempt information, to which access may be refused: schedule 3, section 2(3)(a) of the RTI Act, cited above. 19. Attachments to such submissions, however – where those attachments comprise ‘report[s] of factual or statistical information’ – will qualify for exemption only where their disclosure would give rise to the consequences stated in schedule 3, section 2(1)(b) of the RTI Act: schedule 3, section 2(4) of the RTI Act.[19] 20. The applicant submits that it may be inferred that the Information in Issue comprises reports of ‘factual or statistical’ information, within the meaning of schedule 3, section 2(4). I am prepared to accept that submission, and thus draw the necessary inference. 21. Having regard to all relevant circumstances, I am, however, also of the view that disclosure of the Information in Issue ‘would have an effect mentioned in subsection (1)(b)’: that disclosure would reveal a consideration of Cabinet or otherwise prejudice the confidentiality of Cabinet considerations or operations. 22. The Information in Issue comprise documents that have informed earlier Cabinet submissions. More tellingly, however, is the fact that those documents have now actually been attached to a submission put before and considered by Cabinet. In these circumstances, it seems to me that their disclosure would reveal a consideration of Cabinet, by revealing information that has been considered by Cabinet. 23. Additionally and/or alternatively, disclosure of the Information in Issue would have similar – if not identical – consequences to those the Federal Court accepted would ‘breach the necessary confidentiality of the Cabinet process’[20] – by permitting, at the least, ‘reliable inferences to be drawn’ about the ‘subject matter of discussions by Cabinet’,[21] thereby undermining or prejudicing the confidentiality of Cabinet considerations or operations. 24. I consider that the Information in Issue meets the requirements of schedule 3, section 2(1)(b) of the RTI Act. Neither of the of the exceptions stated in schedule 3, section 2 appearing to have any application in this case,[22] that information therefore comprises exempt information within the meaning of sections 47(3)(a) and 48 of the RTI Act, to which access may be refused. Applicant’s submissions 25. I conveyed the substance of the reasoning at paragraphs 16-24 to the applicant by letters dated 11 March 2021, and, particularly, 7 May 2021. 26. In reply, the applicant resisted any finding that access may be refused to the Information in Issue under schedule 3, section 2(1)(b) of the RTI Act. In submissions dated 20 May 2021, the applicant, having set out the definition of ‘consideration’ in schedule 3, section 2(5)(b), argued: ...the relevant aspect of this clause is not ‘consideration’ but whether disclosure of the document/s would ‘reveal’ what was considered by Cabinet. As previously explained, it is my opinion that, disclosure of the document/s would not reveal what Cabinet considered as it would be unclear what information contained within the document/s were presented or discussed by Cabinet. To reveal this would require knowing the contents of the document/s as listed in schedule 3 Section (2)(3). I have not requested this. Disclosure of the document/s would only reveal what the Department of Transport & Main Roads have considered in planning for the delivery of transport infrastructure. What was ultimately presented to Cabinet and considered by them would not be known. ... ...I find it highly unlikely that a reasonable person would, upon reading the contents of the requested document/s would be able to determine what was considered by Cabinet beyond what is already known (ie the decision made to progress the project), let alone create a situation whereby the confidentiality of Cabinet considerations becomes prejudiced. The document/s have not been produced for the benefit of establishing the parameters or economic considerations or negotiations with third parties, nor would they substantially contain information of a sensitive nature. It is also possible for any recommendations contained within the requested document/s to be redacted so as to limit the possibility of forming a connection between them and any Cabinet submission. I note the Internal Reviewer for this RTI Request referred to North Queensland Conservation Council Inc and Queensland Treasury [2016] QICmr 21. In the judgment, the Commission outlined that determining whether the confidentiality of the Cabinet considerations or operations would be prejudiced is largely dependent on the particular nature of the information in question, the circumstances relating to the creation of the information and the other information available to the decision maker, under the RTI Act. (noting QICmr 21 related to information of a substantially different nature and connectivity to Cabinet information than the information in question in this instance) Thus, it is important to note the nature of the document/s requested in this instance. The document/s are standard planning documents as established by the Department of Transport & Main Roads’ OnQ Project Management Framework. They are created for the benefit of planning for the delivery of transport infrastructure. They inform the department on how to proceed. There are literally hundreds of these reports produced each year by the department. Almost all of them, I presume, are not viewed as Cabinet information. It is also publicly known in this instance what decision has been made. 27. Insofar as the above submissions query what was ‘ultimately presented’ to Cabinet, I have noted above the Department’s advice that the Information in Issue was attached to a submission considered by Cabinet. The requested documents, then – the Information in Issue – formed part of what was considered by Cabinet. It is not possible, therefore, to ‘limit the possibility of forming a connection between them and any Cabinet submission’: those documents were attached to and thus an integral component of a Cabinet submission. 28. To the extent the above submissions go on to query the extent to which Cabinet ‘considered’ the Information in Issue, the concept of ‘consideration’ is drawn both broadly and non-exhaustively in schedule 3, section 2(5)(b) of the RTI Act. I am comfortable inferring that material presented to Cabinet, by way of formal submission, has been subject to consideration within the meaning of that provision. 29. In any event, even if this inference was misplaced, ‘consideration’ is not necessary to attract exemption under the final words of schedule 3, section 2(1)(b): ‘otherwise prejudice the confidentiality of Cabinet...operations’. Unconditional disclosure[23] of information put before Cabinet would, in my view, prejudice the confidentiality of the Cabinet ‘course’, ‘process’ or ‘transaction’[24] – the meeting or operation – at which that information was presented, and of which it formed a part. 30. As for the applicant’s reliance on the OIC decision in North Queensland Conservation Council Inc and Queensland Treasury,[25] as the applicant himself notes, pertinent aspects of that decision concerned documents qualitatively different to those in issue in this review – relevantly, ‘emails, correspondence and other internal records created and/or considered by Treasury staff in assessing the economic viability’ of certain projects[26] – what might, on my reading of North Queensland, be broadly termed internal ‘preparatory materials’[27] used in developing Cabinet submissions. The delegate in that case, having regard to matters fairly summarised by the applicant in his submissions as excerpted above, was satisfied that disclosure of such materials met the test for exemption stated in schedule 3, section 2(1)(b) of the RTI Act. 31. The Information in Issue in this review is, as the applicant notes, of a ‘substantially different nature and connectivity’. In contrast to internal preparatory materials of the kind considered in North Queensland, it is directly connected to Cabinet operations, having not only informed Cabinet submissions, but formed part of an actual Cabinet submission, by way of attachment. 32. Given this, the qualitative nature of the Information in Issue as ‘planning documents’ – the importance of which the applicant stresses in the paragraph following his citation of North Queensland – is significant only to the extent it disqualifies those documents from attracting the automatic presumption of exemption otherwise afforded Cabinet submissions by schedule 3, section 1(3)(a) of the RTI Act. 33. Once that disqualification is accepted, however, it appears to me that it is neither important nor necessary to have any further regard to the nature of the Information in Issue. All that matters from that point is whether disclosure of that information – regardless of its characterisation – would have one of the effects stated in schedule 3, section 2(1)(b) of the RTI Act. For reasons explained above, I am satisfied that it would. 34. The applicant also: questions whether the Information in Issue has been examined or ‘reviewed against’ the Cabinet submission to which the former was annexed, submits that Cabinet decisions concerning the subject matter of his application – the proposed Coomera Connector – have been publicised; and notes that:- [i]n requesting the document/s, I was unaware they supposedly formed part of a Cabinet submission. Thus, unless the requested document/s makes mention of the need to present certain information to Cabinet for their consideration (whose parts could be redacted if disclosed), I cannot see how disclosure would reveal a Cabinet consideration or prejudice it. 35. Addressing the first of the points above, in view of the Department’s advice referred to at paragraph 16 (which, as noted, I accept), I have not considered it necessary to examine or review the Information in Issue in[28]his case.28 This advice establishes a factual foundation sufficient to allow me to draw the inferences necessary to conclude that disclosure of the information in issue would have one of the effects stated in schedule 3, section 2(1)(b) of t[29] RTI Act.29 36. As for the publication of Cabinet decisions, it is the case that the exemption prescribed in schedule 3, section 2(1) does not apply to information officially published by decision of Cabinet: schedule 3, section 2(2)(a). There is nothing before me, however, to suggest that the Information in Issue has been officially published by decision of Cabinet, so as to enliven this exception. Relevant documents and the submission to which they form attachments, as far as I am aware, confidential. 37. Turning to the last of the three arguments set out in paragraph 34, I acknowledge the applicant’s statement that he was ‘unaware’ of the status of the Information in Issue at the time he made his application; the incorporation of these documents into a Cabinet submission and subsequent lodging of that submission with Cabinet occurred, as explained above, after the applicant made his RTI access application. I am, however, required to have regard to relevant facts and circumstances as they stand at the date of [30] decision30 – those facts including the fact that the Information in Issue has been before Cabinet. 38. Finally, for completeness I should note that in his 24 March 2021 submissions, the applicant referred to the ‘Solomon Report’,[31] and specifically his understanding of concerns therein raised as to the breadth of the Cabinet exemption contained in the repealed Freedom of Information Act 1992 (Qld) (FOI Act): ie, that Ministers ‘could take documents into the Cabinet room for no purpose other than to guard against disclosure under the FOI Act’, which situation – or ‘abuse’ – the applicant understood had ‘been remedied by the RTI Act’. 39. In conducting an external review under the RTI Act, my role is to apply the law in force as enacted by Parliament. While it is the case that the Cabinet exemption provisions contained in that Act differ in some respects from those in the former FOI Act,[32] they will nevertheless apply to exempt from disclosure information the release of which would reveal a consideration of Cabinet or otherwise prejudice the confidentiality of Cabinet considerations or operations. As reasoned above, I consider those requirements met in this case. 40. These 24 March 2021 submissions also canvassed public interest concerns. I am precluded from taking public interest considerations into account in assessing whether information comprises exempt information. This is because Parliament has conclusively determined that disclosure of information comprising exempt information would be contrary to the public interest.[33] DECISION 41. I affirm the decision under review, under section 110 of the RTI Act. 42. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. Louisa LynchRight to Information CommissionerDate: 30 June 2021 APPENDIX Significant procedural steps Date Event 11 December 2020 OIC received the applicant’s application for external review. 15 December 2020 OIC requested procedural documents from the Department. 17 December 2020 The Department supplied requested documents. 22 January 2021 OIC wrote to each of the applicant and the Department, advising that the former’s application for external review had been accepted. 17 February 2021 OIC requested clarification from the Department as to whether the Information in Issue was in existence at the time of receipt of the access application. 23 February 2021 The Department advised that the Information in Issue existed as at the date of receipt of the access application, and a decision was made to refuse access. 11 March 2021 OIC wrote to the applicant, conveying a preliminary view. 24 March 2021 The applicant provided submissions in reply to OIC’s 11 March 2021 preliminary view. 27 April 2021 OIC wrote to the Department, requesting advice as to the status of the Cabinet process involving the Information in Issue. 29 April 2021 The Department replied to OIC, advising that the Information in Issue had been attached to a Cabinet submission considered by Cabinet. 7 May 2021 OIC wrote to the applicant, conveying a further preliminary view. 20 May 2021 The applicant provided submissions in reply to OIC’s 7 May 2021 preliminary view. 10 June 2021 OIC requested and received advice from the Department as to the date of part of the Information in Issue. [1] Dated March 2020: email from Department dated 10 June 2021.[2] A 2015 document: email from Department dated 29 April 2021.[3] Sections 47(3)(a) and 48, and schedule 3, section 2(1)(b) of the RTI Act.[4] Dated 13 November 2020.[5] Application dated 11 December 2020.[6] Email dated 29 April 2021, in reply to OIC email query dated 27 April 2021.[7] As does the Department’s initial decision.[8] Email dated 23 February 2021, advising that a ‘decision was made to refuse access as exempt information (upheld on internal review).’[9] Which is not, ultimately, a matter of especial significance; whether refusing to deal under section 40, or refusing access under section 47(3)(a), it must still ultimately be apparent that the requirements of schedule 3, section 2(1)(b) of the RTI Act are satisfied. As explained below, I am satisfied that those requirements are met. In terms of the language of section 40, this means that the applicant’s access application is therefore an access application expressed to relate to ‘all documents’ (ie, the Information in Issue) containing information of a stated kind or relating to a stated subject matter (the Coomera Connector), and all of which documents appear to be comprised of exempt information. A decision to refuse to deal under section 40 of the RTI Act would, in the alternative, therefore appear to be justified.[10] Section 21 of the HR Act. [11] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[12] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).[13] XYZ at [573].[14] Section 23 of the RTI Act.[15] Section 47 of the RTI Act. These grounds are to be interpreted narrowly: section 47(2)(a) of the RTI Act, a requirement I have borne in mind in making my decision, together with Parliament’s intention that the Act be administered with a pro-disclosure bias (section 44 of the RTI Act).[16] As defined in section 48 of the RTI Act.[17] On a date stated in that email (alongside other particulars such as submission and decision number). In accordance with schedule 3, section 2(5), the ‘relevant date’ for the Information in Issue is, therefore, either that 2021 date, or the date the Information in Issue was brought into existence: 2015 for the ‘Joint Study’ and 2020 for the ‘Options Analysis’ - each, in either case, well within the 10 year time limit stated in the opening clause of schedule 3, section 2(1)(b) of the RTI Act (see footnotes 1 and 2).[18] See particularly email submissions dated 24 March 2021.[19] Also cited above, paragraph 15.[20] Spencer v Commonwealth of Australia (No 3) [2012] FCA 637, [24], Emmett J (Spencer). The Court in Spencer upheld a claim of public interest immunity justifying non-disclosure of various Cabinet-related documents, including documents, which, as with the Information in Issue, had been circulated within Cabinet. Spencer was subsequently upheld on appeal by the Full Court of the Federal Court (Spencer v Commonwealth of Australia [2012] FCAFC 169), and as it is concerned with the avoidance of consequences substantially similar to those against which schedule 3, section 2(1)(b) of the RTI Act is directed, can be usefully applied in interpreting the latter.[21] As above.[22] That is, the 2015 and 2020-dated Information in Issue having neither been brought into existence before the 2009 commencement of schedule 3, section 2, nor officially published by decision of Cabinet (a matter touched on further below).[23] As Judicial Member McGill SC recently observed ‘... the effect of the... [Information Privacy Act 2009 (Qld)] is that, once information has been disclosed, it comes under the control of the person to whom it has been disclosed. There is no provision of that Act which contemplates any restriction or limitation on the use which that person can make of that information, including by way of further dissemination.’: FLK v Information Commissioner [2021] QCATA 46, [17]. These comments are equally applicable to access obtained via the cognate mechanisms of the RTI Act. [24] Adopting relevant aspects of the ordinary dictionary definition of the word ‘operation’, it being undefined within the RTI Act: Macquarie Dictionary, 7th Edition.[25] [2016] QICmr 21 (North Queensland).[26] As above, at [22].[27] Borrowing Emmett J’s characterisation of ‘documents ... created within government departments and instrumentalities for the purpose of preparing a submission to Cabinet.’: Spencer, [27].[28] Noting that as a delegate of the Information Commissioner, I am not bound by the rules of evidence and may inform myself on any matter in any way I consider appropriate: section 95(1)(c) of the RTI Act.[29] Thereby discharging the onus imposed on the Department by section 87 of the RTI Act of establishing that the decision under review was justified, or that I should give a decision adverse to the applicant.[30] Palmer and Townsville City Council [2019] QICmr 43, [21]-[41].[31] Ie, The Right to Information: Reviewing Queensland’s Freedom of Information Act, FOI Independent Review Panel, June 2008.[32] The latter having operated to exempt from disclosure information, relevantly, submitted to Cabinet, which in a case such as this would have obviated the need for reasoning and discussion of the kind set out at 21-23 above. See section 36(1)(a) of the FOI Act.[33] Section 48(2) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Law Abiding Firearms Owners Inc and Queensland Police Service [2019] QICmr 46 (25 October 2019)

Law Abiding Firearms Owners Inc and Queensland Police Service [2019] QICmr 46 (25 October 2019) Last Updated: 1 November 2019 Decision and Reasons for Decision Citation: Law Abiding Firearms Owners Inc and Queensland Police Service [2019] QICmr 46 (25 October 2019) Application Number: 314388 Applicant: Law Abiding Firearms Owners Inc Respondent: Queensland Police Service Decision Date: 25 October 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL WITH APPLICATION - EXEMPT CLASS OF DOCUMENTS - application for information about weapons licences and registrations - whether application expressed to relate to all documents that contain information of a stated kind or relate to a stated subject matter - whether all documents to which application relates appear to comprise exempt information - whether agency may refuse to deal with application - section 40 and schedule 3, section 10(1)(g) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for access to information recording weapons licenses and registered[1] weapons by postcode.[2] QPS decided[3] to refuse to deal with the application under section 40 of the RTI Act, on the ground it appeared to QPS that all of the requested documents comprised exempt information. The applicant applied for internal review of that decision and QPS affirmed[4] its refusal to deal with the application under section 40 of the RTI Act. The applicant applied to the Office of the Information Commissioner (OIC) for external review of QPS’s internal review decision.[5] For the reasons set out below, I set aside QPS’s decision and find that it is not entitled to refuse to deal with the application under section 40 of the RTI Act. Background The decision under review is QPS’s internal review decision dated 17 December 2018, refusing to deal with the applicant’s access application. Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and the Appendix). Issue for determination QPS maintains that it was entitled to refuse to deal with the application under section 40 of the RTI Act. QPS has also submitted[6] that the requested information would, on balance, be contrary to the public interest to disclose. Under section 85 of the RTI Act, a person affected by a reviewable decision may apply to have the decision reviewed by the Information Commissioner. In this review, the reviewable decision is QPS’s decision to refuse to deal with the application. In making my decision, I have the power to affirm, vary or set aside the reviewable decision and substitute it with my decision. In this decision I have considered whether QPS is entitled to refuse to deal with the application under section 40 of the RTI Act. I have not considered whether disclosure of any responsive information would, on balance, be contrary to the public interest.[7] Relevant law If an access application is made to an agency under the RTI Act, the agency should deal with the application unless this would not be in the public interest.[8] One of the few circumstances where it is not in the public interest to deal with an access application is set out in section 40 of the RTI Act, which provides: 40 Exempt information (1) This section applies if— (a) an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and (b) it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information. (2) The agency or Minister may refuse to deal with the application without having identified any or all of the documents. Exempt information is defined as meaning information that is exempt information under schedule 3 of the RTI Act.[9] In this external review, QPS has the onus of establishing that its decision refusing to deal with the application was justified.[10] Findings Is the application expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter? Yes, for the reasons that follow. The application seeks to access: 1. Weapons Act licenses (as set out in s 12 of that Act) by postcode of license holder output to CSV or XLSX format... 2. Registered weapons by postcode of license holder or registrant output to CSV or XLSX format... I am satisfied that the application is framed as a request for all documents that contain information of a stated kind or relate to a stated subject matter (that is, information about licences and registrations issued pursuant to the firearms licensing and registration scheme under the Weapons Act). Accordingly, I find that the first limb of section 40 of the RTI Act is satisfied. Do all of the documents to which the application relates appear to be comprised of exempt information? No, for the reasons that follow. QPS submits[11] that all the requested documents comprise exempt information under schedule 3, section 10(1)(g) of the RTI Act because disclosure could reasonably be expected to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety, namely, the weapons licensing system established under the Weapons Act. For this provision to apply, there must be: an identifiable lawful method or procedure for protecting public safety; and a reasonable basis to expect that the effectiveness or enforcement of that method or procedure would be prejudiced by disclosure of the requested information. Lawful method or procedure The object of the Weapons Act is to prevent the misuse of weapons[12] and one of the ways this is achieved is through an integrated licencing and registration scheme.[13] Section 49 of the Weapons Act requires that a firearms register be established and maintained and specifies the information which is required to be included in that register. On this basis, I am satisfied that the firearms licensing and registration scheme is one of the methods and procedures used by QPS to protect public safety with respect to the monitoring of firearm possession and use.Could reasonably be expected to prejudice the maintenance or enforcement of the method or procedure In assessing whether an event ‘could reasonably be expected’ to occur, the Information Commissioner has found:[14] The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural “expectations”) and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist. Accordingly, I must be satisfied, on an objective examination of the relevant evidence, that there is a reasonably based expectation (and not mere speculation or a mere possibility, or something that is irrational or absurd or ridiculous) that the consequences identified in the exemption will follow as a result of the information in issue being disclosed.[15] Whether the expected consequence is reasonable requires an objective examination of the relevant evidence, rather than from other circumstances.[16] Consistent with the observations of Justice Daubney in SJN,[17] as the party holding the onus in this review, QPS is obliged to put forward argument and/or information which could lead to a conclusion that provision of the particular requested information to this particular applicant could reasonably be expected to prejudice the maintenance or enforcement of the weapons licensing system. QPS contends that disclosure of the requested information could reasonably be expected to: enable individuals to identify areas where there is a probability that weapons are being stored and potentially result in targeted offending by criminal sources[18] be used to further or facilitate criminal activity and subvert police attention by providing information that is not readily available through other means[19] ‘necessarily create an intent contrary to’ the Weapons Act by the ‘watering down’ of the secrecy of weapon storage locations;[20] and lead to media criticism and increased concerns from both licence holders and the general community.[21] QPS also provided OIC with additional, specific submissions in support of the above contentions and requested that these submissions not be disclosed as to do so would result in the disclosure of exempt information. Under section 108(3) of the RTI Act, I must not disclose, in the reasons for a decision, information which is claimed to be exempt information or contrary to the public interest information. I am therefore constrained in the extent to which I can explain, in detail, the particular circumstances put forward by QPS to support its contentions. In his external review application, the applicant referred to the release of similar information by QPS in response to a prior access application. This previously released information included details of firearm licences by postcode[22] and the applicant submits[23] that ‘at no time has that [previously released information] tended to show that firearms are “probably” stored at any particular address’. In response, QPS[24] maintained that disclosure of the information requested in this review would lead to the disclosure outcomes set out in paragraph 25 above. QPS did not place any evidence before me which indicated that the prior release of similar information gave rise to any of those outcomes and, more significantly, did not provide any detail about how the disclosure outcomes could reasonably be expected to prejudice the maintenance or enforcement of the firearms licensing and registration system. Further, I note that this type of information is readily available through various schemes in relevant jurisdictions such as New South Wales and Victoria.[25] This fact was put to QPS during the course of the review,[26] to which QPS responded that the release by the New South Wales Police Force under the Government Information (Public Access) Act 2009 caused complaints from, and concern by, gun licence holders and the general public. These concerns were primarily in relation to the creation of an interactive map of the concentration of the licence holders that inaccurately placed markers over certain properties and also from licence holders who feared that the release of this information ‘compromised their safety by enabling criminal sources the opportunity for targeted offending’.[27] While I acknowledge the broad natured concerns raised by QPS, I am not persuaded that disclosure of the particular requested information to the access applicant in this matter could reasonably be expected to result in the same concerns. Specifically, there is no evidence before me to demonstrate a causational link between the disclosure of the requested information and any reasonable expectation of prejudice to the maintenance or enforcement of the firearms licensing and registration system. Noting that QPS bears the onus in this review, I am not satisfied that the information provided by QPS could lead a conclusion that provision of the information requested in the application to the applicant could reasonably be expected to prejudice the maintenance or enforcement of the weapons licensing system. On this basis, I am unable to find that all the requested information appears to comprise exempt information under schedule 3, section 10(1)(g) of the RTI Act. As I am not satisfied that the second limb of section 40 of the RTI Act has been met, I consider that QPS is not entitled to refuse to deal with the application on that basis. DECISION I set aside QPS’s decision and find that QPS cannot refuse to deal with the application under section 40 of the RTI Act and must continue to deal with this application in accordance with the requirements of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. S MartinAssistant Information Commissioner Date: 25 October 2019 APPENDIX Significant procedural steps Date Event 13 January 2019 OIC received the external review application. 15 February 2019 OIC notified the applicant and QPS that the external review had been accepted. 7 March 2019 OIC conveyed a preliminary view to QPS. 21 March 2019 OIC received submissions from QPS. 3 April 2019 The applicant advised OIC that it continued to seek access to the documents requested in the application. 4 April 2019 OIC confirmed its preliminary view to QPS. 24 April 2019 OIC received further submissions from QPS. 2 May 2019 OIC conveyed a further preliminary view to QPS. 31 May 2019 OIC received further submissions from QPS. 27 June 2019 OIC conveyed a further preliminary view to QPS. 5 July 2019 OIC received further submissions from QPS. 5 August 2019 OIC received further information from QPS. 12 August 2019 OIC confirmed its preliminary view to QPS. [1] Under the Weapons Act 1990 (Qld) (Weapons Act)[2] By application dated 27 September 2018. Specifically the applicant sought the information in a CSV or XLSX format.[3] On 23 November 2018. [4] On 17 December 2018. [5] External review application dated 13 January 2019. [6] Submissions dated 24 April 2019. [7] The Queensland Civil and Administrative Tribunal has previously found that where the issue being determined by the Information Commissioner is whether an agency is entitled to refuse to deal with an access application, the Information Commissioner is not required to consider whether disclosure of information would, on balance, be contrary to the public interest. Refer to SJN v Office of the Information Commissioner & Anor [2019] QCATA 115 (SJN) at [51] per Justice Daubney. [8] Section 39(1) of the RTI Act.[9] Section 48(4) and schedule 5 of the RTI Act. [10] Under section 87(1) of the RTI Act. [11] Submissions dated 24 April 2019. [12] Section 3(2) of the Weapons Act. [13] Section 4(b) of the Weapons Act. [14] B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at [160]. Other authorities note that the words ‘require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous to expect a disclosure of the information could have the prescribed consequences relied upon’. Smolenski v Commissioner of Police, NSW Police [2015] NSWCATAD 21 at [34], citing Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [28], McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] and Attorney-General’s Department v Cockroft [1986] FCA 35; (1986) 10 FCR 180 (Cockroft) at 190. [15] Abbot Point Bulkcoal Pty Ltd and Department of Environment and Science; Mackay Conservation Group Inc (Third Party) [2018] QICmr 26 (24 May 2018) (APB) at [19]. In reaching a finding, it is not necessary for a decision-maker ‘to be satisfied upon a balance of probabilities’ that disclosing the document will produce the anticipated prejudice: see Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009) (Sheridan) at [192], citing Cockroft at 106.[16] APB at [20]. [17] At [74], where His Honour observed that the entity bearing the review onus did not attempt to link any of its raised disclosure concerns to the particular information sought by the particular applicant in that matter. [18] Submissions dated 21 March 2019. [19] Submissions dated 24 April 2019. [20] Submissions dated 24 April 2019. In this regard, QPS referenced section 49(4) of the Weapons Act, which relevantly provides that QPS may make information in the firearms register available to another entity, within or outside the State, only where satisfied to do so would assist in achieving the object of the Weapons Act. [21] Submissions dated 24 April 2019. [22] Previously available on the QPS RTI disclosure log web page: <https://www.police.qld.gov.au/rti/disclog/2016/Documents/RTI%2019576%20Final%20Adobe%20Print.pdf> [23] External review application. [24] Submissions dated 31 May 2019 and 5 July 2019. [25] Interactive maps by jurisdiction: Victoria, see media article dated 29 June 2014, access at <https://www.thecourier.com.au/story/2378608/how-many-guns-are-registered-in-your-postcode/> and New South Wales see <http://www.toomanyguns.org/map> .[26] By letter dated 4 April 2019.[27] Submissions dated 21 March 2019.

queensland

court_judgement

Queensland Information Commissioner 1993-

North Queensland Conservation Council Inc. and Department of State Development [2016] QICmr 46 (4 November 2016)

North Queensland Conservation Council Inc. and Department of State Development [2016] QICmr 46 (4 November 2016) Last Updated: 6 February 2017 Decision and Reasons for Decision Citation: North Queensland Conservation Council Inc. and Department of State Development [2016] QICmr 46 (4 November 2016) Application Number: 312645 Applicant: North Queensland Conservation Council Inc. Respondent: Department of State Development Decision Date: 4 November 2016 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - CABINET INFORMATION - information relating to Government agreements, due diligence assessments and consideration of investment in proposed mining projects - whether information would reveal considerations of Cabinet or otherwise prejudice confidentiality of Cabinet considerations - whether information is exempt under section 48 and schedule 3, section 2(1)(b) of the Right to Information Act 2009 (Qld) - whether access to information may be refused under section 47(3)(a) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - information relating to Government agreements, due diligence assessments and consideration of investment in proposed mining projects - accountability and transparency - prejudice to commercial affairs of an entity - prejudice to economy of the State and deliberative processes of government - whether disclosure would, on balance, be contrary to the public interest under section 49 of the Right to Information Act 2009 (Qld) - whether access to information may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary North Queensland Conservation Council Inc. (NQCC) applied under the Right to Information Act 2009 (Qld) (RTI Act) to the Department of State Development (Department)[1] for access to various documents relating to agreements between the Queensland Government and Adani[2] and mining in the Galilee Basin.[3] The Department located 187 pages within the scope of the access application and refused access to 180 full pages and seven part pages on the basis that: the information was exempt under schedule 3, section 2(1) or schedule 3, section 8(1) of the RTI Act;[4] or disclosure of the information would, on balance, be contrary to the public interest.[5] The applicant applied to OIC for external review[6] and during the review clarified the particular type of documents to which it sought access. On external review, the Department also located further documents falling within the scope of the application, which it claimed were exempt Cabinet information. For the reasons set out below, I find that access to the information remaining in issue may be refused under the RTI Act. In part, my decision is based on different grounds to those relied on by the Department and therefore, I have varied the Department’s decision. In summary, I find that access may be refused on the following grounds: the information is exempt under schedule 3, section 2(1)(b) of the RTI Act;[7] or disclosure of the information would, on balance, be contrary to the public interest.[8] Background Significant procedural steps relating to the application and external review are set out in Appendix A. The information in issue relates to the Queensland Government’s assessment of the financial impact of the Adani’s proposed Carmichael Coal Mine and related infrastructure projects (Adani Projects) and the merits of government assistance for these projects. Some of the information in issue includes proposed agreements between the Government and Adani in relation to infrastructure funding for the Adani Projects. Separate but related documents available on Queensland Treasury’s (Treasury) Disclosure Log indicate that the Adani Projects will involve the largest coal mine in Australia and multibillion dollar investments in railway and port infrastructure.[9] This has been recognised as a major project by the Queensland Coordinator General[10] and the relevant mining leases have been granted to Adani by the State Government.[11] The timeframe of the access application covers the time of both the former and current Queensland Governments. The former Deputy Premier announced that the Queensland Government was in negotiations with the Adani Group regarding direct investment in infrastructure to facilitate the Adani Projects.[12] The current Queensland Government has since indicated that it will not ‘contribute taxpayer money to Adani’s project.’[13] While considering this external review application, OIC also conducted three other related external reviews involving the same or largely similar documents, subject matter and submissions from participants. NQCC and its representative, Mr Jeremy Tager,[14] made separate access applications to various Queensland government agencies, requesting similar information relating to the Adani Projects. Due to the nature of the Adani Projects, information relating to this subject matter is held across a number of different Queensland government agencies, and in many cases copies of the same information appears in the records of various agencies. The first of these matters was finalised by the decision of North Queensland Conservation Council Incorporated and Queensland Treasury [2016] QICmr 9 (29 February 2016) (NQCC1). The second review was finalised by the decisions of North Queensland Conservation Council Inc and Queensland Treasury [2016] QICmr 21 (10 June 2016) (NQCC2).[15] I have also concurrently reached a decision in external review 312639 involving the Queensland Treasury Corporation (QTC).[16] The access applicant in that matter is the same individual who lodged the access applications in the other three external reviews on behalf of NQCC. The information in issue in 312639 and NQCC2 includes some of the same CTPI Information identified at [31] below. Given the commonality in the information in issue, applicant’s submissions and subject matter of all of the above external reviews, in reaching this decision, I have taken into account the submissions made by the applicant’s legal representatives and agencies across all four reviews, to the extent the submissions apply to the information in issue in this review. While I have made a fresh and independent decision on the merits of this matter, I have not departed from the findings in NQCC1 and NQCC2, to the extent this review concerns the same information in issue.[17] In these reasons, I have referred to, and relied on, the reasons I gave in NQCC2, and therefore, a copy of NQCC2 appears at Appendix B. Reviewable decision The decision under review is the Department’s decision dated 16 October 2015. Material considered Evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and Appendices). Information in issue The information in issue comprises briefing notes, internal DSD correspondence, correspondence between Adani and the Queensland Government, various versions of a due diligence assessment and financial and economic forecast information provided by Adani to the Queensland Government. During the review, OIC provided the applicant with a schedule confirming each page of information that it considered in the scope of this external review.[18] For the sake of clarity, the documents listed in the schedule represent the information in issue in this review and these reasons for decision apply to those documents only. Issues to be considered In this decision, I have considered whether access to the information in issue may be refused on the basis that it is: exempt information, the disclosure of which would reveal a consideration of Cabinet (Cabinet Information)[19]; or information, the disclosure of which would, on balance, be contrary to the public interest (CTPI Information).[20] The breach of confidence exemption[21] is not examined in these reasons for decision. On external review, the Department submitted that disclosure of the information which it had originally decided was exempt on that basis, would, instead, be contrary to the public interest.[22] A. Cabinet Information Relevant law Under the RTI Act a person has a right to be given access to documents of an agency unless access would, on balance, be contrary to the public interest.[23] However, this right is subject to other provisions of the RTI Act, including the grounds on which access to information may be refused. Access may be refused to exempt information.[24] Relevantly, the RTI Act provides that information is exempt information if: it has been brought into existence for the consideration of Cabinet;[25] or its disclosure would reveal any consideration of Cabinet or would otherwise prejudice the confidentiality of Cabinet considerations or operations.[26] The term ‘consideration’ is defined as including ‘discussion, deliberation, noting (with or without discussion) or decision; and consideration for any purpose, including, for example, for information or to make a decision’.[27] The following types of Cabinet documents are taken to be comprised exclusively of exempt information[28] without any further consideration of their contents: (a) Cabinet submissions (b) Cabinet briefing notes (c) Cabinet agendas (d) notes of discussions in Cabinet (e) Cabinet minutes (f) Cabinet decisions (g) drafts of documents (a) to (f) above. There are three exceptions to this exemption: if it is more than 10 years after the information’s relevant date[29] if the information was brought into existence before 1 July 2009;[30] or if the information has been officially published by decision of Cabinet.[31] Findings The Cabinet Information in this matter includes parts of a Director General’s briefing note and attachment and a chain of emails sent between staff of the Department that refers directly to a Cabinet consideration. I am satisfied that the exceptions to the exemption do not apply as the Cabinet Information was brought into existence after 1 July 2009 and there is no evidence available to OIC to indicate that this information has been officially published. The Cabinet Information concerns the same subject matter as the Cabinet Information considered in NQCC1 and NQCC2. In NQCC2 I found that that the Cabinet Information either comprised exclusively exempt information or its disclosure would reveal a consideration of Cabinet.[32] In NQCC2, I specifically addressed the submissions made by the applicant about the Cabinet exemption and found that the Cabinet Information, if disclosed to a reasonable person, would reveal the considerations of Cabinet to that person. Having carefully considered the Cabinet Information in issue in this review, I am satisfied that if it was disclosed, it would directly reveal the considerations and/or deliberations of Cabinet. The Cabinet Information refers to specific Cabinet decisions and outlines the information and options that were presented to Cabinet in order to inform its decision making process in relation to matters concerning the Abbot Point and Carmichael Coal Mine projects. On the basis of the above, I am satisfied that the Cabinet Information is exempt under schedule 3, section 2(1)(b) of the RTI Act and that access may therefore, be refused to it under section 47(3)(a) of the RTI Act on the basis that its disclosure would reveal a consideration of Cabinet. B. CTPI Information Relevant law Access to information may also be refused where disclosure, would, on balance, be contrary to the public interest.[33] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. The RTI Act identifies various factors that may be relevant to deciding the balance of the public interest[34] and explains the steps that a decision-maker must take[35] in deciding the public interest as follows: (i) identify any irrelevant factors and disregard them (ii) identify relevant public interest factors favouring disclosure and nondisclosure (iii) balance the relevant factors favouring disclosure and nondisclosure; and (iv) decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Findings The CTPI Information in this matter comprises draft and final versions of a Due Diligence Assessment (DDA) of the Adani Projects completed by Department staff, as well as emails between Department staff discussing the content of the DDA. In discussions with OIC, an officer of the Department who was involved in conducting the DDA explained that it was performed for the benefit of the Coordinator General and was based on financial data and forecasts provided by Adani following express undertakings from the Department that the financial information would remain confidential.[36] In NQCC2 I decided that disclosure of the DDA would, on balance, be contrary to the public interest.[37] Following my decision in NQCC2, the applicant’s legal representatives made additional submissions to OIC concerning the application of specific public interest factors in schedule 4 of the RTI Act. In considering those additional submissions, OIC contacted an officer of the Department who provided OIC with additional background information regarding the DDA. In assessing the public interest factors below, I have had specific reference to the additional submissions provided to OIC by the applicant’s legal representatives and the Department, since the decision in NQCC2 was issued. Irrelevant factors I have not taken any irrelevant factors into account in reaching this decision. [38] Factors favouring disclosure Under section 44(1) of the RTI Act there is a pro-disclosure bias in deciding access to documents and this is the starting point for considering disclosure of the CTPI Information. Given the particular nature of the CTPI Information, the level of community interest in the Adani Projects and the potentially significant impact of the Carmichael Coal Mine and related infrastructure to the Queensland economy, I also consider the below factors favour disclosure of the information, as disclosure could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[39] contribute to positive and informed debate on important issues[40] inform the community of the Government’s operations;[41] and ensure effective oversight of expenditure of public funds.[42] For the reasons I gave in NQCC2, I am satisfied that each of the above factors carries significant weight in favour of disclosure of the CTPI Information. The RTI Act also recognises a factor in favour of disclosure where disclosure of the CTPI Information could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the decision. In my view, the CTPI Information reveals background and contextual information that informed some government decisions with respect to the Adani Projects. Specifically, I note that the DDA informed the Coordinator General’s decision making process. For this reason I consider that this factor also carries significant weight in favour of disclosure. The applicant has also argued that the disclosure of the information could reasonably be expected to reveal the information was out of date, misleading, gratuitous, unfairly subjective or irrelevant and refers to a recent decision of the Land Court relating to financial and economic statements provided by Adani. In NQCC2, I considered this submission as follows:[43] I have considered the Land Court decision and while I am prevented from describing the CTPI Information in any significant detail, on the evidence available to OIC, I am unable to identify how its disclosure could reasonably be expected to reveal that it was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. Accordingly, I consider that this factor does not apply. I am satisfied that the above reasoning continues to apply and therefore, I find that this factor does not apply to the CTPI Information. The applicant also contends that disclosure of the CTPI Information could reasonably be expected to: contribute to the protection of the environment[44] allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official;[45] and advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies.[46] With respect to the first of the above three factors, the applicant argues that: ...it is not irrational, absurd or ridiculous that disclosed economic or financial information could be used to indirectly contribute to environment protection by highlighting a basis as to why a proposed project, that will have significant environment impacts, should not proceed.[47] The potential environmental impacts of the Adani Projects have been the subject of media attention.[48] However, having carefully considered the CTPI Information I have formed the view that the disclosure of this information could not reasonably be expected[49] to contribute to the protection of the environment. This is because these documents do not discuss environmental issues nor do I have any evidence to suggest that the disclosure of this information could reasonably be expected to prevent some sort of environmental harm. The applicant asserts that the information would assist him in challenging the proposed Adani Projects, which he considers will have detrimental effects on the environment if allowed to proceed, and for this reason, disclosure will contribute to the protection of the environment. Accepting this submission would require me to find not only that the Adani Projects are likely to lead to environmental harm but that disclosure of the CTPI Information would directly lead to the applicant succeeding in stopping the Adani Projects from proceeding.[50] To make such findings would, in my view, be a hypothetical exercise. In any event, based on my assessment of the CTPI Information, I do not consider there is any evidence to suggest that disclosure could lead to the outcomes predicted by the applicant. I consider that, save for a mere possibility,[51] there is no evidence available to OIC to establish that the disclosure of the CTPI Information could reasonably be expected to contribute to the protection of the environment. Accordingly, I consider that this factor favouring disclosure does not apply. I am also satisfied that disclosure of the CTPI information could not reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official. This is because the nature of the information in issue is limited to drafting a DDA based on information authored or provided by Adani. I am not satisfied that the CTPI Information contains the type of information that would ordinarily be required to assess the conduct or administration of an agency or official, in order for this factor to apply. Factors favouring nondisclosure Prejudice the private, business, professional, commercial or financial affairs of entities[52] or the business affairs of a person[53] Having considered the CTPI Information, I am satisfied that the focus of this information is on the commercial and financial affairs of Adani. Specifically, I note that the CTPI Information details Adani’s own economic and financial forecasts. In considering the specific CTPI Information, I am satisfied, for the reasons I gave in NQCC2,[54] that significant weight can be attributed to both factors in favour of nondisclosure. The applicant argues in its additional submissions to OIC that the weight of these factors should be reduced as the Treasurer has since indicated that the current Queensland Government will not ‘contribute taxpayer money to Adani’s project.’[55] I am not satisfied that this submission affects the application of these public interest factors as the relevant business, commercial and financial interests of Adani extend beyond the granting of taxpayer funds for its projects and extend to its ability to negotiate with investors, in a broader sense. The CTPI Information details sensitive economic and financial forecasts that, on their face, are likely to underpin Adani’s business case in deciding to invest in the proposed projects. I am satisfied that disclosure of the CTPI Information could reasonably be expected to prejudice Adani’s ability to negotiate funding for its proposed mine as well as its ability to compete with other similar mining ventures. Accordingly, I am satisfied that both of these factors carry significant weight in favour of nondisclosure. Prejudice the economy of the State I am satisfied that disclosure of the CTPI Information could reasonably be expected to prejudice the economy of the State[56] in being able to: obtain commercial investment advice without concern of broader disclosure; and negotiate on competitive commercial terms with third parties regarding State investment in large infrastructure projects. In NQCC2, I stated[57] that: Treasury has explained that negotiations remain ongoing between the Government and Adani regarding infrastructure investment options. Specifically the Due Diligence Assessment ...includes internal advice provided to Government in relation to the various investment options available to it and the likely returns and risks of those investments. Disclosure of the Government’s internal investment advice to the general public, including the private sector entities which the Government seeks to conduct commercial negotiations with could reasonably be expected to have a significant adverse impact on the Government’s ability to conduct these negotiations on a commercial and competitive basis. For this reason I have attributed this factor in favour of nondisclosure significant weight. I am satisfied that the above reasoning continues to apply and in accordance with my findings in NQCC2[58], I find that this factor carries significant weight in favour of nondisclosure. Deliberative process The RTI Act recognises that a public interest factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice a deliberative process of government (Nondisclosure Factor).[59] The RTI Act also provides that disclosing information could reasonably be expected to cause a public interest harm through disclosure of an opinion, advice or recommendation that has been obtained, prepared or recorded or a consultation or deliberation that has taken place in the course of, or for, the deliberative processes involved in the functions of government (Harm Factor).[60] In NQCC2 I attributed both the Nondisclosure Factor and Harm Factor significant weight in favour of nondisclosure of the CTPI Information.[61] The applicant has since argued that lower weight should be attributed to these factors as a recent announcement made by the Queensland Treasurer, The Honourable Curtis Pitt indicated that the current Queensland Government will not ‘contribute taxpayer money to Adani’s project’.[62] The applicant argues that on the basis of this announcement the current Government has finished deliberating on some of the investment options.[63] I do not consider that the Treasurer’s announcement necessarily confirms that the Government’s deliberative processes with respect to supporting the Adani Projects are finalised. While the current Government may have ruled out some support options, I am satisfied that there are other options on which a final decision has not yet been made. Having carefully considered the information in issue in this review and the other related external reviews, I am satisfied that the Treasurer’s recent statement cannot be interpreted as unequivocal confirmation that the Government has completed all of its deliberations with respect the way in which it will support (if at all), the Adani Projects. Accordingly, I adopt the reasons I gave in NQCC2 and find that disclosure of the CTPI Information could reasonably be expected to have a detrimental impact on the Government’s ability to continue considering its options and engage in open and frank negotiations with third parties including Adani.[64] I am therefore satisfied that disclosure of the CTPI Information is likely to prejudice the deliberative processes of government and cause significant public interest harm to these processes. I have therefore attributed both the Nondisclosure Factor and Harm Factor significant weight in favour of nondisclosure of the CTPI Information. Balancing the public interest factors The CTPI Information was created by, or communicated to, the former Queensland Government in order to inform its decision making processes with respect to the Adani Projects. These documents are based on financial data provided to the Queensland Government by Adani. I am satisfied that, in addition to the pro-disclosure bias, several factors favouring disclosure carry significant weight due to the potential significance of the Adani Projects to the Queensland economy, and the level of community interest in the subject matter, generally. I am however, also satisfied that disclosure of the CTPI Information could prejudice the economy of the State, the business and commercial affairs of Adani and the deliberative processes of government. I consider that disclosing the CTPI Information is likely to have a detrimental impact on the economy of the State and the State’s ability to fully consider and deliberate upon the financial and economic merits of large scale mining projects through open and direct communication with private entities such as Adani. I am satisfied that these factors carry significant and determinative weight in favour of nondisclosure.Conclusion On the basis of the above, I find that disclosure of the CTPI Information would, on balance, be contrary to the public interest and therefore, access to it may be refused under section 47(3)(b) of the RTI Act.DECISION For the reasons set out above, I vary the decision under review and find that: access may be refused, under section 47(3)(a) of the RTI Act, to information the disclosure of which would reveal a consideration of Cabinet on the basis that it is exempt information[65]; and access may be refused, under section 47(3)(b) of the RTI Act, to information, the disclosure of which would, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. _______________________ K Shepherd Assistant Information Commissioner Date: 4 November 2016 APPENDIX A Date Event 31 July 2015 The Department received the access application. 16 October 2015 The Department issued its decision on the access application. 13 November 2015 OIC received the external review application. 13 November 2015 OIC notified the applicant and the Department that the external review application had been received and requested supporting documents. 25 November 2015 OIC notified the applicant and the Department that the external review had been accepted. OIC requested documents from the Department. 1 December 2015 OIC received the information in issue from the Department. 15 December 2015 OIC spoke to the applicant’s representatives regarding the information in issue across four related external reviews. 18 January 2016 OIC contacted Department staff by telephone and obtained additional submissions relevant to the Due Diligence Assessment. 4 February 2016 OIC requested the Department for copies of additional documents within the scope of the access application. 5 and 8 February 2016 The Department provided OIC with additional documents within the scope of the access application. 16 February 2016 The Department provided OIC with information about the searches it conducted on the application. 18 February 2016 OIC wrote to the Department requesting further information in support of its decision. 8 March 2016 The Department provided OIC with the requested documents and submissions. 7 April 2016 OIC obtained additional submissions from the Department during a telephone discussion. 12 April 2016 OIC contacted an officer of Queensland Treasury to obtain additional background information relevant to the information in issue. 26 April 2016 OIC conveyed a written preliminary view to the applicant and invited the applicant to provide submission. OIC also provided the applicant with a schedule identifying the documents in issue. 16 May 2016 OIC received submissions from the applicant. 14 July 2016 The applicant’s representatives contacted OIC to discuss the progress of this external review. 24 August 2016 OIC received further submissions from the applicant. 30 August 2016 OIC contacted an officer of the Department by telephone and obtained additional submissions. 20 October 2016 OIC provided the applicant with an update on the progress of the matter. APPENDIX BCopy of North Queensland Conservation Council Inc and Queensland Treasury [2016] QICmr 21 (10 June 2016) as published on the OIC Website.Available from: https://www.oic.qld.gov.au/decisions/north-queensland-conservation-council-inc-and-queensland-treasury-2016-qicmr-21-10-june-2016 [1] Access application dated 30 July 2015. [2] The Adani Group (Adani) is a group of companies seeking to develop the largest coal mine in Australia, the Carmichael Coal Mine in central north Queensland. The development of this mine will also involve the development of related rail infrastructure and port infrastructure at Abbott Point in central north Queensland.[3] The Galilee Basin in central north Queensland has been declared by the Queensland Coordinator General to be a Special Development Area to allow the mining and transport of thermal coal. See http://statedevelopment.qld.gov.au/coordinator-general/galilee-basin-state-development-area.html (accessed on 24 October 2016). [4] Under section 47(3)(a) of the RTI Act.[5] Under section 47(3)(b) of the RTI Act. [6] External review application dated 13 November 2015. [7] Under section 47(3)(a) of the RTI Act.[8] Under section 47(3)(b) of the RTI Act. [9] See Treasury’s Disclosure Log, Reference 577 J Tager available from: https://www.treasury.qld.gov.au/about-us/right-to-information/previous-disclosure-log.php (accessed on 28 October 2016). Mr Tager has represented NQCC in other applications.[10] Further details of this project appear on the Coordinator General’s website at http://www.statedevelopment.qld.gov.au/assessments-and-approvals/carmichael-coal-mine-and-rail-project.html (accessed on 25 February 2016).[11] Ministerial statement dated 13 April 2016 available at http://statements.qld.gov.au/Statement/2016/4/3/carmichael-mine-approvals-put-thousands-of-new-jobs-step-closer (accessed on 14 April 2016).[12] Media release dated 17 November 2014 available at: http://statements.qld.gov.au/Statement/2014/11/17/historic-agreements-bring-jobs-to-queensland (accessed on 27 October 2016).[13] See relevant media at: http://www.dailymercury.com.au/news/claims-adani-rail-could-be-taxpayer-funded-denied/3067271/ (accessed on 29 August 2016) as raised by the applicant’s submissions dated 24 August 2016. [14] The other related applications were either made by Mr Tager individual, or on behalf of NQCC. In each review, the applicant was legally represented by the Environmental Defenders’ Office (EDO) and all written submissions were received from the EDO. [15] This decision appears at Appendix B. [16] Tager and Queensland Treasury Corporation [2016] QICmr 45 (4 November 2016). [17] Following NQCC2, the applicant made additional submissions to OIC on 24 August 2016. Therefore, in these reasons, I have also taken into account those submissions. [18] Letter dated 22 April 2016. [19] Under sections 47(3)(a), 48 and schedule 3, section 2(1)(b) of the RTI Act.[20] Under sections 47(3)(b) and 49 of the RTI Act. [21] Schedule 3, section 8 of the RTI Act. [22] Department’s submission to OIC dated 8 March 2016 made in response to OIC’s view that the Department had not discharged its onus in relation to the breach of confidence exemption. [23] Section 44(1) of the RTI Act. This is referred to as the pro-disclosure bias. [24] Sections 47(3)(a) and 48 of the RTI Act.[25] Schedule 3, section 2(1)(a) of the RTI Act.[26] Schedule 3, section 2(1)(b) of the RTI Act.[27] Schedule 3, section 2(5) of the RTI Act.[28] Schedule 3, section 2(3) of the RTI Act.[29] Schedule 3, section 2(1) of the RTI Act. For information considered by Cabinet, the ‘relevant date’ is the date the information was most recently considered by Cabinet; otherwise, ‘relevant date’ is the date the information was brought into existence, schedule 3, section 2(5) of the RTI Act.[30] Schedule 3, section 2(2)(a) of the RTI Act.[31] Schedule 3, section 2(2)(b) of the RTI Act. [32] For the reasons set out at [21] - [28] of that decision. [33] Sections 47(3)(b) and 49 of the RTI Act. [34] Schedule 4 of the RTI Act lists factors that may be relevant when deciding whether disclosure of information would, on balance, be contrary to the public interest. This list is not exhaustive and therefore, other factors may also be relevant in a particular case.[35] Section 49(3) of the RTI Act. [36] Telephone discussion between OIC staff and Department staff on 18 January 2016. [37] At [42] - [82]. In that decision, I also considered additional documents that are not in issue in this matter. [38] In particular, I have not considered whether the disclosure of the relevant information could reasonably be expected to embarrass or cause a loss of confidence in the current or former Governments. [39] Schedule 4, part 2, item 1 of the RTI Act.[40] Schedule 4, part 2, item 2 of the RTI Act.[41] Schedule 4, part 2, item 3 of the RTI Act.[42] Schedule 4, part 2, item 4 of the RTI Act.[43] At [53] (internal footnotes and citations omitted).[44] Schedule 4, part 2, item 13 of the RTI Act.[45] Schedule 4, part 2, item 5 of the RTI Act.[46] Schedule 4, part 2, item 10 of the RTI Act.[47] Applicant’s submissions dated 24 August 2016. [48] See for example: http://www.abc.net.au/news/2015-08-05/federal-court-overturns-approval-of-adani's-carmichael-coal-mine/6673734?pfmredir=sm (accessed on 3 November 2016). [49] The applicant correctly submits that the words ‘could reasonably be expected’ are to be given their ordinary meaning and the relevant expectation must be reasonably based and not irrational, absurd or ridiculous: see Attorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at 190.[50] The expectation of what ‘could reasonably be expected to occur’ must be considered as a consequence of disclosure rather than other circumstances. Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 at paragraph 54.[51] Previous decisions of the Information Commissioner have established that a mere possibility is not sufficient to show that a particular consequence could reasonably be expected; see Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 at paragraph 44, citing Re B and Brisbane North Regional Heath Authority [1994] QICmr 1; (1994) 1 QAR 279 at paragraph 160.[52] Schedule 4, part 3, item 2 of the RTI Act.[53] Schedule 4, part 3, item 15 of the RTI Act. [54] See [54] - [58]. [55] See relevant media at: http://www.dailymercury.com.au/news/claims-adani-rail-could-be-taxpayer-funded-denied/3067271/ (accessed on 29 August 2016) as raised by the applicant in submissions dated 24 August 2016.[56] Schedule 4, part 3, item 12 of the RTI Act. [57] At [60].[58] At [60] - [62]. [59] Schedule 4, part 3, item 20 of the RTI Act. [60] Schedule 4, part 4, item 4 of the RTI Act. [61] See [73] - [78].[62] See http://www.dailymercury.com.au/news/claims-adani-rail-could-be-taxpayer-funded-denied/3067271/ (accessed on 29 August 2016) as raised by applicant in its submissions to OIC dated 24 August 2016.[63] Applicant’s submissions to OIC dated 24 August 2016. [64] See NQCC2 [73] - [78].[65] Under section 48 and schedule 3, section 2(1)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Parnell and Queensland Police Service [2017] QICmr 8 (7 March 2017)

Parnell and Queensland Police Service [2017] QICmr 8 (7 March 2017) Last Updated: 10 August 2017 Decision and Reasons for Decision Citation: Parnell and Queensland Police Service [2017] QICmr 8 (7 March 2017) Application Number: 312806 Applicant: Parnell Respondent: Queensland Police Service Decision Date: 7 March 2017 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION ACT -REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST INFORMATION - medical records of deceased family member - personal information of third parties - whether disclosure would, on balance, be contrary to the public interest - whether access to information may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION ACT -REFUSAL OF ACCESS - NONEXISTENT DOCUMENTS -applicant submits agency has failed to locate all records - whether agency has taken all reasonable steps to locate documents relevant to access application - whether access to further documents may be refused under sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) seeking access to the medical records of his deceased daughter, which were seized by QPS from a private hospital following her death (Medical Records).[1] The Public Safety Business Agency (PSBA), on behalf of QPS,[2] refused access to the Medical Records on the basis that disclosure would, on balance, be contrary to the public interest.[3] The applicant then applied to the Office of the Information Commissioner (OIC) for external review of PSBA’s decision. On external review, most of the Medical Records were released to the applicant, following negotiations between OIC, QPS, Sunshine Coast Hospital and Health Service (SCHHS),[4] and the private hospital.[5] The only information that was not released, and that remains in issue in this review, is the personal information of individuals other than the applicant or his daughter appearing in the Medical Records (Third Party Information). The applicant also remains concerned about alleged missing information.[6] I have decided to vary PSBA’s decision, and find that: disclosure of the Third Party Information would, on balance, be contrary to the public interest and therefore, access to it may be refused under section 47(3)(b) of the RTI Act; and any further information is non-existent under section 52(1)(a) of the RTI Act and therefore, access to it may be refused under section 47(3)(e) of the RTI Act. Background The applicant’s adult daughter passed away in a private hospital in early 2016. The Medical Records show that at the time of her death, she was suffering from a serious illness. The applicant made a complaint to QPS concerning his daughter’s death, and during the resulting investigation, QPS seized the Medical Records (comprising 11 pages) from the private hospital. PSBA confirmed to OIC that the QPS investigation is complete, and QPS found no evidence of negligence or criminal behaviour.[7] The applicant however, remains firmly of the view that his daughter’s death was caused by her treating doctors. Significant procedural steps taken by OIC in conducting the external review are set out in the Appendix to these reasons. Reviewable decision The decision under review is the decision of PSBA, dated 21 March 2016, made on behalf of QPS, refusing access to the Medical Records under section 47(3)(b) of the RTI Act. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). The applicant provided written and oral submissions to OIC supporting his case.[8] While I have carefully reviewed all of those submissions, certain concerns the applicant has raised are not matters which the Information Commissioner has jurisdiction to consider in conducting an external review under the RTI Act.[9] Accordingly, in reaching this decision, I have only considered the applicant’s submissions to the extent they are relevant to the issues for determination on external review. Information in issue As noted in paragraph 3 above, during the course of the external review, the majority of the Medical Records were released to the applicant, with only the Third Party Information redacted. The Third Party Information is therefore, the only information remaining in issue in this review and comprises the personal details in the Medical Records of individuals other than the applicant or his daughter (including information concerning a family-member of the deceased, and the names, contact details and signatures of private hospital medical staff). Issues for determination The issues for determination in this review are whether: access to the Third Party Information may be refused under the RTI Act on the basis that disclosure is, on balance, contrary to the public interest;[10] and whether access to any further documents may be refused on the basis that they do not exist.[11] Third Party Information Relevant law The RTI Act is administered with a pro-disclosure bias, meaning that an agency should decide to give access to information, unless giving access would, on balance, be contrary to the public interest.[12] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. The RTI Act identifies various factors that may be relevant to deciding the balance of the public interest[13] and explains the steps that a decision-maker must take[14] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Findings No irrelevant factors arise in the circumstances of this case and I have not taken any into account in making my decision. The only factor favouring disclosure of the Third Party Information that I am able to identify is the general public interest in advancing access to government-held information, i.e., the pro-disclosure bias.[15] The information concerns a family-member of the deceased, and the names, contact details and signatures of medical staff working in the private hospital. Most of the Medical Records (including information concerning the applicant’s daughter’s treatment) have already been released to the applicant, and while I accept that disclosure of that information was in the interests of improving the social well-being of the community and could reasonably be expected to enhance QPS’s accountability by showing the evidence available to it in its investigation,[16] I do not consider such factors arise in relation to disclosure of the Third Party Information. The Information Commissioner has previously expressed the view that it is difficult to see how disclosure of the names of individuals employed outside the public sector could enhance government accountability or official transparency.[17] Similarly here, it is difficult to see how disclosure of the personal information of hospital staff who are not public servants and are not remunerated by public funds, or the disclosure of information about a family member, would serve to enhance government accountability or transparency. In considering relevant nondisclosure factors, I am satisfied that the Third Party Information comprises the personal information of the relevant individuals and that disclosure could reasonably be expected to prejudice the protection of these individuals’ right to privacy.[18] In relation to the family member of the deceased, I consider the extent of public interest harm to be significant.[19] Information provided to healthcare services during the treatment leading up to the untimely death of a family member is extraordinarily sensitive. I am also satisfied that the interest in safeguarding the personal information of hospital staff and protecting their privacy carries significant weight in favour of nondisclosure. These individuals are private sector employees,[20] who, through the course of their work may encounter challenging individuals and emotionally difficult situations, necessitating a degree of privacy from their dealings in the workplace. Accordingly, I am satisfied that the public interest in protecting the privacy of other individuals and safeguarding their personal information which appears in the Medical Records carries such significant weight so as to outweigh the general public interest in promoting access to government-held information. Disclosure of the Third Party Information would, on balance, be contrary to the public interest and access may be refused under section 47(3)(b) of the RTI Act. Further documents During the external review, the applicant submitted to OIC that he suspects that the Medical Records are incomplete.[21] Relevant law An agency must take all reasonable steps to locate the documents sought in an access application. Access to a document may be refused if the document is non-existent or unlocatable.[22] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[23] To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience and have regard to a number of factors.[24] When the factors are properly considered, it may not be necessary for the agency to conduct searches for documents. Generally, it is the agency that made the decision under review that has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[25] However, where the issue of missing documents is raised, the applicant bears a practical onus to establish reasonable grounds to believe that the agency has not discharged its obligation to locate all relevant documents.[26] A suspicion or mere assertion is not sufficient to satisfy this onus. Findings QPS has confirmed to OIC that the 11 pages of Medical Records were the only documents seized by QPS during its investigation into the applicant’s daughter’s death. QPS also explained to OIC that, given that there was no indication of any negligence or criminal behaviour, these were the only documents required to complete its investigation.[27] While further medical records relating to the applicant’s daughter may exist, I consider that any such documents would be held by the relevant hospital(s) where the applicant’s daughter received treatment. Therefore, such documents would not fall within the scope of the access application made to QPS.[28] I am satisfied that there is no evidence before me—aside from the applicant’s assertion that the Medical Records are incomplete—to suggest that QPS would hold any further documents. Further, given the circumstances which led to the Medical Records coming into the possession of QPS and QPS’s explanation of its investigation process, I do not consider it is reasonable to expect that QPS would hold any further documents responsive to the access application. Accordingly, I find that QPS has taken all reasonable steps to locate documents responding to the access application and that any further documents do not exist, in accordance with section 52(1)(a) of the RTI Act. Therefore, I am satisfied that access to any further documents may be refused under section 47(3)(e) of the RTI Act.DECISION For the reasons set out above, I vary the decision under review and find that: disclosure of the Third Party Information would, on balance, be contrary to the public interest and therefore, access to it may be refused under section 47(3)(b) of the RTI Act; and access to any further information may be refused under section 47(3)(e) of the RTI Act as it does not exist. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI ActK ShepherdAssistant Information CommissionerDate: 7 March 2017APPENDIX Significant procedural steps Date Event 13 April 2016 OIC received the application for external review of QPS’s decision. 14 April 2016 OIC notified the applicant that it had received his application for external review and notified PSBA that the external review application had been received and requested relevant procedural documents from PSBA. 22 April 2016 OIC received the procedural documents from PSBA. 28 April 2016 OIC notified the applicant and PSBA that it had accepted the external review application. OIC also requested information from PSBA as to whether information beyond the 11 pages located by QPS, was obtained from the private hospital following the death of the applicant’s daughter. 29 April 2016 PSBA confirmed to OIC that only 11 pages were seized by QPS from the private hospital. 4 May 2016 PSBA provided OIC with a copy of the 11 pages. 23 May 2016 OIC conveyed a preliminary view to the applicant that access may be refused to the Medical Records and invited the applicant to provide submissions supporting his case. 23 May 2016 OIC received submissions from the applicant by telephone. 2 June 2016 The applicant confirmed that he did not accept the preliminary view and that he continued to seek release of the Medical Records. 27 June 2016 OIC wrote to the applicant to explain its view in more detail and to give him another opportunity to provide further submissions. 11 July 2016 OIC received submissions from the applicant by telephone concerning, among other things, his involvement with his daughter’s treatment and care. 14 July 2016 OIC advised PSBA that OIC’s preliminary view concerning release of the Medical Records had changed based on the applicant’s oral submissions. 11 August 2016 OIC contacted the private hospital to advise of the external review. 30 August 2016 OIC received information from the relevant private hospital. 2 September 2016 OIC updated the applicant on the progress of the external review. 27 September 2016 QPS confirmed to OIC that it no longer objected to release of the Medical Records. 5 October 2016 The applicant contacted OIC to confirm he continued to seek access to the Medical Records. 13 October 2016 OIC provided the applicant with an update on the external review, advised that our preliminary view had changed based on his submissions and explained the third party consultation process. 20 October 2016 OIC wrote to the private hospital and conveyed its view that the applicant was entitled to access the Medical Records (subject to the redaction of Third Party Information) and invited the private hospital to become a participant and to make submissions if it did not accept the preliminary view. 27 October 2016 OIC contacted SCHHS to seek its view on disclosure of two pages of the Medical Records. 28 October 2016 SCHHS confirmed to OIC that it did not object to release of the two pages of Medical Records (subject to removal of some personal information). 3 November 2016 OIC received email from applicant outlining concerns with the process and raising accusations of wrongdoing concerning his daughter’s care. 8 November 2016 OIC received confirmation from the private hospital that it was willing to accept OIC’s view, subject to the redaction of certain personal information. 15 November 2016 OIC confirmed with QPS that it no longer objected to release of the Medical Records, subject to the deletion of certain personal information. 25 November 2016 OIC emailed the applicant addressing his concerns about the external review process, advising that OIC had recently finished consulting with relevant third parties and confirming OIC’s preliminary view on disclosure. 1 December 2016 OIC contacted the private hospital by telephone and confirmed that the Medical Records would be released to the applicant with certain personal information redacted. 8 December 2016 OIC wrote to the applicant to confirm that QPS would release the Medical Records to him subject to the deletion of certain personal information, to explain OIC’s view about the deletion of this personal information and ask him to confirm whether he wishes to continue with the review. OIC also wrote to QPS to confirm its preliminary view and to request that QPS release the Medical Records (with certain personal information redacted) by 16 December 2016. 21 December 2016 QPS advised OIC that it had sent the Medical Records to the applicant (with certain personal details redacted). 10 January 2017 The applicant emailed OIC raising concerns about his daughter’s care and requesting verification that the Medical Records from QPS were complete. 17 January 2017 OIC wrote to the applicant to confirm the preliminary view OIC had formed on the issues in the review and to address his various concerns. OIC gave the applicant an opportunity to make further and final submissions. 31 January 2017 The applicant wrote to OIC and asked a number of questions concerning his daughter’s care and her death, and confirmed his request for access to the names of other individuals appearing in the Medical Records. 2 February 2017 OIC confirmed to the applicant that the next step in the review process would be to issue a formal written decision to finalise the review. [1] Access application dated 16 February 2016.[2] At the time of the access application and the decision under review, PSBA provided corporate and business services on behalf of QPS, including delegated decision making under section 30 of the RTI Act.[3] By decision dated 21 March 2016.[4] OIC consulted with SCHHS concerning two pages of the Medical Records on 27 October 2016. SCHHS confirmed by email to OIC on 28 October 2016 that it had no objection to the release of these pages to the applicant (with the exception of certain Third Party Information).[5] Under section 90(1) of the RTI Act, OIC is required to promote settlement of external review applications. In discharging this obligation, OIC will facilitate negotiations between the review participants in an effort to reduce the number of issues requiring formal determination. [6] Email to OIC dated 10 January 2017.[7] PSBA’s submissions to OIC dated 29 April 2016.[8] Including his external review application dated 13 April 2016, submissions made by telephone to OIC on 23 May 2016 and 11 July 2016, and email submissions to OIC dated 3 November 2016, 10 January 2017 and 31 January 2017. [9] As explained by letter from OIC to the applicant dated 17 January 2017.[10] Under section 47(3)(b) of the RTI Act.[11] Under section 47(3)(e) and section 52(1)(a) of the RTI Act.[12] Section 44(1) of the RTI Act. The various grounds for refusing access are set out in section 47 of the RTI Act, including section 47(3)(b) of the RTI Act which is the relevant public interest ground. [13] Schedule 4 of the RTI Act lists factors that may be relevant when deciding whether disclosure of information would, on balance, be contrary to the public interest. This list is not exhaustive and therefore, other factors may also be relevant in a particular case.[14] Section 49(3)(a) of the RTI Act.[15] Section 44 of the RTI Act.[16] The Information Commissioner has previously recognised the existence of a public interest in the social and economic well-being of the community, particularly in assisting an individual with the grieving process and assisting in understanding the circumstances surrounding a relative’s death: see Keogh and Department of Health (Unreported, Queensland Information Commissioner, 31 August 2010). See also schedule 4, part 2, item 1 and item 9 of the RTI Act. [17] Underwood and Department of Housing and Public Works (No. 1) [2016] QICmr 11 (17 March 2016) at [61] to [62].[18] Giving rise to the factors favouring nondisclosure in schedule 4, part 3, item 3 (to the extent that the relevant individuals are still alive) and schedule 4, part 4, section 6 of the RTI Act.[19] In E9IH9N and Metro South Hospital and Health Service [2016] QICmr 18 (27 May 2016), it was held that releasing third party personal information appearing in (mental health) medical records would constitute a significant intrusion into the privacy of the relevant individuals and the extent of the public interest harm that could be anticipated from disclosure would be significant. [20] For a discussion of the personal information of private sector employees, as well as a discussion of routine and non-routine personal work information of public sector employees, see Kiepe and The University of Queensland (Information Commissioner of Queensland, 1 August 2012) at [18] to [21].[21] By email to OIC dated 10 January 2017.[22] Sections 47(3)(e) and 52 of the RTI Act.[23] Section 52(1)(a) of the RTI Act. [24] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [19] which adopted the Information Commissioner’s comments in PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009). The key factors include: the administrative arrangements of government; the agency structure; the agency’s functions and responsibilities; the agency’s practices and procedures and other factors including the nature and age of the requested document/s and the nature of the government activity to which the request relates.[25] Section 87(1) of the RTI Act.[26] See Mewburn and Department of Local Government, Community Recovery and Resilience [2014] QICmr 43 (31 October 2014) at [13].[27] By letter from PSBA to OIC dated 29 April 2016.[28] The access application specifically noted that the Medical Records he was seeking were seized by QPS following his daughter’s death. In any event, an access application under section 24 of the RTI Act is made for ‘access to a document of an agency’ (in this case QPS). Documents that are not within QPS’s possession or control (see section 12 of the RTI Act), including medical records held by other agencies and private entities, are not captured by the access application.

queensland

court_judgement

Queensland Information Commissioner 1993-

O'Reilly and Queensland Police Service [1996] QICmr 20; (1996) 3 QAR 402 (18 November 1996)

O'Reilly and Queensland Police Service [1996] QICmr 20; (1996) 3 QAR 402 (18 November 1996) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96020Application S 155/93 Participants: KIERAN JOSEPH O'REILLY Applicant QUEENSLAND POLICE SERVICE Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - documents of the former Special Branch of the Queensland Police Service, relating to the applicant - whether certain documents qualify for exemption under s.42(1)(b) of the Freedom of Information Act 1992 Qld - whether matter concerning the affairs of persons other than the applicant is exempt matter under s.44(1) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - refusal of access - names of organisations referred to in documents of the disbanded Special Branch - relevance, and application, of 'mosaic theory' in relation to police intelligence information - whether disclosure could reasonably be expected to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety - application of s.42(1)(f) of the Freedom of Information Act 1992 Qld - whether disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons or property - application of s.42(1)(h) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - respondent's refusal to confirm or deny the existence of documents, falling within the terms of the applicant's FOI access application, which post-date the winding-up of the Special Branch - whether such documents, if they existed, would contain exempt matter under s.42(1) of the Freedom of Information Act 1992 Qld - consideration of s.35 of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.35, s.42(1), s.42(1)(b), s.42(1)(e), s.42(1)(f), s.42(1)(h), s.42(2), s.44(1), s.81 ii Anderson and Australian Federal Police, Re [1986] AATA 79; (1986) 4 AAR 414Byrne and Gold Coast City Council, Re [1994] QICmr 8; (1994) 1 QAR 477Cannon and Australian Quality Egg Farms Limited, Re [1994] QICmr 9; (1994) 1 QAR 491"EST" and the Department of Family Services and Aboriginal and Islander Affairs, Re (Information Commissioner Qld, Decision No. 95020, 30 June 1995, unreported)Ewer and Australian Archives, Re (1995) 38 ALD 789Ferrier and Queensland Police Service, Re (Information Commissioner Qld, Decision No. 96016, 19 August 1996, unreported)McEniery and Medical Board of Queensland, Re [1994] QICmr 2; (1994) 1 QAR 349McKnight and Australian Archives, Re [1992] AATA 225; (1992) 28 ALD 95Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227 TABLE OF CONTENTS Page Background 1Relevant provisions of the FOI Act 2Special Branch documents 3 Documents which would disclose sources of information 4 Documents containing information about other individuals 5 Names of Organisations 6 'Mosaic theory' 7 Section 42(1)(f) 9 Section 42(1)(h) 10'Neither confirm nor deny' issue 11Conclusion 11 DECISION I vary the decision under review (being the decision made on behalf of the respondent by Assistant Commissioner G J Williams on 29 July 1993) with respect to the matter remaining in issue (identified at paragraph 3 of my accompanying reasons for decision) in that I find that:(a) folios 17 and 19 are exempt matter under s.42(1)(b) of the Freedom of Information Act 1992 Qld;(b) the names and reference numbers of organisations deleted from folios 1, 4, 5, 7, 10, 14, 16, 18 and 20 are not exempt matter under the Freedom of Information Act 1992 Qld; and(c) the balance of the matter remaining in issue is exempt matter under s.44(1) of the Freedom of Information Act 1992 Qld.Date of decision: 18 November 1996............................................................F N ALBIETZINFORMATION COMMISSIONER OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96020Application S 155/93 Participants: KIERAN JOSEPH O'REILLY Applicant QUEENSLAND POLICE SERVICE Respondent REASONS FOR DECISION Background1. The applicant seeks review of the respondent's decision to refuse him access, under the Freedom of Information Act 1992 Qld (the FOI Act), to a number of documents and parts of documents relating to him, which were created in the course of the operations of the former Special Branch of the respondent (which I will refer to as the "Special Branch documents").The applicant also seeks review of the respondent's decision to neither confirm nor deny the existence of documents relating to him which may or may not have been created since the winding up of the Special Branch, in the course of the operations of the Counter-Terrorist Section (the CTS) of the respondent. This case is similar in many respects to Re Ferrier and Queensland Police Service (Information Commissioner Qld, Decision No. 96016, 19 August 1996, unreported).2. Mr O'Reilly applied to the Queensland Police Service (the QPS) on 9 February 1993 for "personal files, reports, letters of Special Branch or its successor" and "any other documentation held in relation to myself by the Queensland Police Service". The initial decision on behalf of the QPS was made by Superintendent J B Doyle and communicated to the applicant's solicitor by letter dated 7 July 1993. Superintendent Doyle identified 27 folios of Special Branch documents as falling within the terms of Mr O'Reilly's FOI access application, and decided that full access should be given to 7 folios, that part access should be given to 18 folios, and that 2 folios were wholly exempt under the FOI Act. The exemption provisions relied upon were s.42(1)(b), s.42(1)(f), s.42(1)(h) and s.44(1) of the FOI Act. In addition, Superintendent Doyle invoked s.35 of the FOI Act to neither confirm nor deny the existence of any intelligence documents relating to the applicant, apart from the applicant's Special Branch file. By letter dated 13 July 1993, Mr O'Reilly sought internal review of Superintendent Doyle's decision. In his internal review decision dated 29 July 1993, Assistant Commissioner G J Williams affirmed Superintendent Doyle's decision.By letter dated 17 August 1993, solicitors acting for Mr O'Reilly applied to me for review, under Part 5 of the FOI Act, of Assistant Commissioner Williams' decision.3. Staff of my office obtained and examined the documents in issue in this external review, and made preliminary enquiries of the QPS in relation to a number of matters. Since the issues involved in this review were similar to those involved in the external review which resulted in my decision in Re Ferrier, and the solicitor for the applicant in each case was the same,I decided that the appropriate course of action was to issue my decision in Re Ferrier before progressing further with this external review. Since the publication of my decision in Re Ferrier, my office has consulted further with the QPS and the solicitor for Mr O'Reilly.In light of my reasons for decision in Re Ferrier, the QPS has agreed to the disclosure of some matter initially claimed to be exempt. The matter from the applicant's Special Branch file which remains in issue consists of the whole of folios 17 and 19, and matter deleted from folios 1-5, 7, 9-14, 16, 18, 20, 24 and 26.4. By letter dated 6 September 1996, I expressed to the QPS my preliminary view that the names and QPS-assigned reference numbers of certain organisations did not appear to qualify for exemption under the FOI Act. The QPS did not accept my preliminary view and made a written submission in support of its position in that regard. An edited copy of that submission was provided to the solicitor for the applicant, together with my preliminary view that other parts of the respondent's decision under review were likely to be affirmed, for reasons similar to those which I gave in Re Ferrier for upholding a number of exemption claims made by the QPS in that case. The applicant's solicitor was invited to lodge evidence and submissions in support of the applicant's case, but indicated that the applicant did not wish to make any submissions.Relevant provisions of the FOI Act5. The following provisions of the FOI Act are relevant to my decision:Information as to existence of certain documents 35.(1) Nothing in this Act requires an agency or Minister to give information as to the existence or non-existence of a document containing matter that would be exempt matter under section 36, 37 or 42. (2) If an application relates to a document that includes exempt matter under section 36, 37 or 42, the agency or Minister concerned may give written notice to the applicant-- (a) that the agency or Minister neither confirms nor denies the existence of that type of document as a document of the agency or an official document of the Minister; but (b) that, assuming the existence of the document, it would be an exempt document. (3) If a notice is given under subsection (2)-- (a) section 34 applies as if the decision to give the notice were the decision on the application mentioned in that section; and (b) the decision to give the notice were a decision refusing access to the document because the document would, if it existed, be exempt.Matter relating to law enforcement or public safety 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to-- ... (b) enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained; or ... (e) prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law); or (f) prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety; or ... (h) prejudice a system or procedure for the protection of persons, property or environment; ...Matter affecting personal affairs 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. (2) Matter is not exempt under subsection (1) merely because it relates to information concerning the personal affairs of the person by whom, or on whose behalf, an application for access to a document containing the matter is being made.Special Branch documents6. The Special Branch was a unit of the QPS disbanded in 1989, following recommendations of the Fitzgerald Inquiry. The function of the Special Branch was explained, and the recommendations of the Inquiry set out, in the following passages from the Fitzgerald Report (at pp.242-243):This Unit was established to gather intelligence on individuals or groups regarding threats to democratic government, peace and order including terrorism, espionage and subversive activity, whether that be criminal or political. This Commission reviewed data held by the Branch, and concluded that the intelligence gathering capacity of the Unit was limited, systems were outof date, and that past rumours of politically inspired intelligence gathering on a wide scale could not be substantiated, (though basic information was obtained from all Parliamentarians to assist in the event of a threat). Other criminal intelligence held was in inaccessible manual form.The major role of the Branch in recent years has been VIP protection and escort.There is no good reason why this function cannot in future be performed by the Witness Protection Unit of the Criminal Justice Commission. The intelligence responsibility of Special Branch could best be incorporated into a revised central information bureau for the Police Force.The Special Branch is the Police Force's official ASIO liaison point for mutually agreed information exchange in terms of a formal but voluntary agreement between these two bodies. The detailed review of intelligence systems and needs within the Criminal Justice Commission and the Police Force will, however, establish the proper liaison point or points for the exchange of information with ASIO in future. Once this is clarified the Special Branch should be abolished.7. The documents containing the matter in issue were created by the QPS between 1983 and 1989. They comprise reports concerning rallies, protests and meetings held by various groups during that period, and information obtained in respect of various individuals and organisations in relation to those events. Much of the matter in issue consists of the names and personal details of individuals, and the names of organisations, recorded as being present at, or represented at, those events. Some of the matter in issue records the arrest of, and/or court appearances by, individuals. Mr O'Reilly is one of the persons named in the documents. He has already been given access to all matter specifically referring to him which is contained in the documents in issue, with the exception of the two documents claimed to be exempt in full (folios 17 and 19). I will deal with the matter remaining in issue in three groups.Documents which would disclose sources of information8. Folios 17 and 19 are records of information supplied to the Special Branch in 1986.The QPS contends that these folios are exempt, in whole, under s.42(1)(b) of the FOI Act.In Re McEniery and Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349 at pp.356-357 (paragraph 16), I identified the following requirements which must be satisfied in order to establish that matter is exempt under s.42(1)(b) of the FOI Act:(a) there must exist a confidential source of information;(b) the information which the confidential source has supplied (or is intended to supply) must relate to the enforcement or administration of the law; and(c) disclosure of the matter in issue could reasonably be expected to-- (i) enable the existence of a confidential source of information to be ascertained; or(ii) enable the identity of the confidential source of information to be ascertained.9. A "confidential source of information", for the purposes of s.42(1)(b), is a person who supplies information on the understanding, express or implied, that his or her identity will remain confidential: see Re McEniery at p.358 (paragraphs 20-21). As to the indicia of an implied understanding that the identity of a source of information will be treated in confidence, see Re McEniery at pp.361-364 (paragraphs 26-34) and p.371 (paragraph 50). Given the nature of the information recorded, and the circumstances of its supply to the Special Branch (as evidenced by the content of the folios themselves), I find that the information contained in folios 17 and 19 was supplied on the understanding that the identities of its sources would remain confidential.10. I also consider that the information contained in folios 17 and 19 relates to the enforcement or administration of the law. The Special Branch was intended to perform a preventative law enforcement role. One of its key functions was to identify, and monitor the activities of, persons and organisations who might have intended to break the law, in an effort to prevent breaches of the law from occurring. To that end, it collected background 'intelligence' information, relevant to its ongoing monitoring role. The information contained in folios 17 and 19 is of that kind, and I find that the second requirement for exemption under s.42(1)(b) of the FOI Act is established.11. The nature of the test inherent in the phrase "could reasonably be expected to", in s.42(1) of the FOI Act, is explained at paragraph 23 below. I am satisfied, from my examination of folios 17 and 19, that disclosure of the matter contained in folios 17 and 19 could reasonably be expected to enable the identity of the source(s) of information to be ascertained.I therefore consider that the third requirement of s.42(1)(b) is satisfied.12. There is no public interest test incorporated into s.42(1)(b) of the FOI Act, unless one of the exceptions referred to in s.42(2) applies. There is nothing in the circumstances of this case, nor any material before me, that would suggest that s.42(2) applies. I therefore find that folios 17 and 19 are exempt matter under s.42(1)(b) of the FOI Act.Documents containing information about other individuals13. The QPS contends that information in a number of folios, which is about individuals other than Mr O'Reilly, is exempt from disclosure to Mr O'Reilly under s.44(1) of the FOI Act.The terms of s.44(1) are set out at paragraph 5 above. As to the meaning of the phrase "personal affairs of a person", see Re Stewart and Department of Transport (1993) [1993] QICmr 6; 1 QAR 227 at p.249 and following. Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, to be determined according to the proper characterisation of the information in question. 14. The matter claimed to be exempt under s.44(1) consists of the names of numerous individuals, together with QPS reference numbers for them, in a context which makes it clear that their activities were considered worthy of attention by the Special Branch. It includes personal details such as home addresses and birth dates, along with indications that people had been arrested, and information about convictions and penalties imposed. All of the matter claimed to be exempt under s.44(1) relates solely to the affairs of persons other than Mr O'Reilly. There is no matter which can be said to relate to the shared personal affairs of Mr O'Reilly and other persons. The only connection between Mr O'Reilly and the other persons whose personal affairs are recorded in the matter in issue is that the other persons happened to be present at meetings and protests at which Mr O'Reilly was present, or that they were arrested, or had court action taken against them, in respect of those meetings or protests. 15. In my view, it is clear that all of the matter claimed by the QPS to be exempt under s.44(1) of the FOI Act is properly to be characterised as information concerning the personal affairs of persons other than Mr O'Reilly. The matter is therefore prima facie exempt from disclosure to Mr O'Reilly under s.44(1) of the FOI Act. The applicant has not referred me to any publicinterest considerations which favour the disclosure of any of the matter claimed to be exempt under s.44(1), and I cannot identify any that would be sufficiently strong to outweigh the public interest in protecting the privacy of individuals mentioned in Special Branch records in the context described above. I therefore find this matter to be exempt under s.44(1) of the FOI Act.Names of organisations16. The names, and QPS-assigned reference numbers, of certain organisations appear on folios 1, 4, 5, 7, 10, 14, 16, 18 and 20. The QPS contends that this matter is exempt matter under s.42(1)(f) and s.42(1)(h) of the FOI Act. The QPS has made a written submission in support of its contention that this matter is exempt. That part of the submission which is relevant to this issue (in the edited form in which the QPS agreed to its release to the applicant) is as follows:Perhaps now would be the time to discuss the so called "mosaic theory" or "theory of cumulative prejudice". In my view, this "mosaic theory" provides that a person or group of persons acting in concert can acquire or gather seemingly innocuous pieces of information, but, when analysed together with other information reveals the totality.The Administrative Appeals Tribunal has consistently accepted the validity of this theory (Re Slater and Cox (Director-General, Australian Archives) [1988] AATA 110; (1988) 15 ALD 20 at 27; Re Robinson and Department of Foreign Affairs (1986) 11 ALN N48; Re Throssell and Australian Archives (1986) 10 ALD 403 at 406-7 (Throssell No. 1); Re Throssell and Department of Foreign Affairs [1987] AATA 545; (1987) 14 ALD 296 (Throssell No. 2) and Re McKnight and Australian Archives [1992] AATA 225; (1992) 28 ALD 95).In Re McKnight (supra at 112) Deputy President Johnston of the AAT said:-"In general terms, I do not regard the mosaic theory, otherwise described as a theory of "cumulative prejudice", to be discredited merely because those seeking to uphold it are not able to verify or identify the other circumstances which, when put with information to which access is sought, may reveal either a source of information or a particular method for collecting such information, or disclosure of the kind of circumstances which may be the subject of security analysis".Whilst you have indicated that the effluxion of time can serve to diminish the potential for prejudice, I do not accept this particular view in this case.I agree it may in some cases, however, this is dependent upon a number of variables associated with each individual case. While the probative value of intelligence in relation to the individual may diminish, the concern is that the methodology used to gather and store the intelligence has not.In summary then on this issue of names of groups or organisations, I do not agree with your preliminary view that the age of the documents and the information which has already been disclosed to the applicant, openly qualifies the disclosure of all the organisations' names contained within theseparticular folios to O'Reilly. Folio 004 may be an exception as the words ... have previously been released twice within that folio to O'Reilly. ... It is my submission, that such disclosure ... could reasonably be expected to prejudice the maintenance and therefore, the effectiveness of the methodology used, ... to gather and store intelligence of this nature....I do not accept your preliminary views in relation to the issue on Names of Groups or Organisations which appear in folios 001, 005, 007, 010, 014, 016, 018 and 020. The material contained in these documents is of a sensitive nature and if disclosed, would reveal lawful police methods, systems or procedures to gather information for intelligence purposes. The age of the documents and the information which has already been disclosed to the applicant, does not, in my view, openly qualify the disclosure of all of the organisations' names contained within these particular folios to O'Reilly.I agree Folio 004 may be an exception as the words ... have previously been released twice within that folio to O'Reilly.17. The deletions under consideration have been made from documents which (except in one instance) are now over 10 years old. All of these documents were created by the now defunct Special Branch. References to one organisation are more recent, the most recent being about 8 years old. However, given the amount of matter which has already been released to the applicant, I find that the applicant is in a position to identify the name of that organisation without further information being provided. Giving the applicant access to the deleted name will not disclose anything beyond what the applicant must already be able to ascertain from the information disclosed to him.'Mosaic theory'18. The QPS has relied on the 'mosaic theory', otherwise known as the 'theory of cumulative prejudice', citing a number of decisions of the Commonwealth Administrative Appeals Tribunal (the AAT). I have examined those decisions. I note that a number of them were confined to the review of whether a reasonable ground existed for the issue of a conclusive certificate by the Commonwealth Attorney-General, rather than review of the merits of a decision refusing access.19. A simple explanation/illustration of the mosaic theory appears in the decision of Deputy President Hall in Re Anderson and Australian Federal Police [1986] AATA 79; (1986) 4 AAR 414. At page 424, Deputy President Hall said:A document may disclose methods or procedures either by specifically referring to or describing them or by providing information from the nature of which the methods or procedures employed may be capable of being inferred. Thus, the disclosure of a document containing information that, on the face of it, is purely factual, may nevertheless be information known only to a chosen few members of a particular group. To reveal that information, may disclose the existence or identify a confidential source of information in relation to the enforcement or administration of the law. It may equally serve to confirm what may otherwise only be suspected, namely the methodsor procedures for preventing or detecting possible breaches or evasions of the law employed by the police in order to meet a perceived threat.20. An example of the type of evidence used to support a claim that the mosaic theory applies in a particular case can be found in Re Ewer and Australian Archives (1995) 38 ALD 789, at pp.789-790 (paragraph 12):In relation to the particular documents Mr Brown said in his affidavit: "para 19 In my opinion, it is likely that persons having close association with the Communist Party of Australia and thus having knowledge of its activities and many of its members, would have little trouble in identifying ASIO's confidential sources and methods of operating should the Documents be made available to them. As an example, release of confidential source reports, even with the names or source symbols deleted, could, by application of mosaic analysis process, provide sufficient clues to the identity or existence of a confidential source of information. para 20 In particular, mosaic analysis could be applied in the following ways. The release of folios ... would disclose the fact that the agent was a participant or present at a political/cultural occasion at which there were few other persons present. Each of these documents contains information drawn from material provided by a confidential source or an agent and my examination of the original material in each case confirms my conclusion that the release of the documents would tend to identify the source or agent concerned, by disclosing either the fact of the source's or agent's membership of a small political or political/cultural group, or attendance at a small meeting associated with, or seen to be associated with, the Communist Party of Australia. para 21 Folios ... contain information in relation to documents or copies of documents obtained by sources or agents. Because of the number of documents involved and the fact that a very small number of people would have been in a position to pass them to ASIO, release of the documents would be likely to lead to the identification of the particular source concerned. In each case, disclosure of the fact that ASIO had the information contained in the relevant record would point to the identity of the relevant source or agent."21. In my view, references to the possibility of mosaic analysis do no more than draw to the attention of the decision-maker the fact that disclosure of the information in issue in a particular case should not necessarily be viewed in isolation. It points to the possibility that, in certain cases, disclosure of a piece of information in issue, when combined with other available information, could enable the deduction of further information, the disclosure of which would be contrary to one of the public interests which the exemption provisions in the FOI Act are designed to protect.22. It must be borne in mind that the mosaic theory does not give rise to any separate exemption and can only be used to establish a factual basis for satisfaction of one of the exemption provisions within the FOI Act. In this case, the QPS has only claimed that the names andreference numbers of organisations, which it has deleted from the folios in issue, comprise exempt matter under s.42(1)(f) and s.42(1)(h) of the FOI Act. In order to find that this matter is exempt matter, I must be satisfied that prejudice of the kind specified in s.42(1)(f) or s.42(1)(h) could reasonably be expected to follow from disclosure of the matter in issue.Pursuant to s.81 of the FOI Act, the onus is on the QPS to establish a reasonable basis for expecting prejudice, of the kind specified in s.42(1)(f) or s.42(1)(h), to follow from disclosure of the matter in issue.23. The correct approach to the application of the phrase "could reasonably be expected to" is explained in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 at p.515 (paragraphs 62-63). The test embodied in that phrase calls for the decision-maker to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural expectations) and expectations which are reasonably based, i.e., expectations for the occurrence of which real and substantial grounds exist.24. I note that in both Re McKnight and Australian Archives [1992] AATA 225; (1992) 28 ALD 95 and Re Ewer there was an indication that "a degree of speculation" is acceptable in making a finding relating to the application of the mosaic theory. Both the words "reasonable expectation" and "speculation" connote the formation of a view of what may happen in the future.However, the terms call for differing degrees of likelihood. As can be seen above, I have used the word "speculative" as an indication of a degree of likelihood which would not satisfy the test inherent in the words "could reasonably be expected to". While I do not necessarily disagree with the general thrust of the statements made in Re McKnight and Re Ewer with respect to the mosaic theory, I would refrain from adopting the references to "speculation" in those decisions, as I consider it may lead to some confusion in the minds of users of the FOI Act about the degree of likelihood necessary to establish exemption.25. I accept that, in an appropriate case, submissions and/or evidence could be lodged by an agency, which would form a basis for a finding that there is an expectation, for the occurrence of which real and substantial grounds exist, that disclosure of one piece of information in issue, when combined with other available information, could enable the deduction of further information, thereby occasioning prejudice of a kind specified in s.42(1)(f) or s.42(1)(h) of the FOI Act. However, I do not consider that such a finding could be made in the absence of a satisfactory explanation and/or satisfactory evidence from the respondent agency as to how that prejudice could reasonably be expected to follow from disclosure of the matter in issue. (It may be that it would be necessary for such explanation or evidence to be withheld from the applicant, in order to protect matter claimed to be exempt, but the onus lies on the agency to satisfy me that the matter in issue is exempt.)To the extent (if any) that following the course suggested in Re McKnight and Re Ewer would require me to accept speculation falling short of a reasonable expectation, I would respectfully decline to do so, since to do so would, in my opinion, be inconsistent with the test inherent in the language which the Queensland Parliament has chosen to employ in framing s.42(1) of the FOI Act, specifically the phrase "could reasonably be expected to".Section 42(1)(f)26. Turning to the individual exemption provisions relied upon by the QPS, the focus of s.42(1)(f) is on the maintenance or enforcement of a lawful method or procedure for protection of public safety. This is to be distinguished from protection of the "effectiveness"of methods or procedures, as to which see s.42(1)(e) and Re Byrne and Gold Coast City Council [1994] QICmr 8; (1994) 1 QAR 477 at p.484, paragraph 20. 27. Some of the general methods and procedures of the CTS are set out in its Charter, which I discussed in Re Ferrier (at paragraphs 29-32). The QPS has not satisfied me that disclosure of the organisation names, or reference numbers, which have been deleted from the folios in issue, could reasonably be expected to prejudice in any way the maintenance or enforcement of a method or procedure for protecting public safety. The matter in issue is between 8 and 13 years old, and, as I have noted above, the names of certain organisations would already be obvious to the applicant from the matter which has been disclosed to him.(For example, I do not believe it could reasonably be asserted that the information disclosed in the opening paragraphs of folio 20 does not make obvious to Mr O'Reilly the name of the organisation which has been deleted from above those paragraphs.) Disclosure of the matter in issue would merely reveal the names of organisations which were subjects of interest to the now defunct Special Branch. The QPS has attempted to identify methods and procedures (for gathering and storing intelligence), the maintenance or enforcement of which might be prejudiced by disclosure of the names and references numbers, but I am unable to accept that there is any reasonable basis for expecting such prejudice. I would go so far as to say that, even if the methods and procedures now adopted by the CTS happen to be identical to those formerly adopted by the Special Branch (and I have no information as to whether this is the case), I can envisage no prejudice to their maintenance or enforcement by disclosure of the names and reference numbers of organisations that were subjects of interest to the Special Branch some 8 to 13 years ago.28. Nor am I satisfied that there is any basis for the application of the mosaic theory. In this case, in order to succeed in its contentions, the QPS would have to place before me submissions and evidence sufficient to satisfy me of an expectation, for the occurrence of which real and substantial grounds exist, that disclosure of the organisation names and reference numbers, when combined with other available information, would enable the deduction of information prejudicial to the maintenance or enforcement of a lawful method or procedure for protecting public safety. The QPS has not discharged that burden.29. I find that the names, and reference numbers, of organisations deleted from the folios listed at paragraph 16 above are not exempt matter under s.42(1)(f). Section 42(1)(h)30. Section 42(1)(h) requires me to consider whether disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment.In Re Ferrier (at paragraphs 27-36), I found that the intelligence gathering methods of the CTS form a sufficiently coherent, organised and comprehensive scheme to answer the description of a "system", and that the system clearly had the object of protecting persons or property, within the terms of s.42(1)(h). I further found that matter which would identify a number of organisations which were of continuing interest to the CTS in 1990, was exempt matter under s.42(1)(h). However, I noted (at paragraph 35) that the potential for prejudice would reduce over time (a proposition which appeared to have been tacitly accepted by the QPS in acknowledging to Ms Ferrier that she had in the past been a subject of interest to the Special Branch).31. In this case, all the documents were created in the course of the activities of the Special Branch. They convey no information in relation to the activities of the CTS or any other partof the QPS. Just as matter released to Ms Ferrier and Mr O'Reilly by the QPS shows that those individuals were subjects of interest to the Special Branch, the disclosure of the names and reference numbers in issue would merely indicate that the organisations in question were of interest to the Special Branch between 8 and 13 years ago. I have already indicated that, with regard to the organisation referred to in documents created in 1988 and 1989, Mr O'Reilly must be able to ascertain the identity of the organisation, given the matter which has already been released to him. I do not consider that the disclosure of the names and reference numbers of organisations, given the length of time which has passed and the fact that they relate solely to activities undertaken by the Special Branch, could reasonably be expected to prejudice in any way the system or procedures of the CTS for the protection of persons or property.32. Again in relation to s.42(1)(h), I cannot see any basis for the application of the mosaic theory in this case. Disclosure of the names and reference numbers would merely indicate which organisations were of interest to the Special Branch some 8 to 13 years ago. The QPS has not put forward any argument or evidence sufficient to satisfy me of an expectation, for the occurrence of which real and substantial grounds exists, that disclosure of the organisation names and reference numbers, when combined with other available information, would enable the deduction of information prejudicial to a system or procedure for the protection of persons or property.33. I therefore find that the names and reference numbers of the organisations deleted from the folios listed at paragraph 16 above are not exempt matter under s.42(1)(h) of the FOI Act.'Neither confirm nor deny' issue34. The QPS neither confirms nor denies the existence of any documents (falling within the terms of the applicant's FOI access application) which post-date the winding-up of the Special Branch. I discussed the application of s.35 of the FOI Act to documents which may or may not be held by the CTS at paragraphs 49-52 of my decision in Re Ferrier. I have adopted the procedures outlined in that case, and in Re "EST" and the Department of Family Services and Aboriginal and Islander Affairs (Information Commissioner Qld, Decision No. 95020, 30 June 1995, unreported) at paragraph 20 (the terms of which are quoted in Re Ferrier at paragraph 6), in considering the application of s.35 in this external review.35. The matters referred to in paragraphs 50 and 51 of Re Ferrier are also directly relevant to the present case. In the circumstances of this case, I am satisfied that the QPS was entitled to exercise the discretion conferred by s.35 of the FOI Act to issue a response to the applicant's FOI access application which neither confirmed nor denied the existence of documents (falling within the terms of the applicant's FOI access application) which post-date the winding-up of the Special Branch.Conclusion36. In light of my findings above, it is appropriate that I vary the decision under review, so far as it concerns the matter remaining in issue in the Special Branch documents, by finding that:(a) folios 17 and 19 are exempt matter under s.42(1)(b) of the FOI Act;(b) the names and reference numbers of organisations deleted from folios 1, 4, 5, 7, 10, 14, 16, 18 and 20 are not exempt matter under the FOI Act; and(c) the balance of the matter remaining in issue is exempt matter under s.44(1) of the FOI Act..............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

G42 and Department of Children, Youth Justice and Multicultural Affairs [2021] QICmr 62 (22 November 2021)

G42 and Department of Children, Youth Justice and Multicultural Affairs [2021] QICmr 62 (22 November 2021) Last Updated: 29 August 2022 Decision and Reasons for Decision Citation: G42 and Department of Children, Youth Justice and Multicultural Affairs [2021] QICmr 62 (22 November 2021) Application Number: 316214 Applicant: G42 Respondent: Department of Children, Youth Justice and Multicultural Affairs Decision Date: 22 November 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - DISCLOSURE PROHIBITED BY ACT - documents about child safety concerns, assessments and outcomes regarding the applicant as a parent - whether disclosure prohibited by sections 186 - 188 of the Child Protection Act 1999 (Qld) - whether exempt under section 67(1) of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - IRRELEVANT INFORMATION - information duplicated or repeated in located documents - information ruled out of scope with applicant during processing - whether deleted information was irrelevant to the access application - section 88 of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of Children, Youth Justice and Multicultural Affairs (Department) under the Information Privacy Act 2009 (Qld) (IP Act) for access to electronic documents regarding child safety concerns, assessments and outcomes about himself as a parent. The Department located 544 pages and decided to refuse access to three full pages and parts of 179 pages on the ground that this information comprised exempt information as its disclosure is prohibited by sections 186 - 188 of the Child Protection Act 1999 (Qld) (Child Protection Act). The Department also deleted parts of 136 pages on the basis they were irrelevant to the access application pursuant to section 88 of the IP Act. The deleted information was duplicated or repeated elsewhere in the located pages. During the processing of the application the Department wrote to the applicant to indicate that it would not consider duplicated or repeated information as relevant to the terms of his request, and the Applicant did not object to this approach. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision.[2] For the reasons set out below, I affirm the Department’s decision. Reviewable decision The decision under review is the Department’s decision dated 18 June 2021. Evidence considered Significant procedural steps taken during the external review are set out in the Appendix. Evidence, submissions, legislation, and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). The applicant has sent a large volume of email correspondence to OIC prior to and during the review. To the extent that that material contains information that is relevant to the issues for determination in this review, I have taken account of it. I have had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[3] A decision maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act when applying the law prescribed in the IP Act and Right to Information Act 2009 (Qld) (RTI Act).[4] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[5] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[6] Information in issue The information in issue is contained within: 3 full pages and parts of 179 pages (Category A information); and parts of 136 pages[7] (Category B information). Issues for determination The issues for determination are whether: access to the Category A information can be refused on the ground that it comprises exempt information the disclosure of which is prohibited by sections 186 - 188 of the Child Protection Act; and the Category B information can been deleted from copies of the documents disclosed to the applicant on the basis that it is irrelevant to the terms of the access application. Applicant’s submissions Since the commencement of this external review, the applicant has sent voluminous correspondence to OIC.[8] To ensure that I considered the applicant’s relevant submissions, on 10 September 2021, I wrote to the applicant[9] and directed him to identify the external review reference number in his correspondence and to limit his correspondence to submissions relating to the issues on external review.[10] The applicant continued to provide OIC with voluminous correspondence in relation to his interactions with numerous other government agencies and court processes. To the extent that the applicant’s submissions complied with my directions, I have considered them carefully. I have also turned my mind to the other correspondence provided by the applicant and note that much of this correspondence does not relate to the issues for my consideration in this decision. I understand that, in relation to the issues in this review, the applicant submits that:[11] the records held by the Department are ‘100% false except a few minor details such as names and dates or reports from me etc.’, and that there is evidence to ‘show undeniably that what they state happened or was said was NOT fact and DID NOT happen anything like what they allege’. he does not agree with the actions of the Department and considers them to be unlawful his interactions with the Department demonstrate wrongdoing by the Department; and OIC and the Department staff had ‘falsely alleged that I have not carried out the stated guidelines and that I have no basis or substance for my claims’ without having investigated and analysing the ‘evidence provided’. In the most recent email to OIC in response to an update to the status of this and other external reviews the applicant submitted the following:[12] Thank you for your response, I look forward to reading the Justice obstructing continually relentlessly Rigidly thinking repeated and fixated Mental Gymnastics and illogical Cognitive Dissonance to support their unlawful Ad Hominem as soon as possible... I will unpack it all and reply in a "Timely Manner". (sic) For the most part it is unclear to me how the applicant’s submissions relate to the issues for my consideration on external review. I acknowledge that broadly he raises public interest concerns, particularly with respect to Department actions and decisions and the accuracy of the relevant records. As I have explained in more detail below, such public interest arguments do not impact on my assessment of whether the information to which access was refused can be considered exempt information. This is because Parliament has determined that the disclosure of exempt information[13] is contrary to the public interest, and access may therefore be refused.[14] The applicant’s submissions do not provide information that would impact on the application of the exemption, nor do they directly contest the issue of irrelevance. Category A information Relevant law Under the IP Act an individual has a right to be given access to documents of an agency to the extent they contain the individual’s personal information. [15] This right is subject to other provisions of the IP Act and the RTI Act, including the grounds on which an agency may refuse access to information.[16] Schedule 3, section 12 of the RTI Act provides that information is exempt information if its disclosure is prohibited by sections 186-188 of the Child Protection Act. Relevantly, disclosure of information is prohibited under the Child Protection Act if the information: identifies a person making a notification of a suspicion that a child has been or is likely to be harmed;[17] or is about the affairs of another person[18] and was acquired by a person performing particular functions under the Child Protection Act.[19] The prohibition on disclosure is subject to certain exceptions in the Child Protection Act.[20] Further, an exception to information qualifying as exempt information under schedule 3, section 12(1) of the RTI Act is set out in schedule 3, section 12(2) of the RTI Act. Findings Would the Category A information identify any person/s who made a notification? Having assessed the Category A information, I am satisfied that some parts of it: identify a person/s who made a notification(s) under the Child Protection Act are subject to the prohibition on disclosure in section 186(2) of the Child Protection Act; and therefore qualify as exempt information under schedule 3, section 12(1) of the RTI Act – unless any of the exceptions apply (as discussed below). Is the remaining Category A information about a person’s affairs and received under the Child Protection Act? The term ‘person’s affairs’ is not defined in the Child Protection Act or the Acts Interpretation Act 1954 (Qld). The relevant dictionary definitions for ‘affair/s’ are ‘matters of interest or concern’ and ‘a private or personal concern’.[21] Having assessed the remaining Category A information, I am satisfied it comprises information about the interests and concerns of individuals other than the applicant. These individuals may be known to the applicant; however, this does not impact on my assessment that it comprises the personal affairs of these other individuals. This information was received or obtained by Departmental officers under the Child Protection Act. Relevantly, the Child Protection Act lists a public service employee[22] as a person to whom section 187 applies. On the basis of the above findings, I am satisfied that the remaining Category A information is: about other persons’ affairs has been given to, or received by, a person performing functions under or in relation to the administration of the Child Protection Act subject to the prohibition on disclosure in section 187(2) of the Child Protection Act; and therefore qualifies as exempt information under schedule 3, section 12(1) of the RTI Act – unless any of the exceptions apply (as discussed below). Do any of the exceptions apply? Sections 187 and 188 of the Child Protection Act contain a number of exceptions to the prohibition on the disclosure of information given or received under the Child Protection Act. Of relevance to this review, section 187(4)(a) provides that access may be given to another person to the extent that the information is about that other person. In addition, schedule 3, section 12(2) of the RTI Act provides that information is not exempt information under schedule 3, section 12(1) if the information is only personal information of the applicant. Where information is not about the applicant, or where the information is about the applicant but is not solely about the applicant,[23] or where an applicant’s personal information[24] cannot be separated from the personal information of other individuals, the exceptions will not apply, and the information will remain exempt. The Category A information is about individuals other than the applicant. In some instances, the Category A information is also about the applicant, but is intertwined with the information of others. After careful assessment, I find that the Category A information is not solely about the applicant or only the personal information of the applicant. I am therefore satisfied that the exceptions in section 187(4)(a) of the Child Protection Act and schedule 3, section 12(2) of the RTI Act do not apply to the Category A information because it is not only about the applicant. In seeking an external review, the applicant stated that he was the person who reported the child harm to the Department. The IP Act prohibits me from disclosing the information in issue in these reasons[25] and, given the context in which the Category A information appears, I am unable to directly respond to the applicant’s submissions in this regard. Having considered all documents identified by the Department, including the released documents, I note that information relating to the applicant only has been disclosed to him. I have considered the applicant’s submission that he was the relevant notifier of harm, however, I do not consider this submission impacts on this assessment. The applicant also submitted that the records held by the Department contain incorrect information, which he requires in order to have it amended, and contains false allegations made against him by the Department, which are ‘criminally unlawful’.[26] The applicant’s submissions raise issues relative to public interest factors that may favour disclosure of the Category A information. However, I cannot take these submissions into account. There is no scope for me to consider public interest arguments once I am satisfied that the information qualifies as exempt information. This is because Parliament has determined that disclosure of the types of information set out in schedule 3 of the RTI Act is contrary to the public interest, and access may therefore be refused.[27] As I consider the requirements of sections 186 and 187 of the Child Protection Act are met, and no exceptions in the Child Protection Act or schedule 3, section 12(2) of the RTI Act apply, I find that the Category A information is exempt information under schedule 3, section 12(1) of the RTI Act. Category B information Relevant law Under the IP Act, an agency may delete information that is irrelevant to the scope of the terms of the original application.[28] This is not a ground for refusal of access, but a mechanism to allow irrelevant information to be deleted from documents which are identified for release to an applicant. In deciding whether information is irrelevant, it is necessary to consider the scope of the access application, as agreed between the applicant and the relevant agency. Findings In this case, the deleted information appears, on its face to be information relevant to the access application. However, having considered this information, I note that it comprises duplicates of information appearing elsewhere in the located documents, or repetition of the exact same information in Department records and email chains which, by their nature, incorporate and build on previous versions of those records or email chains. In a letter[29] to the applicant acknowledging receipt of the access application, the Department stated:[30] Duplicates and duplicated information The IP Act requires an agency to make a decision in relation to all documents which fall within the scope of an application; this includes duplicate documents, documents containing duplicated information and each email in a chain of emails. However, for the purposes of your application, where relevant the following will be excluded unless you advise otherwise: duplicate documents; information which is duplicated across a number of different documents with no change to the content of the information. In these cases, a decision will be made on only one instance of this information and any subsequent copy of the information will be removed (where this information is contained in a document which is otherwise within scope of your application, the information will be removed as irrelevant); and where email chains fall within the scope of your application, only the last unique email in the chain will be provided and earlier emails will be excluded. There is nothing before me to suggest that the applicant objected to the Department’s proposed approach to consider any duplicated information as irrelevant to the scope of the access application. In the decision, the Department stated:[31] Removal of Repetitive Information The department's electronic database - Integrated Client Management System (ICMS) - is the primary database used for the recording of child safety information. When entering new information, ICMS will automatically regenerate details previously entered which results in multiple copies of the same information. In this instance only one (1) copy of the information was released and the subsequent repetitive information has been marked 88(2) ... I have examined the Category B information and am satisfied that the Department correctly described this information in its decision. This information comprises copies of information already released to the applicant or Category A information which I have found is exempt from disclosure. There is no change to the content of this information between where it originally appeared in the documents. In the context that this information appears it is clear to me that it has been duplicated or repeated as a result of how the Department maintains its records. As the Department advised the applicant of its intention to remove the Category B information as irrelevant and, given the lack of any objection to this course of action by the applicant, I find that the Category B information may be deleted under section 88 of the IP Act on the basis that it is not relevant to the access application. DECISION I affirm the Department’s decision and find that: access to the Category A information may be refused on the ground that it comprises exempt information,[32] the disclosure of which is prohibited by the Child Protection Act; and the Category B information may be deleted on the basis that it is irrelevant to the scope of the access application.[33] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinAssistant Information Commissioner Date: 22 November 2021 APPENDIX Significant procedural steps Date Event 21 July 2021 OIC received the applicant’s application for external review. OIC notified the Department and the applicant that the application for external review had been received and requested procedural documents from the Department. 23 July 2021 OIC received three emailed submissions from the applicant. 24 July 2021 OIC received two emailed submissions from the applicant. 28 July 2021 OIC received the requested procedural documents from the Department. 2 August 2021 OIC received emailed submissions from the applicant. 3 August 2021 OIC received emailed submissions from the applicant. 12 August 2021 OIC notified the Department and the applicant that the application for external review had been accepted, and requested a copy of the documents located from the Department. 26 August 2021 OIC received a copy of the located documents from the Department. 27 August 2021 OIC received oral submissions from the applicant. 1 September 2021 OIC received emailed submissions from the applicant. 10 September 2021 OIC conveyed a written preliminary view to the applicant. OIC received emailed submissions from the applicant. 27 September 2021 OIC wrote to the applicant about his submissions received on 10 September 2021. OIC received three emailed submissions from the applicant. 11 November 2021 OIC received emailed submissions from the applicant. 12 November 2021 OIC wrote to the applicant about his submissions received on 11 November 2021. OIC received emailed submissions from the applicant. [1] Access application dated 20 May 2021.[2] Email dated 21 July 2021.[3] Section 21 of the HR Act.[4] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[5] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).[6] XYZ at [573].[7] Pages 4, 8, 9, 16, 17, 21, 27, 29, 30, 31, 36, 42, 43, 44, 54, 55, 68, 69, 81, 82, 91, 92, 96, 102, 103, 107, 113, 114, 115, 119, 125, 126, 127, 131, 135, 136, 140, 148, 149, 153, 159, 161, 165, 172, 173, 184, 185, 186, 194, 199, 200, 204, 210, 212, 213, 215, 216, 226, 227, 232, 235, 245, 246, 247, 251, 262, 267, 268, 269, 273, 279, 280, 288, 297, 298, 300, 305, 314, 323, 324, 333, 334, 342, 344, 347, 352, 354, 358, 362, 363, 370, 373, 375, 376, 387, 388, 389, 397, 399, 400, 408, 409, 411, 419, 420, 421, 425, 429, 434, 436, 437, 441, 449, 450, 460, 461, 468, 469, 476, 477, 478, 485, 486, 494, 495, 496, 503, 504, 505, 513, 521, 522, 529, 530, 531 and 540.[8] By emails dated 23 July 2021, 24 July 2021, 2 August 2021, 3 August 2021, 1 September 2021, 10 September 2021, 27 September 2021 and 12 November 2021 and in a telephone call on 27 August 2021.[9] Pursuant to section 108(2) of the IP Act. [10] I repeated this direction in my email to the applicant dated 12 November 2021.[11] Emails from applicant dated 10 September 2021 and 27 September 2021.[12] Applicant email to OIC dated 12 November 2021.[13] The categories of exempt information are set out in Schedule 3 to the RTI Act.[14] Section 48(2) of the RTI Act.[15] Section 40 of the IP Act.[16] Section 67(1) of the IP Act and section 47 of the RTI Act.[17] Section 186(2) of the Child Protection Act. [18] That is, not the person seeking to access the information. [19] Section 187(2) of the Child Protection Act.[20] Section 187(3) and (4) and 188 (4) of the Child Protection Act.[21] As established in 7CLV4M and Department of Communities (Unreported, Queensland Information Commissioner, 21 December 2011) at paragraph 30. [22] Section 187(1)(a) of the Child Protection Act.[23] In Hughes and Department of Communities, Child Safety and Disability Services (Unreported, Queensland Information Commissioner, 17 July 2012), Assistant Information Commissioner Corby considered whether the exception in section 187(4)(a) of the Child Protection Act applies to shared information about the applicant and other persons. She observed at paragraph 26: ‘The Child Protection Act exception only applies where the information is solely about the applicant. Thus where information is simultaneously about the applicant and others, the Child Protection Act exception will not apply’. [24] ‘Personal information’ comprises ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’: schedule 5 of the RTI Act, and section 12 of the IP Act. [25] Section 121(3) of the IP Act.[26] Submission dated 10 September 2021.[27] Section 48(2) of the RTI Act.[28] Section 88(2) of the IP Act.[29] Dated 31 May 2021.[30] At page 1.[31] At page 1.[32] Under section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 12 of the RTI Act.[33] Under section 88 of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

W38 and Department of Child Safety, Youth and Women [2020] QICmr 71 (27 November 2020)

W38 and Department of Child Safety, Youth and Women [2020] QICmr 71 (27 November 2020) Last Updated: 25 March 2021 Decision and Reasons for Decision Citation: W38 and Department of Child Safety, Youth and Women [2020] QICmr 71 (27 November 2020) Application Number: 315264 Applicant: W38 Respondent: Department of Child Safety, Youth and Women Decision Date: 27 November 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - DISCLOSURE PROHIBITED BY ACT - Child Protection Report - whether disclosure prohibited by section 186 or section 187 of the Child Protection Act 1999 (Qld) - whether exempt under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 and schedule 3, section 12 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of Communities, Child Safety and Disability Services (Department) under the Information Privacy Act 2009 (Qld) (IP Act) for access to all documents containing his personal information between 1 January 2013 and 31 December 2019. The Department gave the applicant access to some information and refused access to the remaining information on the basis that it comprises exempt information as its disclosure is prohibited by sections 186-188 of the Child Protection Act 1999 (Qld) (Child Protection Act)[1] and that disclosure would, on balance, be contrary to the public interest.[2] The Department also refused to deal with some of the requested information on the basis that it had decided a previous application for the same documents.[3] The applicant applied to the Office of the Information Commissioner (OIC) for external review of the decision with respect to two specific documents. For the reasons given below, I affirm the Department’s decision to refuse access to the information in issue on the basis that it comprises exempt information under section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 12 of the RTI Act. Background On external review, the applicant sought access to two documents being a Complex Case Advice Practitioners Referral dated 25 January 2017 (Referral) and a Child Protection Report dated 14 February 2017 (Report). The Department confirmed that the Referral formed part of the information which the Department had refused to deal with on the basis that it had been dealt with in a previous application. After I provided this explanation to the applicant, the applicant confirmed that he only sought access to the Child Protection Report in this review.[4] Significant procedural steps taken in the external review are set out in the Appendix. Reviewable decision The decision under review is the Department’s decision dated 4 March 2020. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[5] particularly the right to seek and receive information.[6] A decision maker will be ‘respecting, and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the IP Act and RTI Act.[7] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[8] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[9] Information in Issue The information in issue is the substantial part of a Child Protection Report dated 14 February 2017 (Report Refusals). The applicant has been provided with access to some information at the start and at the end of the Report so that he is aware of the context in which the Report was created, that is, for the Family Court in relation to considerations of long term care for the subject children. The disclosed information includes when the Report was signed and the relevant Departmental officer who signed the Report. Issue for determination The issue for determination is whether the Report Refusals comprise exempt information, being information the disclosure of which is prohibited by sections 186-188 of the Child Protection Act.[10] Relevant law Under the IP Act an individual has a right to be given access to documents of an agency to the extent they contain the individual’s personal information.[11] However, this right is subject to other provisions of the IP Act and the RTI Act, including the grounds on which an agency may refuse access to documents.[12] Relevantly, an agency may refuse access to a document to the extent the document comprises exempt information.[13] Schedule 3, section 12 of the RTI Act provides that information is exempt if its disclosure is prohibited by sections 186-188 of the Child Protection Act. Relevantly, disclosure of information is prohibited under the Child Protection Act if the information is about the affairs of another person and was acquired by a person performing particular functions under the Child Protection Act.[14] The prohibition on disclosure is subject to the exceptions set out in schedule 3, section 12(2) of the RTI Act and sections 187 and 188 of the Child Protection Act. In particular, section 187(4)(a) of the Child Protection Act provides that access may be given to another person if the information is about that other person. In addition to the Child Protection Act exception, the RTI Act exception to nondisclosure applies if the information is the applicant’s personal information alone.[15] Findings Is the Information in Issue about a person’s affairs and received under the Child Protection Act? Yes, for the reasons set out below. The term ‘person’s affairs’ is not defined in the Child Protection Act or the Acts Interpretation Act 1954 (Qld). The relevant dictionary definitions for ‘affair/s’ are ‘matters of interest or concern’ and ‘a private or personal concern’.[16] I have carefully examined the Report Refusals and I am satisfied that they are about matters of personal interest or concern to other persons, including the applicant’s children and other individuals. The information was received or obtained by Departmental officers under the Child Protection Act. The Child Protection Act lists a public service employee[17] as a person to whom section 187 applies. I am therefore satisfied that the Report Refusals are: about other persons’ affairs and have been given to or received by a person performing functions under or in relation to the administration of the Child Protection Act subject to the prohibition on disclosure in section 187(2) of the Child Protection Act; and subject to the exemption in schedule 3, section 12(1) of the RTI Act. Do any of the exceptions apply? The exemption in schedule 3, section 12(1) of the RTI Act will not apply if the relevant information comprises only the applicant’s personal information.[18] This means that where information is simultaneously about the applicant and other individuals, or where an applicant’s personal information cannot be separated from the personal information of other individuals, the exceptions will not apply, and the information will remain exempt. Sections 187 and 188 of the Child Protection Act contain a number of exceptions where information given or received under the Child Protection Act may be disclosed. In this case, section 187(4)(a) is relevant and provides that access may be given to another person if the information is about that other person. The Report Refusals are about other individuals. In some instances, the Report Refusals are about the applicant, but are intertwined with the information of others. After careful assessment, I find that the Report Refusals are not about the applicant solely.[19] Accordingly, I am satisfied that the exceptions in schedule 3, section 12(2) of the RTI Act and section 187(4)(a) of the Child Protection Act do not apply to the Report Refusals because they are not only about the applicant. The applicant also submitted that the Report Refusals will demonstrate that the Department has committed a number of offences, including perjury and fraud[20] and privacy and confidentiality is being used as an excuse by the Department to cover up offences.[21] I have considered whether the applicant’s submissions[22] raise the application of any other exceptions contained in section 187(3) of the Child Protection Act.[23] On the evidence before me, I am not satisfied that these exceptions are applicable to permit disclosure of the Report Refusals to the applicant. The applicant contends that the rest of the family, whose information the applicant believes is in the Report Refusals, do not object to their personal information being released to the applicant and information about any other individuals is able to be separated from the personal information of the applicant and his family.[24] Firstly, I am not satisfied that the other individuals who the Report relates to have consented to the disclosure of the information to the applicant. Secondly, having considered the content of the Report, I do not consider that the applicant’s personal information can be separated in any meaningful way from that of the other individuals. The applicant also sought to convert the application into a group application which includes all members of the family as applicants. As explained during the review,[25] an application under the IP Act is not able to be expanded or converted to a group application.[26] Accordingly, I do not accept that the personal information of the applicant’s children and other family members can be disclosed on that basis. Is the information in issue exempt information? As noted above, the applicant submitted that the Report Refusals contain evidence that the Department has committed a number of offences, including perjury and fraud;[27] and the Department is seeking to cover up these offences.[28] The applicant’s submissions raise issues relative to public interest factors that may favour disclosure of the Report Refusals. Where information falls into one of the categories of exempt information which Parliament has set out in schedule 3 of the RTI Act, public interest factors favouring disclosure cannot be taken into account. I am not required to perform a public interest balancing test to determine if, on balance, it would be contrary to the public interest to disclose the Report Refusals if the legal requirements of the exemption provision set out above are met.[29] Therefore, if the Report Refusals meet the legal requirements for exempt information, I must affirm the Department’s decision to refuse access. [30] I also acknowledge the applicant’s submission that he requires the information in order to have it amended.[31] This submission does not influence my assessment of whether the Report Refusals comprise exempt information.[32] Though I acknowledge my decision may impact the applicant’s ability to information within the Report, this is not a relevant consideration for deciding whether the information is exempt from disclosure. As sections 186 and 187 of the Child Protection Act are met and, having considered the applicant’s submissions, I consider that no exceptions to the exemption apply, I find that the Report Refusals are exempt information under schedule 3, section 12 of the RTI Act. DECISION For the reasons set out above, as a delegate of the Information Commissioner,[33] I affirm the Department’s decision to refuse access to the Report Refusals on the basis that they comprise exempt information under section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 12 of the RTI Act.S MartinAssistant Information Commissioner Date: 27 November 2020 APPENDIX Significant procedural steps Date Event 12 March 2020 OIC received the application for external review. 19 March 2020 OIC requested preliminary documents from the Department. 25 March 2020 OIC received the preliminary documents from the Department. 5 May 2020 OIC advised the applicant and Department that the application for external review had been accepted. OIC requested a copy of the information in issue from the Department. 8 May 2020 The applicant identified the specific documents he sought external review in relation to. 20 May 2020 OIC received a copy of the information in issue from the Department. 22 June 2020 OIC asked the Department to confirm whether the Referral was subject to a previous application. 23 June 2020 OIC provided the applicant with an update. 28 June 2020 The Department confirmed that the Referral was subject to a previous application. 11 September 2020 OIC conveyed a preliminary view to the applicant’s representative. 25 September 2020 The applicant’s representative provided submissions by phone to OIC. 29 September 2020 OIC confirmed that a formal decision would be issued and invited the applicant to make further submissions. 19 October 2020 OIC received the applicant’s written submissions. [1] Under section 47(3)(a) and section 48 and schedule 3, section 12 of the Right to Information Act 2009 (Qld) (RTI Act), in conjunction with section 67(1) of the IP Act. Section 67 of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent the agency could refuse access to the document under section 47 of the RTI Act. [2] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. The Department also refused access to 25 pages on the basis that other access is available to that information under sections 47(3)(f) and 53(a) of the RTI Act. [3] Under section 62 of the IP Act. [4] Telephone conversation with applicant’s representative on 29 September 2020 and applicant’s submission dated 19 October 2020. [5] The HR Act came into force on 1 January 2020.[6] Section 21 of the HR Act. [7] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[8] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).[9] XYZ at [573]. [10] Schedule 3, section 12 of the RTI Act. [11] Section 40 of the IP Act.[12] Section 67(1) of the IP Act and section 47 of the RTI Act. [13] Sections 47(3)(a) and 48 of the RTI Act. [14] Section 187 of the Child Protection Act.[15] Schedule 3, section 12(2) of the RTI Act.[16] As established in 7CLV4M and Department of Communities (Unreported, Queensland Information Commissioner, 21 December 2011) at paragraph 30.[17] Section 187(1)(a) of the Child Protection Act.[18] Schedule 3, section 12(2) of the RTI Act. ‘Personal information’ comprises ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’: schedule 5 of the RTI Act, and section 12 of the IP Act.[19] In Hughes and Department of Communities, Child Safety and Disability Services (Unreported, Queensland Information Commissioner, 17 July 2012), Assistant Information Commissioner Corby considered whether the exception in section 187(4)(a) of the Child Protection Act applies to shared information about the applicant and other persons. She observed at paragraph 26: ‘The CP Act exception only applies where the information is solely about the applicant. Thus where information is simultaneously about the applicant and others, the CP Act exception will not apply’.[20] Oral submission from the applicant’s representative on 25 September 2020 and applicant’s written submission dated 19 October 2020.[21] Written submission dated 19 October 2020.[22] Particularly his oral submission on 25 September 2020. [23] Particularly the exception in section 187(3)(b), which allows information subject to the provision to be used or disclosed if the use, disclosure or giving of access is for purposes related to the child’s protection or wellbeing. [24] Written submission dated 19 October 2020.[25] During a telephone conversation with the applicant’s representative on 25 September 2020. [26] An application under the IP Act can only be made by ‘an individual’. [27] Oral submission from the applicant’s representative on 25 September 2020 and applicant’s written submission dated 19 October 2020.[28] Written submission dated 19 October 2020.[29] As set out in section 47(3)(b) and 49 of the RTI Act.[30] Section 118(2) of the IP Act provides that I do not have discretion to direct that access be given to exempt information.[31] Oral submission from the applicant’s representative on 25 September 2020 and applicant’s written submission dated 19 October 2020.[32] Under schedule 3, section 12 of the RTI Act. [33] Under section 139 of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Sunshine Coast Environment Council Inc and Department of National Parks, Sport and Racing; Springborg MP (Third Party) [2016] QICmr 10 (4 March 2016)

Sunshine Coast Environment Council Inc and Department of National Parks, Sport and Racing; Springborg MP (Third Party) [2016] QICmr 10 (4 March 2016) Last Updated: 20 January 2017 Decision and Reasons for Decision Citation: Sunshine Coast Environment Council Inc and Department of National Parks, Sport and Racing; Springborg MP (Third Party) [2016] QICmr 10 (4 March 2016) Application Number: 312245 Applicant: Sunshine Coast Environment Council Inc Respondent: Department of National Parks, Sport and Racing Third Party: Springborg MP Decision Date: 4 March 2016 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - CABINET INFORMATION - Noise Assessment Report and Field Inspection Report relating to a proposed motorsports park - whether documents comprised exclusively of exempt information - whether information brought into existence for the consideration of Cabinet - whether information that would reveal or prejudice Cabinet considerations - whether exempt - sections 47(3)(a) and 48 and schedule 3, section 2 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - Noise Assessment Report and Field Inspection Report relating to a proposed motorsports park - accountability and transparency - positive and informed debate - background/contextual information - business affairs - deliberative processes of government - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary Sunshine Coast Environment Council Inc (SCEC) applied to the then Department of National Parks, Recreation, Sport and Racing (Department)[1] under the Right to Information Act 2009 (Qld) (RTI Act) for access to the following documents relating to a proposed motorsports park in an area known as the Mooloolah Logging Area (MLA):[2] within the date range of 1 May 2013 to 6 May 2014[3]— feasibility study for motorsport activities at the MLA within the Beerwah State Forest noise assessment report/s; and executive and project manager briefing notes and file notes; and within the date range of 1 August 2012 to 6 May 2014—reports on alternative sites for the above. The Department located 438 pages. After consultation with third parties—including the then current, but now former Minister for National Parks, Recreation, Sport and Racing (Former Minister)—the Department decided to: release 7 pages in full and 12 pages in part; and refuse access to the remainder of 12 pages and 419 pages in full, on the basis that they either contained exempt information,[4] or information the disclosure of which would, on balance, be contrary to the public interest.[5] SCEC sought internal review of the Department’s decision to refuse access to information. On internal review, the Department consulted with the Former Minister, and decided to: release 22 pages in full and 22 pages in part; and refuse access to the remainder of 22 pages and 394 pages in full, on the basis that they either contained exempt information,[6] or information the disclosure of which would, on balance, be contrary to the public interest.[7] Both SCEC and the Former Minister sought external review of the Department’s internal review decision. After the change of government following the Queensland State General Election on 31 January 2015, OIC finalised the Former Minister’s external review on the basis that there was no applicant for the purpose of the external review, as he no longer held the office of Minister. On closure of the Former Minister’s external review, OIC wrote to Mr Lawrence Springborg MP, the Leader of the Opposition,[8] in order to: note that, given these circumstances, OIC considered that the Leader of the Opposition, on behalf of the Former Minister, should be afforded the opportunity to maintain and prosecute the Former Minister’s objections to disclosure of the information in issue ask if the Leader of the Opposition wished to do so; and advise that, if this was the case, the Leader of the Opposition could apply under section 89(2) of the RTI Act to participate in the external review arising out of the external review application submitted by SCEC. OIC did not receive a reply to this correspondence. After the Department notified OIC that it withdrew its objections to disclosure regarding certain documents, OIC again wrote to the Leader of the Opposition,[9] seeking clarification regarding whether he wished to object to disclosure of relevant information. The Leader of the Opposition responded with objections to disclosure, and OIC added him as a participant to the review.[10] During the course of the review, informal resolution processes resulted in SCEC’s agreement that some information could not be accessed or did not need to be considered, and the Leader of the Opposition’s agreement that some information could be released. For the reasons set out below, I find that access to the remaining Documents in Issue[11] cannot be refused on the ground that they are exempt information under schedule 3, section 2(1) of the RTI Act, nor on the ground that their disclosure would, on balance, be contrary to the public interest. In these circumstances, I set aside the decision under review and find that there is no basis to refuse access to the Documents in Issue under the RTI Act. Background Significant procedural steps relating to the application and the external review process are set out in the Appendix. Reviewable decision The decision under review is the Department’s internal review decision dated 13 October 2014. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including the footnotes and Appendix). Documents in issue The 438 pages located by the Department comprised the following: File A—a 69 page Feasibility Study File B—a 37 page Noise Impact Assessment File C—191 pages of Briefing Notes, file notes and their attachments; and File D—141 pages, comprising a 76 page Field Inspection Report (including attachments), and other documents. On external review, the Department withdrew[12] its claim that Files B, C and D were exempt under schedule 3, section 2 of the RTI Act. The Department subsequently confirmed[13] that, within Files B, C and D, it only objected to the disclosure of certain personal information. As a result of informal resolution processes on external review, SCEC accepted[14] that some information in issue could be refused or deleted, and confirmed that it no longer sought access to other information in issue.[15] Further, the Leader of the Opposition agreed[16] to disclosure of some of the information,[17] and the Department released this information to SCEC.[18] Accordingly, the remaining Documents in Issue to be addressed in this decision comprise the following 56 pages only: all 37 pages of File B (a Noise Impact Assessment)—apart from the part pages to which SCEC no longer seeks access;[19] and pages 1-15 and 71-74 of File D (a Field Inspection Report and one of its attachments)—apart from the part page to which SCEC no longer seeks access.[20] Onus In its decision, the Department refused access to the Documents in Issue on the ground that disclosure would reveal Cabinet considerations. As the Department no longer objects to disclosure of the Documents in Issue, there is a practical onus on the Leader of the Opposition to establish that access to them can be refused under the RTI Act.[21] Issues for determination In the Leader of the Opposition’s submissions to OIC,[22] the only grounds for refusal relied on were the exemption relating to Cabinet information, and public interest grounds. Accordingly, the issues for determination in this review are whether: the Documents in Issue comprise exempt information under schedule 3, section 2 of the RTI Act (the Cabinet exemption); or disclosing the Documents in Issue would, on balance, be contrary to the public interest under the RTI Act. Cabinet exemptionRelevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[23] However, this right is subject to other provisions of the RTI Act, including the grounds on which access may be refused to documents. Relevantly, the RTI Act provides that access may be refused to documents to the extent that they comprise exempt information.[24] Schedule 3 of the RTI Act sets out categories of information the disclosure of which Queensland’s Parliament has considered would, on balance, be contrary to the public interest, and therefore exempt from disclosure.[25] Relevantly for this review, the Cabinet exemption in the RTI Act provides that information is exempt information for 10 years after its relevant date if: it has been brought into existence for the consideration of Cabinet;[26] or its disclosure would reveal any consideration of Cabinet or would otherwise prejudice the confidentiality of Cabinet considerations or operations.[27] The following types of documents are taken to be comprised exclusively of exempt information:[28] (a) Cabinet submissions (b) Cabinet briefing notes (c) Cabinet agendas (d) notes of discussions in Cabinet (e) Cabinet minutes (f) Cabinet decisions; and (g) drafts of documents mentioned in any of (a) to (f) above. The term ‘consideration’ is defined[29] as including: discussion, deliberation, noting (with or without discussion) or decision; and consideration for any purpose, including, for example, for information or to make a decision. However, there are three exceptions to the Cabinet exemption: if it is more than 10 years after the information’s relevant date[30] if the information was brought into existence before 1 July 2009;[31] and if the information has been officially published by decision of Cabinet.[32] Submissions The Department submitted[33] as follows when withdrawing its claim that the Documents in Issue were exempt under schedule 3, section 2 of the RTI Act: At the time of the previous assessment of Files B ... and D [ie, at the time of the initial and internal review decisions], submissions were being prepared to go to Cabinet in relation to the MLA and therefore were considered exempt matter under schedule 3 - ‘its disclosure would reveal the consideration of Cabinet or would otherwise prejudice the confidentiality of Cabinet considerations or operations’. However, the proposed submissions did not go to Cabinet, hence the change in status for Files B ... and D. The Department further added that:[34] ... the Department now considers that through the passage of time, events (eg ... meetings etc) that were clearly in progress at the time of the original application, and internal review, are no longer in progress at the current time; therefore the relationship these documents had with these events no longer exist. On the basis that the status of the documents have changed, and it is considered that the documents identified above are no longer exempt matter under the RTI Act. I have carefully considered the entirety of the submissions and supporting evidence provided by the Leader of the Opposition to OIC regarding the Cabinet exemption.[35] Most of the Leader of the Opposition’s submissions discuss and rely on particular Cabinet considerations, and documentation relating to those considerations. However, I am constrained in the extent to which I can refer to such submissions in this decision, given section 108(3) of the RTI Act[36] prevents me from providing detail that amounts to disclosure of exempt information in order to address whether other information (that is, the Documents in Issue) is exempt information. Broadly, the Leader of the Opposition’s submissions may be summarised as follows: the Documents in Issue have not been provided to Cabinet[37] the Documents in Issue fall under the definition of Cabinet document in section 1.7 of the Queensland Cabinet Handbook[38] the Documents in Issue were prepared as part of forming advice for Cabinet regarding the project in its entirety[39]—in particular: specific Cabinet considerations that occurred regarding certain matters[40] would have included consideration of the information contained in the Documents in Issue[41] also, it was intended that Cabinet was to be briefed in future about the project,[42] and the Documents in Issue would have been provided to Cabinet during such briefing/s;[43] however, the change of government following the 2015 Queensland State General Election intervened;[44] and the ‘benefit of the doubt’ when determining the genealogy of documents (that is, whether they were brought into existence for the consideration of Cabinet) should fall on the side of Cabinet confidentiality, because that is fundamental to the processes of a functioning Cabinet government;[45] and disclosure of the Documents in Issue would prejudice the confidentiality of Cabinet considerations—in particular: disclosure of the Documents in Issue would prejudice the confidentiality of specific Cabinet considerations that occurred regarding certain matters[46] further, in relation to the intention that Cabinet was to be briefed in future about the project, a decision about the project’s viability and whether it will proceed has not been made,[47] and disclosure of the Documents in Issue would prejudice the confidentiality of Cabinet’s future considerations, as Cabinet’s future decision regarding the project could rely on information in the Documents in Issue;[48] however, the change of government following the 2015 Queensland State General Election intervened; and finally, the Documents in Issue fall under the definition of Cabinet document in section 1.7 of the Queensland Cabinet Handbook, and disclosure of such information would prejudice the confidentiality of Cabinet considerations.[49] Analysis Exceptions to the Cabinet exemption The Documents in Issue were created within the period covered by the access application[50] and there is no evidence that the information within them has been officially published by decision of Cabinet. Accordingly, I am satisfied that no exceptions to the Cabinet exemption apply,[51] and it is necessary to consider whether the Cabinet exemption applies to the Documents in Issue. Documents comprised exclusively of exempt information The Leader of the Opposition submits that the Documents in Issue satisfy the definition of Cabinet documents in section 1.7 of the Queensland Cabinet Handbook. However, in considering schedule 3, section 2(3) of the RTI Act, the question is whether the Documents in Issue comprise any of the types of documents set out in that provision which may be taken to be comprised exclusively of exempt information for the purpose of the Cabinet exemption. I have carefully considered the Documents in Issue. Neither of them is a Cabinet submission, briefing note, agenda, note of discussions, minutes, decision or a draft thereof, and therefore neither is a type of document listed in schedule 3, section 2(3) of the RTI Act. Accordingly, I am satisfied that neither of the Documents in Issue can be taken to be comprised exclusively of exempt information in this review. I have also considered schedule 3, section 2(4) of the RTI Act, which provides that a report of factual or statistical information attached to a document mentioned in schedule 3, section 2(3) of the RTI Act is exempt information under schedule 3, section 2(1) of the RTI Act, but only if: (a) its disclosure would have an effect mentioned schedule 3, section 2(1)(b) of the RTI Act; or (b) it was brought into existence for the consideration of Cabinet.[52] However, there is no evidence before me to suggest that either Document in Issue was attached to a document mentioned in schedule 3, section 2(3) of the RTI Act. In these circumstances, I am satisfied that schedule 3, section 2(4) of the RTI Act is not relevant to considerations regarding the Documents in Issue. Information brought into existence for the consideration of Cabinet During this review, the Department did not specifically address schedule 3, section 2(1)(a) of the RTI Act when it informed OIC that it no longer considered that the Documents in Issue were exempt information.[53] Consequently, prior to finalising the review, OIC specifically asked the Department if it considered that either of the Documents in Issue had been brought into existence for the consideration of Cabinet.[54] In response, the Department confirmed that it did not consider that the Cabinet exemption applied to the Documents in Issue.[55] However, the Leader of the Opposition submits that ‘[i]t is inconceivable not to conclude that noise impact assessment and field inspection reports were prepared as a part of forming advice for Cabinet to consider on the project in its entirety’.[56] Under schedule 3, section 2(1)(a) of the RTI Act, information is exempt if it was brought into existence for the consideration of Cabinet. In determining whether information was brought into existence for the consideration of Cabinet, the following comments made by the Information Commissioner in Hudson (as agent for Fencray Pty Limited) and Department of the Premier, Economic and Trade Development (Hudson)[57] are relevant:[58] [A] document is not exempt merely because it has been submitted to Cabinet. Inquiries must be pursued into the "genealogy" of such a document, to establish the purpose for which it was brought into existence. The time of the creation of the document is the time at which the purpose for its creation is to be ascertained. The fact that it was subsequently decided to annex to a Cabinet submission, a document that was brought into existence for a purpose other than submission to Cabinet for Cabinet consideration, will not bring the document within s.36(1)(a) [of the FOI Act]. A document which is created for the purpose of assisting in the preparation of a draft or final Cabinet submission (or some other kind of document that is being created for the purpose of submission to Cabinet) would not itself have been brought into existence for the purpose of submission for consideration by Cabinet. The Leader of the Opposition submits that the Documents in Issue were prepared as part of forming advice to Cabinet on the project in its entirety. I have carefully considered the Documents in Issue and can identify nothing on the face of either of them to indicate that they were brought into existence for the consideration of Cabinet. I have also carefully considered the supporting documentation referred to by the Leader of the Opposition, and a document no longer in issue in this review which the Department considered, and SCEC accepted, was subject to the Cabinet exemption.[59] Again, I was unable to identify any information in these documents to indicate that the Documents in Issue were brought into existence for the consideration of Cabinet. I note that the Documents in Issue were in existence at the time of specific Cabinet considerations regarding certain matters raised and relied upon by the Leader of the Opposition. The Leader of the Opposition acknowledges that the Documents in Issue themselves were not provided to Cabinet when these particular Cabinet considerations occurred. However, the Leader of the Opposition submits that ‘[i]t is ... inconceivable not to conclude that the consideration of [the matters] would have included the information contained in [the Documents in Issue]’[60] and ‘[i]t is not inconceivable to suggest that the information contained in the Documents in issue specifically relates to the issues identified in [the supporting documentation referred to by the Leader of the Opposition]’[61] [emphasis added]. The Leader of the Opposition’s reference to information contained in the Documents in Issue raises the question of ‘source’ documents. It is conceivable that content from the Documents in Issue was used as source information when the supporting documentation referred to by the Leader of the Opposition was drafted, or during any Cabinet discussions that occurred when Cabinet noted that documentation. However, I am not satisfied that ‘source’ documents of this kind can be said to comprise information brought into existence for the consideration of Cabinet. In this regard, I note the last sentence in the extract from Hudson referred to above:[62] A document which is created for the purpose of assisting in the preparation of a draft or final Cabinet submission (or some other kind of document that is being created for the purpose of submission to Cabinet) would not itself have been brought into existence for the purpose of submission for consideration by Cabinet. The Leader of the Opposition also submits that there was an intention that Cabinet was to be briefed in future about the project, and that the Documents in Issue would have been provided to Cabinet in such briefing/s. It is my understanding that the Leader of the Opposition contends that: this would have occurred, but for the change of government following the 2015 Queensland State General Election the provision of the Documents in Issue to Cabinet at this time would have demonstrated that the Documents in Issue were brought into existence for the consideration of Cabinet; and OIC should not conclude otherwise simply because the opportunity for the future briefing/s did not eventuate. These submissions are speculation about what may occur in future; however, I can only consider the facts as at the time of this decision. I am unable to identify any evidence of an intention that reports such as the Documents in Issue were prepared for the consideration of Cabinet in the future briefing/s. Certain documentation relied on by the Leader of the Opposition states only that the results of certain work would be reported to Cabinet; there is nothing before me to suggest that copies of assessments and reports themselves, such as the Documents in Issue, would be provided along with the results. In the absence of evidence in the information currently before me of an intention that the Documents in Issue were prepared for Cabinet’s consideration in future briefing/s,[63] the Leader of the Opposition’s submission regarding the fact that a change of government intervened before the briefing/s could occur need not be considered. I note the Leader of the Opposition’s submission that, when determining a document’s genealogy, the ‘benefit of the doubt’ should fall on the side of Cabinet confidentiality, because that is fundamental to the processes of a functioning Cabinet government.[64] While I recognise the importance of Cabinet confidentiality to Queensland’s system of government, I consider that such an approach would, in effect, be likely to broaden the application of the Cabinet exemption to documents brought into existence for purposes other than Cabinet consideration, that were subsequently annexed to a Cabinet submission, or that were subsequently used as ‘source’ documents—which would, in my view, be inconsistent with the pro-disclosure bias of the RTI Act.[65] In any event, as noted at paragraph 37 above, in the present circumstances, I am unable to identify any information to indicate that the Documents in Issue were brought into existence for the consideration of Cabinet. For these reasons, I am satisfied that the Documents in Issue were not brought into existence for the consideration of Cabinet. Accordingly, I find that they are not exempt under schedule 3, section 2(1)(a) of the RTI Act. Information that would reveal or prejudice Cabinet considerations In considering the application of schedule 3, section 2(1)(b) of the RTI Act, the relevant question is whether it can be said that disclosure of the Documents in Issue themselves would reveal a consideration[66] of Cabinet or otherwise prejudice the confidentiality of Cabinet considerations or operations. It must be shown that any person viewing the Documents in Issue would have a consideration of Cabinet revealed to them, or that relevant disclosure would otherwise prejudice Cabinet confidentiality.[67] In relation to this aspect of the Cabinet exemption, the Leader of the Opposition submits that disclosure of the Documents in Issue would prejudice the confidentiality of specific Cabinet considerations that occurred regarding certain matters,[68] as ‘[i]t is ... inconceivable not to conclude that the consideration of [the matters] would have included the information contained in [the Documents in Issue]’[69]. The Leader of the Opposition further submits that it was intended that, during future Cabinet briefing/s about the project, a decision about its viability would be made, and disclosure of the Documents in Issue would prejudice the confidentiality of Cabinet’s future considerations, as ‘[i]t is not inconceivable to conclude that the basis for Cabinet’s decision on the issue (which has not yet been made) would rely heavily on the information contained in the Documents in issue’.[70] A recent OIC decision which considered similar types of submissions regarding this aspect of the Cabinet exemption made the following observations:[71] I note the previous comments of the Information Commissioner in Ryman [Ryman and Department of Main Roads[72]] that:[73] I am not prepared to find that the test for exemption under the [FOI Act predecessor of schedule 3, section 2(1)(b)] is established because the Department, through its own disclosures of information extraneous to the matter in issue, claims that disclosure of the matter in issue, in connection with that extraneous information, would involve the disclosure of information noted by Cabinet or would otherwise prejudice the confidentiality of Cabinet considerations or operations. The test for exemption under [the FOI Act predecessor of schedule 3, section 2(1)(b)] is to be evaluated by reference to the effects of disclosure of the matter in issue itself. In Ryman, the extraneous information was the Department’s submission that it had verified that maps in issue were similar to, but not the same as, a map attached to the Cabinet submission. Employing the same reasoning, I am not prepared to accept Sibelco’s assertion that the Sibelco Discussion Paper, Sibelco Commercial Imperative Document, Sibelco Email and Sibelco/Ashurst Correspondence were submitted to Cabinet, or contained information that was submitted to Cabinet, and that disclosure would therefore reveal or prejudice Cabinet considerations. ... I cannot accept that legislative amendments related to issues discussed in the Sibelco documents, or ensuing media commentary about those amendments, combined with the Sibelco documents themselves, render those documents capable of revealing or prejudicing Cabinet considerations. I am satisfied that such extraneous information cannot be used to re-cast the Sibelco documents as indicative of Cabinet considerations. In applying this reasoning to the current review, while I note the Leader of the Opposition’s contention that specific Cabinet considerations that occurred regarding certain matters would have included consideration of the information contained in the Documents in Issue, I am satisfied there is no evidence on the face of the Documents in Issue which reveals they were themselves considered by Cabinet or which otherwise connects them to any Cabinet consideration. Further, I note the Leader of the Opposition’s submissions that disclosure of the Documents in Issue would reveal future Cabinet considerations about the project’s viability that would have occurred, but for the change of government following the 2015 Queensland State General Election, and may yet occur, if there is a further change of government. These submissions are speculation about what may occur in future; however, I am required to consider the facts as at the time of this decision.[74] In this regard, I again note that there is no evidence on the face of the Documents in Issue which connects them to any Cabinet consideration.[75] This finding covers both Cabinet considerations of the current government,[76] and Cabinet considerations that the Leader of the Opposition contends would have occurred but for the change of government, or that may occur following a further change of government. In any event, on consideration of schedule 3, section 2(1)(b) of the RTI Act, I am unable to envisage how this provision could apply to hypothetical Cabinet considerations as raised by the Leader of the Opposition. In these circumstances, I am unable to see how anyone viewing the Documents in Issue would have any consideration of Cabinet revealed to them, or how disclosure of these documents could prejudice the confidentiality of Cabinet considerations or operations. In relation to this aspect of the Cabinet exemption, the Leader of the Opposition’s submissions make specific reference to section 1.7 of the Queensland Cabinet Handbook. The Leader of the Opposition considers that disclosure of the Documents in Issue would prejudice the confidentiality of Cabinet considerations, on the basis that the Documents in Issue fall under the definition of Cabinet document in section 1.7 of the Queensland Cabinet Handbook. I note that the definition raised by the Leader of the Opposition states that ‘Cabinet documents may include’ [emphasis added] the documents listed in the bullet points in that section, including the following: reports and attachments to submissions that have been brought into existence for the purpose of submission to Cabinet; and reports or studies within or for the Queensland Government that are intended to form the basis of a Cabinet document or an attachment to a Cabinet document. I further note that the Queensland Cabinet Handbook[77] does not state that Cabinet documents will always include these categories of documents; rather, the word ‘may’ means that such documents may not always meet the requirements of a Cabinet document. In any event, however, OIC’s task is to assess whether the Documents in Issue meet the requirements of the Cabinet exemption in the RTI Act. Whether or not the Documents in Issue meet the definition in section 1.7 of the Queensland Cabinet Handbook does not, in my view, change my conclusion that disclosure of the Documents in Issue would not, for any person viewing them, reveal a Cabinet consideration or otherwise prejudice Cabinet confidentiality.[78] Given these considerations, I find that the Documents in Issue are not exempt under schedule 3, section 2(1)(b) of the RTI Act. Conclusion For the reasons set out above, I am satisfied that the Cabinet exemption does not apply to the Documents in Issue. Public interest Relevant law Under the RTI Act, access to a document may be refused if disclosing it would, on balance, be contrary to the public interest.[79] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[80] and explains the steps that a decision-maker must take[81] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest. Submissions As noted at paragraph 14, the Departmen[82]confirmed82 that, within the Documents in Issue, it only objected to the disclosure of certain personal information. The Leader of the Opposition’s submissions may be summarised as follows:[83] the Documents in Issue do not comprise merely factual matter—rather, they relate to specific issues identified as being sensitive and go to the very issue as to whether the MLA would be an appropriate site for an off-road motorcycling facility[84] no decision has been made about the viability of the project[85] the former government did not have the opportunity to make a decision of this nature, given the change of government[86] it is clear that Cabinet is to be briefed in future about certain matters related to the project;[87] and it is not inconceivable to suggest that the information contained in the Documents in Issue would be taken into consideration and assist Cabinet in their decision-making process about this project.[88] Analysis No irrelevant factors arise in the circumstances of this case and I have not taken any into account. I will now consider the relevant factors favouring disclosure and nondisclosure of the Documents in Issue. Factors favouring disclosure In seeking internal review of the Department’s decision, SCEC submitted:[89] It is relevant to understand for context, that the state government has publically [sic] identified the Mooloolah Logging Area site as the site it has selected for an ‘off-road motorcycling facility’ at its own discretion. That is, without public consultation, robust assessment, transparency or accountability. The proposal was subsequently put to an Expression of Interest tender process. This approach further excluded public access to information and opportunities for community engagement due to the instigation of ‘commercial-in-confidence’. Public interest factors in favour of disclosure will arise where disclosure of information could reasonably be expected to promote open discussion of public affairs and enhance government accountability, contribute to positive and informed debate on important issues or matters of serious interest, or reveal the reasons for a government decision and any background or contextual information that informed the decision.[90] To the extent that the Documents in Issue set out the Department’s decision-making processes and supporting information in relation to the identification of the MLA site for an off-road motorcycling facility, I consider that the public interests in accountability, contributing to positive and informed debate, and providing background/contextual information regarding the decision-making process will be significantly advanced. Accordingly, I afford these factors in favour of disclosure significant weight, that is somewhat lessened given there was no decision by Cabinet before the change of government about whether or not the project would proceed.[91] Factors favouring nondisclosure File B comprises a report prepared by a private company. OIC asked the Department to consult with relevant third parties about some of the located documents, including this company, to obtain their views about disclosure of the relevant information. The Department confirmed to OIC[92] that it had consulted the relevant company about File B, and the company had no concerns about disclosure. Further, in relation to File D, which I note was prepared by a government agency, there is no information before me to suggest that any entity’s business, commercial or financial affairs could be prejudiced by disclosure of File D. In these circumstances, I am satisfied that no factors in favour of nondisclosure relating to prejudice to the business, commercial or financial affairs of entities[93] arise in respect of the Documents in Issue. The Leader of the Opposition made the following submissions regarding the balancing of the public interest: ‘Cabinet did not make a decision in relation to this project’[94] ‘Cabinet was to be further briefed on the viability ... of the project with a view to making a decision’[95] ‘it is clear that Cabinet is to be further briefed about [certain matters] relating to this project’[96] ‘it is not inconceivable to suggest that the information contained in [the Documents in Issue] would not [sic] be taken into consideration and assist Cabinet in their decision making process about this project’;[97] and ‘the release of [the Documents in Issue] is not in the public interest because there has been no documented or recorded decision about the viability of the project’.[98] In view of these submissions, I have also considered factors in favour of nondisclosure relating to deliberative processes—namely: the Prejudice Factor—where disclosure could reasonably be expected to prejudice a deliberative process of government;[99] and the Harm Factor—where disclosure could reasonably be expected to cause a public interest harm through disclosure of an opinion, advice or recommendation that has been obtained, prepared or recorded, or a consultation or deliberation that has taken place, in the course of, or for, the deliberative processes involved in the functions of government.[100] Deliberative processes involved in the functions of government have been defined as ‘... thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action’.[101] The Harm Factor applies in relation to information including an opinion, advice or recommendation that has been obtained, prepared or recorded in the course of, or for, the deliberative processes involved in the functions of government,[102] unless certain exceptions apply.[103] I am satisfied that the Documents in Issue comprise information of this nature; however, I also note that certain exceptions to the Harm Factor[104] are arguably relevant, regarding at least some of the information in the Documents in Issue. The relevant exceptions provide that the Harm Factor does not apply to information that consists of, amongst other things, factual or statistical information,[105] or expert opinion or analysis other than expert opinion or analysis commissioned in the course of or for deliberative processes.[106] Given that the Documents in Issue generally comprise factual information and discussion of such information,[107] it is arguable that these exceptions may preclude the Harm Factor from applying to at least some information in the Documents in Issue. However, the Leader of the Opposition submits that the Documents in Issue are not simply factual.[108] I also note that File B, being a report prepared by a private company, could arguably be construed as expert opinion or analysis that was commissioned by the Department in the course of or for the deliberative processes related to the project. Such expert opinion or analysis is excluded from the relevant exception to the Harm Factor, and therefore remains subject to the Harm Factor.[109] In any event, in view of my conclusion about the low reasonable expectation of harm, should the Harm Factor apply (see paragraph 78), I do not consider it necessary to make a final determination regarding the application of schedule 4, part 4, item 4(1) or (3) of the RTI Act to the Documents in Issue. If the Harm Factor applies, it is relevant to consider the nature and extent of the public interest harm that may result through disclosure. For the Prejudice Factor to apply, a reasonable expectation of prejudice to the relevant deliberative process must be established. In Eccleston,[110] the Information Commissioner considered whether disclosure would inhibit candour and frankness in future deliberations and found that: such claims should be disregarded unless a very particular factual basis is laid for the claim, and tangible harm to the public interest will result from that inhibition;[111] and even if some diminution in candour and frankness caused by the prospect of disclosure is conceded, the real issue is whether the efficiency and quality of a deliberative process is thereby likely to suffer to an extent which is contrary to the public interest.[112] Having carefully considered the Leader of the Opposition’s submissions, I am satisfied that they do not enunciate how disclosure of the Documents in Issue could reasonably be expected to harm or prejudice the deliberative processes of government. It is my understanding that there was no decision about whether or not the project would proceed before the change of government. Given the project did not proceed, I am unable to identify any existing risk of prejudice to the government’s ability to reach considered decisions about the matters referred to in the Documents in Issue. Also, it appears unlikely that disclosure of the Documents in Issue would engender a large amount of disruptive public debate, or necessitate the reallocation of departmental resources to deal with that debate.[113] I acknowledge the Leader of the Opposition’s submissions appear to contemplate the possibility of further deliberations and Cabinet considerations following a future change of government. As noted above,[114] these submissions are speculation about what may occur in future, but I can only consider the facts as at the time of the decision. In any event, to the extent that this possibility may eventuate, on the information before me, I remain unable to discern any connection or nexus between disclosure of the Documents in Issue pursuant to this decision and prejudice to such future deliberations. Given these circumstances, and on careful examination of the nature of the Documents in Issue themselves, I consider that: the Prejudice Factor does not apply, as disclosure of the Documents in Issue could not reasonably be expected to prejudice the deliberative processes of government; and it is arguable that the Harm Factor may not apply to at least some of the Documents in Issue; however, to the extent that the Harm Factor applies to the Documents in Issue, there is no specific or tangible harm to deliberative processes that could reasonably be expected to be caused by disclosure of the Documents in Issue and, therefore, this factor carries only low weight in favour of nondisclosure. Balancing the public interest On careful consideration of the factors set out above, I am satisfied that the weight to be given to the factors in favour of disclosure is relatively significant, and this outweighs the low weight afforded to the one factor I have identified in favour of nondisclosure. Conclusion Accordingly, I consider that disclosure of the Documents in Issue would not, on balance, be contrary to the public interest, and access cannot be refused under section 47(3)(b) of the RTI Act. DECISION For the reasons set out above, I find that the Documents in Issue cannot be refused under the Cabinet exemption, nor on the ground that their disclosure would, on balance, be contrary to the public interest. Accordingly, I set aside the Department’s decision and find that there is no basis to refuse access to the Documents in Issue under the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ A Rickard Acting Assistant Information Commissioner Date: 4 March 2016APPENDIXSignificant procedural steps Date Event 6 May 2014 The Department received SCEC’s access application under the RTI Act. 8 July 2014 The Department consulted with the Former Minister.[115] 30 July 2014 The Former Minister responded to the Department’s consultation. 12 August 2014 The Department issued decisions on the access application to SCEC and to the Former Minister. 12 September 2014 SCEC applied to the Department for internal review. 9 October 2014 The Department consulted with the Former Minister. 10 October 2014 The Former Minister responded to the Department’s consultation. 13 October 2014 The Department issued its decision on SCEC’s internal review application to SCEC. 30 October 2014 The Department issued its decision on SCEC’s internal review application to the Former Minister. 7 November 2014 OIC received SCEC’s external review application. 10 November 2014 OIC notified the Department of the external review application and requested procedural documents in relation to the application. 17 November 2014 The Department provided OIC with the requested procedural documents. 20 November 2014 OIC received the Former Minister’s external review application. 9 December 2014 OIC notified SCEC and the Department that OIC had accepted SCEC’s application for external review. OIC asked the Department to provide the documents located in response to the access application and its records regarding third party consultation. 10 December 2014 OIC notified the Former Minister and the Department that OIC had accepted the Former Minister’s application for external review. 19 December 2014 OIC received the requested documents from the Department. 20 January 2015 OIC provided an update to SCEC. 5 March 2015 OIC wrote to the Former Minister to notify him that OIC had finalised his external review on the basis that, as he no longer held the office of Minister following the 2015 Queensland State General Election, there was no applicant for the purpose of that external review. OIC wrote to the Leader of the Opposition to provide a copy of OIC’s correspondence to the Former Minister, and to notify the Leader of the Opposition that he could apply to participate in SCEC’s external review. OIC wrote to the Department to confirm the closure of the Former Minister’s external review and the continuation of SCEC’s external review. OIC provided a written update to SCEC. 20 March 2015 A representative of SCEC spoke with an OIC staff member about the external review. 25 March 2015 OIC wrote again to the Leader of the Opposition, reiterating that he could apply to participate in the external review. 5 May 2015 SCEC requested an update from OIC. 6 May 2015 OIC asked the Department to provide information regarding the grounds of refusal relied upon. OIC provided an update to SCEC. 26 May 2015 OIC received a response from the Department regarding the grounds of refusal relied upon. 1 July 2015 OIC provided the Department with a preliminary view regarding the application of the Cabinet exemption. OIC provided an update to SCEC. 14 July 2015 A representative of SCEC confirmed to an OIC staff member that SCEC wished to continue with the external review. 22 July 2015 OIC received a submission from the Department, in which it: maintained that File A was exempt under the Cabinet exemption; and withdrew its claims that Files B, C and D were exempt under the Cabinet exemption. 7 August 2015 OIC asked the Department to provide a further submission about any other grounds of refusal regarding Files B, C and D, and undertake any necessary third party consultation. OIC provided an update to SCEC. 4 September 2015 OIC received a response from the Department regarding its position on Files B, C and D. 7 September 2015 OIC received submissions from the Department, in which it confirmed that: within Files B, C and D, it only objected to the disclosure of certain personal information; and consultation with two third parties had confirmed that neither of these parties objected to disclosure of information relating to them. 16 September 2015 An OIC staff member spoke with a Department officer about the extent of the personal information the Department considered should not be disclosed. 28 September 2015 An OIC staff member left a telephone message with a representative of the Leader of the Opposition. 2 October 2015 An OIC staff member left a telephone message with a representative of the Leader of the Opposition. OIC wrote to the Leader of the Opposition, seeking clarification regarding whether he wished to object to disclosure of relevant information. 7 October 2015 An OIC staff member spoke with a representative of the Leader of the Opposition and the Former Minister about the external review. 8 October 2015 A representative of the Leader of the Opposition viewed the located documents in the presence of OIC staff members. OIC wrote to the Department, asking it to provide a marked-up copy of File C to the Leader of the Opposition. OIC wrote to the Leader of the Opposition, confirming the Department would provide him with a marked-up copy of File C, and asking for submissions if he wished to object to disclosure of relevant information. 9 October 2015 An OIC staff member spoke with a representative of the Leader of the Opposition about the external review. OIC provided an update to SCEC. 12 October 2015 An OIC staff member spoke with a representative of the Leader of the Opposition about the external review. 14 October 2015 A representative of the Leader of the Opposition and the Former Minister viewed the located documents in the presence of OIC staff members. 18 October 2015 A representative of the Leader of the Opposition wrote to OIC about the external review. 19 October 2015 OIC conveyed a preliminary view to SCEC. OIC conveyed a preliminary view to the Leader of the Opposition. 23 October 2015 In a telephone discussion with an OIC staff member and a subsequent email to OIC, SCEC confirmed that it accepted OIC’s preliminary view that: 69 pages in full[116] are exempt under the Cabinet exemption 66 pages in full[117] are exempt in full under the breach of confidence exemption[118] disclosure of seven full pages[119] and 20 part pages[120] would, on balance, be contrary to the public interest; and parts of two pages[121] are irrelevant to the terms of the access application and therefore could be deleted.[122]OIC wrote to the Leader of the Opposition, granting an extension request, and noting SCEC’s acceptance of OIC’s preliminary view. 29 October 2015 OIC received a submission from the Leader of the Opposition. 30 October 2015 An OIC staff member spoke with a representative of the Leader of the Opposition about the external review. 2 November 2015 An OIC staff member spoke with representatives of the Leader of the Opposition about the external review. An OIC staff member viewed the Cabinet Note in the presence of a representative of the Leader of the Opposition. OIC conveyed a preliminary view to the Leader of the Opposition. 3 November 2015 An OIC staff member spoke with a representative of the Leader of the Opposition about the external review. 4 November 2015 OIC received a submission from the Leader of the Opposition. 5 November 2015 OIC wrote to the Leader of the Opposition about the external review. 6 November 2015 OIC conveyed a preliminary view to the Leader of the Opposition, and noted that, in view of the lack of submissions from the Leader of the Opposition regarding the 191 pages comprising File C, OIC proposed to ask the Department to release to SCEC all of File C, apart from the pages and part pages to which SCEC no longer sought access.[123] 20 November 2015 OIC provided an update to SCEC. 26 November 2015 OIC received a submission from the Leader of the Opposition, and the Leader of the Opposition also confirmed his agreement to the part release of File C to SCEC. 7 December 2015 OIC wrote to SCEC, the Leader of the Opposition and the Department to: confirm the part release of File C by the Department to SCEC identify documents which, in OIC’s view, did not need to be considered further in the external review; and confirm the documents still in issue at that stage.In the correspondence to the Leader of the Opposition, OIC conveyed a preliminary view and asked the Leader of the Opposition to clarify his previous submissions. 8 December 2015 The Department wrote to OIC, confirming the part release of File C to SCEC, and clarifying the content of File D. 9 December 2015 OIC wrote to the Department, asking it to provide certain pages from File D to the Leader of the Opposition. OIC wrote to the Leader of the Opposition about certain pages in File D. 18 December 2015 OIC received a submission from the Leader of the Opposition. An OIC staff member left a telephone message with a representative of the Leader of the Opposition. In a telephone discussion with an OIC staff member and a subsequent email to OIC, SCEC confirmed that it accepted that 58 pages[124] did not need to be further considered in the external review. 7 January 2016 An OIC staff member spoke with a Department officer about the external review. In a subsequent email, OIC asked for the Department’s agreement for OIC to provide a copy of File B and part of File D to the Leader of the Opposition on behalf of the Department. By email later that day, the Department agreed to this. An OIC staff member left a telephone message with a representative of the Leader of the Opposition. 11 January 2016 An OIC staff member left a telephone message with a representative of the Leader of the Opposition. 12 January 2016 A representative of SCEC spoke with an OIC staff member about the external review. An OIC staff member spoke with a representative of the Leader of the Opposition about the external review. 14 January 2016 A representative of the Leader of the Opposition collected a marked-up copy of File B and part of File D from OIC, and an OIC staff member discussed the documents still in issue at that stage. OIC subsequently wrote to the Leader of the Opposition to: confirm the context of certain documents within File D; and convey a preliminary view. 22 January 2016 A representative of the Leader of the Opposition confirmed to an OIC staff member that the Leader of the Opposition: agreed to the release of seven pages,[125] apart from the part pages to which SCEC no longer sought access;[126] and continued to object to OIC’s preliminary view regarding the Documents in Issue.In a telephone discussion with an OIC staff member, OIC advised SCEC about the part release of the seven pages and SCEC confirmed that it accepted that 57 pages[127] did not need to be further considered in this review. An OIC staff member spoke with a Department officer about these developments. OIC subsequently wrote to SCEC, the Leader of the Opposition and the Department to confirm these discussions, and to confirm the final composition of the Documents in Issue. 29 January 2016 The Department confirmed the part release of the seven pages to SCEC. 1 March 2016 An OIC staff member made enquiries with a Department officer about whether the Documents in Issue had been brought into existence for the consideration of Cabinet. 3 March 2016 OIC made further enquiries with the Department about whether the Documents in Issue had been brought into existence for the consideration of Cabinet. 4 March 2016 The Department confirmed that it did not consider that the Cabinet exemption applied to the Documents in Issue. [1] Following a machinery of government change on 16 February 2015, the agency currently responsible for this external review is the Department of National Parks, Sport and Racing.[2] The Department and SCEC agreed upon a revised scope for the application in emails on 9 May 2014, 13 May 2014, 14 May 2014 and 15 May 2014.[3] In the Department’s decisions, the date ranges of the scope were listed as ending on dates after 6 May 2014. However, as section 27 of the RTI Act provides that an access application is taken only to apply to documents that are, or may be, in existence on the day the application is received, the date ranges cannot extend beyond 6 May 2014. I have adjusted the date ranges to reflect this.[4] Under sections 47(3)(a) and 48 and schedule 3, sections 2 and 8 of the RTI Act.[5] Under sections 47(3)(b) and 49 of the RTI Act.[6] Under sections 47(3)(a) and 48 and schedule 3, sections 2 and 8 of the RTI Act.[7] Under sections 47(3)(b) and 49 of the RTI Act.[8] Letters dated 5 March 2015 and 25 March 2015.[9] Letter dated 2 October 2015.[10] Under section 89(3) of the RTI Act.[11] Defined at paragraph 16.[12] Submission dated 22 July 2015.[13] Email dated 7 September 2015.[14] Emails dated 23 October 2015 and 18 December 2015, telephone discussion on 22 January 2016, and OIC’s letter dated 22 January 2016.[15] This information is identified in the Appendix to this decision.[16] OIC’s letters dated 6 November 2015, 7 December 2015 and 22 January 2016, the Leader of the Opposition’s letter dated 26 November 2015 and a telephone discussion on 22 January 2016.[17] Again, this information is identified in the Appendix to this decision.[18] As confirmed in the Department’s emails to OIC on 8 December 2015 and 29 January 2016.[19] That is, parts of pages 2 and 15-16, being signatures and addresses.[20] That is, part of page 4, being an image of an individual.[21] Queensland Newspapers Pty Ltd and Queensland Police Service; Third Parties [2014] QICmr 27 (12 June 2014) at [14]. See also Brisbane City Council v Albietz [2001] QSC 160 (17 May 2001) at [14]; citing Re Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663 at [31] with approval. Although the latter two decisions were made under the now repealed Freedom of Information Act 1992 (Qld) (FOI Act), they are relevant given that section 81 of the FOI Act at the time of those decisions only cast a formal legal onus on the agency which or Minister who made the decision under review.[22] Dated 29 October 2015, 4 November 2015, 26 November 2015 and 18 December 2015.[23] Section 23(1)(a) of the RTI Act.[24] Sections 47(3)(a) and 48 of the RTI Act.[25] Section 48(2) of the RTI Act.[26] Schedule 3, section 2(1)(a) of the RTI Act.[27] Schedule 3, section 2(1)(b) of the RTI Act.[28] Schedule 3, section 2(3) of the RTI Act. However, for attachments containing reports of factual or statistical information, schedule 3, section 2(4) of the RTI Act applies.[29] Schedule 3, section 2(5) of the RTI Act.[30] Schedule 3, section 2(1) of the RTI Act. For information considered by Cabinet, the ‘relevant date’ is the date the information was most recently considered by Cabinet; otherwise, the ‘relevant date’ is the date the information was brought into existence—see the definition of ‘relevant date’ in schedule 3, section 2(5) of the RTI Act.[31] The date on which schedule 3, section 2 of the RTI Act commenced—schedule 3, section 2(2)(a) of the RTI Act.[32] Schedule 3, section 2(2)(b) of the RTI Act.[33] Submission dated 22 July 2015.[34] Submission dated 4 September 2015.[35] Submissions dated 29 October 2015, 4 November 2015, 26 November 2015 and 18 December 2015.[36] Section 108(3) of the RTI Act provides that the Information Commissioner must not, in a decision on an external review or in reasons for a decision on an external review, include information that is claimed to be exempt information or contrary to public interest information.[37] Paragraph under heading 3a. in submission dated submission dated 18 December 2015.[38] Second and third paragraphs on page 2 of submission dated 4 November 2015; first paragraph on page 2 of submission dated 26 November 2015; and paragraph under heading 3a. in submission dated 18 December 2015.[39] Second last paragraph on page 1 of submission dated 29 October 2015; last paragraph on page 1 of submission dated 4 November 2015; second last paragraph on page 3 of submission dated 26 November 2015; and last three paragraphs under heading 3b. in submission dated 18 December 2015.[40] Regarding which the Leader of the Opposition provided supporting documentation.[41] First paragraph on page 2 of submission dated 4 November 2015; and second last paragraph on page 3 and paragraph 4) on page 5 of submission dated 26 November 2015.[42] Final paragraph on page 1 and first paragraph on page 2 of submission dated 29 October 2015; third last paragraph on page 1 of submission dated 4 November 2015; fourth and fifth last paragraphs on page 2, second paragraph on page 3 and paragraph 1) on page 4 of submission dated 26 November 2015; and second paragraph under heading 3. in submission dated 18 December 2015.[43] Second last paragraph on page 3 and paragraph 4) on page 5 of submission dated 26 November 2015; and second last paragraph under heading 3b. in submission dated 18 December 2015.[44] Third last paragraph on page 3 and paragraph 5) on page 5 of submission dated 26 November 2015.[45] Last paragraph under heading 3b. in submission dated 18 December 2015.[46] First and third paragraphs on page 2 of submission dated 4 November 2015; and second last paragraph on page 3 of submission dated 26 November 2015.[47] Meeting with representative of the Leader of the Opposition on 2 November 2015; second and third last paragraphs on page 2, third and fourth paragraphs on page 3 and fourth paragraph on page 4 and paragraph 2) on page 5 of submission dated 26 November 2015; and final paragraph under heading 3. in submission dated 18 December 2015.[48] First and second paragraphs on page 4 and paragraph 4) on page 5 of submission dated 26 November 2015.[49] Second and third paragraphs on page 2 of submission dated 4 November 2015; and first paragraph on page 2 of submission dated 26 November 2015.[50] Which ran, at its broadest, from 1 August 2012 to 6 May 2014: see paragraph 1 above.[51] The operation of these exceptions is outlined at paragraph 24 above.[52] Schedule 3, section 2(4)(b) of the RTI Act also relates to where information was brought into existence for the consideration of the State’s budgetary processes, but that has not been raised by any party in this external review.[53] Submissions dated 22 July 2015 and 4 September 2015.[54] Enquiries made on 1 March 2016 and 3 March 2016.[55] Submission dated 4 March 2016.[56] Last paragraph on page 1 of submission dated 4 November 2015.[57] [1993] QICmr 4; (1993) 1 QAR 123.[58] Hudson at [26], in relation to section 36(1) of the now repealed FOI Act. The form of section 36(1) of the FOI Act under consideration in Hudson had similar requirements to schedule 3, section 2(1)(a) of the RTI Act, as it also contemplated that the relevant information was brought into existence for Cabinet consideration: see the discussion of the similarity of these provisions in Office of the Leader of the Opposition and Treasury Department (Unreported, Queensland Information Commissioner, 7 July 2010), in which the Information Commissioner noted (at [31]) that the ‘approach in Hudson ... is apt to apply ...’ in considering the application of schedule 3, section 2 of the RTI Act.[59] That is, the entirety of the 69 pages comprising File A. [60] First paragraph on page 2 of submission dated 4 November 2015.[61] Paragraph 4) on page 5 of submission dated 26 November 2015.[62] Cited also in Quandamooka Yoolooburrabee Aboriginal Corporation and Department of Natural Resources and Mines; Sibelco Australia Ltd (Third Party) (Unreported, Queensland Information Commissioner, 19 November 2014) (QYAC) at [55] regarding a similar conclusion.[63] And also in reliance on the Department’s submission summarised at paragraph 34.[64] Last paragraph under heading 3b. in submission dated 18 December 2015.[65] Section 44(4) of the RTI Act.[66] This term is defined in schedule 3, section 2(5) of the RTI Act, and is summarised at paragraph 23.[67] QYAC at [57]-[59]; F60XCX and Department of Natural Resources and Mines [2015] QICmr 17 (27 July 2015) at [25].[68] Regarding which the Leader of the Opposition provided supporting documentation.[69] First paragraph on page 2 of submission dated 4 November 2015.[70] First paragraph on page 4 of submission dated 26 November 2015.[71] QYAC at [63]-[64].[72] (1996) QAR 416 (Ryman).[73] Ryman at [43]-[44]. [74] As noted at paragraph 41.[75] As noted at paragraph 48.[76] In this regard, I note that the current government stated as follows in a May 2015 document titled The Palaszczuk Government: The First Three Months – A Better Way for Queensland (available at www.thepremier.qld.gov.au/newsroom/assets/Three-month-report.pdf): The government has confirmed that the Mooloolah Logging Area in the Beerwah State Forest on the Sunshine Coast which had been earmarked by the former government for a trail bike facility, will be protected from future commercial or recreational motorised use in recognition of its significant natural resource values.[77] Available at http://www.premiers.qld.gov.au/publications/categories/policies-and-codes/handbooks/cabinet-handbook.aspx.[78] Just as it does not, as noted at paragraph 31 above, change my conclusion that the Documents in Issue are not documents that can be taken to be comprised exclusively of exempt information.[79] Sections 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the wellbeing of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[80] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive; in other words, factors that are not listed may also be relevant. [81] Section 49(3) of the RTI Act.[82] Email dated 7 September 2015.[83] As noted at paragraph 27, most of the Leader of the Opposition’s submissions discuss and rely on particular Cabinet considerations, and documentation relating to those considerations. Accordingly, I am constrained in the extent to which I can refer to such submissions in this decision, given section 108(3) of the RTI Act.[84] Final paragraph on page 3 of submission dated 26 November 2015.[85] Both paragraphs under the heading ‘Contrary to public interest information’ on page 4 of submission dated 26 November 2015; and paragraphs i) and v) under heading 3b. in submission dated 18 December 2015.[86] Second paragraph under the heading ‘Contrary to public interest information’ on page 4 of submission dated 26 November 2015; and paragraph vi) under heading 3b. in submission dated 18 December 2015.[87] Paragraph ii) under heading 3b. in submission dated 18 December 2015.[88] Paragraph iv) under heading 3b. in submission dated 18 December 2015.[89] Internal review application dated 10 September 2014. I note that this application was made before the change of government following the 2015 Queensland State General Election.[90] Schedule 4, part 2, items 1, 2 and 11 of the RTI Act.[91] In this regard, I note the current government’s position regarding the project as set out at footnote 76.[92] In an email on 7 September 2015.[93] Schedule 4, part 3, items 2 and 15 and schedule 4, part 4, item 7(1)(c) of the RTI Act.[94] Second paragraph under heading ‘Contrary to public interest information’ on page 4 of submission dated 26 November 2015.[95] First paragraph under heading ‘Contrary to public interest information’ on page 4 of submission dated 26 November 2015.[96] Paragraph ii) under heading 3b. in submission dated 18 December 2015.[97] Paragraph iv) under heading 3b. in submission dated 18 December 2015.[98] Third last paragraph on page 3 of submission dated 18 December 2015.[99] Schedule 4, part 3, item 20 of the RTI Act. [100] Schedule 4, part 4, item 4(1) of the RTI Act. The Harm Factor is similar to the previous exemption in section 41(1) of the repealed FOI Act.[101] Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 (Eccleston) at [28]-[29] citing with approval the definition given in Re Waterford and Department of Treasury (No. 2) [1984] AATA 67; (1984) 5 ALD 588, 606.[102] Schedule 4, part 4, item 4(1)(a) of the RTI Act.[103] Schedule 4, part 4, item 4(3) and (4) of the RTI Act.[104] Contained in schedule 4, part 4, item 4(3)(b) and (c) of the RTI Act.[105] Schedule 4, part 4, item 4(3)(b) of the RTI Act.[106] Schedule 4, part 4, item 4(3)(c) of the RTI Act.[107] Which I am prevented from discussing in this decision, given section 108(3) of the RTI Act.[108] In the Leader of the Opposition’s submission dated 26 November 2015 regarding the Cabinet exemption, the Leader of the Opposition states: In this case [Hudson], access was given because it was determined that the matter in question was “merely a factual matter” contained in a Cabinet decision, whereas the Documents in issue relate to specific issues identified as being sensitive and go to the very issue as to whether the MLA would be an appropriate site for an off-road motorcycling facility ...[109] Schedule 4, part 4, item 4(3)(c) of the RTI Act.[110] Eccleston considered the application of the deliberative process exemption in section 41(1) of the repealed FOI Act and ultimately found that the exemption did not apply as disclosure would not be contrary to the public interest – at [185]. The Information Commissioner’s reasoning in Eccleston was later followed in Hewitt and Queensland Law Society Inc [1998] QICmr 23; (1998) 4 QAR 328 at [139] where the Information Commissioner stated that he was not satisfied that ‘the substance or quality of advice prepared by staff ... would be materially altered for the worse, by the threat of disclosure under the FOI Act’. [111] Eccleston at [132].[112] Eccleston at [134].[113] Compare Johnston and Brisbane City Council (Unreported, Queensland Information Commissioner, 6 December 2013) at [39].[114] At paragraphs 41 and 49.[115] The term ‘Former Minister’ is defined at paragraph 2.[116] The entirety of File A.[117] Pages 126-191 of File C. [118] Schedule 3, section 8 of the RTI Act.[119] Pages 43-49 of File C.[120] Parts of pages 2 and 15-16 of File B; parts of pages 33, 39-40, 71, 78, 97-98, 112, 119-120, 122 and 124 of File C; and parts of pages 4, 78-79, 98 and 105 of File D.[121] Pages 40-41 of File C.[122] Under section 73 of the RTI Act.[123] Parts of pages 33, 39-41, 71, 78, 97-98, 112, 119-120, 122 and 124; and pages 43-49 and 126-191.[124] Pages 84-141 of File D.[125] Pages 77-83 of File D.[126] Parts of pages 78-79 of File D.[127] Pages 16-70 and 75-76 of File D.

queensland

court_judgement

Queensland Information Commissioner 1993-

National Tertiary Education Union and The University of Queensland [2021] QICmr 6 (22 February 2021)

National Tertiary Education Union and The University of Queensland [2021] QICmr 6 (22 February 2021) Last Updated: 19 August 2021 Decision and Reasons for Decision Citation: National Tertiary Education Union and The University of Queensland [2021] QICmr 6 (22 February 2021) Application Number: 315576 Applicant: National Tertiary Education Union (ABN 38 579 396 344) Respondent: The University of Queensland Decision Date: 22 February 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - BREACH OF CONFIDENCE - documents concerning a philanthropic agreement and preceding negotiations - whether disclosure would found an action for breach of confidence - sections 47(3)(a) and 48 and schedule 3, section 8(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied[1] to The University of Queensland (UQ) under the Right to Information Act 2009 (Qld) (RTI Act) for access to: The Philanthropic Agreement between the University of Queensland and the Ramsay Centre for Western Civilisation and any draft versions of the Philanthropic Agreement or predecessor documents exchanged between the University of Queensland and the Ramsay Centre. 2. Regarding ‘predecessor documents’, the applicant subsequently provided the following clarification:[2] ...emails etc that contained discussions about what would or wouldn’t be included in the provisions of the Philanthropic Agreement (the PA). For example, the PVC may have sent the Ramsay Centre a number of clauses, proposing they be included in the PA. Or there may have been a separate document, not called the PA, which had draft provisions that might be included in the PA. So previous versions and parts thereof of things that might be finally included in the PA. This might include notes/minutes from meetings about the PA. It might include drafts of the PA or parts thereof. 3. The date range for documents requested was August 2019 to November 2019. 4. UQ decided[3] to refuse to deal with the access application under section 40 of the RTI Act on the grounds that all of the documents to which the application related were comprised of exempt information under schedule 3, section 8(1) of the RTI Act (as disclosure would found an action for breach of confidence). 5. The applicant applied[4] to UQ for internal review. An internal review decision was not made by UQ within the requisite timeframe and UQ’s original decision was deemed to have been affirmed.[5] 6. The applicant applied to the Office of the Information Commissioner (OIC) for external review.[6] After the commencement of the review, UQ applied to OIC under section 93 of the RTI Act for further time to deal with the applicant’s application, advising that, upon further consideration of the matter, it did not wish to pursue a ‘class refusal’ under section 40 of the RTI Act, but instead wished to issue a considered decision to replace the deemed decision that had occurred at internal review. Given UQ’s willingness to re-consider the matter and to issue a considered decision, the review was informally resolved[7] on the basis that UQ would issue its decision by 24 July 2020. OIC closed its review file.[8] 7. UQ issued a decision dated 24 July 2020 in which it decided to grant full access to six pages, partial access to 16 pages, and to refuse access to 859 pages under schedule 3, section 8(1) of the RTI Act. 8. By application dated 20 August 2020, the applicant applied to OIC for external review of UQ’s decision. 9. For the reasons given below, I am satisfied that the requested information is exempt information under schedule 3, section 8(1) of the RTI Act. I therefore affirm UQ’s decision refusing access to it. Background 10. In August 2019, UQ entered into a Memorandum of Understanding (MoU) with the Ramsay Centre for Western Civilisation (Ramsay Centre) to deliver courses on western civilisation, funded by the Ramsay Centre. 11. The Ramsay Centre was established in March 2017 and is funded through a charitable endowment by the late Mr Paul Ramsay AO, a businessman and philanthropist. It is ‘dedicated to the study of Western civilisation’.[9] 12. The MoU is published on UQ’s website where it is stated that: ...[t]he MoU sets out the framework and principles on which the parties were prepared to engage with each other to enter into the proposed arrangement in relation to the proposed Extended Major in Western Civilisation.[10] 13. Following the signing of the MoU, UQ and the Ramsay Centre negotiated the terms of a Philanthropic Agreement (PA) which came into effect on 15 November 2019. The PA provides for the funding of five cohorts of students (as well as associated academic and professional staff) to study an Extended Major in Western Civilisation, commencing in 2020.[11] 14. UQ published the key academic clauses contained in the PA on its website, but stated on its website that the PA itself would not be released ‘as it contains information and provisions that are commercial in confidence’.[12] Reviewable decision 15. The decision under review is UQ’s decision dated 24 July 2020.Evidence considered 16. The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including the footnotes and Appendix).[13] 17. Significant procedural steps relating to this review are set out in the Appendix. Information in issue 18. The information to which UQ refused access (Information in Issue) comprises: parts of the executed PA[14] multiple drafts of the PA; and communications between the parties concerning the proposed terms of the PA.[15] Issue for determination 19. The issue for determination is whether disclosure of the Information in Issue would found an action for breach of confidence under schedule 3, section 8(1) of the RTI Act.[16] Relevant law – exempt information 20. Access to a document can be refused under the RTI Act to the extent it comprises exempt information.[17] Schedule 3 of the RTI Act sets out various types of exempt information – that is, information the disclosure of which Parliament considers would, on balance, be contrary to the public interest. 21. There is no discretionary component in this determination in the sense that I might grant access to the Information in Issue notwithstanding that it comprises exempt matter, on the basis of some asserted public interest consideration. To the extent that the applicant has submitted otherwise during the review, such a submission is misconceived. While an agency has a discretion under the RTI Act to grant access to exempt information,[18] the Information Commissioner does not.[19] Breach of confidence 22. Schedule 3, section 8(2) of the RTI Act provides that deliberative process information[20] is not exempt information under schedule 3, section 8(1) unless it consists of information communicated by an entity other than (relevantly) an agency or officer of an agency. It is therefore necessary to begin an assessment of a claim for confidential treatment under subsection (1) by first considering whether subsection (2) has any application. 23. To the extent that the Information in Issue contains deliberative process information, in the form of consultations or deliberations between the parties about the proposed contents of the PA, I am satisfied that such information is contained in communications between UQ and a private third party (Ramsay Centre) and is therefore not excluded from the terms of subsection (1). 24. The test for exemption under schedule 3, section 8(1) must be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, with appropriate standing to bring an action to enforce an obligation of confidence said to be owed to that plaintiff by an agency such as UQ.[21] 25. Following the decision of the Queensland Civil and Administrative Tribunal (QCAT) in Ramsay Health Care Ltd v Information Commissioner & Anor,[22] it has been established that the cause of action referred to in schedule 3, section 8(1) of the RTI Act can arise in either contract or equity. Contractual obligation of confidence 26. In B and BNRHA, Information Commissioner Albietz said as follows about contractual obligations of confidence:[23] In the context of s.46(1)(a) the word "confidence" must be taken to be used in its technical, legal sense, thus: "A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose.” (F Gurry "Breach of Confidence" in P Finn (Ed.) Essays in Equity; Law Book Company, 1985, p.111.) My references to a cause of action for breach of a contractual obligation of confidence must be understood in this sense. A contractual term requiring that certain information be kept secret will not necessarily equate to a contractual obligation of confidence: an issue may arise as to whether an action for breach of the contractual term would satisfy the description of “an action for breach of confidence" (so as to fall within the scope of s.46(1)(a) of the FOI Act). An express contractual obligation of confidence ordinarily arises in circumstances where the parties to a disclosure of confidential information wish to define clearly their respective rights and obligations with respect to the use of the confidential information, thereby enabling the parties to anticipate their obligations with certainty. A mere promise to keep certain information secret, unsupported by consideration, is incapable of amounting to a contractual obligation of confidence, and its effectiveness as a binding obligation would depend on the application of the equitable principles discussed in more detail below. 27. In QCAT’s decision in Adani Mining Pty Ltd v Office of the Information Commissioner & Ors,[24] it was made clear that no public interest exception exists in respect of a contractual obligation of confidence.[25] 28. The most recent decision of the Information Commissioner that deals with contractual obligations of confidence is Park and Moreton Bay Regional Council & Ors.[26] During this review, I referred the applicant to that decision and advised it that I considered the legal principles and findings set out in the decision were applicable to the present circumstances, such as to support a finding that the Information in Issue in this review is exempt information under schedule 3, section 8(1).[27] The applicant provided brief submissions in response that focused on the requirements to establish an equitable breach of confidence and associated public interest considerations.[28] I will discuss those submissions below. However, for the reasons I will explain, I am satisfied that the Information in Issue is subject to a binding contractual obligation of confidence. It is therefore not necessary for me to also consider or make findings about whether an equitable obligation of confidence exists, or the associated public interest arguments. Establishment of a contractual obligation for confidentiality The MoU 29. An MoU cannot ordinarily be regarded as a legally binding document sufficient to give rise to enforceable obligations. However, in this case, UQ and the Ramsay Centre agreed that certain clauses in the MoU would create legally binding obligations. 30. Clauses 2.1 to 2.2 of the MoU provide: 2 PURPOSE & SCOPE 2.1 The purpose of this MOU is to outline some key principles that should underpin the negotiations between the Parties to agree a mutually acceptable Philanthropic Agreement and develop a cooperative relationship between the Parties. The MOU outlines what the Parties believe to be some of the conditions necessary to reach a Philanthropic Agreement. While this MOU does not bind the Ramsay Centre to fund any proposal from UQ or UQ to present any final proposal to the Ramsay Centre, it does establish some key principles that would underpin any finally agreed Philanthropic Agreement. The Philanthropic Agreement, as a separate legally binding document, would outline, as is usually the case in such agreements, the purpose of the funding, the funding levels, payment schedule and stewardship framework required to secure the funding. This MOU does not create any exclusive relationship between the Parties that would prevent the Parties from pursuing, in their own right or with any other partner, activities similar to the Activities. 2.2 Except for rights and obligations arising from clauses 11 (Intellectual Property), 12 (Confidentiality), 13 (Public Statements) and 16 (Relationship of the Parties), which are intended to be legally binding, this MOU does not: (a) constitute or create, and may not be deemed to constitute or create a legally binding document; (b) give rise to any legal relationship between the Parties; or (c) create any enforceable rights or duties between the Parties. [emphasis added] 31. Clause 12 (Confidentiality), agreed by the parties to create a legally binding obligation, provides: 12 CONFIDENTIALITY 12.1 Information exchanged between the Parties under this MOU that is by its nature confidential or is designated by a Party as being confidential ("Confidential Information"), is to be kept confidential and may only be used by the receiving Party for purposes related to this MOU. 12.2 For the avoidance of doubt, the Parties acknowledge and agree that this MOU (once agreed and signed) is not Confidential Information and may be disclosed (once agreed and signed) to the public. 12.3 A receiving Party may not disclose Confidential Information to any other person other than to the receiving Party's employees and professional advisors, except: (a) with the prior written consent of the disclosing Party; (b) where required by law, in which case the receiving Party will, where possible, notify the other Party immediately of the required disclosure; or (c) if the Confidential Information is already in the public domain other than as a result of a breach of this clause 12. 12.4 On termination or expiry of this MOU each Party will, or at the request of a Party at any time, the other Party will, subject to requirements at law to retain information, return, delete or destroy all Confidential Information belonging to the other Party (as directed by the other Party). 12.5 The obligations in this clause 12 survive expiration or termination of this MOU for 3 years.[29] 32. I am satisfied that the parties to the MoU intended and agreed that clause 12 would operate as a legally binding clause that requires the parties to keep confidential certain information exchanged between them under the terms of the MoU. That obligation of confidence continues to bind the parties for a period of three years following the expiry of the MoU, that is, until 31 December 2022. In terms of consideration moving in support of the clause, I note that mutual promises, as are contained in the MoU, can be sufficient to support a contract.[30] 33. I am further satisfied that the Information in Issue, comprising communications between the parties in which they discuss the proposed terms of the PA, as well as working drafts of the PA containing the parties’ comments and amendments, is information that was exchanged pursuant to the terms of the MoU and that, of its nature, would reasonably be regarded by the parties as information of a confidential nature for the purposes of clause 12. 34. While clause 13 of the MoU makes provision for public statements to be made about the MoU and the activities to be undertaken by the parties as a result of the MoU, I am satisfied that this clause does not operate to undermine the application of clause 12 to the Information in Issue. 35. In the event that I am incorrect in finding that clause 12 of the MoU is sufficient to create a legally binding obligation of confidence, I am satisfied, for the reasons explained below, that the confidentiality clause contained in the PA applies to the information that is in issue that was exchanged between the parties prior to the execution of the PA. The PA 36. As UQ claims that the parts of the executed PA that are in issue, including the confidentiality clause, are exempt information, I am prevented by the operation of sections 107(1) and 108(3) of the RTI Act from discussing the contents of the clause in any detail. I acknowledge that the inability of the applicant to examine the confidentiality clause contained in the PA means that it is not able to make meaningful submissions about whether or not the scope of the asserted confidentiality exists, or if it does, whether it is restricted in some material way. However, that is the effect of the relevant nondisclosure provisions in the RTI Act. This was discussed in Park and MBRC[31] with reference to a similar situation arising in BGC (Australia) Pty Ltd v Fremantle Port Authority,[32] where Heenan J of the Western Australian Supreme Court said the following in relation to equivalent provisions contained in the Freedom of Information Act 1992 (WA): One can readily appreciate that, as with any doubting Thomas, the appellant may not be convinced of the justification for this particular conclusion unless it sees and examines the evidence itself. However, on the basis that the confidentiality clause is itself part of the confidential information which may not be disclosed, that result is inescapable in the light of s 74(1) and (2) and s 90(1) and (3) of the Act. The legislation expressly acknowledges that it may be necessary to receive evidence and hear argument in the absence of the public and any party or representative of the party in order to preserve the confidentiality of exempt matter (s 90(2)). By this means the legislation ensures that the objective terms and effect of matter which is asserted to be exempt from disclosure because of confidentiality may be examined by an officer quite independent of the agency asserting a claim to confidentiality, namely, the Information Commissioner and, on appeal, by a Judge of this Court. 37. I also note that, while I may be prevented from disclosing the contents of the confidentiality clause contained in the PA, the confidentiality clause in the MoU has been published. I explained its operation to the applicant during external review.[33] However, in response,[34] the applicant did not address the MoU, but complained about its inability to access the terms of the PA confidentiality clause and questioned its operation. 38. I have examined the confidentiality clause contained in the PA.[35] I am satisfied that it operates to require the parties to keep certain information confidential under a contractual obligation not to disclose that information, and that the clause extends to the terms of the PA itself, as well as to information of a confidential nature exchanged before and after the execution of the PA. 39. As noted, the parties agreed that certain key academic clauses from the PA could be published by UQ.[36] The disclosure of other information in certain designated circumstances is also contemplated.[37] However, I am not satisfied that these ‘carve outs’ in the confidentiality clause undermine its application to the Information in Issue such that UQ could no longer be considered to be bound by an enforceable obligation of confidence in respect of the contents of the PA that have not been published by agreement between the parties. 40. I am also satisfied that the confidentiality clause in the PA continues to operate at the time of making my decision, and that there was an exchange of consideration moving between the parties to the PA. Enforceability of contractual obligations for confidentiality – applicant’s submissions 41. The applicant argues that any contractual obligation of confidence between UQ and the Ramsay Centre ought not to be enforced on public interest grounds. In its external review application, it contended that a public university should be committed to ‘maximum transparency’ and that there is a strong public interest in ensuring university autonomy and academic freedom and integrity. 42. During the review, I referred the applicant to QCAT’s decision in Adani Mining that no public interest exception exists in respect of a legally binding and enforceable contractual obligation of confidence. In its submission in response,[38] the applicant continued to raise public interest considerations in the context of equitable obligations of confidence: It is also unclear whether and how the release of various predecessor documents, such notes or minutes taken from meetings in relation to the Philanthropic Agreement, would also be bound by any confidentiality provisions, and indeed whether the parties intended this to be the case. NTEU understands that broadly, in order to found an action for a breach of equitable confidence, the information must satisfy the following tests: the information must be capable of being specifically identifiable as information that is secret; the information must have the necessary quality of confidence; the information must have been communicated in such circumstances as to impart an obligation of confidence, including consideration moving between the parties to the Philanthropic Agreement so as to establish any contractual obligation; and disclosure to the applicant for access would constitute a misuse of the confidential information. We request that a formal decision be made which addresses these matters. We also believe that it would be relevant for the Commission to consider whether the confidentiality provisions are worded so to extend any confidentiality obligation to the entirety of the Philanthropic Agreement (noting the University has publicly released certain clauses) as well as the range of predecessor documents which were subject to our Right to Information application. If it cannot be established that an obligation of confidence exists, and the Philanthropic Agreement cannot therefore be considered “exempt information” under the RTI Act, we submit that it remains in the public interest for the information to be disclosed. The public has an interest in knowing what a publicly-funded entity considers just terms for treating with another entity. In the case of the Ramsay Centre for Western Civilisation, a tax-deductible charitable organisation, there has been considerable interest expressed by the public in knowing what concessions around fundamental tenets of the university’s principles have been made, including the principles of Academic and Intellectual Freedom, and the Functions of the University as enumerated in The University of Queensland Act 1998. It should not be open to UQ management to be able to simply write "commercial-in-confidence" on any document to avoid public scrutiny, and such an outcome in our view would be inconsistent with the Objects of the RTI Act. 43. I consider these various issues raised by the applicant were addressed during the course of the review, and are reiterated in these reasons for decision. 44. As regards the applicant’s submissions concerning the requirements to found an equitable obligation of confidence, it is not necessary for me to consider this issue given that I am satisfied that the Information in Issue is the subject of a binding contractual obligation of confidence. 45. As regards public interest considerations, I do not consider that any material before me would raise an issue about the genuineness of the mutual obligation of confidence imposed upon the parties, or would suggest that the parties entered into the MoU or PA for some collateral or improper purpose inconsistent with the claim for exemption, such as to support a finding that the confidentiality obligations should not be enforced on public policy grounds. 46. I am satisfied that the Information in Issue reflects genuine arms-length negotiations between the parties, with each acting in its own interests. This is reflected in UQ’s decision to publish on its website the MoU, key academic clauses contained in the PA, and other relevant information relating to its agreement with the Ramsay Centre, including information about the academic program, as well as scholarship rules and eligibility.[39] Findings 47. For the reasons set out above, I find that the Information in Issue is the subject of a binding contractual obligation of confidence that arises through the operation of the terms of the MoU, or the PA, or both. Decision 48. I affirm[40] UQ’s decision to refuse access by finding that the Information in Issue is exempt information under schedule 3, section 8(1) of the RTI Act. Shiv Martin Assistant Information Commissioner Date: 22 February 2021 APPENDIX Significant procedural steps Date Event 20 August 2020 OIC received the application for external review. 21 August 2020 OIC requested processing documents from UQ. 27 August 2020 OIC received processing documents from UQ. 24 September 2020 OIC advised the applicant and UQ that the application for external review had been accepted and requested a copy of the Information in Issue from UQ. 9 October 2020 OIC received the Information in Issue from UQ. 22 October 2020 OIC conveyed a preliminary view to the applicant. 5 November 2020 OIC received a submission from the applicant which requested a formal decision. 24 November 2020 OIC wrote to the applicant to reiterate its preliminary view and asked the applicant to confirm whether it sought a formal decision. 9 December 2020 The applicant confirmed it sought a formal decision. [1] Application dated 20 December 2019.[2] Email dated 23 December 2019. [3] Decision dated 31 January 2020. [4] Application dated 27 February 2020. [5] Letter dated 27 March 2020.[6] Application dated 24 April 2020 and allocated OIC file reference 315354. [7] Under section 90 of the RTI Act. [8] On 10 July 2020. [9] https://www.ramsaycentre.org/about-us/about-the-ramsay-centre/ (accessed 8 February 2021).[10] https://staff.uq.edu.au/staff-updates/projects-and-initiatives/ramsay-centre-partnership/key-academic-clauses (accessed 28 January 2021).[11] https://hass.uq.edu.au/article/2019/11/philanthropic-agreement-reached-ramsay-centre (accessed 28 January 2021). [12] See footnote 10. [13] The application in this matter was made by a trade union. While individuals in Queensland have human rights under the Human Rights Act 2019 (Qld) (HR Act), Kingham J in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 at [90] recently confirmed that where section 58(1) of the HR Act applies, there need be no mover to raise human rights issues because that section requires the relevant public entity to properly consider engaged human rights and to not act or make a decision that is not compatible with human rights. In making this decision I have observed and respected the law prescribed in the RTI Act. Doing so is construed as ‘respecting’ and ‘acting compatibly with’ the rights prescribed in the HR Act (XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]). I have therefore satisfied the requirements of section 58(1) of the HR Act, in accordance with the following observations of Bell J about the interaction between the Victorian analogues of Queensland’s RTI Act and HR Act: ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’ (XYZ at [573]). [14] UQ gave access to those parts of the executed PA that reflected the information that UQ had published on its website concerning some of the terms contained in the final agreement.[15] What the applicant refers to in its access application as ‘predecessor documents’. [16] UQ gave access to the MoU (which is already published on UQ’s website) with the exception of the signatures of the parties. UQ claimed that disclosure of the signatures would, on balance, be contrary to the public interest. The applicant confirmed during the review that it did not wish to pursue access to the signatures. This information is therefore not in issue in this review. [17] Sections 47(3)(a) and 48 of the RTI Act. [18] Section 44(4) of the RTI Act.[19] Section 105(2) of the RTI Act.[20] Defined in schedule 3, section 8(3) of the RTI Act. [21] B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (B and BNRHA).[22] [2019] QCATA 66 (Ramsay).[23] At [45].[24] [2020] QCATA 52 (Adani Mining). [25] At [38]ff. [26] [2020] QICmr 39 (23 July 2020) (Park and MBRC). Currently on appeal to QCAT. [27] Letter dated 22 October 2020. [28] Letter dated 5 November 2020. [29] Clauses 1 and 4 operate to provide that the term of the MoU expires on 31 December 2019. [30] Perry v Anthony [2016] NSWCA 56 at [26] citing Dunlop Pneumatic Tyre Co Ltd v Selfridge and Co Ltd [1915] UKHL 1; [1915] AC 847 at 855.[31] At [17].[32] [2003] WASCA 250; (2003) 28 WAR 187 at [16] (BGC case).[33] Letter dated 22 October 2020.[34] Dated 5 November 2020.[35] Clause 4.13.[36] Presumably in recognition of UQ’s obligations as a publicly-funded body to account to the public for its activities. [37] In recognition of the principle that an obligation of confidence, whether equitable or contractual, can be overridden by a statutory provision compelling disclosure of information, which includes the right of access contained in section 23 of the RTI Act: see the discussion in B and BNRHA at [99] – [102]. See also the discussion in Palmer and Townsville City Council [2019] QICmr 43 (3 October 2019). [38] Dated 5 November 2020.[39] https://scholarships.uq.edu.au/files/2921/uq-ramsay-undergraduate-scholarship-rules.pdf (accessed 8 February 2021).[40] As a delegate of the Information Commissioner, under section 145 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Murphy and Queensland Treasury [1995] QICmr 23; (1995) 2 QAR 744 (19 September 1995)

Murphy and Queensland Treasury [1995] QICmr 23; (1995) 2 QAR 744 (19 September 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 222 of 1993COMMISSIONER (QLD) ) (Decision No. 95023) Participants: JOHN PAUL MURPHY Applicant - and - QUEENSLAND TREASURY Respondent - and - OTHERS Third Parties DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - matter in issue comprising names of officers of the Office of State Revenue, and one officer of the Australian Taxation Office, appearing on documents concerning the applicant's land tax affairs - whether the names of officers appearing in that context constitute information concerning their personal affairs - Freedom of Information Act 1992 Qld, s.44(1).FREEDOM OF INFORMATION - whether disclosure of the names of agency officers could reasonably be expected to endanger a person's life or physical safety - Freedom of Information Act 1992 Qld, s.42(1)(c).FREEDOM OF INFORMATION - whether disclosure of the names of agency officers could reasonably be expected to prejudice the effectiveness of a method or procedure for the conduct of audits by an agency - Freedom of Information Act 1992 Qld, s.40(a)FREEDOM OF INFORMATION - whether disclosure of the names of agency officers could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of the agency's personnel - Freedom of Information Act 1992 Qld, s.40(c).FREEDOM OF INFORMATION - whether disclosure of the names of agency officers could reasonably be expected to have a substantial adverse effect on the conduct of industrial relations by an agency - Freedom of Information Act 1992 Qld, s.40(d).Freedom of Information Act 1992 Qld s.5(1)(a), s.21, s.40(a), s.40(c), s.40(d), s.42(1)(c), s.42(1)(e), s.44(1), s.47(1)(a), s.49, s.78, s.78(2), s.78(3), s.81Acts Interpretation Act 1954 Qld s.14B(1)Constitution Act 1975 Vic s.95(1)Freedom of Information Act 1982 Cth s.37(1)(c), s.40, s.40(1)(c), s.40(1)(d), s.40(1)(e), s.41(1)Freedom of Information Act 1989 NSW Sch.1 cl.6Freedom of Information Act 1982 Vic s.31(1)(e), s.33(1)Industrial Relations Act 1990 Qld s.6Judicial Review Act 1991 QldAnderson and Australian Federal Police, Re [1986] AATA 79; (1986) 4 AAR 414Attorney-General's Department and Australian Iron and Steel Pty Ltd v Cockcroft (1986) 64 ALR 97"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Borthwick and Health Commission of Victoria, Re (1985) 1 VAR 25 Byrne and Gold Coast City Council, Re (Information Commissioner Qld, Decision No. 94008, 12 May 1994, unreported)Cairns Port Authority and Department of Lands, Re (Information Commissioner Qld, Decision No. 94017, 11 August 1994, unreported)Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111Commissioner of Police v The District Court of New South Wales and Perrin (1993) 31 NSWLR 606Department of Agriculture and Rural Affairs v Binnie [1989] VicRp 73; [1989] VR 836Dyki and Federal Commissioner of Taxation, Re (1990) 22 ALD 124 Heaney and Public Service Board, Re (1984) 1 AAR 336Lander and Australian Taxation Office, Re (1985) 17 ATR 173Lawless and Secretary, Law Department, Re (1985) 1 VAR 42McCarthy and Australian Telecommunications Commission, Re (1987) 13 ALD 1Mallinder and Office of Corrections, Re (1988) 2 VAR 566Mann and Australian Taxation Office, Re (1985) 7 ALD 698, 3 AAR 261Matthews and the Department of Social Security, Re (Commonwealth AAT, N90/363, 2 December 1990, Purvis J, unreported)News Corporation Limited v National Companies and Securities Commission [1984] FCA 400; (1984) 57 ALR 550Pepperell and Ministry of Housing and Construction, Walden & Anor, Re (1989) 3 VAR 191Perry and Victoria Police, Re (1990) 4 VAR 131Perton and Department of Manufacturing and Industry Development, Re (1991) 5 VAR 149Pope and Queensland Health and Ors, Re (Information Commissioner Qld, Decision No. 94016, 18 July 1994)Searle Australia Pty Ltd v Public Interest Advocacy Centre & Anor (1992) 108 ALR 163Simons and Victorian Egg Marketing Board, Re (1985) 1 VAR 54Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227"T" and Queensland Health, Re [1994] QICmr 4; (1994) 1 QAR 386Thies and Department of Aviation, Re (1986) 9 ALD 454Toren and Secretary, Department of Immigration and Ethnic Affairs, Re (Commonwealth AAT, Q93/578, 8 March 1995, Forgie DP, unreported)Ward and Victoria Police, Re (1986) 1 VAR 334Z and Australian Taxation Office, Re (1984) 6 ALD 673 DECISION1. I set aside the decision under review, being the decision of the respondent's principal officer, Mr Henry R Smerdon, made on 5 November 1993.2. In substitution for it, I decide that the applicant has (in accordance with s.21 of the Freedom of Information Act 1992 Qld) a right to be given access to the matter that has been withheld from him pursuant to the terms of the decision under review, the respondent having failed to satisfy me that any of the matter thus withheld from the applicant is exempt matter under the Freedom of Information Act 1992 Qld.Date of Decision: 19 September 1995...........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS PageBackground 1 External review process 2 Application of s.44(1) of the FOI Act 5 Application of s.42(1)(c) of the FOI Act 12 Application of s.40 of the FOI Act 31 Application of s.40(a) of the FOI Act 31 Application of s.40(c) of the FOI Act 34 Application of s.40(d) of the FOI Act 46 Conclusion 50 OFFICE OF THE INFORMATION ) S 222 of 1993COMMISSIONER (QLD) ) (Decision No. 95023) Participants: JOHN PAUL MURPHY Applicant - and - QUEENSLAND TREASURY Respondent - and - OTHERS Third Parties REASONS FOR DECISIONBackground1. The applicant seeks review of the respondent's decision to refuse him access to certain matter contained in documents to which he has otherwise been given access, being documents relating to the land tax affairs of a company, of which the applicant is a Director, and which is the Trustee of the applicant's family Trust. The deleted matter comprises the names of several officers (some since retired) of the Office of State Revenue (the OSR), and one officer of the Australian Taxation Office. 2. On 24 June 1993, Mr Murphy applied for access under the Freedom of Information Act 1992 Qld (the FOI Act, or the Queensland FOI Act) to - ... the complete land tax file relating to dealings of Milglade Pty Ltd with the Office of State Revenue (OSR); the contents of files relating to Assessment Number 10991/EO5839; internal memoranda, notes, correspondence or other computer stored information relating to or concerning Milglade Pty Ltd and/or concerning its Directors, specifically but not limited to Mr John Paul Murphy; any other information/documents which are in the official files held or created personally by any member of the staff of OSR, specifically but not limited to Mr D. Abberton, Mr Redlich and Ms J. Macdonnell; records, either computer based or otherwise disclosing the identity of the enquiry staff member who initially took an enquiry from Milglade Pty Ltd on 21 or 22 June 1993 between 2.00 pm and 5.00 pm; and any other records, notes, memoranda or correspondence whether computer stored or otherwise and whether created for purely internal purposes or not, concerning Milglade Pty Ltd or its Directors.3. On 19 August 1993, Ms Natalie Barber, on behalf of the respondent, decided to give Mr Murphy access to all documents identified as falling within the terms of Mr Murphy's FOI access application (comprising some 218 pages), subject to the deletion of matter on 8 pages, comprising references to the names of officers involved in various investigations and the names of other persons having dealings with the OSR. This was claimed to be exempt matter under s.44(1) of the FOI Act.4. Mr Murphy applied for internal review on 2 September 1993. On 20 September 1993, Mr Michael Sarquis, on behalf of the respondent, affirmed Ms Barber's initial decision relying on s.44(1), and also justified the deletions by reference to s.42(1)(c) of the FOI Act, on the basis that "dealings in the land tax matter have on occasions been less than cordial and in such circumstances the Department is cautious in releasing officers' names".5. Mr Murphy wrote to Mr Sarquis on 22 September 1993 arguing that neither the decision on 19 August 1993, nor the decision on 20 September 1993, were accompanied by adequate reasons, and that both decisions were void as a matter of law. Mr Murphy suggested that "the whole process be restarted and done according to law". While I do not think either decision was void as a matter of law, the respondent decided to act in accordance with Mr Murphy's suggestion. Mr Sarquis wrote to Mr Murphy advising that the original decision and internal review decision had been revoked and that the respondent would remake the decision within 45 days of the date of receipt of Mr Murphy's letter dated 22 September 1993.6. On 27 October 1993, Mr Murphy wrote to me applying for external review of Mr Sarquis' decision of 20 September 1993. However, in view of the fact that Mr Sarquis' decision had been revoked at Mr Murphy's suggestion, Mr Murphy agreed with my proposal that he should await the respondent's fresh decision. 7. On 8 November 1993, the then Under Treasurer, Mr Henry Smerdon, made a fresh decision granting access to the same 218 pages that were the subject of Ms Barber's decision, with the same eight pages subject to the same deletions, the deleted matter being claimed to be exempt under s.44(1) and s.40(c) of the FOI Act. It is unnecessary to set out Mr Smerdon's reasons for decision, which have been revised and expanded upon in the submissions lodged on behalf of the respondent in this review.8. By letter dated 23 November 1993, Mr Murphy applied to me for review, under Part 5 of the FOI Act, of Mr Smerdon's decision. External Review Process9. The documents in issue were obtained and examined. They comprise eight pages of handwritten and typewritten notes, bearing dates between April-May 1991 and March-April 1993, from which the names of certain officers have been deleted.10. I wrote to Mr Smerdon on 11 August 1994 conveying my preliminary views on the application of s.44(1) and s.40(c) of the FOI Act to the matter in issue, and requesting confirmation that the respondent did not contend that s.42(1)(c) of the FOI Act was applicable. I also extended an opportunity for the respondent to lodge any evidence or written submissions on which it wished to rely to support a case that the matter in issue is exempt matter under the FOI Act.11. I also wrote to each officer whose name had been deleted from the documents in issue, enclosing a copy of my letter to Mr Smerdon dated 11 August 1994. I invited each officer to inform me whether he or she objected to disclosure of his or her name to Mr Murphy, and drew each officer's attention to the entitlement under s.78 of the FOI Act to apply to be a participant in the review.12. Two retired officers of the OSR wrote to me raising concerns about the release of their names. An officer of the Australian Taxation Office also responded stating that he had no objection to the disclosure of his name to the applicant. By letter dated 16 September 1994, the Crown Solicitor informed me that he had been instructed to act on behalf of Queensland Treasury and eight officers currently employed in the OSR, whose names had been deleted from the documents in issue.13. I also received a letter dated 28 September 1994 from the State Public Services Federation (Queensland) (the SPSFQ) purporting to represent individual members of the SPSFQ affected by the decision under review, and making application to participate in the review. I entertained doubts as to whether the SPSFQ was entitled to status as a participant in the review. However, following consultation with Mr Murphy, I wrote to the SPSFQ on 30 September 1994 in the following terms: Section 78(2) of the FOI Act permits "any person affected by the decision the subject of the review" to apply to me to participate in the review. Section 78(3) of the FOI Act confers on me a discretion to allow such a person to participate in the review in such way as I direct. I have significant reservations about whether the SPSFQ is a "person affected by the decision the subject of the review", for the following reasons: 1. You state in your letter dated 28 September 1994 that this matter affects the SPSFQ because it represents the individual members concerned. I have, however, received advice from the Crown Solicitor that he has been instructed to act for the eight officers employed in the Office of State Revenue who are directly affected by the decision under review. Thus, the eight officers, the disclosure of whose names is in issue, have become participants, and have competent legal representation. 2. You state that this matter affects the SPSFQ on the basis that the matter is of grave concern to all your members in the Office of State Revenue and that this case has the potential to impact on all the rights of public servants in Queensland. I have doubts, however, as to whether these concerns are sufficient to elevate the SPSFQ to a position where it can be regarded as a person affected by the decision, the subject of the review. I have consulted the applicant, Mr Murphy, as to whether or not he objects to the SPSFQ participating in this review. Although Mr Murphy can see no basis in principle for the SPSFQ to assert an entitlement to participate in this review, he is more concerned by the prospect of a prolonged legal battle, over a peripheral issue of this kind, causing a further delay in the final resolution of his application for review. On that basis, and in the interests of a speedy resolution of this review, he is prepared to consent to the SPSFQ participating in this review, in such manner as I direct. I am, therefore, prepared to allow the SPSFQ to participate in this review, but this should not be regarded as setting any precedent for future cases of a similar kind. I now extend to you the opportunity to lodge evidence and/or a written submission in support of any case you wish to make that the names of officers of the Office of State Revenue were properly deleted from the documents in issue because they comprised exempt matter under the FOI Act.14. While I have allowed the SPSFQ to participate in this review, primarily because of the stance adopted by Mr Murphy, I remain unconvinced that the SPSFQ is entitled, under the language of s.78 of the FOI Act, to the status of a participant in the review. Thus I have not named the SPSFQ as a participant in the heading to this decision and reasons for decision. Ultimately, the SPSFQ lodged a short written submission stating merely that it relied upon the submissions and evidence lodged on behalf of the respondent, before making several suggestions to me as to how I should conduct the review. The officers and retired officers whose names are in issue are entitled to the status of participants, but they have not been named as such for obvious reasons.15. It is indicative of the complexity of some of the issues that are capable of arising under the FOI Act that in this case, in which the information in issue comprises no more than the names of several public servants appearing in documents to which the applicant has otherwise been given access, the following material was lodged by the participants in support of their respective cases:(a) for the respondent, and the eight officers employed in the OSR whose names are in issue - ? a written submission of some 50 pages, dated 21 October 1994. ? ten statutory declarations, and one letter of objection, from officers and former officers of the OSR, the names of most of whom are in issue (and from which, names and other identifying material were deleted, when this evidence was provided to the applicant for response). ? a statutory declaration of Mr Michael Sarquis, executed on 20 October 1994. ? a statutory declaration of Ms Jane Macdonnell, executed on 21 October 1994. ? a written submission, dated 1 February 1995, in reply to the applicant's evidence and submissions. ? a supplementary submission, dated 13 March 1995. ? a statutory declaration of Mr Don Abberton, executed on 13 March 1995.(b) for the applicant - ? a written submission of some 49 pages. ? an affidavit of Robert Victor Harris, sworn 1 December 1994. ? an affidavit of Peter John Byrnes, sworn 2 December 1994. ? an affidavit of John Paul Murphy, sworn 4 December 1994. ? an affidavit of Davinka Wanigesekera, sworn 5 December 1994. ? a supplementary submission, dated 6 April 1995, in response to the respondent's supplementary submission.During the course of the review, I also called for and examined a copy of the relevant land tax file (to which the applicant had obtained access, subject to the deletion of the names of officers which are now in issue).16. By letter dated 5 January 1995, the respondent's solicitor was informed that Mr Murphy had requested that he be permitted to cross-examine a number of people (some of whom had not even lodged evidence in the respondent's case). I sought the respondent's views on this procedural issue. By letter dated 19 January 1995, the respondent submitted that procedural fairness, in the context of this case, did not require that Mr Murphy be permitted to cross-examine the persons he had nominated, but that if cross-examination was to be permitted, the respondent would wish to cross-examine Mr Murphy and his supporting deponents. In light of the respondent's arguments, I formed the view that the fair and proper disposition of this review did not require cross-examination by any participant of the witnesses who had given formal evidence on behalf of another participant.17. By virtue of s.21 of the FOI Act, Mr Murphy has a legally enforceable right to be given access to the matter in issue unless it falls within the terms of one of the statutory exceptions to the right of access which are provided for in the FOI Act itself. The primary question, therefore, is not "Why should Mr Murphy have access to the matter in issue?" but rather "Why should Mr Murphy not have access to the matter in issue?" The respondent's answer is that the matter in issue is exempt under several provisions of the FOI Act. Pursuant to s.81 of the FOI Act, the respondent has the onus of establishing that the decision under review was justified or that I should give a decision adverse to the applicant. The respondent's case is summarised at p.1 of its first written submission, as follows: 1.1.3 The main competing interest to access in this case is the ability of individuals who happen to be officers in the public service to go about their work (in an accountable manner) but without fear of intimidation, harassment or reprisals which may lead to: ? a reasonable expectation of endangering their lives or physical safety (including mental health) - (s.42(1)(c)); ? prejudice the effectiveness of a method or procedure for the conduct of ... audits by an agency - (s.40(a)); ? a substantial adverse effect on the management or assessment by an agency of the agency's personnel - (s.40(c)); ? a substantial adverse effect on the conduct of industrial relations by an agency - (s.40(d)). 1.1.4 This can be done by preventing disclosure of information concerning the personal affairs of such officers which includes not giving their names to a stranger who is unaware of their names - (s.44(1)).Application of s.44(1) of the FOI Act18. Section 44(1) provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest.19. In my letter dated 11 August 1994 to the respondent, I conveyed the following preliminary views on the application of s.44(1) to the matter in issue, and invited the respondent to lodge submissions to persuade me to the contrary: In my view, the claim for exemption under s.44(1) of the FOI Act, in respect of the names of officers of the Office of State Revenue, must now be regarded as untenable in light of the clarification of the relevant scope of the phrase "information concerning the personal affairs of a person" given by the judgments of the New South Wales Court of Appeal in Commissioner of Police v The District Court of New South Wales and Perrin (1993) 31 NSWLR 606 (Perrin's case). Relevant passages from the judgments in that case are set out, and endorsed, in my decisions of Re Stewart and Department of Transport [(1993) [1993] QICmr 6; 1 QAR 227], at paragraphs 84 and 88, and Re Pope and Queensland Health (Information Commissioner Qld, Decision No. 94016, 18 July 1994, unreported), at paragraphs 113 and 115. The actual decision in Perrin's case is directly applicable to the matter in issue in this review. The New South Wales Court of Appeal held that the names of police officers (and other employees of the New South Wales Police Service) involved in the preparation of reports in the performance of their employment duties could not properly be classified as information concerning the personal affairs of those police officers (and other employees). Likewise, in my view, the names of employees of the Office of State Revenue appearing in documents relating to the performance of their employment duties cannot properly be classified as information concerning the personal affairs of those employees, for the purposes of s.44(1) of the FOI Act. (See also my conclusion at paragraph 116 of Re Pope.)20. The respondent has provided me with submissions detailing a number of arguments aimed at dissuading me from the preliminary view that I expressed in my letter of 11 August 1994. I have considered those arguments carefully, but I find none of them convincing.21. First, the respondent has referred me to a large number of decisions of the Victorian Administrative Appeals Tribunal (the Victorian AAT), applying s.33(1) of the Freedom of Information Act 1982 Vic (the Victorian FOI Act), which have held that a person's name forms part of a person's personal affairs. That position appears to have become established with the decision in Re Simons and Victorian Egg Marketing Board (1985) 1 VAR 54, and adhered to by the Victorian AAT in many subsequent cases. It has been held that the names of public servants constitute their personal affairs (see Re Perton and Department of Manufacturing and Industry Development (1991) 5 VAR 149 at p.150) with the fact that their names appear in a context relating to the performance of their duties as public servants having been treated as a factor going to whether disclosure would be unreasonable, under the terms of s.33(1) of the Victorian FOI Act which is framed as follows: 33(1). A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).22. It is probably enough to deal with the respondent's submissions on this issue to say that I reaffirm the view (which I first stated in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 at p.259, paragraph 85) that I am satisfied of the correctness of the reasoning in the decision of the NSW Court of Appeal in Commissioner of Police v The District Court of New South Wales and Perrin (1993) 31 NSWLR 606 (Perrin's case) which is to be preferred to any tribunal decisions based on reasoning which is necessarily inconsistent with Perrin's case. However, I will make some further explanatory comments. 23. In my reasons for decision in Re Stewart, I identified the various provisions of the FOI Act which employ the term "personal affairs" and discussed in detail the meaning of the phrase "personal affairs of a person" (and relevant variations thereof) as it appears in the FOI Act. In particular, I there said that information concerns the "personal affairs of a person" if it relates to the private aspects of a person's life, and that while there may be a substantial grey area in the ambit of the phrase "personal affairs", that phrase has a well accepted core meaning which includes affairs relating to - ? family and marital relationships; ? health or ill-health; ? relationships with and emotional ties with other people; and ? domestic responsibilities or financial obligations.Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, based on a proper characterisation of the matter in question.24. In Re Stewart at pp.259-261 (paragraphs 86-90), I classified "names, addresses and telephone numbers" as falling within the grey area of the ambit of the phrase "personal affairs". Let me first say that I consider that a person's name, in isolation, does not ordinarily constitute information concerning that person's personal affairs. I consider that Mahoney JA was correct in Perrin's case when he said (at p.638): A person's name would not, I think, ordinarily be, as such, part of his personal affairs. It is that by which, not merely privately but generally, he is known.25. The problem is that a person's name almost invariably appears in a document in the context of surrounding information. It is the characterisation of a person's name, in the context of the information which surrounds it, that gives rise to difficulties. Thus in Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111, Lockhart J said (at p.119): There is a real question as to whether the name and telephone number can answer the description of 'information relating to the personal affairs' of that person under s.41(1) [of the Freedom of Information Act 1982 Cth, as then in force]. Viewed as an abstract conception I would be inclined to the view that it could not, but such questions are not considered by courts in the abstract.26. Thus, while disclosure of a person's name, in the abstract, would not ordinarily be a disclosure of information concerning that person's personal affairs, disclosure of that name in the context in which it appears may disclose information concerning the person's personal affairs (or it may not - there is always a question of the proper characterisation of the matter in issue, in its context, which must be addressed in each particular case). 27. There is also the possibility that information which would be exempt because it is identified with a particular individual and hence would disclose information concerning that person's personal affairs can be rendered non-exempt by the deletion of the person's name (or other identifying information): see Re Stewart at p.258 (paragraph 81), wherein I referred to Re Borthwick and Health Commission of Victoria (1985) 1 VAR 25, and paragraphs 25-31 of Re Byrne and Gold Coast City Council (Information Commissioner Qld, Decision No. 94008, 12 May 1994, unreported)). 28. In the present case, the context in which the names in issue appear is clearly a context in which the named persons are referred to as public servants involved in the performance of their duties of office. For the reasons which I gave in Re Pope and Queensland Health (Information Commissioner Qld, Decision No. 94016, 18 July 1994, unreported) at paragraphs 110-115, I adhere to the view which I expressed at paragraph 116 of Re Pope: 116. Based on the authorities to which I have referred, I consider that it should now be accepted in Queensland that information which merely concerns the performance by a government employee of his or her employment duties (i.e. which does not stray into the realm of personal affairs in the manner contemplated in the Dyrenfurth case) is ordinarily incapable of being properly characterised as information concerning the employee's "personal affairs" for the purposes of the FOI Act.29. Two passages from prior decisions, which I endorsed in Re Stewart and Re Pope, are, in my opinion, directly applicable to the matter in issue in this case. The first is from the decision of Deputy President Hall of the Commonwealth Administrative Appeals Tribunal (the Commonwealth AAT) in Re Anderson and Australian Federal Police [1986] AATA 79; (1986) 4 AAR 414 (at pp.433-4): In my view, the fact that a document may refer to a person by name does not necessarily mean that the document relates to that person's 'personal affairs': cf Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534 at 539. There are many circumstances in which a person may be referred to in correspondence or other documents without the documents containing information with respect to that person's personal (or 'non-business') affairs. Correspondence signed in the course of one's business, profession or employment is an obvious example. Documents signed as the secretary of a social club or sporting body would normally be of a similar nature. In my view, acts, matters or things done by a person in a representative capacity on behalf of another person, body or organisation, would not normally be said to relate to that person's 'personal affairs'. In such cases, the document does not relate to the person's personal affairs because there is no relevance between the information contained in the document and any matter personal to the applicant: cf Department of Airforce v Rose [1976] USSC 64; (1976) 425 US 352 at 371. 30. The second passage is from the judgment of Kirby P in Perrin's case (at p.625): ... it cannot properly be said that the disclosure of the names of police officers and employees involved in the preparation of reports within the New South Wales Police can be classified as disclosing information concerning their personal affairs. The preparation of the reports apparently occurred in the course of the performance of their police duties. What would then be disclosed is no more than the identity of officers and employees of an agency performing such duties. As such, there would appear to be nothing personal to the officers concerned. Nor should there be. It is quite different if personnel records, private relationships, health reports, or (perhaps) private addresses would be disclosed. Such information would attract the exemption. But the name of an officer or employee doing no more than the apparent duties of that person could not properly be classified as information concerning the personal affairs of that person. The affairs disclosed are not that person's affairs, but the affairs of the agency.31. The next argument advanced by the respondent was that Perrin's case is distinguishable for the purposes of the Queensland FOI Act, for the following reasons (given at pp.47-48 of the respondent's first submission): ... 6.16.1 An important factor in the case was the terms of the Minister's second reading speech when he introduced into the NSW Parliament the Freedom of Information Bill. Where relevant the Minister's speech contained the following remark:- This feeling of powerlessness stems from the fact that electors know that many of the decisions which vitally affect their lives are made by, or on advice from, anonymous public officials, and are frequently based on information which is not available to the public. The government is committed to remedying this situation ... (See Kirby P at p.612). Kirby P remarked at pp.625-626:- If there is ambiguity in the phrase [personal affairs] it is legitimate for the Court to have regard to the Minister's second reading speech. This made it abundantly plain that one object of the Act was to breach the wall of anonymity of public servants. ... Secondly, if the argument that the mere mention of the name of an officer was, in every case, the disclosure of information concerning the personal affairs of a person, it would carry the consequence that all documents disclosed under the Act would be subject to deletion of the names of all officers concerned or at least consideration in every case of whether disclosure of those names would be unreasonable. It is legitimate to test the Commissioner's proposition in this way. So expressed, it is clearly unacceptable. It is contrary to the Minister's statement that the government was committed, by the Act, to remedy the situation produced by the "feeling of powerlessness" derived from decisions vitally affecting individuals made, in effect, by "anonymous public officials". How can the fundamental principles of "openness, accountability and responsibility" be achieved to remedy that situation if the anonymity which was said to be part of the problem is preserved by the construction of cl.6(1) urged upon this Court. A reading of the Honourable the Attorney-General's second reading speech when introducing the Freedom of Information Bill into Queensland indicates no such assertive statement as is referred to above. Therefore, the interpretation in Perrin's case was heavily influenced by matters not relevant in Queensland.32. I do not think there is any substance in this attempt by the respondent to distinguish Perrin's case. Of the three judges of the New South Wales Court of Appeal, only Kirby P made a reference to the relevant Second Reading Speech which was in any way linked to an expression of views on the proper interpretation and application of the phrase "personal affairs". Clarke JA did make a reference in his judgment to the Second Reading Speech, but did not refer to the particular passage from the Second Reading Speech which is singled out in the respondent's submissions. The reference by Clarke JA (at p.643) was a general one made only for the purpose of indicating the general intention behind the relevant legislation. It is clear that Clarke JA reached his conclusion by interpreting the ordinary meaning of the relevant phrase in its statutory context (at p.644): Even on that basis [i.e. that the words "personal affairs" should not be interpreted narrowly], I am unable to accept the proposition that the name of a person must necessarily be a matter concerning that person's personal affairs. It seems to me that, generally speaking, the Act is concerned with "the affairs" of individuals and that as a matter of ordinary English a person's name would not be considered as falling within that concept.Mahoney JA reached a similar conclusion (at p.638) without making any reference in his judgment to the NSW Second Reading Speech.33. A fair reading of the judgment of Kirby P shows that His Honour did not consider there to be any ambiguity as to the meaning or proper application of the phrase "personal affairs" in the circumstances of Perrin's case, such as to require resort to the Second Reading Speech. Rather, the Second Reading Speech was referred to as providing further reinforcement to the position which His Honour had reached by reference to Colakovski's case and his own interpretation of the plain language of the exemption provision in issue. Mahoney JA and Clarke JA reached similar conclusions, uninfluenced by the Second Reading Speech.34. Moreover, the fact that the Second Reading Speech of the Queensland Attorney-General introducing the Freedom of Information Bill 1991 Qld contained no specific reference to the proposed legislation being intended to overcome the traditional anonymity of public servants, does not mean that this was not a necessary concomitant of the avowed object of the Queensland FOI Act to "enhance government's accountability". In Re Pope, I said (at paragraph 33): It is a clear object of the FOI Act to enhance government's accountability (see s.5(1)(a) of the FOI Act), and this must include enhancing the accountability of government employees for the performance of their duties in the public interest. The FOI Act affords no specific exemption for information that might adversely affect an employee of a government agency in respect of his or her employment affairs, and this is only logical since to do so would be inimical to the attainment of one of the major objects of FOI legislation, i.e., enhancing government's accountability and keeping the community informed of government's operations.I think there is sufficient indication in the legislative history of the Queensland FOI Act, and in the history of freedom of information legislation generally in Australia, to establish that this legislation is intended to enhance the accountability of individual government officials.35. Indeed the history of the Commonwealth administrative law reform package, which (following recommendations made in the "Fitzgerald Report" at pp.128-129) Queensland has sought to adopt and improve upon, shows that it was largely developed in response to manifest inadequacies in the traditional methods for holding the executive government to account, i.e. through parliamentary review and the doctrine of ministerial responsibility (see M. Allars, Introduction to Australian Administrative Law, Butterworths, 1990, at pp.18-19, paragraphs 1.32-1.34; Electoral and Administrative Review Commission, Appeals from Administrative Decisions, Issues Paper No. 14, June 1991, Serial No. 91/I4, at pp.6-7, paragraphs 2.4-2.8), and to the perceived need for avenues of accountability which could be readily invoked by individual citizens, concerned or aggrieved with some aspect of government administration, to hold government agencies and individual government officials to account for their actions and decisions. Thus, for example, individual officials may be required to explain and justify their administrative decisions, in writing, to persons whose interests are adversely affected by their decisions (see Part 4 of the Judicial Review Act 1991 Qld) and may be required to account for the legality and procedural fairness of their decisions before the Supreme Court, under reformed and simplified procedures provided for in the Judicial Review Act 1991 Qld.36. Freedom of information legislation, too, has always been recognised as a means for holding individual officials to account. In its 1979 "Report on the Freedom of Information Bill 1978, and aspects of the Archives Bill 1978", the Senate Standing Committee on Constitutional and Legal Affairs devoted considerable attention to the impact of freedom of information legislation on the doctrine of ministerial responsibility and the tradition of anonymity of public servants (see, for example, paragraphs 4.9-4.63 of the Report). Some of the Senate Committee's conclusions were: ? Freedom of information legislation is a means not only of ensuring the more direct accountability of public servants to the public, but also of ensuring greater accountability of public servants to their ministers. It is in the interests of ministers themselves to expose the advice of their officials to wider scrutiny so as to improve the quality of that advice and ensure that all possible options have been canvassed. [at paragraph 3.21]? This shift in the balance of power between the elected government and the professional public service has important implications for freedom of information legislation. In essence it means that the public service should be made more open to public scrutiny and more accountable for its actions than has traditionally been the case. [at paragraph 4.40]? The political system, whatever its form or nature, should exist to one end only: not the convenience of the government, but the service of the people. To this end, no views about the supposed nature of the Westminster system should prevent the strengthening of the accountability of all parts of the government to the people from being achieved. [at paragraph 4.61]? Very often people have alleged that the Westminster system is under attack by freedom of information legislation when what is actually under attack is their own traditional and convenient way of doing things, immune from public gaze and scrutiny. We are indeed seeking to put an end to that. What matters is not the convenience of ministers or public servants, but what contributes to better government. [at paragraph 4.62]37. Thus, in recommending that the introduction of freedom of information legislation in Queensland be examined by the proposed Electoral and Administrative Review Commission, the "Fitzgerald Report" said (at p.129): The importance of the legislation lies in the principles it espouses, and its ability to provide information to the public and to Parliament. It has already been used effectively for this purpose in other Parliaments. Its potential to make administrators accountable and keep the voters and Parliament informed are well understood by its supporters and enemies. (my emphasis)38. Finally, the respondent sought to rely on a remark by Kirby P in Perrin's case at p.626 (to the effect that the decision of the Victorian AAT in Re Perton may be justified by the Victorian AAT's reliance upon the prohibition contained in s.95(1) of the Constitution Act 1975 Vic), in conjunction with an assertion by the respondent that cl.4.3 of the Code of Conduct for officers of the Queensland Public Service (clause 4.3 deals with the situations in which public comment by officers on political or social issues is unacceptable) is similar to s.95(1) of the Constitution Act 1975 Vic. 39. It is clear, however, from p.151 of Re Perton, that the Victorian AAT, having found (simply by following prior decisions of the Victorian AAT) that the names of the relevant officials constituted information concerning their personal affairs, regarded the legal prohibition on public comment by Victorian public servants as going to the issue of whether disclosure of the officials' names would be an unreasonable disclosure in terms of s.33(1) of the Victorian FOI Act, because the officials would not be able to defend themselves. When the reasoning of the NSW Court of Appeal in Perrin's case is applied to it, Re Perton was wrongly decided on the threshold issue of whether the names of the officials, in the context of the documents in issue, constituted information concerning their personal affairs. The issue of unreasonable disclosure should not, on that view, even have arisen for consideration.40. Kirby P's remark that the decision in Re Perton may be justified by the prohibition contained in s.95(1) of the Constitution Act 1975 Vic is inexplicable in terms of His Honour's own approach to the meaning and application of the phrase "personal affairs", and (fatally for the respondent's argument) the approach of the other two members of the NSW Court of Appeal to that issue. Unless Kirby P only intended to indicate that the Victorian AAT's decision on the application of the unreasonable disclosure test may be justified (despite its mistaken approach to the threshold issue), the remark by Kirby P on which the respondent's argument depends must logically be disregarded.41. I note that the Queensland Code of Conduct provisions fall far short of the blanket prohibition on public comment by Victorian public servants, imposed by s.95(1) of the Constitution Act 1975 Vic. The Queensland provisions relate to public servants making unauthorised public comment on matters relating to their agencies; they have nothing to do with preserving outdated notions of the anonymity of public servants at the expense of accountability to the public for the performance of their duties.42. I do not think there is any substance in the respondent's attempts to distinguish Perrin's case on the question of the proper interpretation and application of the phrase "personal affairs". I am satisfied that the matter in issue in the present case, given the context described at paragraph 28 above, does not comprise information concerning the personal affairs of the officials whose names are in issue, for the purposes of s.44(1) of the FOI Act.The application of s.42(1)(c) of the FOI Act43. The major focus of the respondent's evidence has been on s.42(1)(c) of the FOI Act which provides: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to - ... (c) endanger a person's life or physical safety; 44. I analysed the meaning of the phrase "could reasonably be expected to", by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act), in my reasons for decision in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, at pp.339-341, paragraphs 154-160. Those observations are also relevant here. In particular, I said in Re "B" (at pp.340-341, paragraph 160): The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist.The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Dictionary, 2nd ed); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993). 45. The question posed by s.42(1)(c) is to be examined objectively by the decision-maker authorised to determine questions of access under the FOI Act, in light of the relevant evidence: see News Corporation Ltd v National Companies and Securities Commission [1984] FCA 400; (1984) 57 ALR 550, per Fox J at p.555.46. At one place in its first submission (at pp.23-24), the respondent suggests that the application of s.42(1)(c) turns on whether the person(s) allegedly exposed to danger hold a reasonable expectation of harm: An apprehension of danger or physical harm is sufficient if it can reasonably be expected whether or not it is ever carried out. Examples demonstrate this. (i) A person jokingly says he will kick another off the planet. (ii) A person says he will "get you" and "get even" yet unknown to the other may not intend doing anything other than creating fear. The exemption would not apply in the first case as harm could not reasonably be expected. The exemption would apply in the second example because the first person holds a reasonable expectation of harm. ... On the material available the officers whose names have been withheld hold a reasonable expectation that their lives may be endangered or that they may suffer physical harm. This satisfies the exemption.47. With respect, that is clearly not a correct approach to the application of s.42(1)(c). The question of whether disclosure of certain matter could reasonably be expected to endanger a person's life or physical safety is to be objectively judged by the authorised decision-maker under the FOI Act, in the light of all relevant evidence, including any evidence obtained from or about the claimed source of danger, and not simply on the basis of what evidence is known to persons claiming to be at risk of endangerment. In a review under Part 5 of the FOI Act, the authorised decision-maker is the Information Commissioner.48. Section 37(1)(c) of the Commonwealth FOI Act is, for practical purposes, virtually identical to s.42(1)(c) of the Queensland FOI Act. Cases decided under the former provision are capable of affording useful guidance in the interpretation and application of s.42(1)(c) of the Queensland FOI Act. There is also a counterpart to these provisions in s.31(1)(e) of the Victorian FOI Act, although it has substantial differences: for example, instead of the phrase "could reasonably be expected to", s.31(1)(e) of the Victorian FOI Act employs the words "would, or would be reasonably likely to"; it also contains words which restrict the range of persons, the endangerment of whose lives or physical safety is protected against, to a defined class. Nevertheless, the words "endanger the lives or physical safety of persons" which appear in s.31(1)(e) of the Victorian FOI Act are, for practical purposes, virtually identical to the words "endanger a person's life or physical safety" in s.42(1)(c) of the Queensland FOI Act. Victorian cases interpreting and applying the words "endanger the lives or physical safety of persons" are capable of affording guidance in the interpretation and application of the equivalent words in s.42(1)(c) of the Queensland FOI Act.49. The leading case in Victoria is the decision of the Full Court of the Supreme Court of Victoria in Department of Agriculture and Rural Affairs v Binnie [1989] VicRp 73; [1989] VR 836. In that case, the documents in issue were "Returns of animal usage for experimental purposes" submitted by registered experimenters in accordance with the requirements of the Protection of Animals Act 1966 Vic. The particular information claimed to be exempt comprised the names and signatures of individual experimenters and the names of the institutions where experiments took place. A passage from the judgment of Marks J, on which the respondent places specific reliance, is as follows (at p.844): ... if it were assumed that experimenters are not to be visited with danger or risk to their physical safety either through harassment, pressure or some form of violent persuasion, there appears little value to anyone in their being identified in the way sought. ... It is not necessary to show that the risk to which s.31(1)(e) refers is from the respondent himself but rather from anyone should the information become generally known. It must also be acknowledged that exemption applies where it "would be reasonably likely" that there be a danger to physical safety, not that physical harm will occur. The risk of endangerment might well be thought to be greater than that of physical harm. The risk to be guarded against is of an experimenter being placed under threat, that is, in a position where he or she might or might not be physically harmed.50. In Binnie's case, there was evidence from one of the registered experimenters that both he and his department had received bomb threats after a prior appearance on television in a discussion about animal experimentation. Evidence was also given of bomb threats to animal experimenters in Western Australia, and instances of physical violence in the United Kingdom. The source of danger that was in contemplation in Binnie's case was of physical violence inflicted upon people in the vicinity of institutions conducting animal experiments, by unknown persons having heightened emotional reactions to the conduct of experiments on animals (see also per Young CJ at pp.837-8). The comments of Marks J must be viewed in that context.51. In its submission in reply (at p.2, paragraph 1.4; p.4, paragraph 1.9; p.5, paragraph 1.12) the respondent asserts that a reasonable expectation of harassment or pressure is sufficient to satisfy s.42(1)(c) of the Queensland FOI Act. That assertion is, in my opinion, based on a misreading of the first sentence in the passage quoted above from the judgment of Marks J in Binnie's case. I think it is clear that Marks J was referring to harassment or pressure involving danger to the physical safety of persons. Indeed, given the terms of the exemption provision with which he was dealing, Marks J could not have been referring to anything else. (In light of the evidence before him, it appears that what Marks J had in contemplation was the actions of persons, strongly opposed to the conduct of experiments on animals, in the vicinity of institutions engaged in the conduct of such experiments.)52. With one qualification, I accept the correctness of the passage quoted above from Binnie's case. I think Marks J was correct in drawing attention to the fact that the relevant words require an evaluation of the expected consequences of disclosure in terms of endangering (i.e. putting in danger) a person's life or physical safety, rather than in terms of the actual occurrence of physical harm. The last sentence in the quoted passage, however, seems to me to place an unnecessary, and (taken out of context) potentially misleading, gloss on the words chosen by the legislature. The risk to be guarded against is that of a person's life or physical safety being endangered by disclosure of the information in issue. 53. It is clear from Binnie's case itself, and other decided cases, that a source (or sources) of danger to the life or physical safety of persons must be in contemplation, and there must be evidence of a risk that disclosure of information in issue would endanger a person's life or physical safety. (The extent of the evidence of risk, and the likelihood of the risk, needed to satisfy the test of exemption may vary according to the different phrasing used between the Commonwealth/Queensland exemption provisions and the Victorian exemption provision. I have already set out at paragraph 44 above the test applicable under s.42(1)(c) of the Queensland FOI Act.)54. Thus, in Re Ward and Victoria Police (1986) 1 VAR 334, the Victorian AAT found that there was a real risk of physical harm being sustained by a police informant if his identity was revealed and "circulated in the drug related crimes industry". On the other hand, in Re Lawless and Secretary, Law Department (1985) 1 VAR 42, the applicant had been convicted of murder, and sought material relating to the alleged retraction of evidence of the chief witness for the prosecution. The Tribunal, constituted by Rowlands J (President), found that any resentment the applicant may wish to display towards the witness would flow from the series of events including her evidence, retraction and reinstatements, rather than the specific information in issue, and held that the evidence did not support the ground for exemption. The Tribunal decided that the apprehended danger to persons must arise from the disclosure of the specific document in issue, rather than from other circumstances, and that evidence of the risk of violence must be produced. 55. In Re Matthews and Department of Social Security (Commonwealth AAT, N90/363, 21 December 1990, Purvis J, unreported), the applicant, a social security claimant, had a long and documented history of violence towards persons and property. The AAT referred to the applicant's history of "severe verbal abuse, threats, property damage and physical abuse towards departmental staff". The information found to be exempt under s.37(1)(c) of the Commonwealth FOI Act was the nature of recommended action in dealing with the applicant in future. 56. In Re Mallinder and Office of Corrections (1988) 2 VAR 566, the Victorian AAT was satisfied that if the contents of the documents that were the subject of the claim for exemption were disclosed, there was a risk to the physical safety of the authors identified in the contents. The Victorian AAT noted that the applicant had a history of violence, was serving a 13 year sentence for wounding with intent to do grievous bodily harm, and had a number of prior convictions including convictions for crimes involving physical violence. In Re Pepperell and Ministry of Housing and Construction; Walden & Anor (1989) 3 VAR 191, the Victorian AAT held that s.31(1)(e) was not made out in circumstances where the applicant (a serving police officer) objected to the disclosure of a letter of complaint to the respondent about his neighbour (a tenant of the respondent), because the evidence did not establish more than a remote possibility of danger to the applicant's family by release. In Re Perry and Victoria Police (1990) 4 VAR 131, the Victorian AAT held that exemption under s.31(1)(e) was established on the basis of evidence that the applicant had stated to a police officer in the precincts of the Tribunal that she was prepared to kill to prove her innocence (of a murder charge to which the documents in issue related).57. Finally, in Re Toren and Secretary, Department of Immigration and Ethnic Affairs (Commonwealth AAT, Q93/578, 8 March 1995, Deputy President Forgie, unreported) the Commonwealth AAT found that, despite evidence of personal vendettas and obvious bad blood between the applicant's brother and the author of the documents in issue (a Mr Wachtel), it was not satisfied that a case for exemption under s.37(1)(c) of the Commonwealth FOI Act had been established. The Tribunal's approach to this case, which I consider to have been correct, is captured in the following extract from pp.18-21 of the decision: The question I must ask, therefore, is whether ... disclosure of any of the documents under the FOI Act would, or could reasonably be expected to, endanger the life or physical safety of any person. I can answer that question only if I have regard to both the contents of the documents themselves and to any other relevant material. The only other relevant material in this case concerns relations between the Toren brothers and Mr Wachtel. The most obvious person whose life and physical safety I should consider is Mr Wachtel. Paragraph 37(1)(c) is not, however, limited to concern about the author of the document but directs attention to "any person". In this case, therefore, I should look also to whether the life or physical safety of any other person would be endangered were access to the document given under the FOI Act. The only people who could conceivably come within that description would be officers of the Department, Mr Wachtel's family, Mr Toren and Mr Toren's brother. There is no evidence on which I could draw any conclusion that the life or physical safety of officers of the Department would, or could reasonably be expected to, be endangered by disclosure of any of the documents. I will confine myself, therefore, to considerations relating to Mr Wachtel, Mr Wachtel's family, Mr Toren and Mr Dan Toren. ... ... I find that, in September 1988, the relationship between Mr Dan Wachtel and Mr Dan Toren had soured to a point where the behaviour of neither entirely met an appropriate minimum standard in relation to their dealings with or concerning each other. Some of the aspects related to business but some, such as Mr Wachtel's involvement in Mr Toren's citizenship application, went beyond strictly business matters. On the basis of the Arbitrator's decision, I find that both Mr Dan Toren and Mr Wachtel had engaged in personal vendettas. Despite all of the personal vendettas and obvious bad blood between Mr Dan Toren and Mr Wachtel, I am not satisfied that either has made any threat of physical harm to the other. There is no evidence that Mr Toren, as opposed to his brother, has been engaged in, or caught up in, that personal vendetta. Personal vendettas and bad blood, however undesirable, are not inevitably accompanied by physical harm, or the threat of it, by one person to another. They may be carried out in quite subtle ways by, for example, besmirching another's character or setting out to attract another's customers and so destroy his or her business. Neither of these means of implementing a personal vendetta necessarily involves any action that would endanger the life or physical safety of any person although they may cause immeasurable harm to a person. They could, for example, cause such emotional damage to a person, or ruin him or her financially, that they could be said to "destroy" his or her life. It is difficult to say that those subtle ways would or could reasonably be expected to endanger a person's life or physical safety unless the "destruction" of the person's life were so great that the person who is the object of the personal vendetta were driven to commit suicide or harm himself or herself in some way. There is no suggestion in this case that disclosure of any of the documents would, or could reasonably be expected to lead to Mr Toren's, Mr Dan Toren's or Mr Wachtel's harming himself in this way. Turning to direct harm, there is no evidence that there has been any physical harm done by any one of them to either of the others or to Mr Wachtel's family in the past. As to the future, I have the affidavit evidence of Mr Toren and his brother that they have no intention of harming Mr Wachtel in the future and this is indirectly supported by Mr Penfold who speaks of their good reputation. ... The chances of such harm occurring are remote given the contents of the documents and the history of the relationships between Mr Dan Toren and Mr Wachtel who are the centre of this case. The relationship between them has been very poor for many years and no physical harm has come to any of them. On the evidence, I cannot find that there has been any threat of physical harm by any of them to either of the others. In the absence of any other evidence, I am not satisfied that the Department has established that the documents are exempt under paragraph 37(1)(c).58. In the case presented by the respondent, the only source of danger that is contemplated is Mr Murphy himself. The only persons whose lives or physical safety are claimed to be at risk of endangerment by disclosure of the matter in issue are the officers (and retired officers) of the OSR whose names are in issue. What then is the evidence on which the respondent relies to base the application of s.42(1)(c) of the FOI Act to the matter in issue? 59. Ms Jane Macdonnell, Assistant Commissioner of Land Tax and Executive Director of the OSR, has sworn an affidavit dated 21 October 1994, which, so far as relevant to the present issue, says: 2. On 2 May 1991, I had a conversation with the applicant, Mr Murphy, regarding a land tax assessment. During the course of that conversation in which I refused to withdraw the relevant land tax assessment, the applicant told me that I'd be on the list for reprisal action. I could hear a computer keyboard being used as we spoke. The applicant in response to my questioning disavowed having an illegal purpose in compiling a list, but made statements rejecting the power of Parliament to impose taxation rather than a fee for service, rejecting the ballot box as a means of change and threatening reprisals which were inconsistent in my assessment with belief in the rule of law. Now produced and shown to me and marked with the letter "A" is a true but brief summary made by me contemporaneously of our conversation. I found the applicant to be menacing and that fact caused me to make a record. 3. I have been informed by other Treasury officers of telephone conversations that they have had with Mr Murphy, both prior to and since his conversation with me, in relation to land tax and to his FOI application. Those officers have given me consistent oral accounts of abuse including use of language generally described as obscene, and/or menacing statements by the applicant. In each instance, the recipient of the call told me that he/she understood that Mr Murphy was seeking the making of a decision in his favour.60. Ms Macdonnell's contemporaneous note of her telephone conversation with Mr Murphy on 2 May 1991 reads as follows: Mr Murphy rang around 9.45 am. He complained that he had received a demand for money with menaces. - I confirmed that the document in question was a land tax assessment. - His objection was that the tax was unrelated to services. - He clearly believed that the user pays principle could apply to all services strictly. I confirmed that he wasn't complaining about the calculation of the tax. - He said his complaint was that it wasn't zero. His comments challenged government's power to tax people (again where case was not fee for service). He complained about 52% of population being public servants, the unemployed and people at Woodridge got a mention. I invited him to put forward his views on land tax or any other state tax to the government for use in its tax review. - He saw no use in that action. - References to changes in 25 years see Eastern Europe = seizing property from those who'd stolen it. He told me that I'd be on the list. - clarified purpose of list and was told "nothing illegal" (not making any illegal threat) - list relates to list of people to have pensions etc seized in 25 years time. (I could hear him keying) ...61. The contemporaneous note does not refer to the list being for "reprisal action" (the words used in paragraph 2 of Ms Macdonnell's affidavit) or to any threats of reprisal other than the seizure of public servants' pensions in 25 years time (in this respect, it is consistent with evidence given by Mr Murphy - see paragraphs 80-82 below). The contemporaneous note does record Mr Murphy disavowing any illegal purpose or the making of any illegal threat, with respect to the list. Mr Murphy obtained a copy of Ms Macdonnell's file note of their telephone discussion on 2 May 1991 through his FOI access application. He annexed a copy of it to his affidavit sworn 4 December 1994. Mr Murphy commented on it (at paragraph 9 of his affidavit) as follows: ... It contains a statement that I had complained to her that "52% of the population were public servants". Shortly before that conversation, I had read in the Courier Mail of a study by the Australian Bureau of Statistics which showed that 24% of the working population were government employees and a further 28% obtained all, or the major part, of their income from government benefits. The statement I actually made was in accordance with that report. It was made in a context when I was putting to Macdonnell that the tax system she helped administer was an unconscionable burden on the remaining 48% who were the net tax producers. ...62. I assume that, in other respects, Mr Murphy accepts that Ms Macdonnell's contemporaneous file note is a reasonably accurate record of their conversation on 2 May 1991. Mr Murphy went on at paragraphs 10-12 of his affidavit to explain his references to "the list": see paragraphs 80-82 below.63. Mr Michael Sarquis has provided a statutory declaration, executed on 20 October 1994, concerning his contact with Mr Murphy in respect of the processing of Mr Murphy's FOI access application. Mr Sarquis has had telephone contact with Mr Murphy, and is the only witness for the respondent who has had contact with Mr Murphy in a face-to-face conference. Mr Sarquis' evidence is as follows: ... I believe Mr Murphy can be an unreasonable man with a very aggressive manner. During a telephone conversation I had with Mr Murphy I found him to be an irate man who was extremely difficult to deal with. Mr Murphy indicated, among other things, that I had acted illegally (in my decision to exempt the names of officers at Office of State Revenue from disclosure), my decision was libellous, I was corrupt and that I had not heard the last of this matter. During a conference I had with Mr Murphy he was asked whether he felt that some officers of the Office of State Revenue were justified in feeling threatened by his behaviour. Mr Murphy did not feel this to be the case but he admitted to being angry with officers over the telephone and to giving them a hard time and he felt that this was within his rights. I also raised the issue of Mr Murphy keeping a list of names and the reason for keeping such a list. Mr Murphy stated that he was keeping a list of names of people in case at some stage in the future there might be a change in the political system leading to an opportunity to enact retrospective legislation and prosecute those who he considered to be stealing his money at the present time. From my contact with Mr Murphy, I was not comfortable with dealing with him and I believe a person could feel threatened when he is in one of his aggressive moods. Mr Murphy displayed rudeness and a terrible temper and often was not interested in listening to reason. Mr Murphy seems to be of the view that there is a vendetta against him by certain areas of the government. In view of the above circumstances and the possible consequences, I believe that the names of the officers involved should not be revealed to Mr Murphy.64. Nine officers, or retired officers, of the OSR have provided statutory declarations attesting to their fears if their names are disclosed to Mr Murphy. Four of those officers have had telephone contact with Mr Murphy, but no face-to-face contact. The other five have had no contact with Mr Murphy of any kind, and the fears to which they attest are based only on material contained on the relevant land tax file (i.e. the file to which Mr Murphy has obtained access, subject to deletion of the names in issue) and what they have been told by other officers of the OSR who have had contact with Mr Murphy. 65. This evidence is in a slight state of confusion. Two officers who have attested to their fears of harassment and retribution if their names are disclosed to Mr Murphy, did in fact have their names disclosed to Mr Murphy when Mr Murphy obtained access to the relevant file late in 1993. Mr Murphy has annexed to his affidavit sworn 4 December 1994 copies of the documents in issue, as he obtained them from the respondent, and it is quite clear on the face of those copies that the names of those two officers were not deleted from the documents in issue, whereas the names of some eight other officers of the OSR were deleted. Taking at face value the fears expressed by the officers of the OSR who lodged statutory declarations, it was considered appropriate to provide copies of the statutory declarations to Mr Murphy with the names of the declarants deleted. 66. However, having carefully checked all of the evidence for the purposes of preparing my reasons for decision, it is clear, as I have indicated above, that the names of two of the declarants are not, in fact, in issue in this review: their names have not been deleted from any place where they appear in the copies of the documents in issue given by the respondent to Mr Murphy. In his evidence and submissions, Mr Murphy correctly identified the names of those two declarants from the correlation between the evidence given in their statutory declarations as to their telephone contacts with Mr Murphy (in which they had identified themselves by name in any event) and their contemporaneous notes of their telephone contacts with Mr Murphy, to which Mr Murphy obtained access, without deletion of the names of the two officers in question. (Presumably, the FOI administrators considered it inappropriate to delete the names of the two officers because Mr Murphy knew their names from his prior telephone discussions with them. Indeed, one of them was specifically named in Mr Murphy's FOI access application: see paragraph 2 above.) Since the names of those two officers, Mr Don Abberton and Mr Wallace Telford, are not in fact in issue in this review, it is not appropriate that I continue to refer to their evidence anonymously.67. The evidence given in Mr Abberton's statutory declaration executed on 25 October 1994 is as follows: I believe that should my name be released I may be subjected to harassment and I would be quite concerned if I were to come in personal contact with Mr Murphy. During telephone conversations I have had with Mr Murphy he has been very abusive and constantly attacking me personally. Mr Murphy told me to "get a decent job" and likened my job to the train drivers who drove the Jews to the gas chambers. Mr Murphy informed me that when he gets to power my name will be "on the list". At the time of these conversations I was placed in a highly stressful situation and I have never before encountered such threatening and abusive behaviour. His aggressive manner was such that I would not like to have been physically around him at the time of these conversations. Recently, in my absence, a fellow officer took a telephone call from Mr Murphy wishing to speak to me after he had been issued with correspondence from this Office. When informed that I was absent Mr Murphy demanded to speak to Jane Macdonnell, the Assistant Commissioner of Land Tax. When this officer informed Mr Murphy she was unavailable he said "she's my fucking servant" and generally became abusive about not being able to speak to her personally. I am concerned that Mr Murphy has behaved as outlined above and that he appears to have an intense dislike for public servants. His manner was very intimidatory and threatening and Mr Murphy spoke using obscene language throughout the entire conversation. On the above occasions Mr Murphy appeared to be acting unreasonably and was unable to communicate with public servants without the use of expletives and personal abuse. Mr Murphy also told me that I should resign. I believe that myself and other officers concerned may be subjected to continual abuse and harassment if our names are disclosed. I am quite concerned about the repercussions if these names are released. Mr Murphy has in the past placed me in stressful situations and I believe that same may happen in the future if my name is revealed. I further believe there is a genuine concern for my safety if there is a possibility I may come in contact with him personally. In view of the above circumstances and the possibility of retribution, I do not wish my name to be revealed to Mr Murphy.68. Although Mr Abberton refers to telephone conversations with Mr Murphy, the relevant land tax file contains a record of only one telephone conversation between them, on 20 April 1993. Thereafter, Mr Abberton appears to have dealt directly with Mr Murphy's accountant concerning the land tax investigation. In his affidavit sworn 4 December 1994 (at paragraph 27), Mr Murphy deposes that his conversation with Mr Abberton on 20 April 1993 was his only contact with Mr Abberton, to the date of swearing his affidavit. Certainly, if Mr Abberton did have any other telephone contacts with Mr Murphy to that time, he does not appear to have seen fit to make a record of them for file purposes. Mr Murphy's account of the conversation with Mr Abberton on 20 April 1993 is set out at paragraphs 14-27 of Mr Murphy's affidavit: 14. The residence of myself and my family is owned by the Trustee of our family Trust and rented by us from it. In about 1989 (I do not remember precisely when), I was informed by an employee of the OSR that such a property was exempt from Land Tax provided all the Trustee beneficiaries resided in it. 15. Having no reason to believe otherwise, Directors caused the Trustee to claim the exemption on the next Land Tax return and on subsequent returns up to the return based upon the Trustee's real estate holdings at 30 June 1992. 16. In April 1993, I received a telephone call from ROBERT VICTOR HARRIS, who was, and is, the accountant to the Trustee. He informed me that the OSR had requested the income tax returns of the Trustee. He gave me the name and telephone number of the person in the OSR who had contacted him. That name was DON ABBERTON. 17. I contacted ABBERTON to discover the basis of the enquiry. In the subsequent conversation, I discovered that the residence was not, in fact exempt, despite what I had been led to believe by the OSR earlier and that the arrears of taxes and penalties would amount to about THREE THOUSAND DOLLARS, so far as I recollect the amount. 18. ABBERTON was totally unconcerned at the effect such a situation might have on the beneficiaries of the Trust. He expressed the view that the money was the property of the Government and that was that. He offered no apology whatsoever for the fact that negligent advice on the part of the OSR had created the situation. I regarded his attitude as exhibiting a callous, arrogant, untouchable contempt for us. He expressed the view that he was not interested in the rights or wrongs of the matter as what he was doing was legal. 19. I regarded this attitude as all the more reprehensible since we are forced by law to deal with ABBERTON and to contribute to his salary and perquisites. I became angry with his attitude and abused him roundly. I say that my anger was justified and I say that I have no regrets about it and I say that I would probably react in the same way if the circumstance recurred. ... 27. ... I have never approached ABBERTON personally; I have not spoken to him apart from the one occasion in April 1993, nor have I attempted to contact or approach him other than on that occasion.69. While I do not think it justifies the abusive and intemperate language and aggressive telephone manner, which I accept that Mr Murphy used in that telephone conversation with Mr Abberton, Mr Murphy's account at least explains the cause of his anger. The evidence before me also supports Mr Murphy's assertion, in paragraph 27 of his affidavit, that although Mr Murphy has known Mr Abberton's name since April 1993, Mr Murphy had no further contact with Mr Abberton, whether in person or by telephone, between April 1993 and December 1994. (Since then, Mr Murphy has contacted Mr Abberton by telephone with respect to an action for defamation which Mr Murphy says he intends to bring against Mr Abberton: see paragraphs 89, 145-146 below.) In my opinion, this indicates that the fears expressed in Mr Abberton's statutory declaration about continual abuse and harassment, and danger to physical safety, are not soundly based.70. The evidence given by Mr Wallace Telford in his statutory declaration executed on 20 October 1994 is as follows: I believe that, as the contents of file notes have already been released, should my name be released, Mr Murphy could well go out of his way to cause problems and that I may be subjected to harassment. This belief is reinforced by, as later stated, Mr Murphy's verbal admission that he had a list of people to "be done" when he "comes to power". During a telephone conversation I had with Mr Murphy I was subjected to abusive tirades especially as to my "robbing" him, ... . Mr Murphy continually talked about guns, death and the Jews, topics which Mr Murphy apparently thought had a bearing on the levying of land tax. Mr Murphy also mentioned taking my superannuation and stated that I should make a moral judgment and resign. Mr Murphy also stated that in two or three years when he "comes to power", the superannuation that has been paid to already retired public servants will be taken back off them. Mr Murphy denied the right of the Government to levy land tax and accused the Government of illegally trying to take his property. Mr Murphy was repetitious, rambling, abusive and rude. His tirade was interspaced with expletives of, to my mind the coarsest nature, and on several occasions he advised me that I was "on the list" which he advised was a list of people who would "be done" when he had the power. From my contact with Mr Murphy I believe him to be an extremely vindictive person. I believe Mr Murphy is a very angry individual who has a lot of trouble controlling himself. Mr Murphy would not listen to logical argument and was abusive and rude throughout the entire conversation. I believe that Mr Murphy has a real control problem which gives me considerable concern and I further believe that I may be subject to future harassment. In view of the above circumstances and the possible consequences, I do not wish my name to be disclosed to Mr Murphy. 71. At paragraphs 107-111 of his affidavit sworn 4 December 1994, Mr Murphy disputes the accuracy of Mr Telford's account of what Mr Murphy said in this conversation in several respects - ? that Mr Murphy did not say that the "list" is for the purpose of physical or illegal acts. ? that Mr Telford has misrepresented comments by Mr Murphy about public servants hiding behind the "Nuremburg defence", an analogy commonly used in discussions of the legality-morality dichotomy. ? that Mr Telford has misrepresented Mr Murphy's only reference to a gun, which was Mr Murphy's assertion that tax collection is coercive (it appears from Mr Telford's file note of this telephone conversation that Mr Murphy equated the levying of land tax to a person entering his home with a gun and demanding to take his property without his consent).72. Mr Murphy asserts that his only contact with Mr Telford has been the one telephone conversation, of which Mr Telford has given evidence, which occurred on 25 September 1990. The evidence before me supports the correctness of Mr Murphy's assertion in this regard. Mr Murphy has known Mr Telford's name since 25 September 1990, and late in 1993 Mr Murphy obtained access to a copy of Mr Telford's record of their prior telephone conversation, with Mr Telford's name appearing clearly at the end of it. In my opinion, the fears expressed by Mr Telford in his statutory declaration, about being subjected to harassment by Mr Murphy,do not appear to be soundly based.73. The evidence of the other seven officers, or retired officers, of the OSR is very similar in nature to the evidence given by Mr Abberton and Mr Telford. Those who have had telephone contact with Mr Murphy have attested to his verbal abuse, swearing, and aggressive manner. Those who have had no contact with Mr Murphy attest to their belief, from discussions with staff who have spoken to Mr Murphy, and from their examination of the relevant land tax file, that Mr Murphy has been abusive, aggressive and irrational in dealings with officers of the OSR, and that there is a record on Mr Murphy's land tax file of Mr Murphy having been involved in an attempt to assault a Brisbane City Council officer. In summary, the evidence given by the officers of the OSR is generally to the effect that they are fearful that if their names are released to Mr Murphy the following effects are likely:? they may be subject to verbal abuse, threats and harassment? as the result of the applicant's "unstable and highly irrational" behaviour, certain officers fear for their safety? the applicant is capable of being physically abusive and has the hallmarks of being physically violent? disclosure would cause distress to them and their families? their names have been placed on a list, the purpose of which is to threaten persecution.74. It is recorded in at least two places (folios 45 and 48) of the land tax file to which Mr Murphy has obtained access, that an officer of the Brisbane City Council had advised that: "John Murphy had 'thrown some punches' at a parking meter attendant and action was being instigated on 20 May 1991". Mr Murphy has sworn that this statement is completely false (at paragraph 44 of his affidavit) and that he has never been prosecuted for any offence in his life (at paragraph 46 of his affidavit). Mr Murphy gives his account of the incident at paragraphs 29-40 of his affidavit, to which he annexes relevant documents obtained from the Brisbane City Council under the FOI Act. Mr Murphy addressed this issue in his written submission at pages 6-9: The allegation by the respondent that the applicant assaulted [a parking meter attendant employed by the Brisbane City Council] is denied under oath by the applicant and is in any event mere hearsay derived from material which is itself hearsay. The documents obtained from the BCC and which are tendered in evidence in this matter are particularly instructive in a number of ways. ... The document marked "BCC/6" is a copy of the parking ticket issued to the applicant. It is submitted that it is reasonable to infer that the account of the incident recorded on it was made within a few minutes of that incident. The document marked "BCC/4" is a hand-written statement by the [parking meter attendant] concerned. It is undated, but must have been produced within a day or two of the incident which it alleges to have occurred at 2.45 pm on 28 February 1991. The applicant agrees with that time. The document marked "BCC/3" contains some conclusions of a senior employee of the BCC as to the truthfulness of the [parking meter attendant]. [The senior officer of the Council was critical of the behaviour of the parking meter attendant and recommended that he provide a brief written apology to Mr Murphy.] It should be inferred that these conclusions were reached after examination of the written material and, probably, an interview. ... None of these documents mentions an assault or any actual situation remotely resembling an assault. It is submitted that the [Information Commissioner] should find they show there was no assault in fact. It is inherently unlikely that persons who are demonstrably hostile (or least unfriendly) towards the applicant would not mention an assault if it had indeed occurred. The four documents concerned here represent four separate occasions on which they had the opportunity to do so. Indeed, it is submitted that the absence of a complaint in these circumstances is proof beyond reasonable doubt that what was later alleged to have occurred did not, in fact, occur.75. When given the opportunity to reply to Mr Murphy's evidence and submissions, the respondent did not seek to challenge or contradict Mr Murphy's evidence in respect of this incident. The evidence before me does not support the correctness of the allegation that Mr Murphy threw some punches at a parking meter attendant employed by the Brisbane City Council in an incident which occurred on 28 February 1991. I do not accept that the information recorded on folios 45 and 48 of the land tax file, to which Mr Murphy has obtained access, is correct in that respect. This is the only material before me which connects Mr Murphy to the commission of an act of physical violence towards another person, and I am not satisfied that it is correct.76. Although it was expressly relied upon by the respondent when addressing s.42(1)(c) in its first submission, the respondent did not make any reference, in its submission in reply, to the incident between Mr Murphy and the Brisbane City Council parking officer, to support its case under s.42(1)(c). The respondent nevertheless submitted that the evidence establishes a risk of violence on the part of the applicant, because it establishes that the applicant has a demonstrated propensity to act in a threatening, intimidatory and menacing manner towards public servants generally, and officers of the OSR in particular. All of the evidence to which the respondent referred comprised instances of verbal abuse of public servants by the applicant.77. The instances of contact between Mr Murphy and officers of the respondent in which, according to the evidence before me, Mr Murphy is said to have resorted to verbal abuse, are as follows: ? one telephone conversation between Mr Murphy and Mr Telford on 25 September 1990 ? one telephone conversation between Mr Murphy and Ms Macdonnell on 2 May 1991 (there is no evidence of subsequent contact by Mr Murphy with Ms Macdonnell, though Mr Murphy has probably contacted her by telephone to discuss his alleged cause of action for defamation against officers of the OSR) ? one telephone conversation between Mr Murphy and Mr Abberton on 20 April 1993 (plus evidence of a further telephone contact on 1 March 1995 in which Mr Murphy raised his alleged cause of action for defamation against Mr Abberton: see paragraphs 89, 145-146 below) ? two telephone conversations between Mr Murphy and Mr Geoff Jones of the OSR on 12 July 1994 (Mr Murphy explains his reasons, such as they are, for becoming angry in these conversations at paragraphs 84-88 of his affidavit sworn 4 December 1994). ? one telephone conversation with an officer of the OSR whose name is in issue - no date given ? one telephone conversation (date not specified, but probably 21 September 1993), and one face-to-face conference on 15 October 1993, between Mr Murphy and Mr Sarquis, relating to the processing of Mr Murphy's FOI access application. At the conference, Mr Murphy admits (at paragraph 65 of his affidavit) to having used obscene/abusive language to Ms Natalie Barber, an FOI administrator, who was also present.78. With the exception of Mr Murphy's recent attempts to raise his proposed action for damages for defamation, and one or two immaterial exceptions, each of Mr Murphy's contacts with officers of the respondent appears to have been made in response to the receipt of correspondence from the respondent (or in Mr Abberton's case, a verbal request for access to information) concerning liability to land tax, or the processing of Mr Murphy's FOI access application. The contacts were sporadic over the space of four years. All of the contacts with officers have been at their place of employment, during office hours. This is hardly indicative of a campaign of intentional harassment of individual officers. 79. More disturbing is the evidence of Mr Murphy's propensity to lapse into intemperate, abusive and occasionally obscene language. Mr Murphy does appear, as asserted by Mr Telford, to have a problem in controlling himself, but on the evidence before me, it extends only to his self-control with respect to the language he uses when angered: there is no evidence of a lack of self-control extending to actions which could endanger a person's life or physical safety.80. Comments by Mr Murphy to which officers of the OSR have taken objection (and the significance of which I think they have misunderstood or exaggerated to a large extent) appear to spring from Mr Murphy's philosophical objection to paying taxes, and his apparent need, when legally obliged to do so, to sate his anger with some retributive baiting of revenue officers. The evidence discloses a pattern of consistent behaviour in this regard. Documents on the relevant land tax file record Mr Murphy in 1988 addressing cheques for payment of land tax to "the Chief Thief", endorsed with the comment "Why don't you get an honest job and stop stealing??". Mr Murphy has given evidence in this regard at paragraphs 5-12 of his affidavit sworn 4 December 1994: 5. I believe I am entitled to express my opinions to public servants involved in revenue collection and to criticise both the methods of collection and the use to which the revenue is put. I assert my right to tell any public servant that I believe he or she is acting unethically. 6. I hold the opinion that coercive expropriation of property is never moral simply because it is legal. 7. The most frequent responses I have obtained when I expressed this opinion to employees of the OSR are "I am only doing my job" and "What I am doing is legal, so it's alright". WALLACE TELFORD, DONALD ABBERTON and JANE MACDONNELL have all responded in that way. ... 8. The counter-example I used on each occasion is based on what is commonly termed the "Nuremburg defence" - the defence of obedience to orders or conformance with legal authority which was rejected at the War Crimes tribunals at the end of World War II. In using that term on each of these three occasions, I gave an example of what I meant by putting the rhetorical question, "Well, if that argument holds up, it must have been quite alright for the German train driver to take cattle trucks of Jews to the gas-chamber - after all, he was only doing his job according to law?". ... 10. I have told bureaucrats in the OSR that I remember a list of names of people who, in my opinion, have violated my rights to my property. This is quite true. I have a good memory and in this connection remember names and incidents since 1983. 11. I regard the utility of remembering these names as little more than a pious hope. The idea arose in the late 1980s when profound political changes began to occur in Eastern Europe. Many countries introduced legislation to return to the original owners property which had been legally taken from them by the State. Under these laws there is no compensation for the expropriators who are mainly, so far as I am aware, bureaucrats and other sycophants of the previous regimes. The basis of the legislation, so far as I understand it, is reasoning roughly consistent with the opinion deposed to above - the legality of a coercive seizure of property does not excuse it. 12. If the opportunity ever arose under similar domestic legislation (and I do not think I will live to see it) I would certainly take back every cent from any person who took my property without my consent; I would do so, if authorised by law, without compunction, pity or compassion. On the slight chance that the opportunity might arise, I remember the relevant persons.81. Each of the witnesses for the respondent has deposed to fears concerning Mr Murphy's assertions that he maintains a list of the names of revenue officers with whom he has dealt. Mr Murphy's explanations in respect of the list have, however, been consistent dating back to 1990. Mr Telford's statutory declaration refers to Mr Murphy speaking on 25 September 1990 of a list of public servants to "be done" when he (Murphy) came to power, by taking back the superannuation that had been paid to them. Within a week of that conversation, Mr Murphy submitted payment of a land tax assessment with this note attached: These funds are taken by you without the consent of their owner. They will be used by you for the benefit of people who have had no place in the labour and risk involved in their generation. All those "employees" of the Land Tax Office who are involved in this process of legal theft should take notice that there is a growing number of citizens who intend, at an opportune time in the future, to take action to recover the funds involved in this plunder. If necessary, we will even garnishee your pension and leave you in poverty in your old age. We have an inalienable right to the product of our labour. Dressing up an act of theft by clothing it in the dignity of an Act of Parliament makes it no less an act of theft.Ms Macdonnell's contemporaneous note of her telephone conversation with Mr Murphy on 2 May 1991 records Mr Murphy disavowing any illegal purpose or illegal threat in respect of the list, saying it is a list of people to have pensions etc seized in 25 years time. Mr Sarquis's statutory declaration refers to Mr Sarquis asking Mr Murphy at a conference (on 15 October 1993) the reason for keeping a list. According to Mr Sarquis's evidence: "Mr Murphy stated that he was keeping a list of names of people in case at some stage in the future there might be a change in the political system leading to an opportunity to enact retrospective legislation and prosecute those who he considered to be stealing his money at the present time".82. I accept Mr Murphy's evidence that the list (if it exists at all, and is not just a device for baiting and attempting to discomfort revenue officers when he is required to pay land tax) is not a list of persons to be subjected to any form of "reprisal action" that would involve endangering a person's life or physical safety. At least three of the witnesses for the respondent, Mr Telford, Ms Macdonnell and Mr Abberton, have had their names on "the list" for several years now, and there is no evidence that they have been subjected to any action by Mr Murphy that could even be properly described as harassment (which, according to the Collins English Dictionary, Third Australian Edition, means "to trouble, torment or confuse by continual, persistent attacks ... from the French, harasser, variant of old French, harer - to set a dog on"), let alone any action endangering their lives or physical safety. Once the nature of the "threat" which Mr Murphy has directed towards officers on "the list" is understood, I do not think it is reasonable to expect that any officers of the OSR would be intimidated by it: the prospect of seizure of their superannuation or other property at some time in the future, for the purpose of compensating citizens previously obliged by law to pay state taxes, is so remote that it would rightly be dismissed as fanciful.83. At page 18 of his written submission, Mr Murphy says: The applicant does not submit that the [Information Commissioner] should agree with his political or ethical views. He does, however, submit that those views are not unreasonable, are not uncommon, and that most importantly he is entitled to hold them and attempt to put them by lawful means to whomever he pleases.84. I have no sympathy for Mr Murphy's supposedly philosophical/ethical viewpoint on the right of the State to tax its citizens. Like all citizens, Mr Murphy should have the right to question and challenge the actions of the OSR with a view to ensuring that he pays no more tax than he is obliged by law to pay, but his occasional outbursts at officers of the OSR on the right of the state to tax its citizens are, frankly, a waste of the time of the officers concerned. Mr Murphy is well aware that, provided they conduct themselves within the limits of the authority conferred on them by statute, the officers of the OSR have a legal duty, as well as the legal authority, to collect the taxes levied by Act of Parliament. It is no function of the officers of the OSR to question the policies adopted by the legislature. Mr Murphy's baiting of revenue officers with references to the "Nuremburg defence" is quite inappropriate - there is no correlation between enforcement of lawful revenue statutes and war crimes.85. Nor do I condone Mr Murphy's apparent inability to put his philosophical/ethical views to public servants without lapsing into abusive and intemperate language. Mr Murphy ought to curb this behaviour. He ought to appreciate that from the subjective viewpoint of persons on the receiving end of his occasional bursts of verbal abuse, he is likely to be seen as a threatening or menacing person due to what would appear to be a lack of self-control.86. Nevertheless, the question which I have to determine is whether disclosure to Mr Murphy of the names of officers, and retired officers, of the OSR that are in issue, could reasonably be expected to endanger a person's life or physical safety. The fact that a person who feels aggrieved at the behaviour of government officials, whether the grievance is reasonable or not, is prone to lapsing into intemperate verbal abuse does not necessarily mean that the person would commit, or would even consider committing, acts that would endanger the life or physical safety of government officials. In my view, a significant segment of the population is quite capable of becoming ill-tempered or abusive towards public servants, indeed towards suppliers of goods and services in the private sector, through anger or frustration experienced in the pursuit of a grievance. Only a very small segment of the community is liable to extend such anger or frustration into retributive action which could endanger the life or physical safety of any person. 87. I am not satisfied, on the totality of the evidence, that Mr Murphy falls into the latter category. Despite the behaviour to which I have referred, I am satisfied that Mr Murphy is an intelligent man, who conducts himself within the law. I accept his evidence that he has never been prosecuted for any offence. I note that he has always ultimately, though grudgingly, complied with his legal obligations in respect of the payment of state taxes. I accept the character evidence given by Mr Peter John Byrnes in his affidavit sworn 2 December 1994. Mr Byrnes, who is a senior officer in the Department of Justice and Attorney-General, deposes to having been a close friend of Mr Murphy's for most of the past 22 years, and that while Mr Murphy is forceful and forthright in putting his views, he confines himself to the verbal arena: Mr Byrnes has never perceived even a hint that Mr Murphy was likely to become physically aggressive. This is consistent with the evidence that Mr Murphy has not taken any action against officers of the OSR, whose identities have been known to him for several years, that involved endangering a person's life or physical safety.88. I am satisfied that Mr Murphy would not, and does not intend to, use any names of officers which he obtains through his FOI access application in any way which would be contrary to the law, let alone which would endanger the lives or physical safety of any of the officers. Any action which Mr Murphy proposes to take to redress alleged wrongs will, I believe, be undertaken through proper legal avenues. Mr Murphy has given evidence as to his intentions in pursuing access to the names of officers which are in issue, in paragraphs 1-4 of his affidavit sworn on 4 December 1994: 1. Consequent upon an FOI request to the Treasury as deposed to below, I received certain documents. Some of these documents contain matter which accuses me of having committed a criminal assault. Certain remarks made to my accountant (also deposed to below) carried an implication of the same nature. 2. Following an FOI request to the Brisbane City Council ("BCC") as deposed to below, I obtained inter alia an incomplete copy of one of the documents mentioned in the previous paragraph. This document contained the same defamatory matter. It became evident to me that this material had been disseminated outside the Office of State Revenue ("OSR"). 3. My purpose in requiring names of OSR employees is to enable me to determine the identity of those responsible for defaming me in relation to the documents already disclosed and to determine whether there have been other publications of defamatory matter concerning me. It is my present intention, having acquired the necessary information, to commence appropriate proceedings in the Supreme Court. 4. I have no other purpose for obtaining the names.89. Finally, the respondent submits that the threat of legal action may amount to harassment or pressure. Referring to the supplementary affidavit of Mr Abberton executed on 13 March 1995 (the terms of which are referred to at paragraph 145 below), the respondent submits that, in telephone contact on 1 March 1995, Mr Murphy threatened Mr Abberton with legal action and financial ruin, and also "14 or 15 others involved". The respondent submits that this telephone contact constitutes nothing more than "unabridged harassment" of Mr Abberton, and there is every indication that such harassment will continue against not only Mr Abberton, but other officers of Queensland Treasury if the names, the subject of the review, are released to the applicant.90. This submission is not sufficient to establish a case for exemption under s.42(1)(c) of the FOI Act. Firstly, one telephone contact threatening legal action does not answer the description of harassment. Secondly, the disclosure of Mr Abberton's name is not in issue. The instance of defamation alleged by Mr Murphy (according to Mr Abberton's statutory declaration dated 13 March 1994, and confirmed by paragraph 24 of Mr Murphy's affidavit sworn 4 December 1994) turns on remarks made by Mr Abberton to Mr Murphy's accountant in April 1993. Any cause of action which exists is not liable to be affected by disclosure of the names in issue. There is no reasonable basis which I can see for expecting that disclosure of the names in issue (of which there are eight) will result in threats of defamation action against each of those eight officers, let alone 14 or 15 officers. The names of officers that are in issue appear in contexts which generally record them going about their duties of office in an unexceptionable manner. The name of one officer, however, appears in a context where the officer has recorded the information conveyed by an officer of the Brisbane City Council about Mr Murphy having thrown some punches at a Council parking attendant. Another name appears in a context where the officer has conveyed a brief warning to other staff, based on the information obtained from the Brisbane City Council officer. At most, only two of the names in issue appear in a context which could conceivably, by virtue of their disclosure, expose the persons named to a possible action for defamation (and I say nothing about the merits of any such action). 91. Finally, and most importantly, harassment does not satisfy s.42(1)(c) unless it is harassment which endangers a person's life or physical safety: see paragraph 51 above. I am not prepared to accept that a threat, or the commencement, of litigation against a person is harassment which endangers a person's life or physical safety. There are sound reasons of public policy which reinforce my view. The role of the courts as arbiter of disputes is an essential feature of the rule of law, and the pre-eminent means sanctioned by liberal democratic societies for the peaceful settlement of disputes and grievances concerning the assertion of legal rights. The availability of resort to litigation is intended to be a prime disincentive to any tendency by a citizen, who seeks redress of grievances, to "take the law into their own hands" by resorting to actions which endanger a person's life or physical safety.92. I am not satisfied that disclosure of the matter in issue could reasonably be expected to endanger a person's life or physical safety. I find that the matter in issue is not exempt matter under s.42(1)(c) of the FOI Act.Application of s.40 of the FOI Act93. The respondent also argues that the matter in issue is exempt under s.40(a), (c) and (d) of the FOI Act which provide as follows: 40. Matter is exempt matter if its disclosure could reasonably be expected to - (a) prejudice the effectiveness of a method or procedure for the conduct of tests, examinations or audits by an agency; or ... (c) have a substantial adverse effect on the management or assessment by an agency of the agency's personnel; or (d) have a substantial adverse effect on the conduct of industrial relations by an agency; unless its disclosure would, on balance, be in the public interest.94. The words "if its disclosure could reasonably be expected to" govern the three paragraphs of s.40 on which the respondent relies. The meaning of that phrase has already been explained at paragraph 44 above. 95. Both s.40(c) and s.40(d) employ the phrase "substantial adverse effect". I have previously considered the meaning of the adjective "substantial" in the phrase "substantial adverse effect", where it appears in s.49 of the FOI Act. I adhere to the view which I expressed at paragraphs 147 to 150 of my reasons for decision in Re Cairns Port Authority and Department of Lands (Information Commissioner Qld, Decision No. 94017, 11 August 1994, unreported), that where the Queensland Parliament has employed the phrase "substantial adverse effect" in s.49, s.40(c), s.40(d) and s.47(1)(a) of the FOI Act, it must have intended the adjective "substantial" to be used in the sense of grave, weighty, significant or serious. In Re Dyki and Federal Commissioner of Taxation (1990) 22 ALD 124, Deputy President Gerber of the Commonwealth AAT remarked (at page 129, paragraph 21) that: "The onus of establishing a 'substantial adverse effect' is a heavy one ...".The application of s.40(a) of the FOI Act 96. The terms of s.40(a) are set out above. The focus of this exemption provision (so far as relevant to the present case) is on prejudice to the effectiveness of a method or procedure for the conduct of audits by an agency. The OSR would, from time to time, have cause to conduct audits for the purpose of establishing whether certain persons or corporations have complied with statutory obligations to pay land tax or stamp duty under relevant State revenue legislation.97. The problem with the respondent's attempt to invoke s.40(a) is that nowhere in its evidence or submissions has the respondent identified a method or procedure for the conduct of audits by the OSR, the effectiveness of which could reasonably be expected to be prejudiced by disclosure of the matter in issue (cf. my observations on the similar phrase "prejudice the effectiveness of a lawful method or procedure" in s.42(1)(e) of the FOI Act, in Re "T" and Queensland Health [1994] QICmr 4; (1994) 1 QAR 386 at pp.393-396, paragraphs 24-35).98. The relevant part of the respondent's first written submission (at p.27 thereof) is as follows: 5.2.3 The persons who have their affairs (especially financial) audited and investigated may not take kindly to this. In some cases such as the present (see statutory declarations) they may well be aggressive and engage in conduct which comes close to or amounts to intimidation. 5.2.4 It is reasonable to expect that such auditors and investigators may not go about their duty with maximum efficiency and diligence if they are concerned about possible personal future repercussions should details of their names be readily available to the persons who are being or have been investigated.99. In terms, this is a claim that names of auditors and investigators should not be available to persons investigated, because that could reasonably be expected to inhibit maximum efficiency and diligence on the part of auditors and investigators. It is difficult to give this submission any credence. First, it has nothing to do with methods or procedures for the conduct of audits by an agency. It is axiomatic that an agency must conduct audits through its relevant employees. But the focus of s.40(a) is on prejudice to the effectiveness of methods or procedures for the conduct of audits. I do not accept that the focus of s.40(a) was intended to be so broad as to permit an argument that the effectiveness of any method or procedure for the conduct of audits would be prejudiced if staff are inhibited from performing their duties with maximum efficiency and diligence.100. Secondly, the submission is contrary to the OSR's internal management policies requiring officers to identify themselves when dealing with members of the public: see paragraph 5 of Ms Macdonnell's affidavit quoted at paragraph 137 below, and paragraph 115 below.101. Ms Macdonnell has, in paragraphs 5, 6 and 7 of her affidavit sworn on 21 October 1994, given evidence which is apparently intended to support the application of each of s.40(a), s.40(c) and s.40(d) of the FOI Act. It is reproduced at paragraph 137 below. In addition, most of the officers, or former officers, of the OSR whose names are in issue have submitted evidence to the effect that they fear harassment from Mr Murphy if their names are disclosed. In my opinion, the only paragraph of s.40 to which this evidence, and the respondent's submission noted at paragraph 98 above, is arguably relevant is s.40(c), and I have dealt with it on that basis at paragraphs 136-154 below.102. Most importantly, for present purposes, there is no evidence to suggest that a method or procedure for the conduct of audits could reasonably be expected to be prejudiced by disclosure of the matter in issue. The only attempt by the respondent to identify a relevant method or procedure within the terms of s.40(a) is contained in one paragraph on p.6 of the respondent's submission in reply: Furthermore, part of the investigation process involves information gathering. Should the names in question be disclosed to the applicant informal sources of information will be less inclined to co-operate with officers of the Office of State Revenue, the effectiveness of such a method or procedure having been prejudiced. More formal and costly mechanisms for information gathering would have to be used (see s.45 of the Land Tax Act 1915)103. I cannot accept the relevance or correctness of this submission. I cannot see any reasonable basis for an expectation that the disclosure of the names of officers of the OSR, on documents which relate to the performance of their duties of office, will make informal sources of information used by officers of the OSR less inclined to co-operate with those officers. The disclosure of the names of informal sources of information is not in issue in this case (unless the officer of the ATO whose name has been deleted from folio 48 is regarded as an informal source: but that officer has informed me that he has no objection to the disclosure of his name to the applicant).104. While it is not the test posed by s.40(a), there is not even any particularly convincing evidence that the OSR's ability to conduct effective audits of the land tax liability of Mr Murphy (or more precisely, the company which is trustee of his family trust) would be prejudiced by Mr Murphy's having knowledge of the names of officers involved in such audits. In paragraph 7 of her affidavit, Ms Macdonnell says: "As I recall, the relevant land tax file indicated that a previous audit of the land tax affairs of a company controlled by Mr Murphy had been abandoned as a result of concerns that Mr Murphy may be violent". Mr Murphy addressed this at p.41 of his written submission: "It is submitted that Macdonnell is uniquely placed to determine the truth of that statement. She has obviously not read the Trustee's file during the preparation of her deposition. If she had done so, it is submitted, she would have read the material which is before the [Information Commissioner] and which shows conclusively that nothing the applicant has done, or is alleged to have done, has hindered any investigation in any way". In the course of this review, I called for and examined a copy of the OSR file which was released to Mr Murphy, subject to deletion of the names of officers now in issue. I could not see any indication, on the copy provided to me, of a previous audit having been abandoned because of concerns that Mr Murphy may be violent.105. Indeed, the most recent investigation evident on the file appears to have been successfully undertaken, with payment of additional land tax obtained, notwithstanding that officers appear to have approached the investigation on the basis that personal contact with Mr Murphy should be avoided, and notwithstanding Mr Murphy's abusive telephone contact with Mr Abberton, one of the officers involved in the investigation. Mr Murphy drew attention to this at pp.36-37 of his written submissions: It is submitted that it is plain on the evidence that the Applicant has never sought to interfere in the operations of the OSR. The evidence is that the Applicant has accepted the legality of its operations (while challenging their ethical basis) and caused the Trustee [of the applicant's family trust] to comply with the Land Tax Act in accordance with his understanding of it. It is submitted that the documents '8', '9', '10', '13', '15' and '21' [i.e. the annexures to Murphy's affidavit sworn 4 December 1994, which bear those numbers] demonstrate that the Applicant complied (and instructed the Trustee's accountant to comply) with requests for information from the OSR. The material shows that the Applicant did not do so with good grace. However, is it seriously to be contended that a taxpayer's unhappiness with being obliged to pay taxes constitutes a cause of prejudice to the collection process? It is submitted that if that were the case, the system would be so prejudiced (by the combined effect of 10,000,000 unhappy taxpayers) that it would have ground to a halt years ago.106. The last three sentences of this passage make light of the concern which has been caused to officers of the OSR by the abusive and intemperate language which, it appears from the evidence, Mr Murphy has employed on more than one occasion to express his unhappiness with being obliged to pay land tax.107. Nevertheless, the respondent has not satisfied me that disclosure of the matter in issue could reasonably be expected to prejudice the effectiveness of a method or procedure for the conduct of audits by an agency, and I find that the matter in issue is not exempt under s.40(a) of the FOI Act.The application of s.40(c) of the FOI Act108. The terms of s.40(c) are set out at paragraph 93 above. The focus of this exemption provision is on the management or assessment by an agency of the agency's personnel. (I note that no suggestion has been raised by the respondent that assessment, as distinct from management, of its personnel is relevant in the context of the present case.) The exemption will be made out if it is established that disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the management by the respondent of its personnel, unless disclosure of the matter in issue would, on balance, be in the public interest.109. In its first submission, the respondent stated its reliance on three decisions of the Commonwealth AAT, Re Z and Australian Taxation Office (1984) 6 ALD 673, Re Mann and Australian Taxation Office (1985) 7 ALD 698, and Re Lander and Australian Taxation Office (1985) 17 ATR 173, all of which held that the names of officers of the Australian Taxation Office (the ATO) were exempt from disclosure under the Commonwealth FOI Act. The respondent relies on these cases for a proposition that names of revenue officers are always exempt from disclosure under freedom of information legislation. I will deal first with this proposition, which I find to be untenable for a number of reasons explained below.110. The only attempt by the respondent in its written submissions to formulate adverse effects on the management by the respondent of its personnel (which could reasonably be expected to follow from disclosure of the matter in issue) appears at pp.6-7 of its submission in reply: see paragraph 135 below. In addition, other expected adverse effects of disclosure identified in the respondent's submissions on s.40(a) and s.40(d) are, in my opinion, more correctly arguable in the context of s.40(c). I have dealt with these issues at paragraphs 136-154 below.111. There are several problems with the respondent's reliance on Re Z, Re Mann and Re Lander: firstly, in my opinion, those cases appear (with the benefit of hindsight afforded by later decisions of the Federal Court of Australia) to have been wrongly decided; secondly, it is doubtful that those decisions could have been based on the exemption provision in the Commonwealth FOI Act which corresponds to s.40(c) of the Queensland FOI Act; but (thirdly) if they were, they were decided in the context of a management policy of the ATO which was virtually the opposite of the OSR's relevant management policy.112. It is indicated at p.676 of the decision of the Commonwealth AAT in Re Z that the ATO argued that the names of officers of the ATO were exempt from disclosure under s.40(1)(c) or s.40(1)(d) of the Commonwealth FOI Act. Section 40(1)(c) of the Commonwealth FOI Act corresponds fairly closely to s.40(c) of the Queensland FOI Act. Section 40(1)(d) of the Commonwealth FOI Act (which focuses on disclosure having "a substantial adverse effect on the proper and efficient conduct of the operations of an agency") does not, however, have a counterpart in the Queensland FOI Act. It is clear from the terms of its decision on this issue (at p.677) that, although both s.40(1)(c) and s.40(1)(d) of the Commonwealth FOI Act were argued, the Tribunal in Re Z based its findings only on s.40(1)(d): The submission concerning the officers' names ... also succeeds because we agree that there is a public expectation that taxpayers' affairs will be the subject of the highest confidentiality. The proper and efficient conduct of the operations of the Australian Taxation Office is a subject of real public importance. There is a strong possibility that the revelation of names of individuals who have dealt even in a routine way with any taxpayers' affairs would undermine public confidence in the strict confidentiality which quite properly surrounds the operations of the agency. That is a confidentiality which both the public and the officers employed by the agency have grown to respect. It would not be in the public interest in our view to breach that confidence. (my underlining)113. The stated reasons have nothing to do with the management by the ATO of its personnel, so it appears that s.40(1)(c) of the Commonwealth FOI Act cannot have been the basis for the Tribunal's decision. The Tribunal was apparently satisfied that the disclosure of the names of officers of the ATO would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of the ATO because there was a strong possibility of undermining public confidence in the strict confidentiality of its operations. Whether a strong possibility is sufficient to discharge the test imposed by the words "could reasonably be expected to", as clarified by later decisions of Full Courts of the Federal Court of Australia in Attorney-General's Department v Cockroft (1986) 10 FCR 180 and Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 108 ALR 163 at pp.175-178, is doubtful. 114. Moreover, I have difficulty in accepting that a strong possibility of undermining public confidence in the confidentiality of the operations of the ATO could logically have been raised by the prospect of disclosure of the bare names of officers of the ATO, or the disclosure of those names in the context of documents concerning the tax affairs of the applicant for access. Absent extraordinary circumstances, there is no prospect of an applicant obtaining access under either the Commonwealth FOI Act or the Queensland FOI Act to documents concerning the tax affairs of another person (unless perhaps that other person consents to disclosure to the applicant, or is involved in some relationship with the applicant such that their tax affairs are in effect, joint tax affairs, either generally or in particular instances). I am unable to accept that disclosure to an applicant for access of the names of officers on documents concerning that applicant's tax affairs can logically be expected to have a substantial adverse effect on the protection of the confidentiality of taxpayers' affairs generally (see also my remarks at paragraph 121 below).115. It may, however, have an effect on the accountability of individual officers for their service delivery to taxpayers, which is presumably a major reason why the OSR has adopted a policy of requiring its officers to identify themselves in their dealing with taxpayers. The OSR has published "Client Service Standards", the detail of which need not be set out in full, but the following parts of which are relevant for present purposes: All taxpayers have a right to courteous, competent and timely service and will be informed of avenues for complaint, review or appeal. ... [Under standards for dealing with correspondence -] Respond to correspondence promptly - our letters will explain our decisions and give the author's name and contact phone ... [Under standards for dealing with phones -] People are to identify themselves by their full name to callers.116. The OSR's policy in this regard is entirely opposite to the policy of the ATO which was current when evidence was given in 1985 to the Commonwealth AAT hearing the ATO's case in Re Mann. It is recorded at p.709 of the decision in Re Mann that a Senior Assistant Commissioner of the ATO, Mr J J Daly, gave evidence that the ATO had adopted the policy of not disclosing the names of its officers for reasons of security, industrial harmony and staff morale, and there had been threats of work bans by the Federated Clerks Union if names were disclosed.117. It was against this background that the Tribunal in Re Mann stated (at p.711) that it agreed with the finding in Re Z (that is set out above at paragraph 112), and that it considered it clear that disclosure of the officers' names would have the substantial adverse effects mentioned in s.40(1)(c) and s.40(1)(d) of the Commonwealth FOI Act. The Tribunal found it unnecessary to make any finding in relation to s.40(1)(e) of the Commonwealth FOI Act, which corresponds fairly closely to s.40(d) of the Queensland FOI Act. The only reasoning set out in the decision to support the finding that disclosure of the names of officers of the ATO would have the substantial adverse effects mentioned in s.40(1)(c) and s.40(1)(d) of the Commonwealth FOI Act is at p.708 of the decision: We are of the opinion that there would be very real dangers of misuse of the names of officers of an agency, at least and in particular the names of officers of the Australian Taxation Office, if disclosure were made. It would be one thing for the names of officers holding delegations from the Commissioner of Taxation to be released, but at lower levels we see a distinct danger of mischievous use of officers' names, with no countervailing advantage to the public. While we do not suggest for a moment the presence of any such danger of misuse in the present case, the principle is a general one.118. At pp.36-37 of its first submission, the respondent submitted that from Re Mann the following four points were made clear: (1) Disclosure of names of officers at lower levels has a distinct danger of mischievous use. As in Re Mann, no direct evidence of this is necessary. Common sense and inference is sufficient. (2) In Re Mann it was found as a matter of fact there was no actual evidence of danger of misuse of the information in that case but it did not matter as the principle was a general one. (3) The ATO did not disclose names of officers for reasons of security, industrial harmony and staff morale. (4) Disclosure of names of junior officers was not in the public interest nor would such disclosure affect accountability.119. I am unable to accept the correctness of the first two propositions, for reasons explained below. The third proposition is a statement of fact about the ATO's policy in 1985. The more relevant fact for present purposes is the current policy of the OSR. The fourth proposition does not even arise unless one reaches the stage of having to apply the public interest balancing test which qualifies s.40(c) of the FOI Act.120. The reasons given by the Tribunal in Re Mann (and in Re Z) as to why substantial adverse effects could reasonably be expected to follow from disclosure of the names of officers of the ATO are extremely brief, vague, unsubstantiated and, frankly, unconvincing. Moreover, the connection between the unexplained potential for misuse or mischievous use of officers' names and adverse effects on the management by the ATO of its personnel, is not explained in the reasons for decision in Re Mann. While the Tribunal said it was satisfied that both s.40(1)(c) and s.40(1)(d) of the Commonwealth FOI Act were established, I consider that its findings are more explicable by reference to s.40(1)(d) of the Commonwealth FOI Act, which, as I have explained at paragraph 112 above, has no counterpart in the Queensland FOI Act.121. In the passage from Re Mann quoted at paragraph 117 above, no details of the potential misuse or mischievous use were given, nor any substantial grounds identified as to why that misuse or mischievous use could reasonably be expected to follow from disclosure of the documents in issue. The suggestion given in evidence in Re Mann (at pp.708-709) that "if individual assessors had their names readily available to members of the public, it is possible that taxpayers could feel that other taxpayers might be able to obtain information concerning their affairs simply by approaching one of the named officers" is so implausible, having regard to the legal constraints on tax officers imposed by statutory secrecy provisions and other disciplinary measures, that it could not, in my opinion, found a reasonable expectation of adverse effect according to the proper test. 122. In my opinion, the conclusion is inescapable that the Tribunal was dealing in merely speculative possibilities, of a kind which would not satisfy the test imposed by the words "could reasonably be expected to", as it is now properly understood in the light of the subsequent decisions of Full Courts of the Federal Court of Australia (see paragraph 113 above) and of the principles I have referred to in paragraph 44 of this decision.123. It is not sufficient for the respondent in the present case to claim, as it has, that no evidence is necessary of the dangers of mischievous use of officers' names, that common sense and inference are sufficient. Common sense and inference suggest to me that the OSR's conscious choice of the policy referred to in paragraph 115 above, warrants the opposite conclusion to the one the respondent invites me to reach. If a respondent agency seeking to invoke s.40(c) of the FOI Act cannot identify a substantial adverse effect on the management or assessment by an agency of the agency's personnel, and point to the existence of a reasonable basis, i.e. real and substantial grounds, to support an expectation that the substantial adverse effect will follow from disclosure of the matter in issue, it will run the risk of failing to discharge its onus under s.81 of the FOI Act.124. The proposition in the final sentence of the passage quoted from Re Mann, at paragraph 117 above, is also dubious. Ordinarily, the application of exemption provisions in FOI legislation calls for an evaluation of the prejudicial effects of disclosure of the particular information in issue. For the Tribunal to say that it saw no danger of misuse of officers' names if disclosed in the case before it, but that the principle on which it relied was a general one, must mean that the Tribunal in effect made a policy decision to support the ATO's policy on non-disclosure of officers' names, thereby favouring the interests of security of ATO staff over considerations of accountability of individual ATO officers, irrespective of whether disclosure of officers' names to a particular applicant posed any real threat to the security of the officers. 125. I do not see how the OSR can legitimately claim reliance on the decision in Re Mann when it has consciously chosen to adopt a different policy: a choice which indicates either that it does not seriously accept the potential dangers of mischievous use of officers' names (absent exceptional circumstances) or that any potential dangers are so slight as to be outweighed by the overall benefits of enhanced standards of client service, and enhanced accountability of individual officers for their service delivery.126. The decisions in Re Z, Re Mann and Re Lander on disclosure of officers' names appear to me to be the product of an outdated approach to the application of FOI legislation which paid insufficient regard to the appropriate emphasis, evident in recent cases, on the accountability objects of FOI legislation, which include accountability of individual public servants (see my comments at paragraphs 34-37 of this decision).127. In my opinion, the general policy on disclosure of officers' names which the OSR has chosen to adopt is an entirely appropriate one, that accords with evolving trends in public sector management, and legitimate community expectations of service delivery by public sector agencies. In my view, there is little justification for insulating a government revenue collecting agency from general developments of this kind.128. Moreover, it will be increasingly difficult for notions of the traditional anonymity of public servants to survive the rise of consumerism in modern society. In my view, it is simply unacceptable to most people in our community at the present time, that they should have to deal with anonymous public servants, or that individual service providers are not accountable for their treatment of the people with whom they deal.129. The impact of the consumer movement on the provision of government services is exemplified by "The Citizen's Charter" published by the United Kingdom government in July 1991. I will quote some parts of "The Principles of Public Service" set out at p.5 of that document which are apposite for present purposes: Every citizen is entitled to expect: ? Standards ... These standards should invariably include courtesy and helpfulness from staff ... ? Openness There should be no secrecy about how public services are run, how much they cost, who is in charge, and whether or not they are meeting their standards. Public servants should not be anonymous. Save only where there is a real threat to their safety, all those who deal directly with the public should wear name badges and give their name on the telephone and in letters. ? Information ... ? Choice ... ? Non-discrimination ... ? Accessibility ... ? And if things go wrong? At the very least, the citizen is entitled to a good explanation, or an apology. ... There should be a well-publicised and readily available complaint procedure.It is clear from p.24 of the Charter that the above principles are intended to apply to U.K. Revenue Departments.130. At least one prominent Australian commentator on administrative law principles has commented that, to compensate for deficiencies in Australia's formal administrative law systems, it is both inevitable and desirable that many of the principles behind the U.K. Citizens Charter be adopted in Australia. Mr Alan Rose, a former Secretary of the Commonwealth Attorney-General's Department, now President of the Australian Law Reform Commission, and a long-time member of the Commonwealth Administrative Review Council, made the following remarks in a paper titled "Future Directions in Australian Administrative Law: the Administrative Law System" published in J McMillan (ed), Administrative Law: Does the Public Benefit? (Proceedings of the Australian Institute of Administrative Law Forum, April 1992), pp.213-219, at pp.217-218: ... Put very simply, the community is more comfortable with a model of service provision and authority which needs to treat them as clients/customers, not as subjects. ... There is a belief, and one that I share personally, that the best way to raise the quality of individual decisions and policy generally and to get government under control is to let consumers get at it. We have now to open the doors a little wider. ... I consider that it is both inevitable and desirable that many of the principles behind the UK Citizen's Charter be adopted in Australia. ... The Charter provides a direct framework for ensuring that agencies respond to the needs of their clients. ... ... The initiatives we need to take now are ones that bring centrally into focus requirements for individual decision makers to be accountable personally for what they do.131. The principles and approach evident in the UK Citizen's Charter have been endorsed by the New South Wales Government in its "Guarantee of Service" (published in the booklet New South Wales - Facing the World, March 1992, see especially at p.53). They have also been endorsed in the Queensland Government's Financial Management Strategy (the Public Sector Reform Directorate within the respondent, Queensland Treasury, has responsibility for monitoring the strategy): see Queensland Government, Financial Management Strategy - Progress Report, June 1995, at p.7, and also p.7 of the "Queensland Government Policy (and Guidelines) for Client Service Standards", which is published as Attachment A to that booklet. 132. Some of the principles referred to in the preceding paragraphs have been quite properly embraced in the OSR's Client Service Standards. In my opinion, that factor makes the respondent's reliance on Re Mann, for a general principle that names of its officer should not be disclosed in documents released under the FOI Act, quite untenable.133. The same applies to an argument repeated in several places in the respondent's first submission, but captured in the following extract (from pp.29-30): 5.3.6 The report of the Electoral and Administrative Review Commission ("EARC") on Freedom of Information is a document to which consideration may be given for the purposes of s.14B(3)(B) of the Acts Interpretation Act 1954 (Qld): see the decision of the Information Commissioner in Re Stewart and Department of Transport ... paragraph 59. 5.3.7 Parliament has chosen to enact s.40(c) of the Act in exactly the same terms as Clause 32(c) of the draft Bill attached to EARC's report. At paragraph 7.100 of EARC's report the following statement is made:- "The scope of these provisions is reasonably apparent on their face. Under the Commonwealth FOI legislation, names of public servants are often excluded under the equivalent to Clause 32(c) (see Re Mann and Australian Taxation Office (1985) 3 AAR 261). Clause 32(c) might also be invoked where one agency officer seeks personnel records about another (often in promotion contexts)." 5.3.8 It is submitted that EARC's commentary on Clause 32(c) indicates that it was clearly intended that its recommended Clause 32(c) should be interpreted in accordance with the decision in Re Mann and Australian Taxation Office.134. The relevant sentence from paragraph 7.100 of the EARC Report (i.e., "Under the Commonwealth FOI legislation, names of public servants are often excluded under the equivalent to Clause 32(c) ... see Re Mann ...") is merely an observation. It is certainly open to infer that in 1990 the Commissioners of EARC contemplated that Re Mann might be followed in Queensland. But the purpose of recourse to legislative history materials is not to permit the authors of such materials to prescribe that a particular previous case (here, not even an authoritative decision of a superior court of record) is to govern the future interpretation of a legislative provision, irrespective of whether a particular subsequent case exhibits materially different circumstances to those of the case which is claimed to govern the situation, or the subsequent emergence of different interpretative approaches adopted by superior courts. The purposes of recourse to legislative history materials are those set out in s.14B(1) of the Acts Interpretation Act 1954 Qld. None of them supports the respondent's proposition. I do not accept that the parts of the EARC Report to which the respondent has drawn attention are capable of saving that part of the respondent's case which is based on Re Mann, Re Z and Re Lander. (I note that Re Lander merely follows Re Z and Re Mann without further explanation). 135. Where the respondent does raise an arguable case for the application of s.40(c) is in its brief contention at p.37 of its first submission that (in contrast to the general risk of mischievous use of names found in Re Mann) there is evidence in the present case of an actual risk. This is briefly related back to the focus of s.40(c) on the management by an agency of its personnel, at pp.6-7 of the respondent's submission in reply, which summarises the respondent's case on s.40(c) as follows: (i) Paragraph 6 of the statutory declaration of Macdonnell [set out at paragraph 137 below] deposes to the belief that disclosure of the names in question to the applicant will jeopardise the general office policy of having officers disclose their names to taxpayers; (ii) Officers will, it is submitted, be more inclined not to follow the office policy and refuse to reveal their names to taxpayers. This will in turn, it is submitted, cause broad management problems within the Office of State Revenue; (iii) It is submitted that disclosure of the names in question will have a substantial adverse effect on the management by the Office of State Revenue of its personnel.136. In addition, other expected adverse effects of disclosure of the matter in issue have been identified in the respondent's submissions on s.40(a) and s.40(d), when, in my opinion, they more correctly relate to the management by the respondent of its personnel. They are -? Auditors and investigators may not go about their duty with maximum efficiency and diligence if they are concerned about possible personal future repercussions should details of their names be available (first submission paragraph 5.2.4). Officers of the OSR will be less inclined to refer matters to the Compliance Branch for audit. In turn, investigation officers (particularly the more junior ones) will be less likely to persist with audits where there are indications of harassment or intimidation (submission in reply, paragraph 2.5(i)).? The OSR has assured staff that it would seek to protect staff from reprisals or harassment by taxpayers. The staff of the OSR tend not to distinguish between matters for management decision and those in which management has no say. The staff will perceive the release of the names in question as an act of breach of faith on the part of management (submission in reply, paragraph 2.7(a)). Disclosure would affect morale and productivity (first submission, paragraph 5.4.6).137. Evidence in support of these contentions has been given by Ms Jane Macdonnell, Assistant Commissioner of Land Tax and Executive Director of the OSR, in paragraphs 5, 6 and 7 of her affidavit sworn 21 October 1994: 5. In the interests of accountability and good client service, I have directed employees of the Office of State Revenue to identify themselves by full names (given and family name) to telephone callers and to addressees of correspondence from the Office. I have also more recently directed them to include their names on stamp duty assessments and to make signed file notes of advice/interactions with taxpayers (apart from general enquiries). These directions, or aspects of them, have met with vigorous protests from some staff and representations from the State Public Services Federation Queensland. While there is still not full compliance with the policy, the fears of many staff appear to have been partly allayed by my assurance that the Office would seek to protect staff from reprisals or harassment by taxpayers. I recall that members of the Welfare Committee (workplace union delegates) and one of the then Joint General Secretaries of the State Public Services Federation Queensland made strong representations to me that officers' names not be disclosed to Mr Murphy. 6. While this review under the Freedom of Information Act arises out of an application for access to land tax documents, the decision will have a wider impact on Office personnel. The Office has a generic structure under which staff are employed as Senior Revenue Officers, Revenue Officers, Senior Investigations Officers etc without reference to a particular tax type and most are proficient in more than one tax. Officers are freely moved across tax types and across sections and branches. It is therefore my honest belief that the Office policy of employees generally disclosing their names to taxpayers would be jeopardised by the disclosure of the officers' names to the applicant. In this way, disclosure to the applicant is reasonably expected by me to have a substantial adverse effect on the management of the Office's personnel, and on the conduct of industrial relations by the Office, and to that extent by Queensland Treasury. To further illustrate the bases of my expectation, I have found that many staff do not distinguish between matters for management decision and those in which management has no say. As one example of this failure to so distinguish, I cite the salary broadbanding arrangements introduced by the Public Sector Management Commission which resulted in work disruption, union representations to me and formal grievances concerning the salary point transfers of certain officers which were effected by the Queensland Treasury in accordance with mandatory instructions from the Public Sector Management Commission. I reasonably expect that any decision by the Information Commissioner to release officers' names will be perceived by staff generally as a failure by management to keep faith with them. 7. Further, if the names of more junior officers are disclosed in circumstances where the applicant's motives for seeking such disclosure appear to be mischievous, I reasonably expect that revenue officers will be less inclined to refer matters to the compliance branch for audit. In turn, investigation officers (particularly the more junior ones doing the more routine audits) will be less likely to persist with audits where there are indications that they will be harassed or intimidated as a result. As I recall, the relevant land tax file indicated that a previous audit of the land tax affairs of a company controlled by Mr Murphy had been abandoned as a result of concerns that Mr Murphy may be violent. If matters are not referred to compliance or not thoroughly investigated after referral, the effectiveness of the Office's audits to protect state taxation revenue would be prejudiced.In addition, most of the officers, or former officers, whose names are in issue have submitted evidence to the effect that they fear harassment from Mr Murphy if their names are disclosed.138. It is necessary for me to determine whether the stated expectations of adverse effects, following from disclosure of the matter in issue, are reasonably based. If I am satisfied that any of the claimed adverse effects could reasonably be expected to follow from disclosure of the matter in issue, it is also for me to determine whether they constitute a substantial adverse effect on the management by the respondent of its personnel.139. One of the downsides of the rise of the consumer movement is the encouragement given to, and the corresponding rise in the number of, complainants who are not prepared to accept the fact that government agencies are frequently under legal, policy or resource constraints which do not permit them to give the complainant some kind of service or benefit to which the complainant insists he or she is entitled, or to accept that government agencies may have the legal authority to deal with them, or their property, or their business interests etc, in a way they find objectionable. Sometimes people develop profound resentments or become obsessive about their grievances. In my capacity as Queensland Ombudsman, I have had more experience than most public servants of dealing with complainants of the kind described. Most often, expression of the resentment is confined to abusive language. Sometimes, explicit threats of retribution against individual public servants are made, but in my experience, are rarely followed through. Nevertheless, while instances of assaults or harassment of public servants are rare, they have occurred. 140. Mr Murphy's expressions of resentment have, on the evidence before me, been confined to occasional outbursts of abusive and intemperate language. As I have said, I do not condone Mr Murphy's use of abusive and intemperate language. In a perfect world, public servants should not have to be subjected to it; people would raise only legitimate complaints, and in temperate and reasoned language. However, it is a fact of life, and of human nature, that many people with grievances, legitimate or not, have difficulty in raising and pursuing them in a controlled and reasonable manner. No doubt many officers in the OSR must have to handle heated exchanges with irate taxpayers on a fairly regular basis; it is a hazard that goes with the territory. Government agencies and employees have to devise methods of managing this phenomenon. 141. As is recognised in the extract quoted from the UK Citizen's Charter (at paragraph 129 above), exceptional circumstances, such as where there is a real threat to the safety of public servants, may justify and require that exceptions be made to systems for dealing with members of the public which are ordinarily appropriate. All employers owe a duty of care to provide for the safety of their employees, which includes an obligation to take all reasonable and practicable steps to safeguard against a foreseeable risk of harm to an employee.142. The evidence before me, however, does not support a proposition that names of auditors and investigators should not ordinarily be available to persons investigated. Rather, it is directed to the proposition that the names of officers who have dealt with a land tax file concerning Mr Murphy should not be disclosed to Mr Murphy because of fears held by officers about Mr Murphy's future behaviour towards them based on Mr Murphy's past contacts with officers. I am not satisfied that it is reasonable to expect that disclosure of the matter in issue would cause officers of the OSR to refuse to follow the office policy of revealing their names to taxpayers with whom they have to deal, in the general run of cases. The policy is a sound one which accords with Queensland government policy (see paragraph 131 above), and I do not think it is reasonable to expect that officers of the OSR are likely to insist on abandoning it, to the detriment of the vast majority of taxpayers, and the reputation of the OSR generally, because of their concerns over Mr Murphy. There is not sufficient evidence before me to afford a reasonable basis for an expectation that disclosure of the matter in issue would result in officers of the OSR objecting to disclosure of their names to other taxpayers or persons subject to audit, who were not perceived to have behaved in such a manner as to cause officers to fear harassment.143. There is evidence from Ms Macdonnell (in paragraph 6 of her affidavit) that she has given assurances to staff that the OSR would seek to protect staff from reprisals or harassment by taxpayers. No evidence has been given of any formal policy dealing with exceptions to the general management policy referred to in paragraph 115 above, or what constitutes sufficient grounds to warrant an exception from the usual policy. It is clear, however, that Ms Macdonnell and several officers of the OSR regard Mr Murphy as warranting exception from the usual policy, and there appears to be concern that making exceptions to the usual policy is rendered meaningless if there is nothing to prevent a taxpayer circumventing the OSR's attempts to protect its staff, by obtaining the names of staff under the FOI Act. This appears to be the basic concern underlying the two adverse effects identified in paragraph 136 above, adverse effects which may have substance in circumstances where there is a reasonable basis for expecting that disclosure of information under the FOI Act would expose staff to a real risk of danger or harassment.144. As is apparent from my consideration of s.42(1)(c) of the FOI Act, I consider that the management and staff of the OSR, despite understandable concerns at Mr Murphy's intemperate and abusive language, have substantially exaggerated the threat to staff of the OSR posed by Mr Murphy. It is legitimate to test the respondent's case in respect of s.40(c) by questioning the extent to which the evidence supports the respondent's assertion that in the present case there is an actual risk of mischievous use of the names in issue if they are disclosed to Mr Murphy. I have reached a finding that I am not satisfied, on the totality of the evidence before me, that disclosure of the names in issue could reasonably be expected to endanger a person's life or physical safety. Moreover, the evidence discloses no behaviour on the part of Mr Murphy which amounts to harassment of individual officers whose names are known to him (see paragraphs 78 and 82 above). I am satisfied that there is no reasonable basis for expecting harassment of the officers whose names are in issue, if their names are disclosed to Mr Murphy. I am satisfied that Mr Murphy seeks access to the names in issue only for the purpose of assisting him to pursue litigation in respect of his grievance with the alleged spreading of defamatory remarks about him. I consider it unlikely that Mr Murphy would attempt to make any contact at all with most of the eight persons whose names are in issue However, it does appear likely that Mr Murphy may attempt to contact one or two of the named officers, in respect of his grievances at alleged defamation of his character.145. In a statutory declaration executed on 13 March 1995, Mr Abberton states than on 1 March 1995 he received a telephone call from Mr Murphy. He annexes a copy of his contemporaneous record of the exchange with Mr Murphy. It records that Mr Murphy stated he was going to sue Mr Abberton for defamation of character in respect of comments made by Mr Abberton to Mr Murphy's accountant in April 1993. Mr Abberton records Mr Murphy as requesting Abberton to meet with Murphy to discuss ways to resolve the matter, as if the matter got to court Abberton would be in financial ruin. Mr Murphy is recorded as having spoken of a real estate agent who ended up with medical problems as a result of the ordeal of being taken to court by Mr Murphy.146. In a supplementary submission dated 6 April 1995, Mr Murphy does not dispute Mr Abberton's account of this telephone contact. Mr Murphy does object to Mr Abberton's characterisation of it as a tirade by Mr Murphy. Mr Murphy says that Mr Abberton's record of the conversation discloses a quite measured attempt by Mr Murphy to persuade Mr Abberton that his interests would be best served by a pre-litigation settlement. (I note that the matter in issue in this case has no connection with, and its disclosure could not affect, any cause of action for defamation which Mr Murphy may have against Mr Abberton, arising out of the latter's alleged remarks to Mr Murphy's accountant in April 1993.)147. Mr Murphy also deposes (at paragraphs 56-59 of his affidavit sworn 4 December 1994) to having contacted two officers of the Brisbane City Council to raise allegations that they had defamed him, and to having been subsequently contacted by the Town Clerk of the Brisbane City Council who requested Mr Murphy not to contact the two officers again, but to communicate directly with the Town Clerk.148. On the evidence before me, it is not possible to say that Mr Murphy does not have a legitimate cause, or causes, of action for defamation in respect of the incidents of alleged defamation referred to in Mr Murphy's evidence. Because it is not possible for me to say that Mr Murphy has no legitimate cause, or causes, of action for defamation, I am not prepared to accept that a legitimate attempt by Mr Murphy to contact a putative defendant to discuss the possibility of pre-litigation settlement can properly be characterised as harassment or the mischievous use of an officer's name. I caution Mr Murphy, however, that it is not appropriate to threaten a putative defendant with financial ruin, or the prospect of medical problems, through involvement in litigation. And if a putative defendant does not respond positively to an initial invitation to discuss pre-litigation settlement of a claim, the appropriate course is to commence legal proceedings, not to press the matter through further telephone contact. It is my understanding that it is the policy of the Queensland government to indemnify its officers for damages or costs awarded against an officer in a civil suit arising out of acts done in good faith in performance of the officer's duties. The merits of Mr Murphy's cause of action for alleged defamation can be tested in court if the putative defendants are not interested in his invitations to discuss settlement. 149. Resort to the courts to pursue grievances of this kind and seek to vindicate personal reputation is an accepted feature of our legal system. While any person could be expected to be concerned at the prospect of being exposed to litigation, (and I can well understand that any officer of the OSR who is sued by Mr Murphy may feel a sense of injustice, in light of the verbal abuse which has been directed by Mr Murphy to some officers of the OSR), the fact is that public servants performing their duties of office are subject to the laws of the land, just as other citizens are. If a person suffered physical injury through the alleged negligence of a public servant, there would not ordinarily be any justification for refusing access to the public servant's name, if the injured person was seeking it for the purposes of bringing an action for damages for personal injury. In principle, there should be no material difference where the "injury" complained of is defamation of character. There are sound reasons of public policy why it would not be appropriate to regard the exposure of an officer to possible litigation as involving harassment, or otherwise affording sufficient justification for the withholding of names of officers: cf. paragraph 91 above.150. Thus, I do not accept that the respondent's expectations of the adverse effects stated in paragraphs 135-136 above, to the extent that they are underpinned by the respondent's expectation of reprisals, or harassment, or other mischievous use by Mr Murphy of the names in issue, are reasonably based. 151. If there is any reluctance by the staff or management of the OSR to accept my judgment in this regard, based on the evidence before me, then what I think may reasonably be expected to follow from disclosure of the matter in issue is attention by management and staff of the OSR (if it has not already been prompted by the occurrence of this review) to the formulation of exceptions to the general policy laid down in the OSR's Client Service Standards, which are to apply when staff have a reasonable basis to apprehend that they may be subject to harassment or physical danger. In such situations, staff would be justified, presumably with management support, in refusing to put their names on correspondence (which presumably would have to be issued in the name of the Commissioner of Land Tax, or the equivalent office under other revenue statutes) or refusing to provide their full name in telephone contacts.152. Of course, the OSR still has to deal with any such "problem persons" if they have a continuing liability to pay tax. Such persons must still have the right to raise legitimate concerns about whether liability to pay tax has been properly assessed and levied within the limits of the statutory authority conferred by Parliament. (It may well be the case that Mr Murphy continues in the future to protest his liability to pay state taxes, and resorts again to the use of abusive language, but that would not be a consequence of the disclosure of the names now in issue). The OSR may be justified, however, in insisting that it is only prepared to deal with such persons through an agent, such as a solicitor or accountant, or is only prepared to deal with them by correspondence, or that any telephone contact is only to be made with a designated senior officer. In such exceptional cases, it may be appropriate in the interests of staff safety to adopt a policy that officers not record their full names on file notes, but instead use some appropriate coding system. Steps of this kind would represent a responsible exercise of the duties of an agency to take reasonable steps to protect the safety of its employees, and a legitimate exception to the policy laid down in the OSR's Client Service Standards. Also, public servants should not, in my opinion, be obliged to endure unacceptable language and abuse in telephone conversations, and it would be appropriate for management to instruct staff that, should that occur, they are entitled to warn the other party that they will terminate the telephone conversation if the unacceptable language and abuse does not cease, and to terminate the telephone conversation if the other party then persists with unacceptable language and abuse.153. There is no evidence that problems of the nature which have prompted the concerns expressed by the OSR in this case are widespread - they are confined to cases where legitimate concerns exist for the protection of officers from danger or harassment. With remedial measures of the kind suggested in the preceding paragraphs able to be implemented in problem cases of that kind, I am not satisfied that adverse effects on the management by the respondent of its personnel (of the kind identified in paragraphs 135-136 above) could reasonably be expected to follow from disclosure of the matter in issue, or that, if any adverse effects of that kind did follow, they would be substantial. In respect of the concern that disclosure of the matter in issue would be perceived by staff as a breach of faith on the part of the management of the OSR, I also rely upon the reasons given below at paragraph 169.154. The respondent has not satisfied me that disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of its personnel, and I find that the matter in issue is not exempt matter under s.40(c) of the FOI Act.Application of s.40(d) of the FOI Act155. The terms of s.40(d) are set out at paragraph 93 above. The focus of this exemption provision is on the conduct of industrial relations by an agency. The exemption will be made out if it is established that disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the conduct of industrial relations by an agency (in this case, the only relevant agency which has been suggested is the respondent agency, in particular the OSR), unless disclosure of the matter in issue would, on balance, be in the public interest.156. In Re McCarthy and Australian Telecommunications Commission (1987) 13 ALD 1, when applying s.40(1)(e) of the Commonwealth FOI Act (which corresponds fairly closely to s.40(d) of the Queensland FOI Act) the Commonwealth AAT accepted and applied a definition of the term "industrial relations" set out in the supplement to the Oxford English Dictionary, as follows - "relationships between employers and employees". The respondent submits that I should accept and apply that definition. If one is to read the focus of s.40(d) as being on the conduct by an agency of relationships between the agency and its employees, it is difficult to see any respects in which the area of operation of s.40(d) is not entirely subsumed within the area of operation of s.40(c), i.e. the management by an agency of the agency's personnel. Indeed, the respondent's written submissions seem in places to treat s.40(c) and s.40(d) as if their spheres of operation were virtually identical, at least for the purposes of this case.157. Even allowing that there may be overlap between exemption provisions, it is difficult to accept that the legislature could have intended such an extensive degree of overlap between the intended spheres of operation of s.40(c) and s.40(d). I have not been able to find any commentary on the legislative history of the Queensland FOI Act, or of s.40 of the Commonwealth FOI Act (on which the Queensland exemption provisions are fairly closely modelled) which offers any explanation as to the intended demarcation between the respective spheres of operation of these two provisions.158. It is possible to make some inferences from the original form of s.40(c) of the Commonwealth FOI Act, when it was first enacted. It then provided: 40. A document is an exempt document if its disclosure under this Act would be contrary to the public interest by reason that - ... (c) the document contains information the disclosure of which would, or could reasonably be expected to, have a substantial adverse effect on the staff management interests of the Commonwealth or of an agency, including the development and carrying out of the personnel management policy and the industrial relations policy of the Commonwealth or of an agency, or the conduct by or on behalf of the Commonwealth or an agency of industrial relations negotiations.159. Following amendments made in 1983, the former s.40(c) of the Commonwealth FOI Act was divided into the present s.40(1)(c) which focuses on "the management or assessment of personnel by the Commonwealth or by an agency", and the present s.40(1)(e) which focuses on "the conduct by or on behalf of the Commonwealth or an agency of industrial relations". One can reasonably infer that the new s.40(1)(e) was at least intended to include the development and carrying out of the industrial relations policy of the Commonwealth or an agency, and the conduct by or on behalf of the Commonwealth or an agency of industrial relations negotiations.160. As I have said, I can find no commentary in the legislative history of the Commonwealth FOI Act on the intended purpose, or precise sphere of operation, of the exemption which focuses on the conduct of industrial relations. It is difficult to resist the suspicion that at least one of the major concerns which prompted its enactment was that unions, or other employee representatives, with whom the Commonwealth or its agencies would have to deal in the conduct of industrial relations, would have the opportunity to use freedom of information legislation to attempt to obtain documents (of perceived interest or advantage) from a Commonwealth agency involved in negotiations over industrial issues or involved in industrial disputes, while unions and employee representatives would be under no similar obligation to disclose their information.161. The differentiation by the legislature of the conduct of industrial relations in s.40(d) of the Queensland FOI Act from the management of personnel in s.40(c) (which in the ordinary use of language might be thought to completely encompass the conduct of industrial relations), together with the other matters referred to above, leads me to a preference for the meaning of the term "industrial relations", in the context of s.40(d) of the FOI Act, which accords with the first meaning given by the Collins English Dictionary (Third Australian Edition): "those aspects of collective relations between management and workers' representatives which are normally covered by collective bargaining". From the same source, the appropriate meaning of "conduct", in the context of s.40(d) of the FOI Act, is "the way of managing [a business, affair, etc], handling".162. Thus, I consider the focus of s.40(d) is on the conduct by an agency of those aspects of the relations between an agency and its employees which may appropriately be, or have become, the subject of dealings between an agency and the representatives of its employees, or an individual employee, under the system of industrial law which governs those relations. (However, when one has regard to the breadth of the matters thus encompassed, which can be gauged by reference to the meaning of the term "industrial matter" given in s.6 of the Industrial Relations Act 1990 Qld, there may be little practical difference between the meaning of "industrial relations" which I prefer, and the meaning adopted by the Commonwealth AAT in Re McCarthy.) 163. The decision of the Commonwealth AAT in Re Heaney and Public Service Board (1984) 1 AAR 336 affords a good illustration of circumstances in which I consider an exemption provision such as s.40(1)(e) of the Commonwealth FOI Act, or s.40(d) of the Queensland FOI Act, was intended to be able to be invoked. In that case the documents in issue comprised communications between the Snowy Mountains Hydro-Electric Authority and the Commonwealth Public Service Board concerning the approach which should be adopted by the employer in an industrial dispute over salary levels. The applicant for access was the Branch Secretary of the union which had been involved in the dispute. The Tribunal found that exemption under s.40(1)(e) of the Commonwealth FOI Act was established in respect of documents which would disclose the extent to which either the Authority or the Board was or may have been prepared to go in meeting the union demands for increased salaries (at p.348): Knowledge of precise disagreements on the management side may well be of use in any future salaries dispute and may facilitate identification of potential weak points in what may otherwise be quite properly presented as a united front.164. The respondent referred me (at p.39 of its first submission) to the following passage from the decision of the Commonwealth AAT in Re Thies and Department of Aviation (1986) 9 ALD 454 (at 463): [Counsel for the applicant] pointed out that by its terms, [s.40(1)(e) of the Commonwealth FOI Act] was concerned not with adverse effects on industrial relations but with adverse effects on the conduct of industrial relations, so that the mere fact that industrial action resulted from the disclosure of a document did not necessarily mean that the disclosure was having an adverse effect on the conduct of industrial relations. We accept that that is correct ...165. The respondent's first submission went on to say (at p.39): 5.4.6 There is sufficient evidence of substantial adverse effect on the conduct of industrial relations. This does not require that a strike or industrial action occur. It is enough if it makes implementation of current processes difficult. Further, if it effects morale and productivity there is both a management and industrial relations problem. Industrial relations is about "relations" not just confrontation. If employer/employee "relations" are affected that is sufficient.166. However, it is not sufficient, as here asserted, if employer/employee relations are affected by disclosure of the matter in issue. The expected substantial adverse effect must be on the conduct by an agency (i.e. the employer) of industrial relations. What is really being claimed here is an adverse effect on the management by an agency of its personnel. I have dealt with that argument in considering s.40(c), and to the extent that the argument may appropriately be raised under s.40(d) as well, I would reject it for the same reasons given above at paragraphs 135-154.167. The argument which I identified (at point (b) of paragraph 136 above) and dealt with as an issue going to the management by the OSR of its personnel for the purposes of s.40(c), was put by the respondent (at pp.7-8 of its submission in reply) as an argument for the application of s.40(d), in these terms: 3. [the OSR] policy of having officers disclose their names to taxpayers has met with vigorous staff protests and union representations; 4. The office has assured staff that it would seek to protect staff from reprisals or harassment by taxpayers; 5. Disclosure of the names in question will have a substantial adverse effect on the conduct of industrial relations by the Office of State Revenue. Of significance in this regard is the tendency of staff not to distinguish between matters from management decision and those in which management has no say; 6. The staff will perceive the release of the names in question as an act of breach of faith on the part of management.168. There is really no more than the fact that union representatives have made representations to OSR managers opposing the disclosure of officers' names to Mr Murphy, and about the general policy of the OSR on disclosure of officers' names, which connects this argument to s.40(d), as well as to s.40(c) where I think it more properly belongs. The applicant commented on the evidence on which this submission was based as follows (at p.41 of his submission): The Executive Director of the OSR has sworn an affidavit containing material apposite to this exemption. Some of the propositions she puts are, it is submitted, nothing less than astounding. In particular, it is seriously suggested that the documents should be suppressed because some of her staff lack the ability to distinguish between the law and management policy. These are people who are paid to apply the provisions of statutes such as the Stamps Act, which is, it is submitted, one of the most tortuous pieces of legislation in the State. On their interpretation of the Act, decisions are made which deprive persons of their property. Yet Macdonnell is apparently content to employ them when she herself states under oath that they cannot even recognise a law when they see one.169. I am not satisfied that there is a reasonable basis for an expectation that disclosure of the matter in issue would have a substantial adverse effect on the conduct of industrial relations by the respondent, for the reasons advanced by the respondent in the extract from its submission quoted at paragraph 167 above. The respondent has gone to some lengths to find arguments in the exemption provisions of the FOI Act (including some of dubious substance) to attempt to prevent the disclosure of the matter in issue. If the matter in issue is to be disclosed to Mr Murphy under the FOI Act, it will be because I have determined (on the basis of my objective assessment of the evidence before me, including evidence from the applicant, as well as simply the information which was available to officers of the OSR and which gave rise to the concerns which prompted the opposition to disclosure to Mr Murphy of officers' names) that there is no exemption provision available, which, properly construed, entitles the respondent to refuse Mr Murphy access to the matter in issue. I do not think it is reasonable to expect that officers of the OSR, or some of them, will not recognise that if disclosure of the matter in issue is required, it is not because of a breach of faith on the part of management, but because the law requires it. Even if some officers of the OSR are not capable of that recognition, I am not satisfied that any resulting adverse effect (whether on the conduct by the respondent of industrial relations, or on the management by the respondent of its personnel) would be substantial.170. The respondent has failed to satisfy me that disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the conduct of industrial relations by the respondent, and I find that the matter in issue is not exempt matter under s.40(d) of the FOI Act.171. In the written submission lodged by the SPSFQ, the following statement appears: The State Public Services Federation, Queensland, makes it clear to the Information Commissioner that once his decision is made its members at Queensland Treasury will consider that decision and formulate a response. Such a response could very well be one of strike action as a protest at a decision to release the name of the officers appended to the documents which will be released to Mr John P Murphy. This is not meant to be a threat to the Information Commissioner but a statement of fact that the members will consider their position and a response could very well be one to undertake strike action as a protest. No decision has been made on that at present and will be one for the members to decide upon.172. From the context in which it appears, this passage does not appear to be put as a submission going to the application of s.40(d) or any other exemption provision. I merely observe that I am quite sure that s.40(d) of the FOI Act was not intended by Parliament to be an exemption able to be claimed whenever union representatives or employees, opposed to the disclosure of particular matter under the FOI Act, were prepared to threaten, or indeed to take, strike action, with a view to enabling suppression of the matter under s.40(d). Such an approach could enable exemption to be claimed for information, which, for example, related to improper or unlawful conduct by employees, or union officials, if such persons were determined to take any measure available to attempt to suppress it.173. The union has a legitimate concern with issues such as the protection of the safety of its members in the workplace. Issues of that nature which relate to the disclosure of officers' names have apparently been raised with the OSR. But I am not satisfied that disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the conduct by the respondent of industrial relations with respect to that issue, or other industrial relations issues.Conclusion174. I set aside the decision under review, and in substitution for it, I find that the matter in issue is not exempt matter under the FOI Act. Hence the applicant has a right to be given access under the FOI Act to the matter which has been withheld from him pursuant to the decision under review..........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Laloyianni and Queensland Police Service [2018] QICmr 33 (24 July 2018)

Laloyianni and Queensland Police Service [2018] QICmr 33 (24 July 2018) Last Updated: 9 August 2018 Decision and Reasons for Decision Citation: Laloyianni and Queensland Police Service [2018] QICmr 33 (24 July 2018) Application Number: 313872 Applicant: Laloyianni Respondent: Queensland Police Service Decision Date: 24 July 2018 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - INFORMATION AS TO EXISTENCE OF PARTICULAR DOCUMENTS - request for information about complaints involving a named individual - whether section 55 of the Right to Information Act 2009 (Qld) applies to neither confirm nor deny the existence of documents containing the requested information REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for access to any information about complaints made by or about a named individual.[1] QPS decided, under section 55 of the RTI Act, to neither confirm nor deny the existence of any documents containing the requested information.[2] The applicant then applied to the Office of the Information Commissioner (OIC) for external review of QPS’s decision.[3] For the reasons set out below, I affirm QPS’s decision. Background Significant procedural steps taken by OIC in conducting the external review are set out in the Appendix. Reviewable decision The decision under review is QPS’s decision dated 21 March 2018. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix).Issue for determination The access application requested ‘any information’ about the named individual, ‘any complaints’ the named individual had ‘made about anyone and any complaints made by anyone about’ the named individual. The applicant also stated that she wished to ‘make contact with people’ that had been complained about, or who had made complaints about the named individual.[4] The issue for determination is whether section 55 of the RTI Act can apply to neither confirm nor deny the existence of documents containing the type of information requested in the access application. Relevant law Under section 23 of the RTI Act, a person has a right to be given access to documents of an agency. However, this right is subject to certain limitations, including section 55 of the RTI Act which allows an agency to neither confirm nor deny the existence of a document containing ‘prescribed information’. The RTI Act defines[5] ‘prescribed information’ to include personal information[6] the disclosure of which would, on balance, be contrary to the public interest[7] under section 47(3)(b) of the RTI Act. In deciding where the balance of the public interest lies, various factors may be taken into account[8] and a decision-maker must take specific steps in reaching a decision.[9] The Information Commissioner has previously decided[10] that section 55 of the RTI Act will apply where, due to the particular way the access application is framed, acknowledging the existence or non-existence of the requested information is liable to cause the very kind of detriment that the prescribed information provisions[11] are intended to avoid. Findings A person’s involvement in a QPS complaint matter, whether as complainant or as the subject of a complaint, comprises that individual’s personal information and forms part of their private sphere, which should be free from intrusion.[12] By dealing with an application requesting such information, an agency would be impliedly confirming whether or not complaints have been made by/about the subject person, thereby revealing their sensitive, personal information. In this case, I am satisfied that the requested information falls at the higher end of the spectrum in terms of sensitivity as it would, if it exists, concern the relevant individual’s personal and private sphere.[13] I also consider the harm that would flow from disclosure of documents containing the requested information, if they exist, would be very high as it would associate the named individual with a QPS complaint process. In the circumstances of this case, I am unable to identify any public interest factors to favour disclosure of the requested information, other than the pro-disclosure bias.[14] Complaints to QPS are generally dealt with confidentially (with disclosure limited to affected individuals) and in accordance with relevant QPS policies and procedures.[15] Information about whether or not a particular person has been the subject of a complaint/s to QPS or made a complaint/s against other person/s to QPS would only be disclosed under the RTI Act in exceptional circumstances. This may occur for example, where the complaints later become the subject of open court proceedings—there is however, no evidence that is the case here. Further, there is no evidence that the applicant has herself been the subject of any alleged complaints, nor that she has been directly involved in any other capacity, with any of the alleged complaints.[16] The applicant submitted that third party consultation should have been conducted to obtain the views of other individuals about disclosure of the requested information.[17] Where section 55 of the RTI Act is found to apply, there is no provision for third party consultation. Further, engaging with any relevant third parties would, in my view, cause the very kind of harm to an individual’s private and personal sphere, that the RTI Act intends to avoid through the operation of section 55 of the RTI Act. The applicant also emphasised that she was not just seeking access to ‘documents’ but wanted any ‘information’ responding to her application. The RTI Act grants a right of access to ‘documents’ of an agency or Minister.[18] Access may be granted, or refused, to information that appears within a document of an agency or Minister.[19] The RTI Act is not however, intended to provide answers to questions.[20] Given my findings on this application, I do not consider it necessary to examine this line of argument any further. On the basis of the above, I find that disclosure of the requested information, if it exists, would on balance, be contrary to the public interest and therefore, it comprises prescribed information to which section 55 of the RTI Act applies.DECISION I affirm QPS’s decision to neither confirm nor deny the existence of the requested information, pursuant to section 55 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.K ShepherdAssistant Information CommissionerDate: 24 July 2018 APPENDIX Significant procedural steps Date Event 15 April 2018 OIC received the external review application from the applicant. 16 April 2018 OIC asked QPS to provide the relevant procedural documents. 17 April 2018 OIC received the requested procedural documents from QPS. 20 April 2018 OIC notified the applicant that the external review had been accepted and conveyed a written preliminary view to the applicant which invited her to provide submissions supporting her case. 4 May 2018 OIC received correspondence from the applicant 10 May 2018 OIC confirmed to the applicant that OIC had accepted the review and provided her with further time to provide submissions supporting her case. 17 May 2018 OIC received submissions from the applicant. 19 June 2018 OIC wrote to the applicant to again confirm the issues under review and OIC’s preliminary view, and to advise that this matter would proceed to a formal decision. The applicant was given a final opportunity to provide submissions, however, no response was received by OIC. 5 July 2018 OIC notified the applicant that a formal written decision would be required to finalise the review. [1] Access application dated 9 November 2017, received by QPS on 4 January 2018 and validated on 2 March 2018. [2] Decision dated 21 March 2018.[3] External review application dated 15 April 2018.[4] Access application dated 9 November 2017.[5] Schedule 5 of the RTI Act. [6] Defined in schedule 5 of the RTI Act and section 12 of the Information Privacy Act 2009 (Qld) as ‘...information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. [7] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. [8] See the non-exhaustive list in schedule 4 of the RTI Act. [9] Section 49 of the RTI Act. [10] Tolone and Department of Police (Unreported, Queensland Information Commissioner, 9 October 2009) at [47]-[50], Phyland and Department of Police (Unreported, Queensland Information Commissioner, 31 August 2011) (Phyland) at [30] and Winchester and Queensland Police Service [2017] QICmr 56 (4 December 2017) (Winchester) at [16].[11] See definition of ‘prescribed information’ in schedule 5 of the RTI Act, and paragraph 9 above.[12] Van Veenendaal and Queensland Police Service [2018] QICmr 28 (12 June 2018) at [31]-[34], Phyland at [29]-[30] and Winchester at [17]. [13] Schedule 4, part 3, item 3 and schedule 4, part 4, section 6 of the RTI Act.[14] Section 44 of the RTI Act. [15] See generally the QPS Operational Procedures Manual Issue 64, and specifically Chapter 2 - Investigative Process <https://www.police.qld.gov.au/corporatedocs/OperationalPolicies/opm.htm> accessed on 24 July 2018.[16] If such evidence was available, section 55 of the RTI Act may not apply. [17] Reasons for external review application dated 15 April 2018. [18] Section 23 of the RTI Act. [19] See section 47 and 54 of the RTI Act. [20] Hearl and Mulgrave Shire Council [1994] QICmr 12; (1994) 1 QAR 557 at [30] and DH6QO5 and Department of Health (Unreported, Queensland Information Commissioner, 11 May 2011) at [44].

queensland

court_judgement

Queensland Information Commissioner 1993-

Leach and Department of Police [2009] QICmr 15 (27 February 2009)

Leach and Department of Police [2009] QICmr 15 (27 February 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210687 Applicant: Mr Leach Respondent: Department of Police Decision Date: 27 February 2009 Catchwords: FREEDOM OF INFORMATION – section 28A(1) of the Freedom of information Act 1992 (Qld) – refusal of access – agency to be satisfied document does not exist – dispatch documents Contents REASONS FOR DECISION Summary 1. In this external review the applicant asserts that additional documents responding to his freedom of information application have not been provided to him by the Department of Police, known as the Queensland Police Service (QPS). 2. Having considered the parties’ submissions and evidence, relevant legislation and decisions I am satisfied that access to the documents sought can be refused under section 28A(1) of the Freedom of Information Act 1992 (Qld) (FOI Act) on the basis that no further documents responding to the applicant’s freedom of information application exist. Background 3. By letter dated 2 September 2008 the applicant lodged a freedom of information application (FOI Application) with the QPS for access to the following material: 12 April 2007 Cairns CIB Detective Bradley McLeish contacted Cairns Police Dispatch pertaining to myself. Please advise if you can provide a job number, computer files, tapes, material. Be advised Detective Bradley McLeish maintained radio contact with uniform police officer’s. Therefore, I require copies of tapes which recorded contact with police personnel and dispatch. In addition, Detective Bradley McLeish attended my house, 30 mins drive south of Cairns, Gordonvale, searching for myself. Contact with dispatch was made, messages place with Dispatch, please advise if messages can be obtained. Importantly, I am requesting copies of Dispatch’s files and tapes which relate to radio contact with Detective Bradley McLeish dated 12 April 2007, time 1 pm – 2.30 pm. 4. By letter dated 9 October 2008 (Original Decision), Acting Inspector PJ Robinson, QPS, informed the applicant that: • the QPS had located 19 folios and one audio tape responding to the FOI Application • he had decided to release the 19 folios subject to deletions under section 44(1) of the FOI Act and to fully exempt the audio tape under section 44(1) of the FOI Act. 5. By letter dated 28 October 2008 the Applicant sought internal review (Internal Review Application) of the Original Decision. The Applicant stated that he was ‘sure’ other documents beyond the 19 folios and the one audio tape existed. 6. By letter dated 24 November 2008 (Internal Review Decision), Assistant Commissioner A Lewis, QPS, decided: • to release the audio tape with the registration number of a vehicle not registered to the applicant deleted (though I note the applicant did not seek internal review of this aspect of the QPS’ decision) • investigating officers had undertaken a thorough search and were unable to locate any further documents relevant to the FOI Application. 7. By letter dated 12 December 2008[1] (External Review Application) the Applicant applied for external review of the Internal Review Decision. In the External Review Application the Applicant indicated he was ‘dissatisfied the Internal Review Officer has made reasonable effort in locating documents requested’. 8. In the conduct of a review the Information Commissioner has the power to review any decision that has been made by an agency in relation to the FOI application concerned and to decide any matter in relation to the application that could, under the FOI Act have been decided by an agency. [2] Decision under review 9. The decision under review is the Internal Review Decision referred to at paragraph 6 above. Steps taken in the external review process 10. By facsimile dated 17 December 2008 the Office asked the QPS to provide copies of documents relevant to the external review.[3] 11. The QPS provided the documents requested at paragraph 10 above to this Office on 12 January 2009. The QPS also provided additional correspondence from the applicant to the QPS in which the applicant applied to the QPS for external review. 12. By letters dated 20 January 2009 I advised the applicant and the QPS that the External Review Application had been accepted. I also asked the applicant to provide submissions by 4 February 2009 in relation to any further documents which he believed the QPS has not provided to him. 13. By letter dated 29 January 2009 the applicant provided submissions to this external review. 14. By letter dated 1 February 2009 the applicant provided submissions for another external review but a small part of those submissions related to this external review. 15. On 17 February 2009 the Office contacted the User Data Administration section of the Police Communications Unit (UDA) to discuss record storage and searches of the Computer Aided Dispatch (CAD) system. 16. On 24 February 2009 the Office made additional inquiries with the QPS regarding the documents released to the applicant and the search processes used when searching the CAD system. 17. On 26 February 2009 the Office made further inquiries with the UDA regarding the search parameters used in searching the CAD system in response to the FOI Application. 18. In making my decision in this review, I have taken into account the following: • FOI Application, Internal Review Application and External Review Application • Original Decision and Internal Review Decision • the documents released to the applicant in response to the FOI Application • letters from the applicant to this Office dated 29 January 2009 and 1 February 2009 • file notes of telephone conversations between the Office and the UDA on 17 and 26 February 2009 • file note of telephone conversation between the Office and the QPS on 24 February 2009 • relevant provisions of the FOI Act as referred to in this decision • decisions of this Office as referred to in this decision. Issue in review 19. The applicant acknowledges that the QPS has provided 19 documents and one audio tape to him in response to the FOI Application. The applicant states however, the released documents did not include personal diary notes or case notes, or dispatch documents extending beyond the time-frame of 10.30 am to 3.30 pm. Accordingly, the applicant contends that the QPS has not released all of the documents sought in the FOI Application to him. 20. The QPS maintains that it has undertaken a thorough search for additional documents and has been unable to locate any further relevant documents. 21. The issue to be determined in this review is whether there are reasonable grounds for the QPS to be satisfied that the additional documents sought by the applicant do not exist and accordingly, whether access can be refused under section 28A(1) of the FOI Act. Findings The scope of the FOI Application 22. To access a document under the FOI Act an applicant must make an application in accordance with the requirements of section 25(2) of the FOI Act. In doing so the applicant is required to ‘provide sufficient information concerning the document to enable a responsible officer of the agency or the Minister to identify the document’.[4] Accordingly, the scope of an FOI application is determined by the terms of the application. Although the scope can be amended by a subsequent agreement between the applicant and the agency whilst processing the application, an applicant cannot unilaterally enlarge the scope of an FOI application. 23. The applicant currently has a number of external reviews with this Office and there is a degree of ‘cross-over’ in some of the documentation sought in the various freedom of information applications relating to the different external reviews. In the FOI Application to which this external review relates the applicant requests documents in four separate paragraphs, the content of which are set out at paragraph 3 above. The applicant makes it clear in the FOI Application that he seeks specific documents relating to 12 April 2007 and in the last paragraph he specifies the time period 1pm to 2.30 pm. In each of the four paragraphs the applicant refers to ‘dispatch’. 24. Under cover of a letter dated 22 December 2008 the QPS forwarded to the Office a number of letters from the applicant addressed to the QPS that refer to the Internal Review Decision and seek external review by the QPS. 25. In a letter dated 15 December 2008, the applicant indicates that he is satisfied that other documents exist relating to: • Cairns Police Prosecutions files dated 13 April 2007 • files, computer notes relating to allegations of alleged stalking in respect to a specified individual • complaints made to police against the person specified above 26. In another letter dated 15 December 2008, the applicant indicates that he seeks copies of: • Detective McLeish’s records that relate to 13 April 2008 • psychiatric report • case notes • court documents • diary notes • cassette tapes • charge records • computer files 27. In another letter dated 15 December 2008 the applicant indicates that he is not satisfied the QPS has provided him with full details of Detective McLeish’s computer notes, dispatch notes, codes and radio room computer records. He also refers to ‘any requests for computer records, job details relating to Detective McLeish, personal notes only’. 28. In another letter dated 15 December 2008 the applicant indicates that he is not satisfied the QPS has located ‘Detective Bradley McLeish files’ which pertain to him including for example: • communications between Detective McLeish and Cairns Police Communication Centre dated 12 April 2007 • radio contact with Detective McLeish and uniformed officers dated 12 April 2007 • communication between Police Radio Room and Detective McLeish pertaining to visiting the applicant’s house • radio communication tapes between Police and Detective McLeish 12 April 2007. 29. In a letter dated 20 January 2009 I asked the applicant to specify any further documents which he believed had not been located by the QPS. The applicant responded that: • he has not been provided with personal diary notes or case notes • the documents he is seeking extend beyond the time-frame of 10.30 am to 3.30 pm. 30. The applicant’s letter of 20 January 2009 was received after the earlier letters so I have taken the applicant’s later letter to be a statement of the additional documents which the applicant contends have not been provided to him in response to the FOI Application. 31. In any event, although the documents listed at paragraph 28 largely accord with the QPS’ list of the documents sought in the Internal Review Decision,[5] the applicant’s letters at paragraphs 25 to 27 above seek to unilaterally expand the scope of the FOI Application, that is, they seek access to documents which are not requested in the FOI Application and could not be dealt with in this external review. 32. A question that arises in this external review is whether the personal diary notes and/or case notes and/or dispatch records that extend beyond the time-frame of 10.30 am to 3.30 pm are within the scope of the FOI Application. 33. I have carefully considered the wording of the FOI Application and I am satisfied that the application confines the documents sought to those involving Detective McLeish and other uniformed police officers’ communications with Cairns Police Dispatch on 12 April 2007 in relation to the applicant. As the applicant did not request personal diary notes or case notes in the FOI Application and as there is no evidence that the QPS agreed to enlarge the scope of the FOI Application, these items, if they exist, are not within the scope of the FOI Application and will not be considered further. This, however, does not preclude the applicant from lodging a new freedom of information application for these documents. 34. The QPS has provided the applicant with copies of an audio tape as well as the dispatch records for the period 10.28 am to 3.34 pm on 12 April 2007. I am satisfied that if further dispatch records meeting the description provided by the applicant in the FOI Application exist in relation to 12 April 2007, these documents would be within the scope of the FOI Application. Relevant law Section 28A(1) of the FOI Act 35. Section 28A(1) of the FOI Act provides: 28A Refusal of access—documents nonexistent or unlocatable (1) An agency or Minister may refuse access to a document if the agency or Minister is satisfied the document does not exist. Example— documents that have not been created 36. In PDE and the University of Queensland[6] (PDE) the Acting Information Commissioner indicates that:[7] Sections 28A(1) and (2) of the FOI Act address two different scenarios faced by agencies and Ministers from time to time in dealing with FOI applications: circumstances where the document sought does not exist and circumstances where a document sought exists (to the extent it has been or should be in the agency’s possession) but cannot be located. In the former circumstance, an agency or Minister is required to satisfy itself that the document does not exist. If so satisfied, the agency or Minister is not required by the FOI Act to carry out all reasonable steps to find the document. In the latter circumstance an agency or Minister is required to satisfy itself that the document sought exists (to the extent that it has been or should be in the agency’s possession) and carry out all reasonable steps to find the document before refusing access. ‘Satisfied’ 37. In PDE the Acting Information Commissioner also considered how an agency is to satisfy itself as to the non-existence of documents sought by an applicant and indicated that to be satisfied that a document does not exist, it is necessary for the agency to rely upon its particular knowledge and experience with respect to various key factors including: • the administrative arrangements of government • the agency structure • the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) • the agency’s practices and procedures (including but not exclusive to its information management approach) • other factors reasonably inferred from information supplied by the applicant including: o the nature and age of the requested document/s o the nature of the government activity the request relates to. 38. To be satisfied under section 28A(2) of the FOI Act that a document can not be found an agency must take all reasonable steps to locate a document. Section 28A(1) is silent on the issue of how an agency is to satisfy itself that a document does not exist. When proper consideration is given to the key factors discussed at paragraph 37 above and a conclusion reached that the document sought does not exist, it may be unnecessary for the agency to conduct searches. However, where searches are used to substantiate a conclusion that the document does not exist, the agency must take all reasonable steps to locate the documents sought.[8] 39. Therefore, in applying section 28A(1) of the FOI Act it is relevant to ask whether there are reasonable grounds to be satisfied that the requested documents do not exist and, in doing so, as the QPS used searches to satisfy itself that the additional documents sought do not exist, it is necessary to consider whether the QPS has taken all reasonable steps to find the additional documents sought. The applicant’s submissions 40. The applicant submits that sections 21(a) and 30(1)(c) of the FOI Act support his External Review Application. In his letter of 1 February 2009 the applicant also describes an incident which occurred on 12 April 2007. The QPS’ submissions 41. Information provided by the QPS FOI Unit and the UDA indicates that: • all computer, telephone and voice (including radio) communication between police headquarters, police personnel and members of the public is recorded electronically • the Cairns District police use a purpose-built database called ‘Computer Aided Dispatch’ (CAD) for recording these communications • communications between the community and police headquarters in Cairns are stored only in CAD • searches are able to be conducted of CAD records under a number of search parameters, the most common being: o name – both of members of the public and police personnel o address o date o time o vehicle registration number o job number • when searches are conducted of CAD records, multiple search parameters are included to ensure all records concerning a particular subject are captured • CAD uses a ‘Soundex’ system whereby names that sound the same are captured in a search regardless of differences in spelling[9] • CAD produces two types of records: a Job History and running records • the CAD records relating to this FOI Application were archived in Brisbane • more recent records remain with the district in which they are recorded • when searches are requested from the CAD system, the FOI Unit, QPS provides a copy of the application and often in addition, a covering explanation of the scope of the application to the UDA • the UDA always use multiple parameters to search for records because they are aware that the records are often transcribed from voice and the data may be changed in the recording • all the information in an FOI application is used in the search - the person's name and variations of their name, their address, dates, times, persons or officers referred to ensure all relevant records are captured. Application of section 28A(1) of the FOI Act Are there reasonable grounds to be satisfied that the requested documents do not exist? 42. I acknowledge the applicant’s contention that sections 21(a) and 30(1)(c) of the FOI Act support his application. 43. Section 21(a) of the FOI Act gives a person a legally enforceable right of access to documents of an agency. However, section 21 of the FOI states that the right of access is ‘subject to this Act’. Accordingly, the right of access can be displaced by a valid refusal of access under section 28A(1) of the FOI Act if an agency is satisfied that the document to which access is sought does not exist. 44. Section 30(1)(c) of the FOI Act is not concerned with the ‘right of access’ but rather the ‘form of access’. The right of access only arises under section 21 of the FOI Act and as discussed in paragraph 43 above, that right of access is subject to the FOI Act. 45. Section 30(1)(c) of the FOI Act does not give a separate right of access, instead, if an agency makes a decision to give access to a document, section 30(1)(c) is relevant to the issue of how that access is given. This is reflected in the wording of the section which begins ‘[a]ccess to a document may be given to a person in 1 or more of the following forms ... .‘ Accordingly, the effect of these provisions of the FOI Act is that an agency is only required to consider giving access to a document in the manner described in section 30(1)(c) (making arrangements for the person to hear the sounds or view the images) if the agency decides to or is required to give access to the document sought. 46. In view of my conclusion at paragraphs 33 to 34 above regarding the scope of the FOI Application, it is necessary to consider whether there are reasonable grounds for the QPS to be satisfied that it has provided the applicant with all dispatch documents within the scope of the FOI Application and therefore that no additional dispatch documents exist in relation to the FOI Application. 47. For the QPS to determine whether there are any additional documents responding to the FOI Application and otherwise to satisfy itself that the additional documents sought by the applicant do not exist, it is appropriate for the QPS to have regard to the key factors that relate to the FOI Application. In this instance those key factors include: • the nature of the request as well as the date specified • the location at which the records would have been recorded and stored • the system used to record and store dispatch records • any alternative locations or systems in which the documents sought by the applicant may be stored. 48. I accept the QPS’ submissions at paragraph 41 above regarding the CAD system, the information stored in that system and the UDA’s search methodology for locating documents in response to FOI Applications. 49. As the Cairns District Police record all computer, telephone and voice (including radio) communication between police headquarters, police personnel and members of the public electronically in the CAD system and this is the only place that this information is stored, it is appropriate for the QPS to search the CAD system to identify the relevant dispatch records, using the parameters provided in the FOI application. 50. The QPS has conducted electronic searches of the CAD system. I am satisfied that in this instance, in accordance with the UDA’s usual search practices, the search parameters would have included at least, the applicant’s name, his address, the date of 12 April 2007 and Detective McLeish’s name. In view of the QPS’ explanation of the searches conducted and the retrieval capacity of the CAD system I would expect all relevant documents responding to the FOI Application to be ascertained using this search methodology. 51. The QPS has identified and released dispatch documents to the applicant covering the period 10.28 am to 3.34 pm on 12 April 2007. I have read the dispatch documents released to the applicant. These include the Job History and the running records, that is, both forms of record which would be expected to be generated by the CAD system. These documents appear to be a complete record of an incident involving the applicant on 12 April 2007 in that they record: • a response to a reported incident • progressive information relating to the QPS’ attempts to locate the applicant over a number of hours • that the job is cancelled because the applicant has been located. 52. In view of the above, I am satisfied that the QPS has taken all reasonable steps to find the documents sought by the applicant and that there are reasonable grounds to be satisfied that no further documents responding to the FOI Application exist. DECISION 53. I affirm the decision under review by finding that access to the additional documents sought by the applicant can be refused under section 28A(1) of the FOI Act on the basis that no further documents responding to the FOI Application exist. 54. I have made this decision as a delegate of the Information Commissioner, under section 90 of the Freedom of Information Act 1992 (Qld). ________________________ S Jefferies Acting Assistant Commissioner Date: 27 February 2009 [1] Received on 15 December 2008. [2] Section 88(1) of the FOI Act provides:Powers of commissioner on review (1) In the conduct of a review, the commissioner has, in addition to any other power, power to – (a) review any decision that has been made by an agency or Minister in relation to the application concerned; and (b) decide any matter in relation to the application that could, under this Act, have been decided by an agency or Minister...[3] Including the FOI Application, Initial Decision, Internal Review Application, Internal Review Decision and copies of the documents released to the applicant with the Original Decision.[4] Section 25(2)(b) of the FOI Act. [5] Except that the first bullet point does not contain the words ‘including job numbers, computer files, tapes and other material and the last bullet point does not include the time specified by the applicant. [6] (Unreported, Office of the Information Commissioner, 9 February 2009).[7] At paragraph 34.[8] See PDE. [9] As an example - with ‘Soundex’, a search for ‘Jeffery Leach’ will also capture records for ‘Geoffrey Leech.’ The benefit of Soundex is that variations of, or incorrect spellings will not overly restrict the outcome of searches.

queensland

court_judgement

Queensland Information Commissioner 1993-

Readymix Holdings Pty Ltd and Port of Brisbane Corporation [2003] QICmr 4 (15 December 2003)

Readymix Holdings Pty Ltd and Port of Brisbane Corporation [2003] QICmr 4 (15 December 2003) Last Updated: 18 January 2006 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 04/2003 Application 501/03 Participants: READYMIX HOLDINGS PTY LTD Applicant PORT OF BRISBANE CORPORATION Respondent BRISBANE MINI MIX PTY LTD Third Party DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION – refusal of access – documents received or brought into existence by the respondent in assessing and approving a development application lodged by the third party in respect of land vested in the respondent – whether documents excluded from the application of the Freedom of Information Act 1992 Qld by s.11A – whether documents were received or brought into existence by the respondent in carrying out its commercial activities. FREEDOM OF INFORMATION – refusal of access – whether matter in issue concerns the business, commercial or financial affairs of the respondent or the third party – whether disclosure could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of the respondent or the third party – application of s.45(1)(c) of the Freedom of Information Act 1992 Qld. FREEDOM OF INFORMATION – refusal of access – whether matter in issue contains any information concerning personal affairs – application of s.44(1) of the Freedom of Information Act 1992 Qld. Freedom of Information Act 1992 Qld s.11A, s.44(1), s.45(1)(c), s.78, Sch 2 Acts Interpretation Act 1954 Qld Integrated Planning Act 1997 Qld Transport Infrastructure Act 1994 Qld s.486 Transport Infrastructure and Another Act Amendment Act 2003 Qld ii Attorney-General v Estcourt and the Wilderness Society Inc [1995] TASSC 65; (1995) 4 Tas R 355 Cannon and Australian Quality Egg Farms Limited, Re [1994] QICmr 9; (1994) 1 QAR 491 Christie and Queensland Industry Development Corporation, Re [1993] QICmr 1; (1993) 1 QAR 1 English and Queensland Law Society Inc., Re [1995] QICmr 22; (1995) 2 QAR 714 Hansen and Queensland Industry Development Corporation, Re [1996] QICmr 9; (1996) 3 QAR 265 Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227 Wittingslow Amusements Group Pty Ltd v Director-General of the Environment Protection Authority of NSW (Supreme Court of NSW, Equity Division, No. 1963 of 1993, Powell J, 23 April 1993, unreported) DECISION I set aside the decision under review (which is identified in paragraph 4 of my accompanying reasons for decision). In substitution for it, I decide that: (a) the documents of the respondent to which the applicant sought access are not excluded from the application of the Freedom of Information Act 1992 Qld by s.11A of that Act and s.486 of the Transport Infrastructure Act 1994 Qld; and (b) those documents do not qualify for exemption from disclosure to the applicant under the Freedom of Information Act 1992 Qld. Date of decision: 15 December 2003 ......................................................... G J SORENSEN DEPUTY INFORMATION COMMISSIONER TABLE OF CONTENTS Page Background ................................................................................................................... 1 External review process ................................................................................................ 2 Matter in issue ............................................................................................................... 3 Jurisdictional issue ........................................................................................................ 3 Application of s.11A of the FOI Act ................................................................................ 3 Activities conducted on a commercial basis ........................................................ 4 Whether documents in issue were received or brought into existence by the Corporation in carrying out commercial activities ............................................... 5 Application of s.44(1) of the FOI Act .............................................................................. 9 Application of 45(1)(c) of the FOI Act ............................................................................ 9 s.45(1)(c)(i) ......................................................................................................... 10 s.45(1)(c)(ii) ........................................................................................................ 11 Public interest balancing test .............................................................................. 13 Conclusion .................................................................................................................... 13 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 04/2003 Application 501/03 Participants: READYMIX HOLDINGS PTY LTD Applicant PORT OF BRISBANE CORPORATION Respondent BRISBANE MINI MIX PTY LTD Third Party REASONS FOR DECISION Background 1. The applicant, Readymix Holdings Pty Ltd, seeks review of a decision by the Port of Brisbane Corporation (the Corporation) refusing the applicant access, under the Freedom of Information Act 1992 Qld (the FOI Act), to documents relating to a concrete batching plant operated on Corporation land by the third party, Brisbane Mini Mix Pty Ltd (formerly known as Northside Mini-Mix Pty Ltd and Brisbane Ready Mixed Group Pty Ltd). The applicant and the third party are competitors in the 'ready mix' concrete industry. 2. By letter dated 2 June 2003, the applicant applied (through its solicitor) to the Corporation for access, under the FOI Act, to documents described in these terms: 1. application for development approval for a concrete batching plant at Cnr Farrer Street & MacArthur Avenue East, Pinkenba Qld 4008; and 2. development approval issued for the said plant. 3. By letter dated 2 July 2003, Ms Marie Walker, the Corporation's FOI Co-ordinator, wrote to the applicant's solicitor stating that the requested documents (which she did not specifically identify) were excluded from the application of the FOI Act by s.11A of the FOI Act and s.199 of the Transport Infrastructure Act 1994 Qld (the TI Act) because they were documents received or brought into existence by the Corporation in carrying out activities conducted on a commercial basis. (I should note that s.199 of the TI Act, as then in force, has since been renumbered as s.486, as a result of amendments made by the Transport Infrastructure and Another Act Amendment Act 2003 Qld.) Ms Walker also stated that, even if the requested documents were subject to the application of the FOI Act, they would qualify for exemption under s.45(1)(c) of the FOI Act. 2 4. By letter dated 23 July 2003, the applicant's solicitor applied to the Corporation for internal review of Ms Walker's decision. By letter dated 5 August 2003, the Corporation's Chief Executive Officer, Mr Jeff Coleman, expressed his view to the applicant's solicitor that, as the requested documents were excluded from the application of the FOI Act by s.11A, the applicant was not entitled to an internal review. Nevertheless, Mr Coleman stated that he had decided to affirm Ms Walker's decision. 5. By letter dated 11 August 2003, the applicant's solicitor applied for review by the Information Commissioner, under Part 5 of the FOI Act, of Mr Coleman's decision. External review process 6. Copies of the documents in issue (which are identified at paragraph 14 below) were obtained and examined. Those documents were forwarded under cover of a letter from Mr Coleman dated 27 August 2003, which contained brief submissions in respect of s.11A, and s.45(1)(c), of the FOI Act. 7. In a letter to the Corporation dated 18 September 2003, Assistant Information Commissioner (AC) Moss conveyed her preliminary view that the documents in issue were not excluded from the application of the FOI Act by s.11A of the FOI Act, nor did they qualify for exemption under s.45(1)(c) of the FOI Act. In the event that the Corporation wished to contest her preliminary view, AC Moss invited it to lodge written submissions and/or evidence in support of its case. 8. By letter dated 24 September 2003, AC Moss sent the third party a copy of her letter to the Corporation dated 18 September 2003. In the event that the third party objected to the disclosure of the documents in issue to the applicant under the FOI Act, AC Moss invited the third party to apply to be a participant in this review (in accordance with s.78 of the FOI Act), and to provide submissions or evidence in support of its case. 9. In a letter dated 6 October 2003, the Corporation advised that it accepted AC Moss' preliminary view. However, on 10 October 2003, the Corporation faxed a letter stating that it wished to clarify its position. The letter stated that the Corporation did not agree with AC Moss' preliminary view, but that it did not wish to make any further submissions. 10. In the intervening period between those two communications from the Corporation, the third party's solicitors had advised (by letter dated 8 October 2003) that the third party asserted that the documents in issue were exempt from disclosure to the applicant under s.44(1) and s.45(1)(c) of the FOI Act. It was not clear from the terms of the letter whether the third party objected to the disclosure of all, or only some, of the matter in issue. By letter dated 13 October 2003, AC Moss requested clarification of that issue. AC Moss also took the opportunity to explain why, in her preliminary view, the matter in issue could not qualify for exemption under s.44(1) of the FOI Act, and to explain the issues that would need to be addressed to establish a case for exemption under s.45(1)(c). 11. When no response had been received by 6 November 2003, AC Moss wrote again to the third party's solicitors, directing them to lodge any additional material in support of their client's case by no later than 13 November 2003. The third party's solicitors forwarded a letter dated 13 November 2003, containing brief submissions in support of the third party's claim for exemption under s.45(1)(c) of the FOI Act. 12. Copies of the third party's submissions were forwarded to the applicant, but it was not considered necessary to request a response from the applicant. 3 13. In making my decision in this case, I have taken into account the following material: • the contents of the documents in issue; • the applicant's FOI access application dated 2 June 2003, application for internal review dated 23 July 2003, and application for external review dated 11 August 2003; • the Corporation's initial and internal review decisions, dated 2 July 2003 and 5 August 2003, respectively; • the Corporation's letter dated 27 August 2003; • the third party's submissions dated 8 October 2003 and 13 November 2003; • relevant provisions of the TI Act and the Integrated Planning Act 1997 Qld; and • the Corporation's Land Use Strategy dated November 1998. Matter in issue 14. The matter in issue consists of: (a) a development application lodged with the Corporation on 10 December 1999 by Hendriks House Consulting Engineers (Hendriks/House) on behalf of the third party; (b) a letter dated 5 January 2000 from the Corporation to Hendriks/House; (c) a letter dated 10 January 2000 from Hendriks/House to the Corporation; and (d) a letter dated 27 January 2000 from the Corporation to Hendriks/House (conveying development approval). Jurisdictional issue 15. The nature and extent of the powers and functions of the Information Commissioner in relation to jurisdictional issues of the kind raised by the Corporation have been addressed in a number of cases, including Re Christie and Queensland Industry Development Corporation [1993] QICmr 1; (1993) 1 QAR 1 at pp.4-6, Re English and Queensland Law Society Inc (1995) [1995] QICmr 22; 2 QAR 714 at pp.719-720, and Re Hansen and Queensland Industry Development Corporation [1996] QICmr 9; (1996) 3 QAR 265 at p.269. For the reasons there given, I am satisfied that the Information Commissioner (or his delegate) has both the power, and a duty, to consider and determine issues relating to the limits of the Information Commissioner's jurisdiction when they are raised as an issue in an application for review lodged under Part 5 of the FOI Act. (See also the comments on the obligation of a tribunal to decide a dispute over the limits of its jurisdiction, contained in the judgment of Wright J of the Supreme Court of Tasmania in Attorney-General v Estcourt and the Wilderness Society Inc [1995] TASSC 65; (1995) 4 Tas R 355 at pp.365- 367.) In this case, that power extends to deciding whether or not the Corporation is entitled to refuse access to the documents in issue on the ground that they are excluded from the application of the FOI Act by s.11A of the FOI Act and s.486 of the TI Act. Application of s.11A of the FOI Act 16. Section 11A of the FOI Act provides: 11A. This Act does not apply to documents received, or brought into existence, in carrying out the activities of a GOC mentioned in schedule 2 to the extent provided under the application provision mentioned for the GOC in the schedule. 4 17. Schedule 2 relevantly provides: APPLICATION OF ACT TO GOCs Section 11A of the Act GOC Application provision 1. Queensland Rail, or a port authority (within the meaning of the Transport Infrastructure Act 1994) that is a GOC Transport Infrastructure Act 1994, section 486 18. Section 486 of the TI Act relevantly provides: Application of Freedom of Information Act and Judicial Review Act 486.(1) The Freedom of Information Act 1992 does not apply to a document received or brought into existence by a transport GOC in carrying out its excluded activities. ... (3) A regulation may declare the activities of a transport GOC that are taken to be, or are taken not to be, activities conducted on a commercial basis. (4) In this section-- "commercial activities" means activities conducted on a commercial basis. "community service obligations" has the same meaning as in the Government Owned Corporations Act 1993. "excluded activities" means-- (a) commercial activities; or (b) community service obligations prescribed under a regulation.... "transport GOC" means a GOC whose functions relate mainly to transport. 19. It is clear that the Corporation is a transport GOC within the meaning of the TI Act. The Corporation has not argued that the documents in issue were brought into existence in the course of carrying out community service obligations that have been prescribed as excluded activities under a regulation. Accordingly, the question for determination is whether the documents in issue were received, or brought into existence, in carrying out the commercial activities of the Corporation, i.e., activities conducted on a commercial basis. Activities conducted on a commercial basis 20. No regulation has been made under s.486(3) of the TI Act declaring activities of the Corporation that are taken to be, or are taken not to be, activities conducted on a commercial basis. Section 486(4) of the TI Act simply defines "commercial activities" as activities conducted on a commercial basis. No other definition of "commercial" is contained in that 5 Act, or in the Acts Interpretation Act 1954 Qld. In Re Hansen, the Information Commissioner discussed the application of s.11A of the FOI Act and the meaning, in a similar context, of "commercial activities" (at pp.274-275; paragraphs 25-26): 25. Major dictionaries give the primary meaning of the adjective "commercial" as "of, connected with, or engaged in, commerce; mercantile" (Collins English Dictionary, Third Aust. Ed), "of, engaged in, bearing on, commerce" (Australian Concise Oxford Dictionary), "of, or of the nature of, commerce" (Macquarie Dictionary). The corresponding primary meaning of the noun "commerce" is "the activity embracing all forms of the purchase and sale of goods and services" (Collins English Dictionary, Third Aust. Ed.), "exchange of merchandise or services ... buying and selling" (Australian Concise Oxford Dictionary), "interchange of goods or commodities" (Macquarie Dictionary). ... 26. There is a subsidiary meaning of the adjective "commercial" which may be appropriate to the context of the phrase "activities conducted on a commercial basis" in s.35 of the Queensland Industry Development Corporation Act 1994, that is, "having profit as the main aim" (Collins English Dictionary, Third Aust. Ed.), "capable of returning a profit; ... preoccupied with profits or immediate gains" (Macquarie Dictionary). ... 21. In determining the question framed at the end of paragraph 19 above, the contents of the documents in issue are relevant only to the extent that they assist the task of properly characterising the nature of the activity carried out by the Corporation, during the course of which the documents in issue were received by it or brought into existence. It is possible for a document containing information about the Corporation's commercial activities to have been brought into existence in carrying out an activity that was not conducted on a commercial basis e.g., accounting to the shareholding Minister of the Crown for the performance of the Corporation's functions. In such a case, the document would be subject to the application of the FOI Act, and a decision would be required as to whether any of the information contained in that document qualified for exemption under any of the exemption provisions contained in Part 3, Division 2, of the FOI Act (e.g., whether some commercially sensitive information qualified for exemption under s.45(1)(c) of the FOI Act, as the Corporation argues in the alternative in this case). If, on the other hand, the document was brought into existence in carrying out a commercial activity, the document would be excluded from the application of the FOI Act. Whether the documents in issue were received or brought into existence by the Corporation in carrying out commercial activities 22. In his letter dated 27 August 2003, the Corporation's CEO argued that: The lease of Corporation land to...[the third party]...and the development approval granted in respect of that lease were undertaken by the Corporation wholly in pursuit of the Corporation's commercial activities. That is, the lease and subsequent development approval were undertaken by the Corporation for its own commercial benefit and the documents in question were received or brought into existence by the Corporation with that purpose or intention. 6 As such, the documents are covered by the exemption contained in s.11A and Schedule 2 of the Act with the result that the Act does not apply to the documents. 23. However, on the material before me, I am satisfied that there were two materially different, and conceptually distinct, processes undertaken by the Corporation. I note that in the letter dated 27 January 2000 from the Corporation's Assessment Manager to the third party conveying development approval, there is an indication (in the second last paragraph) that the grant of land use planning approval should not be taken to imply anything in respect of the separate (and then ongoing) negotiations in relation to an agreement for lease of the relevant land. 24. The applicant has not sought access to the lease agreement between the Corporation and the third party, or documents concerning the negotiation of terms of the lease. The applicant has sought access only to documents relating to the application for development approval in respect of the relevant land. While the leasing of land may comprise an activity conducted on a commercial basis, I consider that the activities of the Corporation in receiving, assessing and approving/rejecting a development application in respect of land vested in the Corporation must properly be characterised as a public regulatory activity, not a commercial activity. 25. Since December 2000, the Corporation has been designated as an assessment manager under the Integrated Planning Act 1997 Qld for development applications in respect of land vested in the Corporation. In my view, that is clearly a traditional governmental function of a public regulatory character, undertaken pursuant to statutory authority to ensure compliance with statutory obligations and/or government policy requirements, and ultimately to ensure that wider considerations of public interest and public benefit are taken into account in the assessment of new land development proposals. 26. The development application in issue was lodged in December 1999 when the Integrated Planning Act did not apply to strategic port land vested in the Corporation (see the former s.172(1) of the TI Act as then in force) except to the extent specified in the former s.172(2) of the TI Act. However, the activities of the Corporation in receiving, assessing and approving the third party's development application were essentially identical in character to those described in the preceding paragraph. 27. Part 4 of the TI Act required the Corporation to formulate a land use plan, for approval by the Minister. The former s.173(1) of the TI Act provided that a port authority must not use its strategic port land in a way inconsistent with its current land use plan. A land use plan approved by the Minister therefore governed the land use decisions made by port authorities such as the Corporation, including the assessment and approval/rejection of development applications of the kind lodged by the third party. 28. The Corporation has provided me with a copy of a document entitled "Land Use Strategy - November 1998" ('the Strategy'). (I note that, although relevant provisions of the TI Act employ the term 'land use plan', the Corporation has advised my staff that the Strategy comprised the land use plan applicable as at December 1999, when the third party's 7 development application was lodged with the Corporation.) Section 1.0 of the Strategy sets out the Corporation's "Land Use Vision" for the strategic port lands controlled by it, and includes the following statements (at p.1): The port will be integrated into the broader planning context of the region by its own strategic planning framework which will: • recognise its role as a good neighbour in Brisbane City by progressively refocusing its activities to land adjacent to the river mouth as opportunities arise; ... • recognise the need to incorporate best-practice environmental management into all aspects of port planning, development and operations; • separate or buffer its key facilities from potentially incompatible land uses; • provide for industrial and commercial development, including that which requires port access; ... • encourage the clustering of like and interrelated industries and support facilities within individual precinct locations; and • respond to related planning documents including the Brisbane Gateway Ports Area Strategy, Brisbane City Plan, Brisbane River Management Plan and Moreton Bay Strategic Plan. 29. Section 3.1 of the Strategy defines a number of port 'precincts', each of which relate to discrete geographical areas of Corporation land. Development applications lodged with the Corporation were to be assessed against the guiding principles set out in the Strategy, and, specifically, the criteria relevant to a particular precinct. As the opening paragraph of section 3.1 of the Strategy explained (at p.2): The precincts provide a comprehensive and structured approach to the planning and management of the strategy area. They form the basis of the preferred planning and land use development outcomes in specific locations. 30. Section 3.2 of the Strategy, entitled "Development Assessment", contains an explanation of the manner in which the Corporation dealt with development applications lodged with it in respect of strategic port land. The first two paragraphs of that section state (at p.3): The Corporation will assess any proposal in the Strategy area as against its commercial viability, its consistency with the Land Use Vision for the port, the intent of the relevant precinct, and its ability to adequately meet relevant performance criteria. It will undertake this assessment in its roles as assessment manager for development on its lands and in commenting on proposed development of other land in the Strategy area. 8 31. Section 4.2.7 of the Strategy deals with the Pinkenba precinct, in which the land that the third party sought to develop was located. The statement of intent for this precinct outlines the significance of the precinct, and goes on to outline future possible uses. The final paragraph states: Future development of this precinct should respect the existing residential community at Pinkenba. Appropriate buffering of this area should be provided and higher impact industry development excluded from establishing in the precinct. Where possible, the buffers should offer a recreational opportunity to this community. Alternative road transport connections will also be investigated to reduce the impact of heavy vehicle traffic using Eagle Farm Road. 32. Section 4.2.7 also sets out five specific performance criteria to be applied by the Corporation in assessing development applications relating to land located in its Pinkenba precinct (at p.14): • Development must meet the performance criteria set out in Section 3.4 of this strategy, including those which address environmental impacts, on-site vehicle areas and landscaping [Section 3.4 of the Strategy sets out general 'performance criteria' against which development applications and Corporation land use decisions were to be assessed]; • Development should be port related or require port access; • Alternatively, development will be related to, or demonstrate a synergy with, the adjoining airport operation; • Development is to be established and operated in a manner which manages impacts on the residential area at Pinkenba; and • Traffic generated by development is to be accommodated within the capacity of the road network system. 33. The quoted passages are sufficient to indicate the character of the activity in which the Corporation was engaged in receiving and assessing the third party's development application. While commercial implications of proposed developments were a factor to be taken into account, the Corporation was obliged to take into account a variety of non- commercial factors including compliance with the land use plan approved by the Minister, and several important community-related criteria relevant to the Pinkenba precinct including environmental management, residential amenity and local traffic flows. 34. I find that in receiving, assessing and approving the third party's development application, the Corporation was carrying out a public regulatory activity, not an activity conducted on a commercial basis. I therefore find that the documents in issue are not excluded from the application of the FOI Act by s.11A of the FOI Act and s.486 of the TI Act. 35. It is therefore necessary to consider whether the documents in issue qualify for exemption under s.44(1) or s.45(1)(c) of the FOI Act, as submitted by the third party and the Corporation. 9 Application of s.44(1) of the FOI Act 36. Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. 37. Only the third party raised the application of s.44(1) of the FOI Act to the matter in issue. In her letter to the third party's solicitors dated 13 October 2003, AC Moss referred to the Information Commissioner's leading decision on s.44(1), Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, and stated that the Information Commissioner had made it clear in numerous cases that the words "personal" and "person" in s.44(1) must be construed as referring only to natural persons. Section 44(1) has no application to companies, businesses, clubs or other organisations, which are incapable of having personal affairs as that term is used in s.44(1) of the FOI Act (see Re Stewart at p.237, paragraphs 20-21). 38. The third party did not respond to AC Moss' preliminary view regarding s.44(1) of the FOI Act, but nor did it formally withdraw its claim for exemption under s.44(1). Accordingly, for the sake of completeness, I will simply record my finding that none of the matter in issue qualifies for exemption under s.44(1) of the FOI Act. Application of s.45(1)(c) of the FOI Act 39. Section 45(1)(c) of the FOI Act provides: 45.(1) Matter is exempt matter if-- ... (c) its disclosure-- (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government; unless its disclosure would, on balance, be in the public interest. 40. The correct approach to the interpretation and application of s.45(1)(c) is explained in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 at pp.516-523 (paragraphs 66-88). In summary, matter will be exempt under s.45(1)(c) if: (a) the matter in issue is properly to be characterised as information concerning the business, professional, commercial or financial affairs of an agency or another person (s.45(1)(c)(i)); and 10 (b) disclosure of the matter in issue could reasonably be expected to have either of the prejudicial effects contemplated by s.45(1)(c)(ii), namely: (i) an adverse effect on the business, professional, commercial or financial affairs of the agency or other person, which the information in issue concerns; or (ii) prejudice to the future supply of such information to government; unless disclosure of the matter in issue would, on balance, be in the public interest. s.45(1)(c)(i) 41. The correct approach to the characterisation test required by s.45(1)(c)(i) is explained in Re Cannon at pp.516-520, paragraphs 67-77. The Information Commissioner adopted the confined approach to the construction of the term "concerning the business, ... commercial or financial affairs of ....", which accords with the approach taken by Powell J of the NSW Supreme Court in Wittingslow Amusements Group Pty Ltd v Director-General of the Environment Protection Authority of NSW (Supreme Court of NSW, Equity Division, No. 1963 of 1993, Powell J, 23 April 1993, unreported). The relevant passage from Powell J's decision is reproduced in Re Cannon at p.518, paragraph 72. A similar approach has also been adopted by Victorian judges (see the cases analysed in Re Cannon at pages 517-518, paragraphs 69-71). It is not enough that the matter in issue has some connection with a business, or has been provided to an agency by a business, or will be used by a business in the course of undertaking business operations. The matter in issue must itself be information about business, commercial or financial affairs, in order to satisfy this requirement. 42. The Corporation claims that the documents in issue concern the business, commercial or financial affairs of both itself and the third party. In his letter dated 27 August 2003, the Corporation's CEO stated: Even if the Act did apply to the requested documents then the documents would be exempt pursuant to s.45(1)(c) of the Act as the documents constitute matter, the disclosure of which would disclose information relating to the business and commercial affairs of both the Corporation and the third party which, if disclosed, could reasonably be expected to have an adverse effect on the business and commercial affairs of the Corporation and/or the third party. The documents include references to [the third party's]: (a) storage capacities; (b) settling ponds capacity; (c) procedures for truck washdown; (d) number of deliveries per day; (e) plans for a concrete batching plant; (f) day to day operations; (g) pollution control procedures; (h) site plan. Notably, the applicant ... is a business competitor of [the third party] .... The Corporation's position is supported by the comments of the Queensland Information Commissioner in Cairns Port Authority v Department of Lands (1994) QIC NR 17 (11 August 1994) at paragraphs 8 & 84 where the 11 Information Commissioner found that there was ample evidence to justify a finding that the "Cairns Port Authority is an agency which has 'business or commercial affairs' within the meaning of s.45(1)(c) of the Act". In that case, a lease entered into by the Cairns Port Authority (the CPA) was not an isolated incident for the CPA, but merely one incident of its ordinary or commercial activities, which include entering into leasing arrangements, on commercial terms, in respect of land vested in the CPA. 43. However, as I explained at paragraphs 23-24 above, the documents in issue are not about the negotiation of, and entering into, a commercial lease. They are about the assessment and approval of the third party's development application. The matter in issue consists almost entirely of information about the third party's proposed development of the land and its future operations. While it is clear that a GOC such as the Corporation can have business, commercial or financial affairs within the meaning of s.45(1)(c) of the FOI Act, I am not satisfied that any of the matter in issue in this case can be properly characterised as information concerning the business, commercial or financial affairs of the Corporation. 44. On the other hand, it is clear from my examination of the matter in issue that it concerns the business affairs of the third party, and that s.45(1)(c)(i) is satisfied on that basis. s.45(1)(c)(ii) 45. Neither the Corporation nor the third party sought to rely on the second limb of s.45(1)(c)(ii) (prejudice to the future supply of similar information to government), and in my view there is clearly no reasonable basis for expecting that businesses would not continue to supply the necessary information to support an application for development approval (cf. Re Cannon at p.521, paragraph 85). 46. As regards adverse effect, the Corporation merely asserted that disclosure of the documents in issue could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of the Corporation and/or the third party. It did not identify the particular adverse effect(s) which it contended could reasonably be expected to follow from disclosure of the matter in issue. As I have indicated above, the matter in issue does not concern the business, commercial or financial affairs of the Corporation, and I am satisfied that its disclosure could not reasonably be expected to have an adverse effect on the Corporation's business, commercial or financial affairs (cf. Re Cannon at p.520, paragraph 80). 47. The third party's submissions dated 8 October 2003 merely contained general assertions that disclosure may have an adverse effect on the third party's business. For example, the third party argued that the documents "contain matters relating to the operation of [the third party's] business which are commercially sensitive" and "could reasonably be expected to arm [the applicant] with information which could be utilised by it in such a away as to have an adverse effect on our client's business." The submissions did not identify the specific adverse effect(s) on the third party's business affairs that the third party apprehended, and explain how disclosure of matter in issue could reasonably be expected to lead to those adverse effects. They did not, for example, explain how particular segments of the matter in issue could be used by a competitor in a way that would disadvantage the third party's commercial operations, or give the competitor an unearned competitive advantage. 12 48. When invited by AC Moss to provide further submissions explaining how the matter in issue qualifies for exemption under s.45(1)(c), the third party's solicitors submitted the following arguments (in a letter dated 13 November 2003): Our client operates its business profitably. Our client has had regard to economies, and our client operates a certain number of cement mixing trucks of a certain particular size and makes a certain number of deliveries each day. The Applicant is a competitor of our client, and we are instructed by our client that the Applicant is not an operator of cement mixing trucks of the size operated by our client, and has previously endeavoured to ascertain how our client operates its business profitably. Accordingly, the information contained in the documents that relates to the number of trucks, the capacity of the trucks or the number of trips or traffic movements each day is commercially sensitive information. The disclosure of that information to a competitor will have an adverse effect on our client's business, as it will be information which can be usefully applied in order to enable the Applicant to compete in a particular segment of the market against our client, to the detriment of our client. 49. I should note that the only information contained in the documents in issue that relates to the size of the third party's trucks and the details of the trips they make, is a brief paragraph in the development application which outlines the number of trucks that will operate from the proposed plant, together with the number of anticipated deliveries and total traffic movements to and from the site per day. That information is clearly relevant to the Corporation's assessment of the impact that the proposed development could have on traffic flows, and the amenity of residents, in the Pinkenba precinct. The paragraph makes no reference to the specific size or type of vehicles to be used. If information of this type, i.e., truck size and number of trips per day, were capable of giving a competitor a commercial advantage, the competitor need only have stationed an employee opposite the entrance of the third party's plant to record relevant observations. I am not satisfied that disclosure of information of that kind under the FOI Act could reasonably be expected to have an adverse effect on the third party's business affairs. 50. Neither the Corporation nor the third party have supplied sufficient evidence or explanation to establish a reasonable basis for expecting that disclosure of any other part of the matter in issue could reasonably be expected to have an adverse effect on the third party's business, commercial or financial affairs. The documents relate to a site-specific proposal for the design and construction of a concrete batching plant. The documents are now more than three and a half years old. The third party's application was approved and the batching plant has been constructed and commenced operations. Much of the matter in issue would now be capable of observation by an interested member of the public. I am not satisfied that disclosure of any of the matter in issue could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of the third party. I find that the test for exemption imposed by s.45(1)(c)(ii) is not satisfied, and accordingly I find that the matter in issue does not qualify for exemption under s.45(1)(c) of the FOI Act. 13 Public interest balancing test 51. Given my findings above, it is not strictly necessary for me to consider the public interest balancing test incorporated in s.45(1)(c) of the FOI Act. However, I should note that, in my view, there is a significant public interest in enhancing the accountability of the Corporation for its decision-making in respect of development applications, and in enabling any interested member of the public to understand how the impacts of a proposed development on the community and environment have been assessed, and to be aware of any conditions imposed on the development. It would have been necessary to weigh public interest considerations of that kind against any prejudicial effect that the Corporation or the third party had been able to establish within the terms of s.45(1)(c)(ii). Conclusion 52. For the foregoing reasons, I set aside the decision under review (being the decision dated 5 August 2003 made by Mr Coleman on behalf of the Corporation). In substitution for it, I decide that: (a) the documents in issue are not excluded from the application of the FOI Act by s.11A of the FOI Act and s.486 of the TI Act; and (b) those documents do not qualify for exemption from disclosure under s.44(1) or s.45(1)(c) of the FOI Act, and the applicant is therefore entitled to be given access to those documents under the FOI Act. 53. I have made this decision as a delegate of the Information Commissioner's powers, under s.90 of the FOI Act. ......................................................... G J SORENSEN DEPUTY INFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Y63 and Department of Health [2022] QICmr 3 (21 January 2022)

Y63 and Department of Health [2022] QICmr 3 (21 January 2022) Last Updated: 30 August 2022 Decision and Reasons for Decision Citation: Y63 and Department of Health [2022] QICmr 3 (21 January 2022) Application Number: 316157 Applicant: Y63 Respondent: Department of Health Decision Date: 21 January 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - ACCESS APPLICATION - evidence of identity - whether electronic provision of uncertified documents is sufficient for evidence of identity - whether application does not comply with all relevant application requirements - section 24(3)(a) and section 33 of the Right to Information Act 2009 (Qld) and section 16 of the Electronic Transactions Act (Queensland) Act 2001 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of Health (Queensland Health) under the Right to Information Act 2009 (Qld) (RTI Act) for access to his medical records, for the period of February 2021 to May 2021. Queensland Health advised[2] the applicant that his application did not comply with all the statutory requirements for applications as acceptable evidence of his identity had not been provided. Queensland Health also advised the applicant that if the requested information was not provided by the due date, Queensland Health would refuse to deal with the application on the basis that it did not comply with all relevant application requirements. The applicant offered[3] to provide Queensland Health with a ‘digital copy of the original’ of his evidence of identity, stating that it ‘is entirely impossible to provide a certified true copy via email as it is no longer a certified copy once scanned and becomes digital’[4]. Queensland Health decided[5] to refuse to deal with the access application under section 33(6) of the RTI Act on the ground it did not comply with all relevant application requirements.[6] The applicant applied[7] to the Office of the Information Commissioner (OIC) for external review of Queensland Health’s decision refusing to deal with the access application. For the reasons set out below, I affirm Queensland Health’s decision and find that it was entitled to refuse to deal with the access application under section 33(6) of the RTI Act on the ground that it did not comply with all relevant application requirements. Reviewable decision The decision under review is Queensland Health’s decision dated 14 June 2021. Background and evidence considered Significant procedural steps taken during the external review are set out in the Appendix. In reaching my decision, I have had regard to the submissions, evidence, legislation, and other material referred to throughout these reasons (including footnotes and Appendix). I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[8] I consider a decision maker will be ‘respecting’ and ‘acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the RTI Act.[9] I have acted in this way in making this decision.[10] I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[11] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[12] Issue for determination The issue for determination is whether Queensland Health was entitled to refuse to deal with the access application under section 33(6) of the RTI Act on the ground that it did not comply with all relevant application requirements. During the review, lengthy conversations occurred around different ways in which this matter may be resolved.[13] This resulted in further disagreement between the applicant and Queensland Health as to appropriate ways the applicant could provide evidence of his identity to Queensland Health. OIC asked Queensland Health[14] whether it would be prepared to accept evidence of identity from the applicant via a video call. Queensland Health accepted this proposal. The proposal was then conveyed[15] to the applicant and the applicant indicated that he was open to the idea of providing evidence of identity to Queensland Health via a Microsoft Teams video meeting. However, the applicant subsequently sought for this matter to be finalised by written decision.[16] This decision does not address the concerns or questions raised by the applicant during OIC’s attempts to informally resolve this matter. As this matter was not informally resolved, this decision considers the formal requirements set out in the RTI Act before an agency may refuse to deal with an application on the basis of noncompliance. It remains open to the applicant and Queensland Health to negotiate the terms of the provision of evidence of his identity for future applications. For example, the applicant and Queensland Health may now explore the option of providing identity documents via video meeting. Relevant law If an access application seeks access to a document containing the personal information of the applicant, the applicant must provide evidence of their identity with the application or within 10 business days after making the application.[17] Evidence of identity means a document verifying the person’s identity, for example, a passport, copy of a certificate or extract from a register of births, driver licence, or a statutory declaration from an individual who has known the person for at least 1 year.[18] If a document is a photocopy of an original document, the document must be certified by a qualified witness[19] as being a correct copy of the original document.[20] If a person purports to make an access application and the application does not comply with all relevant application requirements, the agency must:[21] make reasonable efforts to contact the person within 15 business days after the purported application is received inform the person how the application does not comply with the relevant application requirement; and give the applicant a reasonable opportunity to consult with a view to making the application in a form complying with all relevant application requirements. If, after giving the applicant a reasonable opportunity to consult with a view to making the application in a form complying with all relevant application requirements, the agency then decides that the application does not comply with all such requirements, the agency must give the applicant prescribed written notice of the decision.[22] Findings Queensland Health notified[23] the applicant that the access application was noncompliant with the application requirements and requested that he provide an ‘original certified true copy’ of his evidence of identity by email. In response, the applicant stated:[24] It is entirely impossible to provide a certified true copy via email as it is no longer a certified copy once scanned and becomes digital...A JP certifies a copy as a "true copy of the original" - This true copy cannot be scanned or duplicated – Its [sic] the same as an original. In response, Queensland Health advised the applicant[25] that provision of his certified identification is a requirement under the RTI Regulation and provided the applicant with the following options to provide his evidence of identity: Provide an original identification document to either Department of Health or RBWH so that the original document can be viewed (I note ... that this may not be possible for you). If this is the best option, I can provide you with physical location details. Provide a scanned copy of your identification, certified by a qualified witness as being a correct copy of the original document via email ... Provide a photocopy of your identification, certified by a qualified witness as being a correct copy of the original document via mail... Noting you are seeking access to information from the RTI Office at the RBWH, if you have previously provided identification documents to them, we could ask them to confirm if they will accept your new application on the basis that they have previously identified you at their office. I can provide you with a formal decision, refusing to deal with your application on the basis that it does not meet the compliance requirements of the RTI or IP Acts. This will enable you to seek formal review of the decision to the Queensland Office of the Information Commissioner. Ultimately, the applicant did not provide any evidence of his identity consistent with one of the methods outlined above and Queensland Health decided that the access application did not comply with the application requirements and issued the decision which is the subject of this review. [26] In his application for external review, the applicant stated:[27] [Queensland Health] has refused my application because I have been unable to provide an invalid legal document (A scanned copy of a Certified Copy). [Queensland Health] has not accepted my provision of a Scanned copy of an Original Document despite it being equally valid (if not more valid) than a Certified Copy. Section 16 of the Electronic Transactions (Queensland) Act 2001 (Qld) (ETA) provides that if, under a State law, a person is required to produce a document that is in the form of paper, an article or other material, the requirement is taken to have been met if the person produces, by an electronic communication, an electronic form of the document in the following circumstances: having regard to all the relevant circumstances when the communication was sent, the method of generating the electronic form of the document provided a reliable way of maintaining the integrity of the information contained in the document[28] when the communication was sent, it was reasonable to expect the information contained in the electronic form of the document would be readily accessible so as to be useable for subsequent reference; and the person to whom the document is required to be produced consents to the production, by an electronic communication, of an electronic form of the document.[29] Based on this provision, I am satisfied that a decision-maker has the discretion to decide whether to accept evidence of identity electronically when considering access applications under the RTI Act. While the applicant submits that a scanned copy of a certified copy is an ‘invalid legal document’, it is unnecessary for me to determine this issue. The only issue I must consider is whether the access application complies with the relevant application requirements, and I am satisfied that it does not. There is no evidence before me to indicate that the applicant provided evidence of his identity, in any form, with the access application. On external review the applicant has disputed the way in which Queensland Health suggested he could provide his evidence of identity. The applicant is seeking to contest Queensland Health’s requirement that he provide a certified copy of his evidence of identity if he seeks to provide it electronically. I am satisfied that Queensland Health is entitled to request the evidence of identity to be provided in this way pursuant to the section 16 of the ETA as outlined above. Queensland Health did not consent to the applicant’s offer to provide copies of uncertified evidence of identity electronically as a method of verifying a person’s identity under the RTI Act.[30] As such, I find that: Queensland Health consulted with the applicant about how to make his application compliant as required by section 33(2) and (3) of the RTI Act; there is no evidence before me that the applicant provided Queensland Health with evidence of his identity following this consultation; and Queensland Health was therefore entitled to decide that the access application does not comply with the relevant application requirements and refuse to deal with the application under section 33(6) of the RTI Act. DECISION For the reasons set out above, I affirm the decision under review and find that Queensland Health was entitled to refuse to deal with the access application under section 33(6) of the RTI Act on the basis that it does not comply with the relevant application requirements contained in section 24 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Shiv MartinAssistant Information Commissioner Date: 21 January 2022APPENDIX Significant procedural steps Date Event 23 June 2021 OIC received the applicant’s application for external review. OIC advised Queensland Health that the application for external review had been received and requested procedural documents. 24 June 2021 OIC advised the applicant that the application for external review had been received. 15 July 2021 OIC received the requested procedural documents from Queensland Health. 30 July 2021 OIC advised the applicant and Queensland Health that the application for external review had been accepted. 9 September 2021 OIC conveyed a written preliminary view to the applicant. 10 September 2021 OIC received an emailed submission from the applicant. 28 September 2021 OIC wrote to the applicant about his external review. 7 October 2021 OIC received an emailed submission from the applicant. OIC discussed informal resolution options with external review participants, namely allowing the applicant to provide evidence of identity to be sighted via a video meeting. Queensland Health agreed for a Microsoft Teams meeting to be arranged by OIC to facilitate this. 12 October 2021 OIC had a phone conversation with the applicant and asked whether he would be willing to resolve the review if Queensland Health could sight his evidence of identity via a video meeting. The applicant was agreeable to a Microsoft Team meeting being arranged. OIC subsequently wrote to the applicant about his external review. 13 October 2021 OIC received two emailed submissions from the applicant. 14 October 2021 OIC had a phone call with applicant who advised he wanted the matter to proceed to a formal decision. OIC advised applicant that the informal resolution negotiations would conclude on that basis. 5 November 2021 OIC received an emailed submission from the applicant. 9 November 2021 OIC wrote to the applicant about his external review. OIC received an emailed submission from the applicant. [1] Access application dated 13 May 2021.[2] By email dated 19 May 2021.[3] By email dated 19 May 2021.[4] Applicant’s emphasis.[5] Decision dated 14 June 2021.[6] In the decision, Queensland Health also noted that as the applicant was seeking information of a personal nature only, the application could have instead been processed under the Information Privacy Act 2009 (Qld) (IP Act) and, therefore, the application fee would be refunded.[7] On 23 June 2021.[8] Section 21 of the HR Act.[9] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[10] In accordance with section 58(1) of the HR Act.[11] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [12] XYZ at [573].[13] Section 90(1) of the RTI Act provides that the Information Commissioner must identify opportunities and processes for early resolution of the external review application and promote settlement of the external review application.[14] On 7 October 2021 during a telephone call with an OIC officer.[15] On 12 October 2021 during a telephone call with an OIC officer and confirmed in writing on the same date.[16] Emails to OIC dated 13 October 2021 and telephone call with an OIC officer on 14 October 2021. [17] Section 24(3)(a) of the RTI Act. [18] Section 3(1) of the Right to Information Regulation 2009 (Qld) (RTI Regulation) which contains a non-exhaustive list of documents which may be relied on when establishing evidence of identity. [19] A qualified witness means a lawyer, notary public, commissioner for declarations, or a justice of the peace – section 3(3) of the RTI Regulation.[20] Section 3(2) of the RTI Regulation.[21] Section 33(2) and (3) of the RTI Act. [22] Section 33(6) of the RTI Act. [23] Email to the applicant dated 19 May 2021.[24] Email to Queensland Health dated 19 May 2021. Applicant’s emphasis.[25] By email dated 2 June 2021.[26] Queensland Health advised OIC on 21 July 2021 that it had requested the applicant provide the required evidence of identity to which he then offered to provide a scanned copy of the original identity, however, no documents were received for further consideration. The procedural documents provided by Queensland Health and decision give no indication that there was ever any form of identity received from the application (certified or uncertified). The applicant has also not sought to argue that any such evidence of identity had been provided in the course of the external review.[27] Application for external review dated 23 June 2021.[28] Section 16(3) of the ETA provides that the integrity of information contained in a document is maintained only if the information has remained complete and unaltered, apart from the addition of any endorsement or any immaterial change arising in the normal course of communication, storage or display.[29] My emphasis.[30] As this was not an option outlined to the applicant in the notice of noncompliance. Queensland Health has the discretion to make that decision as per the ETA.

queensland

court_judgement

Queensland Information Commissioner 1993-

L85 and Department of Child Safety, Seniors and Disability Services [2023] QICmr 21 (29 May 2023)

L85 and Department of Child Safety, Seniors and Disability Services [2023] QICmr 21 (29 May 2023) Last Updated: 21 September 2023 Decision and Reasons for Decision Citation: L85 and Department of Child Safety, Seniors and Disability Services [2023] QICmr 21 (29 May 2023) Application Number: 316901 Applicant: L85 Respondent: Department of Child Safety, Seniors and Disability Services Decision Date: 29 May 2023 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – CONTRARY TO CHILD’S BEST INTERESTS – application on behalf of child for electronic child safety documents relating to that child – whether disclosure would not be in the child’s best interests – section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(c) and 50 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary A parent applied[1] on behalf of their child to the Department of Children, Youth Justice and Multicultural Affairs (Department)[2] under the Information Privacy Act 2009 (Qld) (IP Act) for access to electronic child safety documents relating to that child (applicant).[3] The Department located 65 pages and decided to refuse access to the entirety of those pages on the ground that disclosure would be contrary to the child’s best interests.[4] The parent applied on behalf of the child to the Office of the Information Commissioner (OIC) for external review of the Department’s decision.[5] For the reasons set out below, I affirm the Department’s decision refusing access to the information on the ground that disclosure would be contrary to the child’s best interests. Background Significant procedural steps in this external review are set out in the Appendix. Reviewable decision The decision under review is the Department’s decision dated 2 September 2022. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching this decision are referred to in these reasons (including the footnotes and Appendix). I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the rights to seek and receive information, privacy and the protection of families and children.[6] I consider a decision-maker will be ‘respecting, and acting compatibly with’ those rights, and others prescribed in the HR Act, when applying the law prescribed in the IP Act and the Right to Information Act 2009 (Qld) (RTI Act).[7] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between similar pieces of Victorian legislation[8] that ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[9] Information in issue The information in issue comprises 65 pages of information relating to the applicant in this matter, gathered by the Department while exercising its child safety functions (Information in Issue).[10] Issue for determination The issue for determination is whether disclosure of the Information in Issue would be contrary to the child’s best interests.[11] Relevant law Under the IP Act, an individual has a right to be given access to documents to the extent they contain the individual’s personal information.[12] However, this right is subject to the provisions of the IP Act and the RTI Act.[13] Relevantly, an agency may refuse access where: a) information is sought under an application made by or for a child b) the information sought comprises the child’s personal information; and disclosure of that information would not be in the child’s best interests.[14] Personal information is defined as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[15] The principle ‘best interests of the child’ is set out in the United Nations Convention on the Rights of the Child (1989) (Convention),[16] and has since been applied in Australia in a number of legal contexts, particularly in family law and administrative law. The IP Act and RTI Act provide limited guidance as to what factors are to be considered in deciding whether disclosure of information would not be in the child’s best interests.[17] In FLK v Information Commissioner[18] (FLK) Judicial Member McGill made the following general observations regarding this ground for refusing access: ... The question of whether disclosure of the information would or would not be in the best interests of the child is I consider under s 50(2) to be decided objectively, by reference to identifiable objective factors either advancing or damaging the interests of the child. Subsection (3), which applies where an access application has been made by a child personally, shows that the opinion of the child is not to be conclusive as to where the best interests of the child lie. That is consistent with the proposition that the test under subsection (2) is an objective one. Courts have also recognised that ‘best interests’ is a multi-faceted test and incorporates the wellbeing of the child, all factors which will affect the future of the child, the happiness of the child, immediate welfare as well as matters relevant to the child’s healthy development. The concept includes not only material wealth or advantage but also emotional, spiritual and mental wellbeing.[19] In Re Bradford and Director of Family Services; Commissioner, Australian Federal Police’[20] the applicant sought access under the Freedom of Information Act 1982 (Cth) to various documents about herself and her four children that were held by the Director of Family Services. In that case, President Curtis noted that where there are child protection issues, disclosure may undermine the relationship between the child and the agency charged with the protection of children and as such may not be in the child’s best interests.[21] Similarly, the Information Commissioner has also previously recognised that it would not be in a child’s best interests to disclose information where that disclosure may impact the child’s trust in a child protection agency, or which may result in damage to the relationship between the child and the agency.[22] A child’s right to privacy is also recognised in the Convention. Australian courts accept that children reach varying levels of autonomy and independence prior to turning 18 and that a right to privacy, whilst generally low for a young child in relation to their parent, will strengthen as the child’s understanding and maturity grows.[23] Findings In this case, I am satisfied that the information is sought under an application made for a child and that the Information in Issue comprises the child’s personal information. Contrary to the child’s best interests In determining whether disclosure of the Information in Issue would not be in the best interests of the child, I have carefully considered the material before OIC, including the contents of the Information in Issue and the following information received from the parent on behalf of the child applicant: submissions[24] Family Court Consent Orders;[25] and a Therapeutic Progress Report addressed to the parent completed by an Accredited Mental Health Social Worker and Psychotherapist (Report).[26] I acknowledge that the parent on behalf of the child applicant has raised concerns that the Information in Issue may contain erroneous, inaccurate and fraudulent information detrimental to the child’s best interests. I also note that the parent has stated compelling reasons for seeking access to the Information in Issue, including genuine concern for the child’s wellbeing and a belief that the Information in Issue will enable the parent to address matters of concern and expedite the improvement of the child’s circumstances. In relation to the Family Court Consent Orders, the parent has submitted that:[27] ... I draw your attention specifically to Order ... of those Orders Information Sharing and Authorities which expressly grants me leave and entitlement to ....access at my request any and all information in relation to the welfare of my [child].... Further, the Order expressly details that ....the Order constitutes and is thereby deemed to be sufficient authority to access such information..... This Order was to ensure that there be no impediment to access such information in order for the processes of due disclosure and discovery to take place to ensure that informed decisions can be made in the best interests of my [child]. 3/ I have since the publishing of the Court Order been assessed and designated ‘Primary Carer’ statist with respect to my [child]. As such, I have a legal right and parental obligation to access any and all information with respect to my [child] that will enable me, and such Child Safety Specialists that I engage, to make informed decisions on [the child’s] behalf in [the child’s] best interests. These submissions refer to the entitlement of the parent – not the child applicant – to receive information relating to the child’s health, education and welfare under the Family Court Consent Orders. Regardless, neither the Consent Orders, nor any subsequent change to carer arrangements, afford the child (or indeed the parent if the parent were the applicant) any special rights – ie any exemption from or right to override the provisions in the IP Act and the RTI Act. Just as children and parents who are not subject to such Consent Orders may have their access to documents limited by provisions in the IP Act and the RTI Act, if applicable, so too may the child and parent in this review. The parent also submitted that:[28] As my [child’s parent and] Primary Carer and as an individual I have a legal right to due, fair and proper process. That includes the legal process and function of disclosure and discovery, in order to defend myself against false and erroneous allegations that may impede my ability to provide for and protect my [child] and [their] best interests and/or that may leave [them] vulnerable to the potential of neglect and harm of other parties. However, an access application under the IP Act (or RTI Act) is entirely separate to, and independent of, any court proceedings in which disclosure and discovery processes may be utilised. Further, the right to procedural fairness does not extend to pre-empting future anticipated or hypothetical decisions in the manner the parent contemplates. The submission at paragraph 24 above may arguably be construed as contending, in a more general sense, that it is in the child’s interests to give the parent the opportunity to identify and address what the parent considers to be false allegations, so as to prevent the parent’s ability to act in the child’s best interests from being impeded. To this extent, and to the extent the parent generally submits that it is in the child’s best interests that the Information in Issue be disclosed, I acknowledge that the material before me indicates that the parent cares very greatly for the child and is motivated to advocate for and ensure their protection. However, I also note concerns such as those noted in the Report received from the parent on behalf of the child applicant – eg observations that the child: ‘is concerned about repercussions with regards to [their] disclosures being shared’; and ‘is very sensitive to the ongoing conflictual parental relationship stating that this also causes [them] significant stress’. The parent has submitted that these concerns relate to the child’s other parent, not them.[29] Within the context of the matters discussed in the Report, I accept that this may be so, particularly with respect to the first observation about repercussions. However, having had the benefit of considering the matters recorded in the Information in Issue, I am content to make a finding of fact that these observations relate to the parental relationship and therefore to both parents. I am unable to make further comment in this regard, as doing so would inevitably reveal information appearing in the Information in Issue and thereby subvert the very purpose of the external review. However, having carefully considered the contents of the Information in Issue, including notifications, interviews and assessments, I consider it appropriate to conclude that the above observations comprise ‘identifiable objective factors ... damaging the interests of the child’ (to quote FLK). I further note, from the child’s age, that the child’s privacy and ability to control the personal information provided by them to the Department is a somewhat low, but gradually increasing, consideration. The parent has submitted that their numerous previous applications, with respect to their child’s child safety file, have never previously been refused and that, accordingly, they have accessed many years of documents.[30] This has no bearing on the present review. My role in conducting a merits review is to ‘step into the shoes’ of the primary decision-maker, consider matters relating to the agency’s decision afresh and determine the correct and preferable decision.[31] In this case, while the child is taken to be the applicant,[32] the practical effect of disclosure would be that the Information in Issue would be released to the parent on behalf of the child applicant. Taking this into account, and in the context of the parental conflict identified in the Report referred to above and the matters noted in the notifications, interviews and assessments in the Information in Issue, as well as the Department’s awareness of and involvement with the child over a number of years, I consider that disclosure of the Information in Issue could impact the child’s willingness to speak freely with the Department in the future, should that be required, out of fear that any information disclosed may be shared. This in turn could prejudice the Department’s ability to perform its child protection functions, and I consider the reasons the parent has identified as to why disclosure would be in the child’s best interests are not sufficient to overcome this potential consequence of disclosure. I am therefore satisfied that disclosure of the Information in Issue would not be in the child’s best interests.[33]DECISION For the reasons set out above, I affirm the Department’s decision to refuse access to the Information in Issue on the ground that disclosure would be contrary to the child’s best interests.[34] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.A RickardAssistant Information Commissioner Date: 29 May 2023 APPENDIX Significant procedural steps Date Event 13 September 2022 OIC received the application for external review. OIC requested preliminary documents from the Department. OIC received the preliminary documents requested from the Department. 17 October 2022 OIC advised the Department and the parent on behalf of the child applicant that the external review application had been accepted. OIC requested the Information in Issue from the Department. 19 October 2022 OIC received the Information in Issue from the Department. 8 December 2022 The parent on behalf of the child applicant requested that the date range of the access application be extended. 9 December 2022 OIC advised the parent on behalf of the child applicant that the date range of the access application could not be extended on external review. 6 January 2023 OIC conveyed a preliminary view to the parent on behalf of the child applicant. 9 January 2023 The parent on behalf of the child applicant provided submissions contesting OIC’s preliminary view. [1] Access application dated 21 July 2022, compliant on 9 August 2022. [2] Following a machinery of government change on 18 May 2023, the agency currently responsible for this external review is the Department of Child Safety, Seniors and Disability Services.[3] Where an application is made on behalf of a child, the applicant is taken to be the child rather than the parent – see section 45(1) of the IP Act and the definition of ‘applicant’ in schedule 5 of the IP Act.[4] Decision dated 2 September 2022. [5] External review application dated 13 September 2022. [6] Sections 21, 25 and 26 of the HR Act. [7] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. I further note that OIC’s approach to the HR Act set out in this paragraph was considered and endorsed by the Queensland Civil and Administrative Tribunal in Lawrence v Queensland Police Service [2022] QCATA 134 at [23] (where Judicial Member McGill saw ‘no reason to differ’ from our position).[8] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [9] XYZ at [573].[10] On 9 December 2022, in response to a request from the parent on behalf of the child applicant that the date range specified in the access application be extended, OIC advised that section 47 of the IP Act provides that an access application is taken only to apply to documents that are in existence on the day that an application is received. [11] Under section 47(3)(c) and 50 of the RTI Act. [12] Section 40 of the IP Act.[13] Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent it could refuse access to the document under section 47 of the RTI Act were the document to be the subject of an access application under that Act.[14] Sections 47(3)(c) and 50 of the RTI Act.[15] Section 12 of the IP Act.[16] Ratified by Australia in December 1990. The Convention provides that the best interests of the child shall be a ‘primary consideration’ in all actions concerning children and ‘a child means every human being below the age of eighteen years’.[17] Noting that section 50(3) of the RTI Act sets out that an agency must have regard to whether the child has the capacity to understand the information and the context in which it was recorded and make a mature judgement as to what might be in his or her best interests, unless the access application was made for the child, as is the case in this review. [18] [2021] QCATA 46 at [8].[19] United Nations Committee on the Rights of the Child, General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, available at <https://digitallibrary.un.org/record/ 778523?ln=en> at I.A.5; see also Q95 and Legal Aid Queensland [2019] QICmr 38 (6 September 2019) at [48]. [20] (1998) 52 ALD 455 (Re Bradford).[21] Re Bradford at 458-459.[22] 2YSV6N and the Department of Communities, Child Safety and Disability Services [2014] QICmr 25 (5 June 2014) at [45].[23] Marion’s case (Secretary, Department of Health and Community Services v JWB and another [1992] HCA 15; (1992) 175 CLR 218 at [19] referring to Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] 1 AC 112; see also AZ4Z4W and the Department of Communities, Child Safety and Disability Services [2014] QICmr 26 (5 June 2014) at [34].[24] Including in the external review application dated 13 September 2022, and email submissions dated 9 January 2023.[25] Dated 25 September 2020. [26] Dated 15 November 2022. [27] Email dated 9 January 2023.[28] Email dated 9 January 2023.[29] Email dated 9 January 2023, which states ‘It is important to note that the report clearly identifies [the child’s] concerns with regards to [their] disclosures being shared being expressly focussed towards and in relation to [their other parent and that parent’s partner]. There is no mention of me in that regard what so ever. [The child] is on record as having no concern with regards to my knowledge of [their] circumstances, especially given that I appear to be the only individual doing anything about improving them’; and ‘It is important to note that the reported conflict is in direct relation to the reactive distress and frustration with respect to the persistent serious mistreatment issues reported by [the child] within [the child’s other parent’s] household and [the child’s other parent’s] failure to accept, address and mitigate same, coupled with the failure of third parties and organisations whose responsibilities it is to support and protect [the child], and myself’. [30] Email dated 9 January 2023.[31] Section 118(1)(b) of the IP Act.[32] Section 45 of the IP Act.[33] Given the application of this ground of refusal, it has been unnecessary for me to address other grounds of refusal – however, I observe that much of the Information in Issue, except for information comprising ‘only personal information of the [child[ applicant’, could also be refused on the ground it was exempt information under section 47(3)(a) and schedule 3, section 12(1) of the RTI Act, on the basis that disclosure is prohibited by section 186 to 188 of the Child Protection Act 1999 (Qld). [34] Section 67(1) of the IP Act and sections 47(3)(c) and 50 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

O96 and Ergon Energy Queensland Pty Ltd [2019] QICmr 32 (26 August 2019)

O96 and Ergon Energy Queensland Pty Ltd [2019] QICmr 32 (26 August 2019) Last Updated: 17 September 2019 Decision and Reasons for Decision Citation: O96 and Ergon Energy Queensland Pty Ltd [2019] QICmr 32 (26 August 2019) Application Number: 314303 Applicant: O96 Respondent: Ergon Energy Queensland Pty Ltd (ABN 11 121 177 802) Decision Date: 26 August 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO PROCESS APPLICATION FOR NON-PAYMENT OF APPLICATION FEE - application for non-personal information - application not accompanied by application fee - whether application valid - section 24 and section 33 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to Ergon Energy Queensland Pty Ltd (Ergon) for access to billing information relating to a neighbouring property.[1] By letter dated 29 August 2018, Ergon sought to clarify certain aspects of the applicant’s request. It advised the applicant that if he was seeking access to his personal information or was seeking access on another person’s behalf, his application would be processed under the Information Privacy Act 2009 (Qld) (IP Act) for which no application fee was payable, but evidence of identity was required. If he was seeking to obtain access to information that was not his personal information, his request would be processed under the Right to Information Act 2009 (Qld) (RTI Act) which attracted an application fee of $49.70.[2] Ergon noted that the applicant had indicated in his application form that he was not applying for documents that contained his personal information.[3] It asked the applicant to confirm whether or not he wished to proceed with his application by contacting its accounts team to pay the application fee. The applicant responded by letter dated 7 September 2018[4] in which he referred to the RTI Act’s pro-disclosure bias and to the fact that government is under an obligation to proactively push information into the public domain rather than requiring formal access applications to be made. The applicant considered this meant that Ergon should ‘dispense with formalities’ and promptly release the information he sought. In respect of payment of an application fee, he considered that Ergon had failed to properly consult with him as required under section 33 of the RTI Act and he sought a written statement of reasons under the Judicial Review Act 1991 (Qld). By letter dated 21 September 2018, Ergon advised the applicant that his application sought access to non-personal information and was therefore made under the RTI Act. Ergon stated it considered his application was invalid because it was not accompanied by payment of an application fee and that Ergon was therefore considering refusing to process it. Ergon noted that, under section 33 of the RTI Act, it must not refuse to deal with an application without consulting with the applicant and giving the applicant an opportunity to make a compliant application. Ergon invited the applicant to contact its accounts team to pay the application fee. The applicant responded by letter dated 25 September 2018[5] complaining that Ergon’s letter dated 21 September 2018 did not comply with section 33 of the RTI Act because it was not issued within the requisite 15 day time period. He stated that he regarded Ergon’s letter dated 21 September 2018 as ‘dismissed’, and that he required it to be ‘removed from the record’. He requested a prompt, full and comprehensive written statement of reasons in response to his letter dated 7 September 2018. By letter dated 16 November 2018, and pursuant to section 33(6) of the RTI Act, Ergon advised the applicant that it had decided that his application was not valid because it did not comply with all relevant application requirements (specifically, payment of the application fee required under section 24(2)(a)), and that it therefore refused to process it. By letter dated 23 November 2018,[6] the applicant applied to this Office (OIC) for external review of Ergon’s decision. I am satisfied from the terms of the purported access application that the applicant sought access to information that was not his personal information within the meaning of section 12 of the IP Act, and that his application was therefore required to be made under the RTI Act. For the reasons given below, I affirm Ergon’s decision made under section 33(6) of the RTI Act that the applicant’s purported application does not comply with the relevant application requirement contained in section 24(2)(a) of the RTI Act in that he did not pay the application fee required under section 24(2)(a) and prescribed by section 4 of the Right to Information Regulation 2009 (Qld) (RTI Regulation). Ergon was therefore not required to process the applicant’s access request. Reviewable decision The decision under review is Ergon’s decision dated 16 November 2018 made under section 33(6) of the RTI Act that the applicant’s access request dated 8 August 2018 did not comply with all relevant application requirements. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and the appendix). The applicant has made multiple, lengthy, handwritten submissions during the review.[7] Those submissions are sometimes difficult to understand, and often discuss matters that are not relevant to the issue for determination. The applicant has complained throughout the review process that neither Ergon nor OIC has properly taken his submissions into account. I will summarise and respond to the applicant’s submissions further below. Issue for determination The applicant does not dispute that his application seeks access to information that is not his personal information and is therefore made under the RTI Act. The only issue for determination, therefore, is whether the applicant’s purported application is invalid because it does not comply with a relevant application requirement under section 24(2)(a) of the RTI Act, namely, payment of the prescribed application fee. Relevant law Section 24 of the RTI Act relevantly provides: 24 Making access application (1) A person who wishes to be given access to a document of an agency or a document of a Minister under this Act may apply to the agency or Minister for access to the document. (2) The application must – (a) be in the approved form and be accompanied by the application fee; and (b) give sufficient information concerning the document to enable a responsible officer of the agency or the Minister to identify the document; and (c) state an address to which notices under this Act may be sent to the applicant; and (d) state whether access to the document is sought for the benefit of, or use of the document by – (i) the applicant; or (ii) another entity; and (e) if access to the document is sought for the benefit of, or use of the document by, an entity other than the applicant – the name of the other entity. (3) ... (4) The application fee mentioned in subsection (2)(a) may not be waived. (5) ... .[emphasis added] Section 33 of the RTI Act provides: 33 Noncompliance with application requirement (1) This section applies if – (a) a person purports to make an access application for a document to an agency or Minister; and (b) the application does not comply with all relevant application requirements. (2) The agency must make reasonable efforts to contact the person within 15 business days after the purported application is received and inform the person how the application does not comply with a relevant application requirement. (3) An agency or Minister must not refuse to deal with an application because it does not comply with all relevant application requirements without first giving the applicant a reasonable opportunity to consult with a view to making an application in a form complying with all relevant application requirements. (4) The applicant is taken to have made an application under this Act if and when the application is made in a form complying with all relevant requirements. (5) ... (6) If, after giving the opportunity mentioned in subsection (3) and any consultation, an agency or Minister decides the application does not comply with all relevant application requirements, the agency or Minister must, within 10 business days after making the decision, give the applicant prescribed written notice of the decision. (7) In this section – relevant application requirement, for an access application, means a matter set out in section 24(2) or (3) that is required for the application. The applicant’s submissions In the interest of brevity, and as best as I am able to distil them from his voluminous submissions, the applicant’s arguments can be summarised as follows: (a) Ergon failed to comply with the requirements of section 33 of the RTI Act and is therefore estopped from making a decision under section 33 (b) the applicant holds a reasonable apprehension of bias because the Assistant Information Commissioner expressed a preliminary view during the course of the review that Ergon’s decision was correct; and because he regarded the Assistant Information Commissioner’s preliminary advice – that a formal decision that named him would be required if the matter was unable to resolved informally – as a threat (c) the previous Freedom of Information Act 1992 (Qld) (repealed) (repealed FOI Act) had the objective of providing access to information at little or no cost, and this, together with the fact that the IP Act does not require payment of an application fee, as well as the proper application of the purposive test in statutory interpretation, means that Parliament’s attempt to impose a mandatory requirement to pay a fee under the RTI Act is an ‘impermissible abuse of legislative power’ and contrary to the ‘true spirit of the purposes of the overall legislative scheme’[8] (d) the failure to pay an application fee does not invalidate an application: a would-be applicant, who has made some attempt to lodge a request in writing under the Act, is taken to be an applicant, in fact, with an application ... so lodged[9] (e) the processing period under section 18 of the RTI Act was enlivened when Ergon received his access application and Ergon should be taken to have made a deemed decision under section 46 refusing access: therefore, the decision to be reviewed by OIC is a deemed refusal of access (f) the matter can be resolved outside the formal processes of the RTI Act; and (g) OIC has failed to pay regard to the ‘pro-disclosure bias’ principle in the RTI Act. Discussion I will respond in turn to each of the submissions above.(a) Section 33 of the RTI Act Section 33 is set out above. I consider that Ergon’s letter to the applicant dated 29 August 2018 complied with section 33(2) of the RTI Act in that it advised the applicant within 15 days of the receipt of his purported application that a request to access to non-personal information required payment of a $49.70 application fee. Ergon invited the applicant to contact its accounts division to pay the fee if he wished to proceed. I do not accept the applicant’s contention that the letter was invalid because it did not state that it was being provided under section 33. There is no such requirement in section 33(2). The provision simply states that an agency must make reasonable efforts to contact the relevant person within 15 days after receipt of the access request to inform them how the application does not comply with a relevant application requirement. Ergon’s letter dated 21 September 2018 complied with section 33(3) of the RTI Act in that it informed the applicant that it had formed the view that his request was a request for access to non-personal information made under the RTI Act and was not valid because it was not accompanied by payment of the application fee as required by section 24(2) of the RTI Act. The letter cited section 33(3) and stated that Ergon could not refuse to deal with the applicant’s application until it had given him a reasonable opportunity to consult with it with a view to making a compliant application. Ergon invited the applicant to contact its accounts team to pay the application fee in order to make his application compliant, and to otherwise contact its Corporate Governance Manager if he had any questions or required further information. The applicant responded by letter dated 25 September 2018, but did not pay the application fee. Ergon proceeded to give a decision under section 33(6) of the RTI Act that the purported application did not comply with all relevant application requirements. There is nothing before me to establish that Ergon did not give written notice of that decision within 10 business days after making it. I am therefore satisfied that Ergon complied with the requirements of section 33. The applicant was clearly consulted about the ground upon which Ergon considered his application was non-compliant and was given an opportunity to make the application in a compliant form. The applicant complains that Ergon failed to respond to him on the points he raised in his letter dated 25 September 2018 before giving its decision. He regards this as a failure to properly ‘consult’ with him within the meaning of section 33(3). I do not accept this. As I have noted, the applicant’s submissions are convoluted and often difficult to follow. He raised a wide range of issues in his correspondence with Ergon, including a lengthy discussion about the requirements of section 33, the principles of statutory interpretation, as well as the ‘push model’ of releasing information without the need for a formal application, and the RTI Act’s pro-disclosure bias. He has made many of the same submissions in his correspondence with OIC. I do not accept that Ergon’s failure to discuss the issues raised in the applicant’s letter dated 25 September 2018 constitutes a failure to consult within the meaning of section 33. Section 33(3) provides that an agency is to provide a reasonable opportunity to consult. Given that the applicant’s letter did not raise new relevant matters that were not discussed in his 7 September 2018 letter, I do not consider that there was any requirement on Ergon to continue consulting with him about the issues raised. In my view, it was not unreasonable for Ergon to regard the matters raised by the applicant as irrelevant to the only issue it had to determine, namely, whether the application complied with all relevant application requirements in section 24 such as to make it a valid application. In any event, to the extent that an agency makes a procedural error when dealing with an application, or fails to take into account relevant considerations (I do not find that either occurred in this case), any such issues can be rectified on external review, where the Information Commissioner ‘stands in the shoes’ of the agency decision-maker and conducts a merits review of the agency’s decision. Where an applicant considers that an agency’s handling of their request has caused them unfairness or some other detriment, the external review process provides an opportunity to put forward arguments in support of their position. (b) Bias I reject the applicant’s contention that any reasonable apprehension of bias arises from the way in which OIC has handled this review. OIC is an independent statutory body that conducts merits reviews of government decisions on access to, and amendment of, documents. The procedure to be followed on external review is, subject to the RTI Act, within the discretion of the Information Commissioner. OIC’s ordinary practice in the majority of external reviews is to review the agency’s decision, and the information in issue, together with any relevant information the participants have provided to date, and to identify the issues for determination. OIC often expresses a preliminary view to the relevant participant, based on the information before it at that time. Where the preliminary view is contrary to the agency’s decision, it is communicated to the agency. Where it is contrary to the applicant’s position, it is communicated to the applicant. Such a preliminary view is genuinely preliminary. It is an assessment of the issues based on the information before OIC at the time. It offers an adversely affected party an opportunity to understand the issues under consideration and to put forward any further information they consider relevant or wish to have considered. I reject the applicant’s assertion that the fact that the Assistant Information Commissioner’s preliminary view was supportive of Ergon somehow indicates a level of bias against him, or that OIC is unfairly siding with Ergon. The applicant has been given a fair and reasonable opportunity to understand the issue for determination in this review and to make submissions in support of his case. I also reject the suggestion that OIC’s advice to the applicant that, in the event of the review being unable to be resolved informally, a formal published decision that named him as applicant would be required in order to finalise the review, should reasonably be construed as a ‘threat’ against him. In his letter dated 2 May 2019, the applicant stated: Now, sort of further, to that, I note how you’ve gone on – under the heading of “next steps” – in your letter, noting that, while my applications and following up correspondence (herein) has all been marked as confidential material, and proposing then, that if I would insist upon, a formal decision, being made (i.e. the actual exercise of a discretion – under the Act – or I suppose you mean – by that turn of phrase), then the office there, would be minded to publish, a bit of a selection of my submissions herein (along with my name) on the OIC’s website, and, well, I’m – obviously – not looking for fame (herein) of course, so what concerns me, immediately – like, as to that sort of proposed method of proceeding, is that ... well, it must be said, to the effect of that, it might just appear, in light of all the circumstances, almost like, some kind of a veiled threat, I mean, you know, like, “Pull your head in – quietly – now, or we’ll publish (as they say)”, and, be that as it may, well, I’m wondering if, that kind of thing, might not be seen – so much – to contribute further to the appearance of bias – distinctly (like) – seems to have arisen already (herein) but anyhow, whilst I realise that, your office, is expressly not subject to the privacy law – in performing its operations – itself, and what is more, given your past performance – in this matter (i.e., persistently only selecting some of what I’ve said – in order to mount an attack – without due consideration for all of the relevant considerations I’ve put down), well, please, let me just put it this way – i.e. without waiver (or any prejudice to myself whatsoever) (for, e.g. the Commissioner would certainly have a discretion to merely use pseudonyms), and that is to say that, if the office there, decides to publish, publicly a decision, against me (or purportedly so made then), in this matter, then that will be, your office’s decision, alone, and I shall not accept any responsibility, for your having done that, and that is, if I – or any other for that matter – find – or finds (as the case may be) - what your office so publishes then, to give rise to, any cause of action (e.g. for defamation – or damages more generally – or what-have-you – or whatever) then your office itself (alone) will wholly and solely bear the entirety of the legal liability for that then). Like I say though, I hold to, all of the submissions I’ve made, thus far, herein, and in view of same, advise that, I would only continue to insist that, your office, return to a more due process in its purporting to handle this matter, and thereby, facilitate a proper exercise of discretion under the Act, which of course, would appear to only compellingly call for a decision in my favour – or in accordance with the very logic of my said submissions that is, which ought to only follow, and be communicated to myself (in writing), forthwith. Section 90 of the RTI Act provides that the Information Commissioner must identify opportunities and processes for early resolution of the review application and promote settlement of the application. Where that is not possible or is unsuccessful, section 110(1) provides that the Information Commissioner must make a written decision that affirms, varies or sets aside the decision. Section 110(3) provides that the Information Commissioner must include in the decision the reasons for the decision. Section 110(6) provides that the Information Commissioner must arrange to have the decision and reasons for decision published. OIC fulfils this obligation by publishing decisions on its website. All applicants are informed of these processes at the time OIC writes to them accepting their application for review.[10] Applicants are advised that formal decisions contain the names of the parties unless the Information Commissioner exercises the discretion to de-identify a decision, as well as the facts relied upon, details of the relevant law, details of submissions made by the participants, and reasons for the decision. I do not accept that the statutory requirement to publish a decision could in any way be regarded as a threat or some form of intimidation designed to force an applicant to withdraw his application. The Information Commissioner has a discretion to anonymise a decision in limited circumstances, most usually when the decision contains sensitive personal information about the applicant or where naming the applicant could reasonably be expected to enable others to identify that information that has been published elsewhere is the applicant’s personal information. Given the submissions the applicant has made in this review about the state of his financial position, together with the fact that other decisions concerning the applicant are required to be anonymised because they contain sensitive personal information, I have elected to exercise the discretion to anonymise this decision. Throughout this review, the applicant has labelled his correspondence as ‘Confidential’, or ‘Personal, Private and Confidential’. It has been explained to him on several occasions that OIC is unable to accept submissions on a confidential basis from any participant in a review, except in exceptional circumstances, because of the obligation upon OIC to afford procedural fairness to participants and to provide reasons for its decisions. I am unable to identify any extraordinary circumstances in this case. The issue for determination relates to a threshold processing issue under the RTI Act. I am also unable to identify how discussing the submissions the applicant has made in support of his case in this review could possibly give rise to an action for defamation or unspecified damages or any other legal action. I acknowledge the applicant’s genuinely-held views made in his submissions over the course of the review, but I must reiterate that the issue for determination is purely mechanical in nature, and not, of itself, personal or sensitive. (c) Intent of legislative scheme I accept that the repealed FOI Act had, as an objective, the provision of information at little or no cost. However, it required the payment of an application fee where the document applied for did not concern the applicant’s personal affairs.[11] That application fee could not be waived.[12] The same scheme has continued in the RTI Act and IP Act. The RTI Act includes a detailed and prescriptive scheme of costs for accessing information. An application fee must be paid where the information applied for is not the applicant’s personal information, and that requirement cannot be waived by an agency. Applications for personal information under the IP Act attract no application fee and there are no charges for processing the application. I reject the applicant’s assertion that Parliament’s attempt to impose a mandatory requirement to pay a fee under the RTI Act is an ‘impermissible abuse of legislative power’ and contrary to the ‘true spirit of the purposes of the overall legislative scheme’. From the inception of freedom of information legislation in Queensland, Parliament has drawn a clear distinction between accessing personal and non-personal information. It has evinced a clear intention both in the repealed FOI Act, and in the plain and unambiguous words used in section 24(2)(a) of the RTI Act (as set out above) that persons wishing to access non-personal information must pay an application fee. Furthermore, it expressly provided under section 24(4) of the RTI Act that the requirement to pay the fee cannot be waived. I also reject the applicant’s submission that the purposive approach to statutory interpretation means that ‘must’ in section 24(2) should be read down to ‘may’ in order to accord with the ‘overarching legislative scheme’. As I have noted, the clear intention of the legislative scheme enacted by Parliament is to distinguish between applications for personal and non-personal information, and to impose a mandatory requirement to pay an application fee in relation to the latter. While there may be occasions where it is appropriate in specific legislative provisions to interpret ‘must’ as ‘may’, I do not consider that section 24(2)(a) is such an occasion. As noted, the RTI charging regime is clearly prescribed in the RTI Act and the RTI Regulation. Parliament’s intention to impose a mandatory requirement to pay an application fee is clearly expressed. There is no ambiguity or uncertainty such as to justify the applicant’s contention that the fee was intended to be discretionary and to therefore read ‘must’ as ‘may’. The fact that Parliament made specific provision that the fee could not be waived is a clear indication to the contrary. The mandatory nature of the provision is consistent with the Explanatory Notes[13] and historical developments in FOI/RTI legislation in Queensland. In his submission dated 2 May 2019, the applicant referred to his impecunious position and what he regarded as a lack of empathy being shown towards him. The RTI Act takes account of an applicant’s financial position and whether they are suffering financial hardship only in respect of payment of processing or access charges. Chapter 3, part 6, division 3 makes provision for an agency to waive payment of processing or access charges where an applicant is the holder of a relevant concession card. However, as I have noted, section 24(4) specifically provides that an application fee may not be waived. While I acknowledge the applicant’s position, the state of an applicant’s finances is irrelevant to the mandatory requirement to pay the application fee. (d) Application not invalid Failure to comply with one or more of the application requirements contained in section 33 of the RTI Act means that no application has been made. Section 33(4) provides that an applicant is taken to have made an application under the RTI Act if and when the application is made in a form complying with all relevant application requirements. This includes payment of an application fee for a non-personal application. As the applicant did not pay the application fee, he did not make a valid application. I reject his submission that failure to pay the fee did not invalidate the application. Such an interpretation would be contrary to the clear terms of section 33(4). (e) Deemed refusal of access It follows from my findings immediately above that I do not accept that Ergon is deemed to have made a decision refusing access. Section 46 of the RTI Act is enlivened only when a valid access application had been made. As the applicant did not make a valid application, section 46 has no relevance. (f) Informal resolution Section 90 of the RTI Act provides that the Information Commissioner must identify opportunities and processes for early resolution of the review application and promote settlement of the application. OIC endeavours to identify ways to informally resolve reviews wherever possible. However, we were unable to identify any options for informal resolution of this review. The review concerns only the threshold matter of when an application fee is required to be paid. No documents are in issue as Ergon did not process the applicant’s request, having determined it was not valid. In those circumstances, informal resolution of the review application is not possible. An agency has a discretion to give a person administrative access to documents, outside the scope of the RTI Act. Section 4 of the RTI Act provides that the RTI Act is not intended to prevent or discourage the publication of information or the giving of access to documents otherwise than under the RTI Act if the publication or giving of access can properly be done or is permitted or required to be done by law. However, where the information sought is the personal information of someone other than the applicant, administrative access is often not appropriate due to the likely need to consult with affected persons. In any event, the discretion is solely the agency’s to exercise. Ergon has chosen not to exercise it in this case. (g) Pro-disclosure bias Section 44(1) of the RTI Act provides that it is Parliament’s intention that if an access application is made to an agency for a document, the agency should decide to give access to the document unless giving access would, on balance, be contrary to the public interest. Section 44 concerns the decision-maker’s considerations for deciding access to documents. This provision is only relevant once the agency is dealing with a compliant application. As no compliant application has been made, section 44(1) has no relevance. Decision I affirm Ergon’s decision made under section 33(6) of the RTI Act that the applicant has not made a valid access application under the RTI Act because he has failed to comply with the relevant application requirement set out in section 24(2)(a) of the RTI Act, namely, payment of the prescribed application fee. Ergon was therefore not required to deal with the applicant’s request. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Louisa Lynch Right to Information CommissionerDate: 26 August 2019 APPENDIX Significant procedural steps Date Event 27 November 2018 OIC received the applicant’s external review application dated 23 November 2018 and accompanying submissions. 28 November 2018 OIC notified the applicant and Ergon that the external review application had been received and requested procedural documents from Ergon. 5 December 2018 OIC received the procedural documents from Ergon. 18 January 2019 OIC wrote to the applicant to provide a progress update. 7 February 2019 OIC received submissions from the applicant dated 4 January 2019. 26 February 2019 OIC notified Ergon that the application for external review had been accepted. OIC wrote to the applicant, advising him of the same, and also communicating the preliminary view that Ergon was entitled to refuse to deal with his access application for non-payment of the application fee. 4 March 2019 OIC received submissions from the applicant dated 28 February 2019. 30 April 2019 OIC responded to the applicant’s submissions. 7 May 2019 OIC received final submissions from the applicant dated 2 May 2019. [1] Application dated 8 August 2018 and received by Ergon on 20 August 2018.[2] Ergon also advised the applicant that the RTI Act only applied to Ergon in relation to requests for information about its community service obligations pursuant to section 32(1)(b) and schedule 2, part 2, item 14 of the RTI Act. [3] The applicant had ticked the box that stated that none of the documents he was applying for contained his personal information, but then added, in a handwritten notation, ‘i.e., as far as I know of’’. [4] Received by Ergon on 13 September 2018. [5] Received by Ergon on 11 October 2018.[6] Received on 27 November 2018. [7] Dated 27 November 2018, 4 January 2019, 28 February 2019, and 2 May 2019. [8] Applicant’s letter to Ergon dated 8 August 2018.[9] Applicant’s letter dated 28 February 2019. [10] OIC Information Sheet: Information Sheet for Applicants. [11] Section 35B. [12] Section 35C(1). [13] See the Right to Information Bill 2009 (Qld).

queensland

court_judgement

Queensland Information Commissioner 1993-

Beanland and Department of Justice & Attorney-General [1995] QICmr 26; (1995) 3 QAR 26 (14 November 1995)

Beanland and Department of Justice & Attorney-General [1995] QICmr 26; (1995) 3 QAR 26 (14 November 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 129 of 1994; S 137 of 1994;COMMISSIONER (QLD) ) S 138 of 1994; S 139 of 1994; S 148 of 1994; S 153 of 1994 (Decision No. 95026) Participants: S 129 of 1994 DENVER EDWARD BEANLAND Applicant - and - DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL Respondent S 137 of 1994 THOMAS JOHN GEORGE GILMORE Applicant - and - DEPARTMENT OF MINERALS AND ENERGY Respondent S 138 of 1994 ROBERT EDWARD BORBIDGE Applicant - and - DEPARTMENT OF THE PREMIER, ECONOMIC AND TRADE DEVELOPMENT Respondent S 139 of 1994 DAVID JEFFREY FAGAN Applicant - and - DEPARTMENT OF FAMILY SERVICES AND ABORIGINAL AND ISLANDER AFFAIRS Respondent S 148 of 1994 THEO RUSSELL COOPER Applicant - and - QUEENSLAND POLICE SERVICE Respondent S 153 of 1994 THEO RUSSELL COOPER Applicant - and - QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - documents in issue comprising briefing papers prepared by the respondent agencies to brief their respective Ministers for appearances before budget estimates committees of the Queensland Parliament - documents in issue placed before Cabinet after lodgement of the FOI access applications - whether documents in issue exempt under s.36(1)(a) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.11(1)(b), s.28(1), s.36(1)(a), s.36(1)(d), s.36(1)(e), s.36(2), s.36(4), s.50(c)(i), s.79(1), s.81, s.85, s.86, s.87, s.88(2), s.92, s.93, s.110Freedom of Information Amendment Act 1993 QldFreedom of Information Amendment Act 1995 QldActs Interpretation Act 1954 Qld s.4, s.14B(1), s.14B(2), s.14B(3), s.20Parliamentary Papers Act 1992 Qld s.3Manly v Ministry of Premier and Cabinet, Supreme Court of Western Australia, No. SJA 1143 of 1994, Owen J, 15 June 1995, unreportedWoodyatt and Minister for Corrective Services, Re (Information Commissioner Qld, Decision No. 95001, 13 February 1995, unreported) DECISION1. In each of the applications for review, I set aside the decisions under review, and in substitution for them, I decide that the matter in issue in each case is exempt matter under s.36(1)(a) of the Freedom of Information Act 1992 Qld, as in force following its amendment in March 1995.2. In respect of the application for review numbered S 137 of 1994, I note that the matter in issue for the purposes of this decision does not include the ten pages referred to in paragraph 2 of my reasons for decision. Date of Decision: 14 November 1995 ...........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS PageBackground 2 External review process 5 Section 36(1)(a) 6 Initial investigations 9 Objection to provision of further documents 11 Ministerial briefing notes and respondent's submission 16 Amending legislation 17 Other exemptions claimed 20 Application of s.36(1)(a) of the FOI Act 21 Retrospective operation of legislation 21 Time at which material facts are to be considered 22 Not a real submission 23 Purpose of consideration 23 Statistical matter 23 Findings in relation to s.36(1)(a) 23 Comments on the amendments to s.36 25 Conclusion 26 OFFICE OF THE INFORMATION ) S 129 of 1994; S 137 of 1994;COMMISSIONER (QLD) ) S 138 of 1994; S 139 of 1994; S 148 of 1994; S 153 of 1994 (Decision No. 95026) Participants: S 129 of 1994 DENVER EDWARD BEANLAND Applicant - and - DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL Respondent S 137 of 1994 THOMAS JOHN GEORGE GILMORE Applicant - and - DEPARTMENT OF MINERALS AND ENERGY Respondent S 138 of 1994 ROBERT EDWARD BORBIDGE Applicant - and - DEPARTMENT OF THE PREMIER, ECONOMIC AND TRADE DEVELOPMENT Respondent S 139 of 1994 DAVID JEFFREY FAGAN Applicant - and - DEPARTMENT OF FAMILY SERVICES AND ABORIGINAL AND ISLANDER AFFAIRS Respondent S 148 of 1994 THEO RUSSELL COOPER Applicant - and - QUEENSLAND POLICE SERVICE Respondent S 153 of 1994 THEO RUSSELL COOPER Applicant - and - QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent REASONS FOR DECISIONBackground1. The applicants in these matters seek review of decisions refusing them access to documents created by the respective respondent agencies in connection with the budget approval process of the Queensland Parliament, in particular, for the purpose of briefing their respective Ministers for appearances before budget estimates committees of the Queensland Parliament in June 1994. It appears that the documents prepared for that purpose were later provided to a meeting of Cabinet, and on that basis the respondents claim that the documents are exempt under s.36(1)(a) of the Freedom of Information Act 1992 Qld (the FOI Act).2. The issues to be dealt with in each of these applications for review coincide to such an extent that I consider it appropriate to deal with them together in these reasons for decision. This decision will deal with all documents in issue in five of the six applications for review, and all but ten pages of the documents in issue in the other application for review (that of Mr Gilmore, No. S 137 of 1994). Those ten pages (being the whole of document 16 and the attachments to documents 9, 10 and 17) do not form part of the documents in issue dealt with in these reasons for decision. I shall deal with them in a later decision if that proves necessary.3. On 28 April 1994, the Legislative Assembly varied its procedures for consideration of the annual budget of the State by approving Sessional Orders for the establishment of six budget estimates committees. Prior to 1994, the annual budget papers had been subjected to the scrutiny of a committee of the whole Legislative Assembly. I understand that, in the past, only a limited number of Ministerial portfolios had been subject to scrutiny in any year but that, more recently, a process had been adopted whereby questions could be asked of any Minister concerning the budget estimates of a Department or agency within his or her portfolio.4. The new process assigned the scrutiny of several portfolios to each budget estimates committee. For example, Estimates Committee C was allocated the portfolios of the Minister for Education, the Minister for Health and the Minister for Employment, Training and Industrial Relations. Each committee, comprising four government members and three opposition members, held hearings for one day in June 1994 and thereupon provided reports to the Legislative Assembly on the budget estimates for relevant portfolios. The budget was then debated by the Legislative Assembly and passed. 5. In the course of the hearings before the estimates committees, each Minister appeared and was questioned by committee members about matters relating to his or her portfolio. In order to better prepare Ministers to attend these hearings, various Departments prepared briefing papers for their respective Ministers. While there are variations in content between the briefing papers of different Departments, they generally contain summaries of the functioning of various units and programs for which the relevant Minister has responsibility, details of past, projected and proposed expenditure for units and programs, details of significant operational issues, and information on questions which might arise during the hearings before the relevant estimates committee. The documents prepared by the six respondent agencies for briefing their respective Ministers are the documents in issue in these reviews. I will refer to them as the budget estimates documents, or the documents in issue.6. Between 4 July 1994 and 25 July 1994, each of the applicants applied to the relevant respondent agency for access, under the FOI Act, to its budget estimates documents. Material before me indicates that a number of other applications for access to budget estimates documents were made by other persons, one being made as early as 23 June 1994, but the six now under consideration are the only ones which have been pursued to external review. The four applicants who are Members of the Legislative Assembly (the "MLA applicants") applied for budget estimates documents relating to their shadow portfolios. Mr Fagan, a journalist, applied for the budget estimates documents of the Department of Family Services and Aboriginal and Islander Affairs (and of some other agencies, but he has not pursued his applications to other agencies through to the stage of external review).7. Initial decisions of the respondent agencies were provided to all applicants, other than Mr Fagan, between 22 July and 6 September 1994. No decision had been provided to Mr Fagan by 16 September 1994, when he made his application for external review under Part 5 of the FOI Act on the basis of a deemed refusal of access (see s.79(1) of the FOI Act).8. Each respondent determined that the documents in issue were exempt under s.36(1) of the FOI Act (as worded prior to its amendment in March 1995 - see paragraph 15 below) with particular reference to s.36(1)(a). For example, Ms L Barratt, Freedom of Information Co-ordinator of the Department of Justice and Attorney-General, found that the budget estimates documents of that Department were exempt under s.36(1)(a) of the FOI Act, stating: All the documents you request have been submitted to Cabinet for its consideration. I have perused the confidential Cabinet minute evidencing this. I consider that all the documents are exempt in accordance with s.36(1) of the Act, and accordingly, access to them is refused.9. In addition to s.36(1)(a), initial decision-makers in other respondent agencies determined that some or all of their budget estimates documents were also exempt under s.36(1)(d) and s.36(1)(g) (which was amended in March 1995 and redesignated as s.36(1)(e)).10. The MLA applicants then each applied for internal review on dates ranging between 26 July and 21 September 1994. Internal review decisions were given on dates ranging between 11 August and 29 September 1994: in each case the initial decision was affirmed.11. Each of the applicants applied to the Information Commissioner for review under Part 5 of the FOI Act, on dates ranging between 15 August and 21 October 1994. In their applications for external review, three of the applicants raised specific arguments as to why they considered that the documents in issue were not exempt under s.36(1). In his application for review dated 15 August 1994, Mr Beanland stated: I now write to ask you to review this decision. Enclosed please find copy of speech which I recently made in Parliament on 5 August on this issue, the particularly relevant section being on page 8903 [of Hansard, 5 August 1994]. It is apparent to me from information that I have been given that these matters were referred to the Cabinet retrospectively, that is after the Estimates Committee hearings and in this instance also following my request to the Attorney-General on 15 July 1994. Further, the Attorney-General's failure to state on ABC radio when challenged or to have the courage to debate me on ABC television confirms in my mind that this did indeed occur. You would be well aware of the changes the Government made last November to broaden the Cabinet exemption provisions to enable them to be able to claim a wide body of material as Cabinet exempt. However, nowhere within the exemption definition does the word "retrospective" appear nor is there any inference that matters can be referred after the event to Cabinet in order to protect the Minister. In my application to you to review this matter, I ask that you carefully look at the legal aspects of the issue, and whether the Minister can in fact claim Cabinet exemption after the event. If so, of course, it makes an even greater mockery of what has become useless and farcical legislation, where non-personal and sensitive issues involving the Government are concerned.12. Mr Gilmore, in his application for review dated 13 September 1994, stated: My application for a review was based on my belief that the decision not to allow me access to the subject documents was clearly against the spirit of the Freedom of Information Act, and the many statements which have been made by Ministers of the Crown, since its introduction. It appears to me that the tabling of the documents applied for at the country Cabinet meeting in Mount Isa was a ploy, designed to circumvent the provisions of the Freedom of Information Act. It is also my view that the documents were not tabled for the deliberation of Cabinet, and, in fact, were never looked at by Cabinet Ministers. It is, therefore, in my view, likely that the mere tabling of the documentation was insufficient action by the Cabinet to create exemption for the documents under the Act.13. In his application for review dated 15 September 1994, Mr Borbidge made the following submissions: 1. The documents in issue did not in fact form a submission to Cabinet as they did not comply with the requirements of the Queensland Cabinet Handbook (1992) in that they were not a Policy Submission, an Authority to Introduce a Bill or an Authority to Forward Significant Subordinate Legislation and access to the documents in issue should be provided because they are not exempt matter for the purpose of s.36(1)(a); Alternately, The documents in issue were submitted to Cabinet but not for the purpose of "its consideration". The documents did not receive any consideration by the Cabinet and access to the documents should be provided because they are not exempt matter for the purposes of s.36(1)(a). 2. The disclosure of the documents in issue would not disclose deliberations or decisions of Cabinet which have not been officially published by decision of Cabinet. The Information Commissioner in Hudson v Department of the Premier, Economic and Trade Development [1993] QICmr 4; (1993) 1 QAR 123 approved of the meaning ascribed to the term "deliberation of Cabinet" by the AAT in Re Porter and Department of Community Services and Health (1988) ALD 403 and noted "It is only documents created contemporaneously with, or subsequent to, active discussion and debate within Cabinet, that in my opinion are capable of disclosing any deliberation of Cabinet." Thus the documents in issue are not exempt matter for the purposes of s.36(1)(g) as they are incapable of disclosing any deliberation or decision of Cabinet as the documents in issue were not created contemporaneously with, or subsequent to, active discussion and debate within the Cabinet. The documents in issue therefore do not disclose any deliberation of Cabinet. Furthermore it can not be assumed that there were any deliberations of Cabinet in respect of matter contained in a document simply because that document was before Cabinet. 3. Section 36(2) provides that matter is not exempt under subsection (1) if it is merely statistical, scientific or technical matter. I would submit that the process of identifying matter in the Folios which "could be characterised as 'merely', 'purely' or 'simply' statistical in nature" (paragraph (3) and (4) of [the relevant internal review decision made by Mr E J Bigby on behalf of the] Department of the Premier, Economic and Trade Development, dated 13th September 1994) is sufficient to identify material which is excepted from exemption by s.36(2) and which can be excised. The fact that the material can be so identified means that it is not so inter-woven that it can not be excised. It is therefore practicable to do so in accordance with s.32(b) and access should be provided to a copy of the document from which the exempt matter has been deleted. 4. The phrase "it is practicable to give access" (s.32(b)) should not be qualified by reference to the nature and extent of the work involved and the resources available in deciding the deletions necessary. (Re Carver and the Department of the Prime Minister and Cabinet (1987) 6 AAR 317). Mr Bigby's refusal to permit access is based upon such a consideration.The external review process14. For ease of understanding, it is appropriate that I divide discussion of the external review process into two parts. I will first describe the external review process in respect of the claim that the documents in issue are exempt under s.36(1)(a) of the FOI Act, before dealing with the external review process in respect of other exemption claims.Section 36(1)(a)15. The main provision in contention in these external reviews was s.36(1)(a) of the FOI Act. Section 36 was amended during the course of the review. Prior to its amendment, which took effect from 23 March 1995, s.36 of the FOI Act was in the following terms: 36.(1) Matter is exempt matter if- (a) it has been submitted to Cabinet for its consideration; or (b) it was prepared for submission to Cabinet for its consideration and is proposed, or has at any time been proposed, by a Minister to be submitted to Cabinet for its consideration; or (c) it was prepared for briefing a Minister about an issue proposed, or that has at any time been proposed, to be considered by Cabinet; or (d) it forms part of an official record of Cabinet; or (e) it is a draft of matter mentioned in paragraph (a), (b), (c), or (d); or (f) it is a copy of, or contains an extract from, matter or a draft of matter mentioned in paragraph (a), (b), (c) or (d); or (g) its disclosure would involve the disclosure of any deliberation or decision of Cabinet, other than matter that has been officially published by decision of Cabinet; (2) Matter is not exempt under subsection (1) if it is merely statistical, scientific or technical matter unless- (a) the disclosure of the matter under this Act would involve the disclosure of any deliberation or decision of Cabinet; and (b) the fact of the deliberation or decision has not been officially published by decision of Cabinet. (3) For the purposes of this Act, a certificate signed by the Minister certifying that matter is of a kind mentioned in subsection (1), but not of a kind mentioned in subsection (2), establishes, subject to Part 5, that it is exempt matter. (4) In this section - "Cabinet" includes a Cabinet committee. "matter" includes matter that was prepared before the commencement of the Freedom of Information Amendment Act 1993.16. Following amendments made by the Freedom of Information Amendment Act 1995 (which took effect from 23 March 1995 and were expressed to have retrospective effect), s.36 now provides: 36.(1) Matter is exempt matter if - (a) it has been submitted to Cabinet; or (b) it was prepared for submission to Cabinet and is proposed, or has at any time been proposed, by a Minister to be submitted to Cabinet; or (c) it was prepared for briefing, or the use of, a Minister or chief executive in relation to a matter - (i) submitted to Cabinet; or (ii) that is proposed, or has at any time been proposed, to be submitted to Cabinet by a Minister; or (d) it is, or forms part of, an official record of Cabinet; or (e) its disclosure would involve the disclosure of any consideration of Cabinet or could otherwise prejudice the confidentiality of Cabinet considerations or operations; or (f) it is a draft of matter mentioned in paragraphs (a) to (e); or (g) it is a copy of or extract from, or part of a copy of or extract from, matter mentioned in paragraphs (a) to (f). (2) Subsection (1) does not apply to matter officially published by decision of Cabinet. (3) A certificate signed by the Minister stating that specified matter would, if it existed, be exempt matter mentioned in subsection (1), but not matter mentioned in subsection (2), establishes, subject to part 5, that, if the matter exists, it is exempt matter under this section. (4) In this section - "Cabinet" includes a Cabinet committee or subcommittee. "chief executive" means a chief executive of a unit of the public sector. "consideration" includes - (a) discussion, deliberation, noting (with or without discussion) or decision; and (b) consideration for any purpose, including, for example, for information or to make a decision. "draft" includes a preliminary or working draft. "official record", of Cabinet, includes an official record of matters submitted to Cabinet. "submit" matter to Cabinet includes bring the matter to Cabinet, irrespective of the purpose of submitting the matter to Cabinet, the nature of the matter or the way in which Cabinet deals with the matter.17. From the initial submissions made by three of the applicants (see paragraphs 11-13 above), I identified four arguments contending that s.36(1)(a) (as in force prior to 23 March 1995) was either inapplicable in the case of the documents in issue, or only partly applicable to those documents. I summarise these arguments below: (a) Time at which material facts are to be considered In respect of FOI access applications lodged before the date of the Cabinet meeting at which the budget estimates documents were present, it was argued that the facts as they stood at the time of lodgement of the FOI access application should be the relevant facts for determination of whether the requested documents are exempt. It was argued that if requested documents were not exempt at the time of lodgment of the FOI access application, they could not be made exempt by later submission to Cabinet. (b) No real submission to Cabinet It was also suggested that the submission to Cabinet of the budget estimates documents did not fit within any of the categories of submission recognised by the Queensland Cabinet Handbook, and the budget estimates documents could not therefore be said to have been formally "submitted" to Cabinet. This claim was, of course, made without the applicants having the opportunity (available to me) of examining the relevant Cabinet submission. (c) A purposive requirement It was argued that the words "for its consideration" in s.36(1)(a) meant that any submission of documents to Cabinet had to be for the purpose of their consideration by Cabinet and that merely placing documents in the Cabinet room without the intention that they be "considered" by Cabinet would not be sufficient to meet the test for exemption under s.36(1)(a). This claim raised two issues. The first was a question of interpretation of s.36(1)(a), namely, whether the words "for its consideration" added a purposive requirement to the verb "submitted". The second was a question of fact: if there was a purposive requirement, was that requirement satisfied in the particular circumstances of these reviews, i.e. was the matter in issue submitted to Cabinet for its consideration? I formed the view that the first issue was sufficiently arguable to warrant a concurrent investigation of both issues. (d) Merely statistical matter It was also argued that at least part of the matter in the documents in issue was "merely" statistical matter and that, by virtue of s.36(2) of the FOI Act, it did not qualify for exemption under s.36(1). It was clear from my own examination of the documents in issue that they contained some matter which arguably fell within the terms of s.36(2) of the FOI Act (as worded prior to its amendment in March 1995).Initial investigations18. In letters dated between 23 September and 28 October 1994, I asked each of the respondent agencies to provide me with copies of the documents in issue. I also alerted the relevant respondent agencies to some of the points raised by Messrs Beanland, Gilmore and Borbidge, in their applications for review. In addition, I indicated to each agency that the onus lay on it to establish that the documents in issue comprised exempt matter (see s.81 of the FOI Act), and invited each to provide evidence to establish the material facts which would attract the application of the exemption provisions relied upon. For example, after quoting a part of Mr Borbidge's application for external review in a letter to the Department of the Premier, Economic and Trade Development (the Premier's Department), I stated: It seems therefore that evidence will have to be obtained from someone with personal knowledge of the relevant facts, to establish that the documents in issue have been submitted to Cabinet, for consideration by Cabinet. The relevant witness or witnesses will need to be available for cross examination, if necessary, on any evidence which is lodged. Evidence should be lodged in the form of sworn affidavits or statutory declarations, which annex as exhibits any relevant documentary evidence.19. In each case, the documents in issue were obtained and examined. The volume of documents was substantial, the smallest bundle comprising approximately 100 pages, while the largest set of agency briefing papers comprised more than 800 pages. By letter dated 28 October 1994 from the Premier's Department, I was provided with a statutory declaration made on the same date by Peter John Stanley, a Cabinet Officer. I was later advised by each of the respondents that they relied on the evidence in this statutory declaration to establish their contentions that the documents in issue were exempt under s.36(1)(a) of the FOI Act. Mr Stanley declared: On Friday 15 July 1994, I supervised the preparation, for transport to Mt Isa, of documents which were prepared by Departments for the purpose of briefing their respective Ministers during the June 1994 Parliamentary Estimates Committee Hearings. The documents formed part of a Submission which appeared on the Cabinet Business List for 18 July 1994. On Monday 18 July 1994, I placed the documents in the Mt Isa City Council Chambers which were being used as the Cabinet room on that day, and I removed them after the Cabinet meeting had finished. I am aware that a Cabinet meeting took place in the room.20. Following examination of the documents in issue and Mr Stanley's statutory declaration, I requested (by letter dated 2 November 1994 to the Crown Solicitor, who ultimately acted on behalf of all respondents) copies of the Cabinet submission referred to in Mr Stanley's statutory declaration, any official record of Cabinet relating to that Cabinet submission, and any decision of Cabinet relating to Cabinet's consideration of that Cabinet submission; these documents being relevant to my consideration of the claims for exemption under s.36(1)(a) and s.36(1)(g) (now s.36(1)(e)) of the FOI Act. The requested documents were subsequently provided to me under cover of a letter dated 14 November 1994.21. On or about 18 January 1995, I wrote to each of the applicants, advising them, inter alia, of the arguments which I had identified as having been raised by the applicants in support of their contentions that the documents in issue were not exempt. I indicated my preliminary view that the first and second arguments set out at paragraph 17 above would not prove successful, and asked the applicants to confirm in writing if they accepted my preliminary views on those points. I have received no such confirmation, so I have briefly dealt with those arguments at paragraphs 57-59 below.22. Also on or about 18 January 1995, I wrote to each of the respondents advising them of my preliminary views in relation to several claims for exemption that had been raised, and inviting them to lodge further evidence and written submissions in support of their contentions that the documents in issue were exempt. As to argument (d) listed at paragraph 17 above, I conveyed to the respondents my preliminary view that there was a considerable amount of matter which could be described as "merely statistical", and outlined my suggested approach as to how the extent of such matter might be assessed. In relation to argument (c) listed at paragraph 17 above, I made the following comments: 9. ... it is apparent that the applicants wish to argue that the submission of the Budget Estimates documents to Cabinet was a sham, in that they were not submitted for Cabinet's consideration, but only for the purpose of giving a colourable pretext to claim exemption under s.36(1) of the FOI Act, after the receipt (or foreshadowed receipt) of FOI access applications for the briefing documents prepared for certain Ministers. 10. Reliance on s.36(1)(a) requires that it be established not only that documents have been submitted to Cabinet, but that they have been submitted to Cabinet for consideration by Cabinet. The words "for its consideration" add a purposive requirement to the verb "submitted". 11. To date, you have provided me with a statutory declaration of Peter John Stanley dated 28 October 1994 (on which five agencies are relying) and a copy of Cabinet Submission No. 03758 (and some associated records of Cabinet). Mr Stanley states that the Budget Estimates documents formed part of a Submission (which I take to be Cabinet Submission No. 03758) on the Cabinet business list for 18 July 1994. Clearly, however, they were not circulated to Ministers beforehand, as an attachment to Cabinet Submission No. 03758. That submission recommends ... . There may be an issue of substance as to whether "noting" certain documents is materially different in nature and degree from "considering" certain documents. 12. Mr Stanley's declaration establishes that the Budget Estimates documents were present in the Cabinet room during the course of the Cabinet meeting on 18 July 1994. It is also apparent, however, (from the number of documents provided to me from just six agencies) that the Budget Estimates documents must have comprised many thousands of pages. In my preliminary view, it will be difficult to draw the inference that such a volume of documents could seriously have been submitted for consideration by Cabinet, in connection with one submission on a Cabinet Business List of some two and a half pages in length. 13. The application of s.36(1)(a) is obviously one of the crucial issues in these cases, and I consider that it requires further investigation on my part. To this end, I request that you provide me with complete copies of all files ... which relate to the preparation, and placement before Cabinet, of Cabinet Submission No. 03758. I request that copies of those files be produced to my Office (at Level 25, Jetset Centre, 288 Edward Street, Brisbane) on or before Tuesday, 31 January 1995. The copies will be used only for the purposes of my investigation and review under Part 5 of the FOI Act, and will be returned to you on its completion.Objection to provision of further documents23. An objection was raised to the provision of the documents I requested at paragraph 13 of my letter dated 18 January 1995. In a letter dated 6 February 1995, the Crown Solicitor insisted that I withdraw my request, stating: To arrive at a proper construction of s.36(1)(a) of the FOI Act, it is legitimate to have regard to the relevant explanatory notes which accompanied the amending Bill [which became the Freedom of Information Amendment Act 1993, which I shall refer to in these reasons for decision as the 1993 Amendment Act] (see s.14B of the Acts Interpretation Act 1954). The explanatory notes, where relevant, provided as follows:- "Reasons for the Bill The amendments concerning the Cabinet and Executive Council exemptions are necessary to ensure the preservation of the conventions of collective and individual Ministerial responsibility. These conventions are fundamental to a democratic government based on the Westminster system. The purpose of collective Ministerial responsibility is to ensure that Cabinet is responsible to the Parliament and, through the Parliament, to the electorate. Part of that convention requires that Cabinet papers are confidential. It was never the intention of the legislature to compromise the fundamental convention of collective Ministerial responsibility by allowing the accessibility of a significant amount of Cabinet material under the Freedom of Information Act. In particular, it was never the legislature's intention to permit the release of expressions of opinion of the sponsoring Minister or implicitly reveal the particular position adopted by a Minister or Ministers. Ensuring the preservation of the important conventions of collective and Ministerial responsibility is consonant with the reasons of the Act as stated in s.5. Subsection 5(2) expressly recognises that there are often competing interests in that disclosure of particular information could be contrary to the public interest because disclosure would have an adverse effect on essential public interests. The section finally declares that the aim of the Act is to strike a balance between those competing public interests. The aim of the amendments to the Cabinet and Executive Council exemptions is to confirm the original intention of exempting Cabinet and Executive Council material in such a way as to preserve the conventions of collective and individual Ministerial responsibility." In my view, it was plainly not the intention of Parliament that in order to satisfy the requirements of s.36(1)(a) of the FOI Act it is necessary to obtain evidence from within the Cabinet as to whether the Cabinet actually considered the relevant documents. Such a construction would be contrary to the language of the section and inconsistent with the reasons underlying the amendments as outlined in the relevant explanatory notes. The proper construction of s.36(1) of the FOI Act is that, if the documents in question were submitted to Cabinet for its consideration, then the exemption is satisfied. There is simply no warrant to proceed further in an attempt to discover what actually happened at the Cabinet meeting. In relation to the claim for exemption under s.36(1)(a) of the FOI Act you have before you the following documents:- (a) A statutory declaration from Peter John Stanley which deposes to the fact that the relevant documents were part of a Cabinet submission and further that the relevant documents were placed within the Cabinet room prior to the Cabinet meeting; (b) A Cabinet submission ... (c) A Cabinet minute ... This material, on any reasonable view, establishes the application of s.36(1)(a) of the FOI Act. In view of the proper construction of s.36(1)(a) of the FOI Act and the factual material already before you, I am instructed to object to the production to you of the documents in question. In order to be properly amenable to production under s.85 of the FOI Act the document must be "relevant to a review under this Division" [external review]. In view of the evidence already before you, the documentation that has been requested is not relevant in terms of this review. In particular, I am instructed to take issue with you regarding your assertions made in paragraph 12 of your letter. There, you remark as follows:- "...it will be difficult to draw the inference that such a volume of documents [many thousands of pages] could seriously have been submitted for consideration by Cabinet...". On my instructions, Cabinet often considers large amounts of material submitted to it. Whether, and to what extent, particular reference is made to particular information depends on the exigencies of the matter for consideration. It is wrong, and as I have said irrelevant, to speculate as to what occurred in Cabinet simply by reference to the size of the material submitted. To adopt such an approach would lead to the opening up of the debate as to what actually happened inside the Cabinet room. This, in my view, would clearly be inappropriate and lead to this review proceeding down an erroneous path having regard to the proper construction and meaning of s.36(1)(a) of the FOI Act. Finally, it seems with respect that in this review you are attempting to investigate an issue that is simply not open on a plain reading of material presently before you. The Cabinet documents before you are unambiguous in their terms. There is no justification whatsoever in the Cabinet material before you to support an allegation that the submission of the Estimates briefing notes in question to Cabinet was a sham. The material before you clearly shows that there was a genuine submission of the documents in question to Cabinet for its consideration. In these circumstances, I suggest with respect that any further inquiry in this regard is simply not justified.24. I note that the respondents could have avoided the necessity for any inquiry by my office which they consider may have intruded into "the Cabinet room", by exercising the discretion each had, under s.28(1) of the FOI Act, to release documents even if they considered them to be technically exempt (an option which I had suggested in my letters to the respondents dated 18 January 1995: see paragraph 67 below). The applicants in this case were not seeking to intrude into "the Cabinet Room". The documents to which they sought access had no connection with the Cabinet process, until one was created by the actions of the respondents. The documents were prepared for the benefit of Ministers appearing before budget estimates committees of the Parliament, and the purpose for their creation had been satisfied before the first of the FOI access applications for budget estimates documents was lodged. The documents could have been disclosed at first instance in the exercise of the discretion conferred by s.28(1) of the FOI Act, without any indication that they had been sent to Cabinet. It is only the fact that the respondent agencies decided to claim exemptions under s.36(1) of the FOI Act that has alerted the applicants to the fact that the documents in issue were ever placed before Cabinet. 25. Even now the release of the documents in issue would shed no light on the reason why they were presented to Cabinet, nor disclose any deliberation or decision of Cabinet arising from Cabinet's consideration of Cabinet Submission No. 03758. The continued withholding of these documents cannot logically have anything to do with protecting the secrecy of discussions in Cabinet or the views of individual Ministers on issues submitted to Cabinet, with respect to Cabinet Submission No. 03758: disclosure of their contents would involve no intrusion into "the Cabinet room". (In so saying, I do not discount the possibility that some of the matter in issue may be exempt under exemption provisions other than s.36, or even that, in isolated instances, some of the matter in issue might be exempt under s.36 because it had been submitted to Cabinet for its consideration, or would disclose deliberations of Cabinet which occurred, prior to the use of that matter for briefing a Minister for an appearance before a budget estimates committee. However, no case has been put to me on that basis.)26. I responded to the Crown Solicitor by letter dated 16 February 1995, repeating my request for copies of documents, and stating by way of explanation: [There is a] mistaken assumption in your letter of 6 February 1995 (especially at pp.3-4) ... that I regard it as "necessary to obtain evidence from within the Cabinet as to whether the Cabinet actually considered the relevant documents" or that I am attempting "to discover what actually happened at the Cabinet meeting". As should be clear from paragraphs 7(a) and 10 of my letter to the respondent dated 18 January 1995, I am well aware that s.36(1)(a) of the FOI Act focuses on the purpose of submission of documents or matter to Cabinet. To the extent that what transpired in Cabinet (after the documents in issue were submitted to Cabinet) is relevant to that issue, I do not for the moment (subject to anything raised in the applicants' evidence and submissions) see any need to go beyond the material which the respondent has already provided to me. The request in my letter of 18 January 1995 was for files relating to the preparation, and placement before Cabinet, of Cabinet Submission No. 03758. In making that request I did not seek to obtain copies of material that indicates what happened in the Cabinet room. My particular concern was to obtain copies of documents leading up to the placement before Cabinet of the submission, including all documents relating to the development of the submission and the collection and collation of all the documents in issue in this review. In my view, such documents are clearly relevant to the question of the purpose for which documents were submitted to Cabinet, this being a proper question for investigation under s.36(1)(a) of the FOI Act. The applicant has raised the issue of whether or not the submission to Cabinet, of the Departmental briefings given to Ministers appearing before Estimates Committees, was a sham. It can hardly be irrelevant for me to investigate whether or not there is any substance in the allegation. My ultimate findings may well be in accordance with what you assert in your letter. On the other hand, the material so far provided to me may not tell the whole story with respect to that issue. The assertion implicit in your letter of 6 February 1995 is that I am obliged to accept that the material so far provided to me by the respondent forecloses any finding other than the affirmation of the respondent's decision under review, that any further documents which I may seek are therefore necessarily irrelevant, and that I therefore have no power to seek any further documents. With respect, that is insupportable. I am entitled to seek access to documents which are relevant because they relate to an issue that is in controversy between the participants, even though the documents may ultimately only confirm that one participant's contentions have no substance. I remain of the view that the documents I have requested are relevant to my review. I therefore renew my request... . So that there are no misunderstandings, let me make it quite clear that my request seeks only copies of documents which were created prior to the commencement of the meeting of Cabinet held on 18 July 1994.27. As can be seen from the Crown Solicitor's letter dated 6 February 1995, the submission of the respondents was that the wording of s.36(1)(a), when read in conjunction with the explanatory note which accompanied the 1993 Amendment Act, made it clear beyond doubt that s.36(1)(a) (as worded prior to its amendment in March 1995) applied to the documents in issue. However, I was then, and still remain, of the view that the correct interpretation of s.36(1)(a) prior to its amendment in March 1995 was as set out in paragraph 10 of my letter quoted at paragraph 22 above.28. Notwithstanding the submissions made by the Crown Solicitor in his letter dated 6 February 1995 and the assertions attributed (in a subsequent letter) to the then Minister for Justice and Attorney-General as to the intentions of Parliament (see paragraph 40 below), it is my obligation to interpret legislation made by Parliament according to accepted canons of statutory interpretation developed by the courts, and principles laid down in the Acts Interpretation Act 1954 Qld. There is a statutory basis for referring to extrinsic materials in the interpretation of legislation, which is set out in the Acts Interpretation Act 1954. Section 14B(3) of that Act provides a definition of "extrinsic material" which includes an explanatory note or memorandum to a Bill. Section 14B(1) and s.14B(2) provide: 14B.(1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation - (a) if the provision is ambiguous or obscure - to provide an interpretation of it; or (b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result; or (c) in any other case - to confirm the interpretation conveyed by the ordinary meaning of the provision. (2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to - (a) the desirability of a provision being interpreted as having its ordinary meaning; and (b) the undesirability of prolonging proceedings without compensating advantage; and (c) other relevant matters.29. In my view, there is a strong argument that the meaning of s.36(1)(a) (as in force prior to 23 March 1995) was plain on its face. I could not readily identify any ambiguity or obscurity in the provision. None was brought to my attention by the respondents. It is a basic canon of statutory interpretation that all words in a statutory provision must, prima facie, be given some meaning and effect: see D C Pearce and R S Geddes, Statutory Interpretation in Australia, 3rd ed, 1988, at p.18, paragraph 2.7, and the cases there cited. To give meaning and effect to the words "for its consideration" within the context of s.36(1)(a), the natural interpretation is that they add a purposive element to the verb "submitted". Thus, to qualify for the exemption, it was necessary to establish that matter had been submitted to Cabinet for a purpose, i.e. for Cabinet's consideration. It would be necessary, therefore, to inquire into the purpose for which the matter in issue had been submitted to Cabinet, and to establish that the matter in issue was submitted to Cabinet for its consideration. Interpretation of s.36(1)(a) in that manner would not have led to a manifestly absurd or unreasonable result, so arguably there was no warrant for resort to extrinsic material as an aid in the interpretation of the provision. 30. Nor am I convinced that the wording of the explanatory note (if it were permissible that it be taken into account) would have precluded interpretation of s.36(1)(a) as requiring a purposive element. On the introduction of the FOI Act in 1992, s.36(1)(a) had read: 36.(1) Matter is exempt matter if - (a) it has been submitted, or is proposed by a Minister to be submitted, to Cabinet for its consideration and was brought into existence for the purpose of submission for consideration by Cabinet; ...31. In addition to the general "Reasons for the Bill" quoted in the Crown Solicitor's letter (see paragraph 23 above), the explanatory note to the 1993 Amendment Act went on to explain the 1993 amendment to s.36(1)(a) in these terms: New paragraph (a) means that all documents which actually come before Cabinet will automatically fall within the exemption. This means that a purposive test (i.e. that the Cabinet document was created for the sole purpose of submission to Cabinet) is not required in relation to documents that are actually submitted to Cabinet.32. In the original s.36(1)(a) there were, in my view, two purposive elements: the first that matter be submitted or proposed to be submitted to Cabinet for its consideration; and the second that the matter was brought into existence for the purpose of submission for consideration by Cabinet. There is no doubt that the 1993 Amendment Act did remove a purposive test, i.e. the second one referred to in this paragraph, being the purposive test identified in the extract from the explanatory note quoted above. However, the same wording which, in my view, gave rise to the first purposive element identified in this paragraph, remained in s.36(1)(a) following its amendment by the 1993 Amendment Act.33. There was, therefore, a substantive argument before me that for exemption under s.36(1)(a) to be established, I must be satisfied that the purpose of the submission of the matter in issue to Cabinet was for its consideration by Cabinet. I was certainly not in a position to ignore the claims of the applicants in that regard, solely on the basis of the respondents' assertions to the contrary (cf. Manly v Ministry of Premier and Cabinet, Supreme Court of Western Australia, No. SJA 1143 of 1994, Owen J, 15 June 1995, unreported, at pp.27-28).Ministerial briefing notes and respondent's submission34. The Crown Solicitor responded to my letter dated 16 February 1995 (see paragraph 26 above) by forwarding copies of the documents I had requested, under cover of a letter dated 23 February 1995. Those documents, which originated within the Department of the Minister who ultimately took Cabinet Submission No. 03758 to Cabinet, were: (a) Ministerial submission dated 1 July 1994; (b) Ministerial submission dated 8 July 1994 with annexure (being a letter dated 8 July 1994 from the Acting Clerk of the Parliament); (c) Ministerial submission dated 15 July 1994 with annexure (being a legal opinion dated 15 July 1994); (d) Cabinet briefing paper dated 15 July 1994; and (e) Ministerial submission dated 15 July 1994.35. The documents produced to me (in particular, the issues canvassed in documents (a), (b) and (c) above) afforded evidence which, in my opinion, was capable of supporting a finding that the matter in issue was not submitted to Cabinet for its consideration, but was submitted to Cabinet for the purpose of enabling exemption to be claimed under s.36(1)(a) of the FOI Act. 36. Sworn evidence which put a different complexion on events was, however, subsequently provided to me by a senior officer within the Department of the Minister who ultimately took Cabinet Submission No. 03758 to Cabinet. In a statutory declaration dated 10 March 1995 (a heavily edited copy of which has been supplied to the applicants), that senior officer deposes to certain matters, the effect of which I must paraphrase in these terms -? that his Minister had instructed him, at a time several months before the holding of the Estimates Committee hearings, that a Cabinet submission, dealing with the subject ultimately dealt with in Cabinet Submission No. 03758, was to go before Cabinet.? that his Minister's intention to have Cabinet Submission No. 03758 go before Cabinet was not provoked, or influenced, by the lodgement of FOI access applications for the budget estimates documents.37. As I have said, the documents referred to in paragraph 34 above, looked at in isolation, are capable of supporting a different finding. Indeed, accepting the truth of the facts deposed to in the senior officer's statutory declaration, the timing of the documents referred to in paragraph 34 above and the issues they canvass, relative to the timing of the preparation of Cabinet Submission No. 03758 for consideration at a Cabinet meeting on 18 July 1994, are nevertheless capable of supporting a finding that, even if the subject of Cabinet Submission No. 03758 had long been intended for submission to Cabinet, the timing of its submission was accelerated for the purpose of allowing the budget estimates documents to be forwarded to Cabinet (as background/reference material to its consideration of Cabinet Submission No. 03758) in order to be rendered 'Cabinet exempt' within the statutory time frame for responding to the FOI access applications which had been lodged, seeking access to the budget estimates documents.38. I cannot disclose the subject-matter of Cabinet Submission No. 03758, other than to say it concerns a fairly routine matter of internal government "housekeeping", and that it was not irrelevant to have the budget estimates documents available as background/reference material to its consideration. While it was also, arguably, unnecessary to have the budget estimates documents available, I did not regard s.36(1)(a) (as in force prior to the March 1995 amendments) as warranting any inquiry as to what material Cabinet regards as necessary or desirable to assist its deliberations, provided I was satisfied that the material had been submitted to Cabinet for the purpose of its consideration by Cabinet. In this regard, I remained troubled (especially in the light of the contents of the documents referred to in paragraph 34 above) about whether several thousand folios of budget estimates documents could seriously have been submitted to Cabinet for the purpose of their consideration by Cabinet.39. I was in the course of considering what further procedural steps would be necessary to test the evidence then before me (e.g. convening an oral hearing to allow cross-examination of the respondents' deponents, or arranging to question other relevant witnesses), when the government introduced amendments to s.36 of the FOI Act which made further consideration of the issue redundant: see the Freedom of Information Amendment Act 1995 Qld (the 1995 Amendment Act).Amending legislation40. On 22 March 1995, I received a letter from the Crown Solicitor in the following terms: I am instructed by the Honourable the Attorney-General to advise you as follows. The Freedom of Information Amendment Bill 1995 was introduced into the House last night. The Bill contains amendments to sections 36 and 37 of the Freedom of Information Act 1992 Qld (the Act). I attach a copy of the Bill, Explanatory Notes and Second Reading Speech. I am instructed to inform you of the Government's reasons for the amendments contained in the Bill. As you are aware, sections 36 and 37 were amended in 1993. I am instructed that the Parliament's intention at that time was to remove the purposive element in those sections and exempt all matter that came before Cabinet. This is made abundantly clear in the Explanatory Notes, which state: "New paragraph (a) means that all documents which actually come before the Cabinet will automatically fall within the exemption. This means that a purposive test (i.e. that the Cabinet document was created for the sole purpose of submission to Cabinet) is not required in relation to documents that are actually submitted to Cabinet". Recently, you have provided a preliminary view on an existing review regarding Cabinet documents. You have indicated that the words "for its consideration" add a purposive element to s.36(1)(a). I am instructed to inform you that Parliament's intention in 1993 was to remove this purposive element. These amendments will put Parliament's intention into effect. For this reason I am instructed that the Government has decided that the amendments will have a retrospective effect. I am further instructed to inform you that the Government does not consider it appropriate that the Act be used as a means of inquiring into the Cabinet Room or the reason that a matter was brought to the attention of Cabinet. In the Government's view it is not appropriate for the Government to have to enter into extended debate as to the nature or extent of Cabinet deliberations or the reasons it was considered necessary for Cabinet to consider issues placed before it, and that such inquiries are contrary to the very purpose of the Cabinet exemption, which is to protect the confidentiality and integrity of the Cabinet process. Accordingly, I am instructed to inform you that the Government is strongly of the view that it is in the public interest to maintain the confidentiality and integrity of the Cabinet process, and that Cabinet must have the ability to discuss matters without the threat of access to documents, or parts of documents, under the Act. To provide certainty, and the requisite security to the Cabinet process, the amendments are intended by the Government to ensure the Queensland Freedom of Information Act will operate so that all documents and matter, including statistical, scientific and technical matter, brought to Cabinet will be exempt from access under the Act. It is in the Government's view clearly a matter for Cabinet itself as to whether and to what extent it considers the material before it.41. The fourth and fifth paragraphs quoted above essentially mirror the arguments put forward in the Crown Solicitor's letter of 6 February 1995. As I indicated above (see paragraphs 28-33), it is necessary for me to interpret the provisions of the FOI Act according to accepted methods of statutory interpretation.42. It is somewhat ambiguous as to whether the second last paragraph quoted above is directed to my investigative process in the course of this review, or to the uses that applicants may seek to make of the FOI Act. Certainly, the applicants in this case were not seeking to inquire into the Cabinet room or into the nature or extent of Cabinet deliberations. The documents to which they sought access had no connection with the Cabinet process, until one was created by the actions of the respondents. Even now, disclosure of the budget estimates documents would have no impact on the "confidentiality and integrity of the Cabinet process", as I have explained at paragraphs 24-25 above.43. If the comments in the second last paragraph quoted above were directed to me, I merely observe that if my duties under Part 5 of the FOI Act require me to inquire into deliberations and decisions of Cabinet, to ensure that the provisions of the FOI Act have been properly applied in a particular case, then I must do so. Inquiries into whether exemption provisions such as s.36(1)(d) or 36(1)(e) of the FOI Act have been properly applied will from time to time require me to do so (as they have done in the past with little demur from relevant agencies). It is necessary, in order to guarantee the credibility of the administration of the FOI Act, that the independent external review authority have power to make such investigations and inquiries (as is implicitly recognised in s.85, s.86 and, particularly, s.92 of the FOI Act), subject to appropriate safeguards, which are afforded by s.87 and s.93 of the FOI Act. 44. The 1995 Amendment Act was passed on 22 March 1995, having been before the Parliament for a period of less than 24 hours: a step which is contrary to usual parliamentary procedure requiring that proposed legislation should lie on the table of Parliament for at least seven days before it is debated (see debate on the motion to suspend Standing Orders and Sessional Orders, at Hansard, 22 March 1995, pp.11244-8). The 1995 Amendment Act received the Royal assent, and came into force, on the following day, 23 March 1995. The 1995 Amendment Act made significant changes to the FOI Act and to the course of these reviews. It removed the words "for its consideration" from s.36(1)(a), which had been pivotal to the applicants' third argument described at paragraph 17 above. It also inserted in s.36 a definition of "submit" which made it clear that no purposive element qualifies that verb in the context of s.36(1). It further removed the exception relating to "merely statistical" matter, which had been contained in s.36(2) and which in my preliminary view would have excepted a significant amount of the matter in issue from exemption under s.36(1) in its previous form. The 1995 Amendment Act also contained a provision which made it clear that the amendments were to have retrospective effect - applying to all FOI access applications whether they had been made before or after the 1995 Amendment Act came into force.45. The Crown Solicitor had written to me on 13 March 1995, forwarding a written submission on behalf of the respondents (as well as the statutory declaration referred to in paragraph 36 above) which maintained the claim that the budget estimates documents were exempt under s.36(1)(a), as in force prior to the 1995 Amendment Act. By letters dated 23 March 1995, I provided edited copies of the respondents' submissions and evidence to the applicants and drew their attention to the amendments contained in the 1995 Amendment Act. I invited the applicants to provide evidence or submissions in support of their case for disclosure of the documents in issue. The only written response I have received is a letter from Mr Cooper dated 27 March 1995. In that letter Mr Cooper stated: ... I would be grateful if you could advise me what stages your reviews of these two matters have reached and, specifically in this regard, if amendments to the Freedom of Information Act - forced through Parliament last night by the Government - have effectively closed off any hope I might have had that you could have found that I had a right of access to all or any of the identified documents. In this regard, you may be interested to know that Mr G W Taylor, General Manager, Finance and Administration, of the Corrective Services Commission and the person who undertook the internal review of the Commission's initial decision to refuse my request for access, advised me in a letter dated 29 September 1994, that, of the 300 pages of Commission documents identified as relevant to my request, "approximately 100 pages" are copies of the budget papers and Departmental Estimates Statement which were previously provided to members of the Estimates Committee. I would be interested to know on what basis the Corrective Services Commission could deny me F.O.I. access to documents which I had already been supplied as a member of the relevant Estimates Committee and, in fact, if the above-mentioned amendments have actually given these documents a retrospective exempt status as Cabinet documents.46. The applicants have not supplied any further submissions. Given the comprehensive way in which the amended s.36 has removed any statutory language which tended to support the contentions raised by the applicants, it is difficult to conceive of anything further that the applicants could have usefully contributed in respect of the application of s.36(1)(a).47. I note that until the time that the 1995 Amendment Act took effect, I had accorded these reviews a high priority, aiming to complete them before the 1995 hearings by budget estimates committees. However, after the March 1995 amendments came into force, it was clear that there could realistically be only one outcome to this review, and not one that would establish a right to disclosure of additional information under the FOI Act, so priorities were reassessed and attention was transferred to earlier applications for review.Other exemptions claimed48. In addition to s.36(1)(a), it was suggested by various respondents that s.36(1)(d) and (g) (as in force before the 1995 Amendment Act - they are set out at paragraph 15 above) were of relevance, as well as s.11(1)(b) and s.50(c) of the FOI Act, which provide: 11.(1) This Act does not apply to - ... (b) the Legislative Assembly, a member of the Legislative Assembly, a committee of the Legislative Assembly, a member of a committee of the Legislative Assembly, a parliamentary commission of inquiry or a member of a parliamentary commission of inquiry; ... . ... 50. Matter is exempt matter if its public disclosure would, apart from this Act and any immunity of the Crown - ... (c) infringe the privileges of - (i) Parliament; ... .49. On 8 December 1994, I received a submission from the Department of Family Services and Aboriginal and Islander Affairs (which had not made a decision, prior to Mr Fagan invoking his right to apply for external review on the basis of a deemed refusal of access) indicating that two provisions of the FOI Act had been considered in respect of Mr Fagan's application. The Department drew my attention to s.11(1)(b) and s.50(c)(i) of the FOI Act, but did not expressly state that it sought to rely on them for the purposes of this review. Section 11(1)(b) states that the FOI Act does not apply to, among others, committees or members of the Legislative Assembly. I formed the view that this provision was of no relevance in these reviews. The applications in these cases were made to agencies for documents held by agencies, not to a committee or member of the Legislative Assembly for documents held by a committee or member of the Legislative Assembly. The fact that the documents were in some way relevant to a committee of the Legislative Assembly does not attract the application of s.11(1)(b) of the FOI Act.50. Section 50(c)(i) provides that matter is exempt if its public disclosure would infringe the privileges of Parliament. It was suggested that the effect of s.3 of the Parliamentary Papers Act 1992 Qld was such that papers prepared for the benefit of a Minister giving evidence before a Parliamentary committee could be regarded as "proceedings in Parliament", and so public disclosure of them might amount to an infringement of Parliamentary privilege. I considered that I should bring both provisions to the notice of each of the respondents and raise the possible application of s.50(c)(i) of the FOI Act with the Speaker of the Legislative Assembly.51. I wrote to the Speaker on 24 January 1995, outlining a number of concerns I had as to the possible applicability of s.50(c)(i) and inviting him to apply to become a participant in these external reviews. The Speaker responded by letter dated 10 March 1995, indicating that he did not consider that there was any basis on which a claim to exemption under s.50(c)(i) could succeed, and declining to apply to be a participant.52. On or about 18 January 1995, I wrote to each of the respondents indicating my preliminary view that s.11(1)(b) was not applicable in the circumstances of these applications and that the documents in issue were not exempt under s.36(1)(d) or s.36(1)(g), as in force prior to the 1995 Amendment Act. I indicated that s.36(1)(d) and (g) were clearly designed to protect official records of Cabinet and deliberations or decisions of Cabinet, not material which had simply been provided to Cabinet. There has never been any contention on the part of the respondents that the documents in issue were prepared for submission to Cabinet or with Cabinet in mind. Their release would shed no light on the reason why they were presented to Cabinet, nor disclose any deliberation or decision of Cabinet in respect of Cabinet Submission No. 03758.53. By letter dated 13 March 1995, the Crown Solicitor, acting on behalf of the respondents, indicated that his clients did not seek to rely on exemption provisions other than s.36(1)(a) of the FOI Act in contending that all of the documents in issue were exempt, but stated that his clients wished to reserve their rights to make submissions in relation to particular documents if a general claim to exemption under s.36(1)(a) should be rejected. In the circumstances, there is no need to consider these provisions further. Application of s.36(1)(a)of the FOI Act54. As the applicants have not indicated that they accept my preliminary views in relation to any of the arguments set forth at paragraph 17 above, it is necessary for me to consider each of those arguments. Before doing so, I will consider the claim of the respondents that s.36 of the FOI Act, as amended by the 1995 Amendment Act, has retrospective operation.Retrospective operation of legislation55. In Re Woodyatt and Minister for Corrective Services (Information Commissioner Qld, Decision No. 95001, 13 February 1995, unreported), I decided that the applicant had an accrued right to have his FOI access application dealt with in accordance with the provisions of the FOI Act as in force at the time he made his FOI access application. Section 20 of the Acts Interpretation Act 1954 preserved that accrued right in the face of subsequent amendments to s.36 of the FOI Act made by the 1993 Amendment Act. However, as I noted in that decision, the application of s.20 of the Acts Interpretation Act may be displaced, wholly or partly, by a contrary intention appearing in any Act (see Acts Interpretation Act, s.4). The 1995 Amendment Act added a new s.110 to the FOI Act which provides: 110.(1) The amendments made by the Freedom of Information Amendment Act 1995 (the "amending Act") apply to an application made under this Act before the commencement of the amending Act. (2) Without limiting subsection (1), in deciding the application of the amendments made by the amending Act, the Acts Interpretation Act 1954, section 20 does not apply to an application made under this Act before the commencement of the amending Act. (3) This section does not apply to the amendment of section 42 made by the amending Act. (4) This section is a law to which the Acts Interpretation Act 1954, section 20A applies. (5) In this section - "application" includes an application for review under section 52, 73 or 84.56. Section 110 gives the amended s.36 retrospective operation, so that it applies to the FOI access applications lodged by the applicants for review. Accordingly, I am required to apply s.36 as in force at the time I give my decision in these reviews.Time at which material facts are to be considered57. A distinct but related question is whether the material facts which I must consider are those which existed at the time of lodgement of the relevant FOI access applications, or those which apply at the time I give my decision in these reviews. If I must consider the material facts as at the time of lodgement of the relevant FOI access applications, then the documents in issue in the applications commenced by Mr Fagan, Mr Borbidge, Mr Beanland and Mr Cooper would not be exempt under s.36(1)(a), because they had not by that time been placed before Cabinet. It appears that Mr Gilmore's FOI access application was not received until after the budget estimates documents were placed before Cabinet.58. However, the relevant legal principles in this regard are, in my opinion, clear. They are stated at paragraph 35 (and re-stated at paragraph 58) of my reasons for decision in Re Woodyatt. A tribunal which, like the Information Commissioner, is empowered to conduct a full review of the merits of an administrative decision under challenge, for the purpose of determining whether an applicant has a present entitlement to some right, privilege or benefit, ordinarily (unless there is a clear indication to the contrary in the relevant statute) has regard to the relevant facts and circumstances as they stand at the date of its decision. As I said in Re Woodyatt at paragraph 58: A significant change in material facts or circumstances may mean that a requested document which was not exempt at the time of lodgement of an FOI access application, has become exempt by the time of making a decision in response to the application (and vice versa), but that is simply a risk which the applicant must bear given the nature of many of the exemption provisions.I must therefore consider whether the documents in issue are exempt on the basis of the material facts as they now stand, rather than as at the time the applicants lodged their FOI access applications.Not a real submission to Cabinet59. In his letter of 15 September 1994, Mr Borbidge suggested that the documents in issue had not been submitted to Cabinet in a formal sense. Having examined the Cabinet submission and considered the relevant parts of the Cabinet Handbook, I am satisfied that there is no merit in this claim. A definition of the term "submit" was inserted in s.36(4) of the FOI Act by the 1995 Amendment Act (see paragraph 16 above) and I consider that the process by which the documents were put before Cabinet falls within that definition.Purpose of consideration60. The nature of this issue has been explained at paragraphs 17(c) and 29 above. The amendments to s.36(1) effected by the 1995 Amendment Act rendered this issue redundant before my investigations had reached a stage at which I was in a position to make a determinative finding in respect of it. 61. The amendments which came into force on 23 March 1995 make it clear beyond doubt that any purposive element has been removed from s.36(1)(a). Even if a document was deliberately submitted to Cabinet simply to make it exempt from disclosure under the FOI Act, the only finding open to me, on proof that the document had been submitted to Cabinet, would be a finding that the document comprises exempt matter under s.36(1)(a) of the FOI Act.62. It is possible that an applicant for access under the FOI Act, who was aggrieved by the actions of an agency in arranging for a requested document to be placed before Cabinet for no legitimate purpose, but merely to render it 'Cabinet exempt' within the time-frame for processing the FOI access application, could apply to the Supreme Court by way of judicial review (or an action seeking a declaration) on the basis that the actions of the agency constituted an abuse of power. An issue of that kind is not one which I have jurisdiction to determine in a review under Part 5 of the FOI Act. However, a person seeking to pursue a Supreme Court challenge of the kind I have mentioned would face formidable hurdles in obtaining the evidence to support a case. Much of the necessary evidence would itself be exempt matter under the unnecessarily broad terms of s.36 (or s.37) of the FOI Act, and may even be subject to a claim of privilege from production in legal proceedings on grounds of public interest immunity.Statistical matter63. A number of the respondent agencies acknowledged that the documents in issue contain statistical matter. My examination of the documents in issue confirms this. The FOI Act prior to 23 March 1995 contained an exception to s.36(1) whereby "merely statistical matter" would not qualify for exemption under s.36(1), unless s.36(2)(a) and (b) were applicable. The respondents objected to release of all this matter on the grounds that it was not "merely" statistical matter, but a number of the applicants argued that some of the matter was merely statistical and therefore not exempt. That contest has been rendered redundant by the 1995 Amendment Act, which repealed (with retrospective effect) the former s.36(2) exception for "merely statistical, scientific or technical matter".Findings in relation to s.36(1)(a)64. The arguments of substance initially raised by the applicants (being the last two arguments referred to above) have been rendered redundant by the retrospective amendments to s.36 made by the 1995 Amendment Act. On the basis of Mr Stanley's statutory declaration, I find that the documents in issue in each application for review have been submitted to Cabinet, and that they therefore comprise exempt matter under s.36(1)(a) of the FOI Act, in its present form.65. This applies not only to documents which have not been released to the applicants, but also to documents which have previously been released to an applicant, or indeed published. For example, in the case of one of Mr Cooper's applications (S 153/94), the internal review decision-maker indicated that approximately 100 pages of the documents in issue were claimed to be exempt, notwithstanding that they had already been provided to Mr Cooper in his capacity as a member of a budget estimates committee. It is also clear that a small number of the documents in issue have been published by agencies.66. Publication of material will not necessarily mean that it ceases to be exempt under s.36(1) in its present form. The only exception to the exemption appears in s.36(2), which provides that s.36(1) does not apply to matter officially published by decision of Cabinet. Despite indications of prior publication of some documents in issue, by a Minister or Department, I am not aware of any decision by Cabinet authorising publication of any of the budget estimates documents since the time that they were forwarded to Cabinet on 18 July 1994. They therefore remain exempt documents under the FOI Act.67. Of course, agencies have a discretion to give access under the FOI Act to exempt documents or exempt matter (see s.28(1) of the FOI Act). In my letters to respondent agencies forwarded on or about 18 January 1995, I drew the attention of all respondents to the possible exercise of their discretion to disclose some of the matter in issue, even if it is exempt matter, saying: While in the balance of this letter, I have proceeded on the basis that you and other relevant agencies wish to defend the decisions under review, I now ask that you give careful consideration to whether it is necessary or appropriate to exercise the discretion under s.28(1) of the FOI Act to claim exemption for all of the documents in issue (assuming for the moment that they are, technically, exempt). To my mind, there is an air of unreality about the making of this blanket claim for exemption in respect of documents that were not initially prepared for submission to Cabinet, but to brief Ministers for an exercise in public accountability, viz. questioning by the elected representatives of the people of Queensland, on aspects of the performance of agencies for which the relevant Ministers are responsible and accountable. A great deal of the briefing material must have been prepared on the basis that it was appropriate information to be put on the public record in response to questioning. I note, merely by way of example, that there is nothing in the briefing for the Premier prepared by the Office of the Parliamentary Commissioner for Administrative Investigations (which is among the documents in issue) which I regard as inappropriate or unsuitable to be placed on the public record. Indeed, it was prepared on the basis that the Premier may need to place on the public record (in response to questioning) any of the details contained in it. While I recognise that in respect of other agencies there are probably parts of the briefing materials which they would prefer should remain confidential, I consider that there are likely to be many other parts which the agencies would concede were always considered to be appropriate for release on to the public record, or the release of which, at this stage, could do no conceivable harm. If my views are correct, then the decision to claim a blanket exemption on the basis that the documents were subsequently submitted to Cabinet (for no more significant purpose, it appears, than ... ) seems to me to be contrary to the spirit of the FOI Act, and arguably an inappropriate exercise of the discretion conferred by s.28(1) of the FOI Act (cf. Re Norman and Mulgrave Shire Council (Information Commissioner Qld, Decision No. 94013, 28 June 1994, unreported) at paragraphs 11-18). Decisions of this kind make it understandable why journalists and Opposition MP's have grown cynical about the administration of the FOI Act. I request that you give serious consideration to whether your Department should agree to the release of those documents in issue, the disclosure of which could do no harm to any relevant public or private interest, and inform me of any documents or parts of documents which you are prepared to release. I am sure any concessions on your part would be accepted by the applicants as a sign of good faith that such an exceptionally wide exemption provision as s.36(1) (which is capable of applying to documents already on the public record) is to be administered in a common sense manner.68. Notwithstanding my suggestion, the respondents did not agree to the disclosure of any of the matter in issue. The exercise of the discretion to release exempt documents is limited to agencies and Ministers. I am prohibited by s.88(2) of the FOI Act from directing the release of exempt documents. As the respondents have declined to exercise the discretion granted to them, and the matter in issue is exempt under s.36(1)(a) in its present form, I cannot direct release even of those documents which have previously been published, or made available to an applicant.Comments on the amendments to s.3669. In Re Woodyatt at paragraphs 11-12, I made comments that were critical of the extremely wide coverage of the s.36 exemption following the amendments effected by the 1993 Amendment Act. The amendments to s.36 (and s.37) effected by the 1995 Amendment Act only serve to amplify the concerns which prompted my previous critical comments. So wide is their reach, following the 1993 and 1995 amendments, that s.36 and s.37 of the FOI Act can no longer, in my opinion, be said to represent an appropriate balance between competing public interests favouring disclosure and non-disclosure of government information. They exceed the bounds of what is necessary to protect traditional conceptions of collective Ministerial responsibility (and its corresponding need for Cabinet secrecy) to such an extent that they are antithetical to the achievement of the professed objects of the FOI Act in promoting openness, accountability and informed public participation, in the processes of government. I have explained my concerns in this regard at some length in Chapter 3 of my third Annual Report as Information Commissioner (1994/95).70. The potential for abuse of the accountability objects of the FOI Act is apparent on the face of these provisions. Under s.36(1)(a) in its present form, any document (even a bundle of thousands of documents) can be made exempt by placing it before Cabinet. A Minister, or official with sufficient influence to have a document placed before Cabinet, now holds the power, in practical terms, to veto access to any document under the FOI Act by adopting this mechanism. It does not matter that the document was not created for the purpose of submission to Cabinet, or that the disclosure of the document would not compromise or reveal anything about the Cabinet process. It is not even necessary that the document be in any way relevant to any issue considered by Cabinet. At any time, even at a time after an FOI access application has been made for that specific document, a document may be made exempt by placing it before Cabinet. (Section 36(1)(c) of the FOI Act, in its present form, also carries similar potential for abuse, as explained in paragraph 3.24 of my third Annual Report (1994/95)).71. Much of the benefit of the FOI Act is prophylactic - the prospect of public scrutiny should deter officials from impropriety and encourage the best possible performance of their functions. However, the intended prophylactic effect of accountability measures of this kind is negated if there exists a certain method for evading scrutiny in the event of problems arising, by preventing the disclosure of embarrassing or damaging information. Moreover, the prospect of concerned citizens obtaining documents which would permit informed participation in the policy development phase of some issue which is ultimately intended to go before Cabinet or Executive Council is also reduced, by these exemption provisions, to something which is entirely at the discretion of Ministers, or officials with sufficient influence to create circumstances which attract the application of these exemption provisions.72. Other anomalies in the operation of these unnecessarily wide exemption provisions should be apparent from my reasons for decision in this case. In Chapter 3 of my third Annual Report, I have recommended that s.36 be amended to restore it to the form in which it was originally enacted in 1992, when it struck an appropriate balance between preserving the degree of secrecy necessary in the Cabinet process to protect the convention of collective Ministerial responsibility and, on the other hand, promoting the public interests in openness, accountability and informed public participation in the processes of government, which the FOI Act was intended to foster.Conclusion73. As my ultimate findings are based on an exemption provision which has been amended substantially since the making of the decisions under review, I consider it appropriate to set aside the decisions under review. In substitution for them, I find that the matter in issue in each application for review is exempt matter under s.36(1)(a) of the FOI Act, as in force following its amendment by the 1995 Amendment Act. I note, however, in respect of application for review No. S 137 of 1994, that ten pages remain in issue (see paragraph 2 above), not having been dealt with as documents in issue in these reasons for decision............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

G66 and Department of Justice and Attorney-General [2019] QICmr 35 (29 August 2019)

G66 and Department of Justice and Attorney-General [2019] QICmr 35 (29 August 2019) Last Updated: 17 September 2019 Decision and Reasons for Decision Citation: G66 and Department of Justice and Attorney-General [2019] QICmr 35 (29 August 2019) Application Number: 314460 Applicant: G66 Respondent: Department of Justice and Attorney-General Decision Date: 29 August 2019 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION REFUSAL OF ACCESS – CONTRARY TO PUBLIC INTEREST INFORMATION – job recruitment information concerning an appointment to a senior public service role – whether disclosure would, on balance, be contrary to the public interest – section 47(3)(b) and section 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] under the Right to Information Act 2009 (Qld) (RTI Act) for access to certain job selection information concerning an appointment made by the Department of Justice and Attorney-General (DJAG) to a Senior Officer position. The information sought included the Selection Report, the written application submitted by the successful candidate, as well as referee reports and interview questions and activities. DJAG located 260 responsive pages. It decided[2] to give full access to 41 pages; partial access to 99 pages; and to refuse access to 120 pages on the grounds that disclosure of the information in question would, on balance, be contrary to the public interest. The applicant applied[3] to the Office of the Information Commissioner (OIC) for external review of DJAG’s decision. Additional information was released to the applicant during the external review process. For the reasons set out below, I affirm DJAG’s decision to refuse access to the information remaining in issue on the ground that its disclosure would, on balance, be contrary to the public interest. Reviewable decision The decision under review is DJAG’s decision dated 8 February 2019. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and the appendix). Information in issue The information in issue comprises documents and parts of documents concerned with the recruitment by DJAG of a Senior Officer position, including referee reports, information relating to unsuccessful applicants, selection panel notes, as well as parts of the Selection Report (Information in Issue). Issue for determination The issue for determination is whether disclosure of the Information in Issue would, on balance, be contrary to the public interest. Relevant law A ground for refusing access is where disclosure would, on balance, be contrary to the public interest.[4] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[5] The RTI Act lists factors which may be relevant to deciding the balance of the public interest[6] and sets out the following steps[7] to decide where the public interest lies in relation to disclosure of information: • identify any irrelevant factors and disregard them • identify relevant public interest factors favouring disclosure and nondisclosure • balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure would, on balance, be contrary to the public interest. No irrelevant factors, including those in schedule 4, part 1 of the RTI Act, arise for consideration in this case and I have taken none into account.Factors favouring disclosure In its decision, DJAG recognised the following factor favouring disclosure of the Information in Issue: disclosure could reasonably be expected to promote open discussion of public affairs and enhance the government’s accountability.[8] I have given consideration to all other factors in the RTI Act weighing in favour of disclosure and also recognise the following factor as relevant: disclosure could reasonably be expected to reveal the decision for a government decision and any background or contextual information that informed the decision.[9] In a letter to DJAG dated 4 April 2019, I communicated the preliminary view that the public interest in the transparency of the selection process, and in DJAG’s accountability for its decision to appoint the successful candidate to the position, weighed in favour of disclosure of some additional information. I advised DJAG that OIC had consulted with the successful candidate, and that person did not object to disclosure of the material they had prepared for the job selection process, namely, their covering letter, curriculum vitae (with the exception of personal contact details), and their statement addressing the selection criteria. The successful candidate claimed copyright over that material and access was therefore to be provided by way of inspection only, in accordance with section 68(1)(a) and section 68(4)(c) of the RTI Act. DJAG accepted my preliminary view in respect of the bulk of the information and the applicant was given access to additional information. Factors favouring nondisclosure In its decision, DJAG recognised the following factors favouring nondisclosure of the Information in Issue: disclosure could reasonably be expected to prejudice the protection of a person’s right to privacy[10] disclosure could reasonably be expected to cause a public interest harm by disclosing personal information of individuals;[11] and disclosure could reasonably be expected to prejudice the effectiveness of testing or audit procedures.[12] In a letter to the applicant dated 20 May 2019, I advised that DJAG had accepted my preliminary view that the public interest in the transparency of the selection process, and in DJAG’s accountability for the decision to appoint the successful candidate, weighed in favour of disclosure of additional information. However, in respect of the remaining information, I explained to the applicant that I was of the preliminary view that the strong public interest in protecting the personal information and right to privacy of the persons involved in the recruitment process outweighed the public interest in DJAG’s accountability and in the transparency of its decision-making process. The applicant’s submissions The bulk of the applicant’s submissions were directed at making complaints against DJAG and the manner in which it had dealt, and communicated, with him; and in disputing that the successful candidate was entitled to make a claim for copyright over their job application material. The only submission that the applicant made that was relevant to the application of the public interest balancing test to the Information in Issue was that the successful candidate had previously been responsible for ‘overseeing’ an internal workplace investigation[13] in which the applicant had been involved and about which he was dissatisfied, and that there was therefore a significant public interest in scrutinising all material concerned with DJAG’s decision to appoint this person to a Senior Officer role. In an email of 13 June 2019, the applicant also stated that OIC was ‘not privy’ to other evidence and documentation in his possession ‘that demonstrates maladministration and misconduct over many years’ and that he said called into question the appropriateness of the appointment made by DJAG. However, the applicant provided no material in support of this allegation. Although he did not specifically advance them, it appeared from these submissions that the applicant may have been raising the application of the following public interest factors favouring disclosure: disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency of official;[14] and disclosure could reasonably be expected to reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[15] In responding to the applicant, his assertion that the successful candidate had been responsible for oversight of the investigation to which he referred was disputed.[16] However, in the event that he wished to make specific submissions about how the workplace investigation and the successful candidate’s involvement in it impacted upon the application of the public interest balancing test to the Information in Issue, he was invited to do so.[17] The applicant alleged that OIC had reached a ‘pre-determined’ view that no further information he provided would shift the public interest balancing test and that this made it difficult to write a submission ‘in the knowledge that it will not be received with an open mind’.[18] He also accused OIC of misapplying its legislative powers although he did not specify how he alleged that misapplication had occurred. The bulk of the remainder of his submission was concerned with continuing to dispute the copyright claim made by the successful candidate over their job application material. He demanded a Statement of Reasons from DJAG explaining why it had accepted the copyright claim. He also alleged that DJAG had engaged in an abuse of process regarding the release of the additional information to him and he sought an investigation by OIC ‘into the conduct of DJAG during the course of this external review regarding the department’s active non-compliance and misleading conduct and action in bad faith’. By letter dated 15 July 2019, I rejected the applicant’s contention that OIC had reached a pre-determined view or misapplied its legislative powers. I again invited the applicant to make submissions addressing the application of the public interest balancing test. I also clarified the copyright issue (I will discuss copyright further below). I advised that there was no requirement for DJAG to give him a Statement of Reasons as its decision-making role ended upon commencement of the external review, and that DJAG had not raised the copyright issue in any event. I stated that, while DJAG had initially misunderstood the copyright issue in making arrangements for the additional information to be released to the applicant,[19] it had since rectified the situation and, as I understood it, the applicant had now been provided with copies of the non-copyrighted documents. I advised that there was no evidence before me to suggest that there was any abuse of process or deceptive conduct on the part of DJAG that required investigation. In any event, OIC has no investigative powers under the RTI Act. The applicant did not make any further submissions in support of his case for disclosure of the Information in Issue. Discussion The decision in Poyton and Metro North Hospital and Health Service[20] discusses job recruitment information and the balancing of the public interest factors favouring disclosure and nondisclosure of such information. In that decision, it was recognised that there had been a shifting of the balance between public disclosure of information about public service employees, and the protection of their personal privacy. The decision of the Australian Information Commissioner (AIC) in BA and Merit Protection Commissioner[21] discussed this shift and found that, in light of changes in privacy law and heightened community concern about privacy protection and the potential for misuse of personal information that enters the public domain, greater weight should be given to the public interest in protecting a person’s right to privacy, and that the early leading authorities favouring disclosure of personal information of public servants in the interests of government accountability should no longer hold ‘decisive sway’.[22] In terms of the public interest factors favouring disclosure that the applicant appeared to be raising in his submissions (see paragraph 20 above), I am unable to afford these factors any weight in the public interest balancing test. As noted, the applicant raised the successful candidate’s involvement in an internal workplace investigation, and made assertions that he had other material in his possession that was relevant to the issue of this person’s suitability to be appointed to the position and the appropriateness of DJAG’s decision. However, the applicant provided no further submissions that addressed either of these matters and provided no supporting material, despite being invited to lodge submissions about the public interest balancing test. There is nothing of which I am aware that appears on the face of the Information in Issue that gives rise to grounds for the application of these factors to the Information in Issue. I will now turn to a consideration of the weight to be afforded to the two factors identified at paragraphs 12 and 13 above that I consider apply in favour of disclosure of the Information in Issue. I consider that the information that has already been released to the applicant, particularly from the Selection Report, as well as the successful candidate’s job application material, serves to satisfy the public interest in the accountability of the Department for its recruitment decision, and the public interest in examining the reasons for the decision and the information that informed it. This released information discloses: the role description the material that the successful candidate submitted in support of their application for the position the shortlisting assessment sheet (excluding the names of unsuccessful applicants) and the results of shortlisting the assessment process the interview format the justification for the selection decision; and the results of referee checks. The Information in Issue that has not been released consists of: personal contact details for the successful applicant referee reports for the successful candidate personal information about the unsuccessful applicants including their job applications and referee reports interview questions and the guide to those questions for panel members; and notes made by panel members during the interview process. I afford only low weight to the public interest factors favouring disclosure of this information that are identified at paragraphs 12 and 13. I am not satisfied that release would advance these factors in any meaningful or significant way beyond what has already been disclosed to the applicant. DJAG is accountable for its decision to appoint the successful candidate to the position. Disclosing highly personal and sensitive information about unsuccessful candidates would contribute to an understanding of the selection process in only a very limited way. In respect of the referee reports for the successful candidate, while I accept that referee checks form an important part of the selection process, I note that part of the Selection Report already released to the applicant summarises the outcome of referee checks. Similarly, as regards individual panel members’ notes, the final, joint decision of the panel, and the agreed reasons for making that decision, are disclosed in the Selection Report. I do not consider that releasing the notes would contribute in any significant way to an understanding of the selection decision or enhance the accountability of DJAG for that decision. The Selection Report stands as the official record for the recruitment recommendation and appointment. As to the interview questions and the panel guide to the questions, I note that that part of the Selection Report that summarises the panel’s justification for its selection decision gives an indication of the type of questions that were asked of candidates at interview and of the candidate’s response. Again, disclosing the specific questions would enhance the public interest factors favouring disclosure to only a limited extent. Turning to the public interest factors favouring nondisclosure, I have identified three factors that apply to all or parts of the Information in Issue (see paragraph 16 above). I will now consider the weight to be afforded to these factors. The Department claims that disclosure of the interview questions and the selection panel guide to those question could reasonably be expected to prejudice the effectiveness of testing or audit procedures. I have noted above that at least an indication of the types of questions that were asked at interview can be gleaned from a review of the selection panel’s justification for their decision. Nevertheless, I accept the Department’s claim. It is standard practice in job interviews for the public service for candidates to be asked to return interview questions at the conclusion of the interview in order to preserve the confidentiality of the questions and, therefore, their utility and effectiveness not only for the current selection process, but also for future recruitment processes. I accept that interview questions for a broad range of senior management roles within a government agency may seek to elicit similar information from the candidates in terms of their skills and experience, and it is therefore reasonable to assume that the same types of questions may be asked for positions at this level across different recruitment processes. There is a public interest in protecting the worth of these questions and therefore the effectiveness of future public service recruitment processes. The same considerations apply to the selection panel guide to the questions. Taking account of the information that is contained in the Selection Report that gives a broad indication of some of the interview questions, I afford this factor moderate weight in the public interest balancing test. The remainder of the Information in Issue comprises personal information about the successful and unsuccessful candidates. The definition of ‘personal information’ in the RTI Act[23] refers to the definition in the Information Privacy Act 2009 (Qld) (IP Act), which provides that:[24] Personal information is information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. The RTI Act recognises that disclosure of an individual’s personal information automatically gives rise to a reasonable expectation of a public interest harm. I give significant weight to the public interest in protecting the right to privacy of the unsuccessful candidates. While, as I have noted above, disclosure may contribute to some limited additional understanding of the selection panel’s decision to appoint the successful candidate in preference to others, the public interest harm in disclosing the personal and sensitive information that these persons supplied in support of their unsuccessful applications, and the corresponding prejudice to the protection of their right to privacy, is significant. As regards the personal information of the successful candidate, it mostly comprises information provided by that person’s referees, as well as notes made by panel members at interview. I have already noted that the overall results of the selection panel’s inquiries with referees are summarised in the Selection Report, as is the panel’s agreed reasons for their selection decision. The disclosure of referee reports (and some other recruitment documents) was discussed in BA at paragraphs 93 and 94: 93. I do not think it reasonable that those personal details about the applicant should be released into the public arena. To do so would be to treat her differently to most other public officials, based solely on the fact that she was a successful internal candidate for promotion. The documents are not dissimilar to annual performance assessments that are nowadays prepared internally about most APS staff. The confidentiality of this personnel system is rigorously promoted, if not maintained. I think that many APS staff would find it discomforting if the frank assessment of their vocational competence by other colleagues was circulated without restraint. ... 94. There is a potential anomaly if the referee’s report about the applicant is not classified as an exempt document. It may be that the referee did not provide a copy of the report to the applicant and submitted it to DHS on an in-confidence basis (a not uncommon practice). If so, it would be an unreasonable outcome in relation to the applicant if a referee’s report not seen by her was available in the public arena to others. ... I agree with the AIC’s observations. I am satisfied that the public interest in the outcome of inquiries made with the successful candidate’s referees is sufficiently satisfied by the summary that has already been released to the applicant. Given the sensitive and highly personal nature of the information contained in the referee reports, which comprises the personal information of both the candidate and the referee, I afford significant weight to the public interest in protecting the right to privacy of the persons concerned. I make the same finding in respect of panel members’ notes, which contain highly personal and sensitive information about the interviewee and their performance and demeanour at interview. Balancing the public interest I find that the public interest factors identified at paragraph 20 above do not apply to the Information in Issue and I therefore afford them no weight in the public interest balancing test. I afford low weight to the two public interest factors that I have identified as favouring disclosure of the Information in Issue at paragraphs 12 and 13 above, namely the public interest in the accountability and transparency of DJAG for its recruitment decision, and the public interest in understanding the reason for that decision. I am not satisfied that release of the Information in Issue would advance these factors in any significant way. Balanced against this is the significant weight I afford to the prejudice of the protection of a person’s right to privacy, and to the public interest harm that could reasonably be expected to flow from disclosure of the Information in Issue. I also give moderate weight to the public interest in protecting the effectiveness of DJAG’s testing or audit procedures. Finding After balancing the public interest factors weighing both for and against disclosure, I find that disclosure of the Information in Issue would, on balance, be contrary to the public interest. Copyright Although it is not strictly necessary for me to do so for the purposes of this decision, I will briefly discuss the issue of copyright, given that the applicant has focused many of his submissions on this issue. Section 68(4)(c) of the RTI Act provides that, if giving access in the form requested by the applicant would involve an infringement of the copyright of a person other than the State, access in that from may be refused and given in another form. Generally, issues concerning copyright are for an agency to determine at the time of making its access decision. In this review, the claim of copyright made by the successful candidate over their job application material was made during the external review process. The claim was for their covering letter, curriculum vitae, and statement addressing the selection criteria. I accepted this copyright claim, and therefore requested that DJAG make arrangements for the applicant to inspect this material under section 68(1)(a) of the RTI Act, rather than being given copies. The applicant asserted[25] that copyright could not exist in the material because: the material had been prepared by the successful candidate as a public servant and copyright therefore vests in the State of Queensland there is no ‘creative works [sic] or commercial value’ in the letter of application and related documents: a mere cataloguing of public sector information lacks the sufficient quality of material capable of copyright; and the candidate submitted the material through the government’s SmartJobs website and did so knowing that it could be subject to an application under the RTI Act: the candidate should have affixed the copyright claim to the material at that time and to do so now is ‘spurious’ and aimed at avoiding RTI disclosure. I responded to the applicant in my letter dated 15 July 2019: I do not accept that copyright exists in the State of Queensland. It would do so only if the material in question had been produced by [the candidate] as part of [their] employment duties. That is not the case. There is nothing to prevent a public servant from claiming copyright over written material that the officer has compiled outside of the officer’s employment duties or service contract. The job application material originated with [the candidate] and [they] compiled it through the product of [their] skill, labour, expertise or experience. That is sufficient to attract copyright. There is no requirement to label a work as copyright protected. Copyright exists automatically once the original work is created. ... ...I do not accept that the copyright claim is ‘spurious’ or was aimed at ‘avoiding RTI disclosure’. The latter is clearly incorrect as the material has in fact been disclosed to you. For the reasons explained, I am satisfied that copyright exists in the job application material. I am further satisfied that the applicant has been given access to this material in accordance with section 68(1)(a) of the RTI Act – by being given a reasonable opportunity to inspect the material. DECISION I affirm the decision under review. I decide that access to the Information in Issue may be refused under the RTI Act. I have made this decision under section 110 of the RTI Act as a delegate of the Information Commissioner, under section 145 of the RTI Act. -----------------------------------------------Louisa Lynch Right to Information CommissionerDate: 29 August 2019 Appendix Significant procedural steps Date Event 14 February 2019 OIC received application for external review and accompanying submissions. 19 March 2019 OIC wrote to the applicant and to DJAG advising that the application for external review had been accepted. 20 March 2019 OIC received the Information in issue from DJAG. 4 April 2019 OIC consulted with the successful candidate by telephone. OIC expressed a preliminary view to DJAG regarding disclosure of additional information. 13 May 2019 OIC received DJAG’s response. OIC formally consulted with the successful candidate in writing. 20 May 2019 OIC wrote to the applicant to advise that additional material would be released to him, and to communicate a preliminary view regarding disclosure of the remaining information. 12 June 2019 Telephone discussion with the applicant. 13 June and 20 June 2019 Emails received from the applicant concerning copyright and OIC’s procedures. 20 June 2019 OIC responded to issues raised by the applicant. 4 July 2019 Email received from the applicant concerning a number of issues including copyright and complaints about DJAG’s conduct. 15 July 2019 OIC responded to issues raised by the applicant. [1] Application dated 3 January 2019. [2] Decision dated 8 February 2019. [3] Application dated 14 February 2019. [4] Sections 47(3)(b) and 49 of the RTI Act. [5] For example, where disclosure of the information could reasonably be expected to contribute to the administration of justice for a person (schedule 4, part 2, item 17 of the RTI Act). [6] In schedule 4 of the RTI Act. However, this list is not exhaustive and factors not listed may be relevant in a particular case. [7] In section 49(3) of the RTI Act.[8] Schedule 4, part 2, item 1 of the RTI Act. [9] Schedule 4, part 2, item 11 of the RTI Act. [10] Schedule 4, part 3, item 3 of the RTI Act.[11] Schedule 4, part 4, section 6 of the RTI Act. [12] Schedule 4, part 3, item 21 of the RTI Act.[13] The applicant made this submission in a telephone conversation with OIC on 12 June 2019. [14] Schedule 4, part 2, item 5 of the RTI Act.[15] Schedule 4, part 2, item 6 of the RTI Act.[16] I am aware of the workplace investigation in question as it has been the subject of other external review applications made to OIC. [17] By letter dated 20 June 2019. [18] Applicant’s email of 4 July 2019. [19] DJAG had been under the misapprehension that the applicant was only entitled to inspect (and not obtain copies of) all of the additional information that it had agreed to release to him, rather than just the successful candidate’s job application material. [20] [2016] QICmr 50 (13 December 2016).[21] [2014] AICmr 9 (BA). [22] BA at paragraph 87.[23] Schedule 5 of the RTI Act.[24] Section 12 of the IP Act.[25] Email of 4 July 2019.

queensland

court_judgement

Queensland Information Commissioner 1993-

J38 and Brisbane City Council [2022] QICmr 40 (18 August 2022)

J38 and Brisbane City Council [2022] QICmr 40 (18 August 2022) Last Updated: 20 February 2023 Decision and Reasons for Decision Citation: J38 and Brisbane City Council [2022] QICmr 40 (18 August 2022) Application Number: 316447 Applicant: J38 Respondent: Brisbane City Council Decision Date: 18 August 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - IRRELEVANT INFORMATION - information falling outside the scope of the applicant’s request - whether deleted information is irrelevant to the terms of the access application - section 88 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST INFORMATION - personal information of other individuals - personal information and privacy - whether disclosure of information would, on balance, be contrary to the public interest - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the respondent (Council) under the Information Privacy Act 2009 (Qld) (IP Act) for access to: ...any and all information, in any format, including, but not limited to - written correspondence/notes/documentation/emails/letters, verbal/recorded/taped communications, phone calls/notes, photos, manager's notes, medical certificates and/or reports, and meeting notes on or about me, ... held within/by Brisbane City Council for dates 2 August 2014 to 31 December 2014 (inclusive). [applicant’s emphasis] Council located 47 responsive pages. It decided[2] to give the applicant full access to 20 pages, partial access to 12 pages, and refused access to 15 pages. Council decided that some information was irrelevant to the terms of the applicant’s access application. It decided that other information comprised the personal information of persons other than the applicant and its disclosure would, on balance, be contrary to the public interest. The applicant applied to Council for internal review,[3] however, Council did not process the application within the requisite timeframe. It was therefore deemed to have affirmed its initial decision on internal review. The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s deemed internal review decision.[4] In her external review application, the applicant appeared to also raise a sufficiency of search issue, submitting that Council may not have located all responsive documents. However, she ultimately did not seek to pursue this issue.[5] For the reasons set out below, I affirm Council’s decision. Background The applicant has made numerous access applications to Council arising out of her interactions with Council occurring either on her own behalf, or while acting as an agent for another person in relation to multiple access applications made to Council by that person. Reviewable decision The decision under review is Council’s deemed internal review decision, affirming its initial decision dated 30 September 2021. Evidence considered Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). I have taken account of the applicant’s submissions to the extent that they are relevant to the issues for determination in this review.[6] 10. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[7] I consider a decision-maker will be ‘respecting, and acting compatibly with’ that right, and others prescribed in the HR Act, when applying the law prescribed in the IP Act and the Right to Information Act 2009 (Qld) (RTI Act).[8] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[9] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[10] Information in issue The bulk of the refused information concerns a WorkCover matter involving Council and a third party. It includes correspondence between Council and the third party claimant detailing the basis of the claim, as well as medical information concerning the claimant (WorkCover Information).[11] As submitted by the applicant and evident from this refused information, the applicant assisted the claimant with his claim by sending and receiving relevant correspondence from her email address on the claimant’s behalf. The remainder of the refused information comprises the mobile telephone numbers of Council staff (Contact Information).[12] Issues for determination The issues for determination are: whether access to the WorkCover Information may be refused because it is irrelevant to the access application; and whether access to the WorkCover Information and Contact Information may be refused because disclosure would, on balance, be contrary to the public interest. Relevant law – irrelevant information Section 88 of the IP Act provides that an agency may give access to a document subject to the deletion of information it reasonably considers is not relevant to an application. This is a mechanism to allow irrelevant information to be deleted from documents which are identified for release to an applicant. In deciding whether information is irrelevant, it is necessary to consider whether the information has any bearing upon, or is pertinent to, the terms of the application.[13] Council decided that the WorkCover Information was irrelevant to the terms of the applicant’s access application and deleted it on that basis. Applicant’s submissions In her external review application, the applicant submitted: During 2014, [name redacted] & I assisted ... (then) council worker [name redacted]. Numerous emails were sent from my email address of [email address redacted] (with the permission of [name redacted]). I believe a number of redactions are some of these emails (including information to do with [name redacted]’s claim [reference number redacted], a Please Explain notice & I was privy to all this information (including medical documentation). Numerous emails were sent to Matt Anderson (the then A/Manager of Urban Amenities, Field Services). Some emails I believe are also to/from Jenny Cooper and Debbie Flesser (City WorkCover). Documentation & correspondence spanned throughout the 2nd half of 2014 including through September & December 2014. Previously BCC's Internal Review officer has included 'located documents was either provided by you, with your [redacted]’s authority or its content was otherwise known to you', in other IP matter/s. Although this is in regard to information of [name redacted], I believe it is also relevant in this matter with [name redacted]. This information does not involve conveying personal information not already known to me. In fact, [name redacted] emailed me requesting what information I email to Mr Anderson (including medical certificate / medical referral). Majority of emails were sent/received via [email address redacted] with the odd one from [email address redacted], & this included READ RECEIPT emails from BCC. BCC emailed me directly regarding [name redacted] and documentation was sent from my email address/es which BCC accepted & responded to. In my ‘preliminary view’ letter to the applicant dated 19 May 2022, I advised the applicant that I did not consider that the WorkCover Information fell within the terms of her access application under the IP Act because it could not properly be regarded as being ‘on or about’ her, and nor could it be regarded as her personal information under the IP Act. In her submissions in response dated 30 June 2022, the applicant stated: During 2014, [name redacted] and myself represented a then Council employee, [name redacted]. We had permission to correspond with not only Council Management, but also City WorkCover and other/s. We were effectively representing [name redacted] (including his workers’ compensation matter). This was not only [name redacted], but included myself. ... I’m providing copies of some emails that are evidence that [name redacted] has sought support and help from [name redacted] and I with Council issues (including documentation/emails/correspondence), and this included ‘my kindest regards to you both and deepest appreciation’. [Name redacted] also requested we forward medical information, so this certainly confirms were [sic] were acting in a representative/agent role. ... I guess you have to make a decision about the emails. These were generally drafted or completed by myself and/or [name redacted], they were sent from or to my/our email address of [address redacted] with permission from [the claimant]. Who owns the documentation, especially considering it involves my personal email address? I believe it is my personal information because it contains my email address, and my name ... on the email. Do you consider the meanings of ‘on’ and ‘about’ as there are not sufficient meanings contained in either the relevant IP Act or RTI Act that I have been able to locate. If you take the dictionary meanings (Collins) then these are:- ‘on’ – “concerned with or relating to”; and ‘about’ – ‘’relating to; concerning; on the subject of”. ... Finding I am not satisfied that the mere fact that the WorkCover Information was sent to or from the applicant’s email address is sufficient to characterise it as being ‘on or about’ her, thereby bringing it within the terms used in her access application. It is clearly ‘on or about’ another person and their WorkCover claim. Using the ordinary dictionary meanings cited by the applicant, the information does not concern or relate to the applicant in any way.[14] The fact that the claimant may have asked the applicant to assist him with his claim is irrelevant to the operation of section 88 of the IP Act, as is the fact that the applicant is aware of the nature of the information. As to the applicant’s assertion regarding her name and email address appearing in the documents, I note that Council has given her access to this information, and it is not in issue. I am satisfied that none of the WorkCover Information falls within the terms of the access application. I find that Council was therefore entitled to delete it as irrelevant information under section 88 of the IP Act. Furthermore, even if the Workcover Information could be regarded as falling within the terms of the applicant’s access application, I am satisfied, for the reasons discussed below, that its disclosure would, on balance, be contrary to the public interest. Relevant law – contrary to the public interest information Under the IP Act, a person has a right to be given access to documents of an agency.[15] However, this right is subject to provisions of the IP Act and RTI Act including the grounds on which an agency may refuse access to documents.[16] An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[17] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[18] identify factors irrelevant to the public interest and disregard them identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Schedule 4 of the RTI Act contains non-exhaustive lists of factors that may be relevant in determining where the balance of public interest lies in a particular case. I have considered these lists,[19] together with all other relevant information, in reaching my decision. I have kept in mind the IP Act’s pro-disclosure bias[20] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly.[21]Applicant’s submissions In terms of the WorkCover Information, the applicant again argued that the fact that information was sent or received from her email address (which address contains her name), and that she was, in effect, representing the claimant in his WorkCover claim, were sufficient to make it her ‘personal information’ within the meaning of section 12 of the IP Act.[22] The applicant submitted that there was therefore a public interest in her receiving access to this information under the IP Act. As to the public interest in nondisclosure in recognition of protecting the personal information/privacy interests of the claimant, the applicant argued that, as she was already aware of the nature of the claim and the associated information concerning the claimant, the claimant’s right to privacy was significantly reduced. The applicant provided copies of emails between her and the claimant as evidence that she was acting as the claimant’s agent/representative at the relevant time at his request. In respect of the Contact Information, the applicant made no submissions in support of disclosure of this information. Findings(a) WorkCover Information Again, I am not satisfied that the mere fact that the applicant sent or received the WorkCover Information from her email address is sufficient to characterise it as the applicant’s ‘personal information’. For the reasons discussed above, it is not information ‘about’ the applicant within the meaning of section 12 of the IP Act. As such, I am satisfied that the public interest factor favouring disclosure of an applicant’s personal information[23] does not apply. Further, I cannot identify any other public interest factors weighing in favour of disclosure of this information to the applicant under the IP Act. I do not consider that its disclosure would enhance the accountability or transparency[24] of Council in any meaningful way. Given the nature of the information - it is over seven years old and contains sensitive information about the claimant’s employment, health, and family circumstances - I consider that there are strong public interest factors favouring its nondisclosure, namely, the public interest in protecting the personal information[25] and right to privacy[26] of another person. I note the applicant’s submission that, at the relevant time, she was privy to the WorkCover Information. While the fact that an applicant is aware of the personal information of others may sometimes lessen the weight to be afforded to the public interest in protecting the right to privacy of those persons, it must be remembered that disclosure under the IP Act is to be regarded as disclosure to the world at large.[27] The IP Act recognises the importance of protecting the right to privacy of persons and the prejudice to that right that can flow from disclosure of their personal information to the world at large. In addition, while the claimant may have regarded the applicant as his agent at the time of the WorkCover claim, the applicant has provided no evidence to indicate that the claimant has consented to the release to the applicant under the IP Act of this sensitive, personal information about him. Accordingly, I consider that the privacy and personal information nondisclosure and harm factors remain deserving of significant weight when balancing the public interest. The claimant is entitled to make his own access application to Council under the IP Act should he wish to access his personal information. For the reasons explained, I find that disclosure of the WorkCover Information would, on balance, be contrary to the public interest. I can identify no public interest factors favouring its disclosure that would be sufficient to outweigh the strong public interest in protecting the personal information and right to privacy of the claimant. (b) Contact Information As to the Contact Information, OIC has now issued numerous decisions explaining why disclosure of the mobile phone numbers of Council staff would, on balance, be contrary to the public interest.[28] The Information Commissioner has held that ‘a mobile phone number is different to other contact details (such as email addresses or office phone numbers) in that it allows an individual to be contacted directly and potentially outside of working hours....[and] permits potential contact with an employee when off duty and/or engaged in private activity, which gives rise to a reasonable expectation of intrusion into the officer’s private life or “personal sphere”’.[29] I am unable to identify any public interest factors favouring disclosure of the Contact Information to the applicant, and the applicant has identified none. In contrast, I would afford moderate to significant weight to the public interest nondisclosure and harm factors that seek to protect the personal information and privacy of other individuals.[30] For the reasons explained, I find that disclosure of the Contact Information would, on balance, be contrary to the public interest. DECISION For the reasons explained above, I affirm Council’s decision to refuse access to the information in issue in this review because it is irrelevant information under section 88 of the IP Act and/or because it is contrary to the public interest information under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.A Rickard Acting Right to Information CommissionerDate: 18 August 2022 APPENDIX Significant procedural steps Date Event 28 November 2021 OIC received the applicant’s application for external review. 29 November 2021 OIC asked Council to provide preliminary documents. 14 December 2021 Council provided preliminary documents. 27 January 2022 OIC advised the applicant and Council that it had accepted the applicant’s application for external review. OIC requested the information in issue from Council. 31 January 2022 Council provided OIC with the information in issue. 19 May 2022 OIC communicated its preliminary view to the applicant. 2 June 2022 The applicant requested and was granted an extension of time to respond due to her disabilities/impairment issues. 30 June 2022 The applicant provided her response to OIC’s preliminary view. [1] Application dated 26 August 2021.[2] Council decision dated 30 September 2021.[3] Application dated 28 October 2021. [4] Application dated 28 November 2021. [5] Following receipt of OIC’s preliminary view letter dated 19 May 2022, the applicant did not indicate that she continued to pursue a sufficiency of search issue in her submissions dated 30 June 2022. [6] Including the external review application and the submission dated 30 June 2022. [7] Section 21(2) of the HR Act. [8] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (‘XYZ’) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[9] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [10] XYZ at [573].[11] Pages 7, 8, 9, 16, 18, 23, 26, 38, 39 and 40 (part only), and pages 10-15, 17, 19-22, 24-25 and 27-28 (in full).[12] Pages 3, 7, 8, 38, 39 and 40.[13] O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner,15 February 2010) at [52] which was a decision made under the equivalent provision in the repealed Freedom of Information Act 1992 (Qld). [14] See also H76 and Brisbane City Council [2022] QICmr 24 (27 April 2022) at [34]. [15] Section 40 of the IP Act.[16] Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent it could refuse access to the document under section 47 of the RTI Act were the document to be the subject of an access application under the RTI Act.[17] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[18] Section 49(3) of the RTI Act.[19] I have considered each of the public interest factors outlined in schedule 4 of the RTI Act, and any relevant factors are discussed below. [20] Section 64 of the IP Act.[21] Section 67(2) of the IP Act and section 47(2) of the RTI Act.[22] ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent or can reasonably be ascertained, from the information or opinion’. [23] Schedule 4, part 2, item 7 of the RTI Act.[24] Such as, for example, schedule 4, part 2, items 1, 3 or 11 of the RTI Act.[25] Schedule 4, part 4, section 6 of the RTI Act. [26] Schedule 4, part 3, item 3 of the RTI Act. [27] Noting that ‘there is no provision of that Act which contemplates any restriction or limitation on the use which that person can make of that information, including by way of further dissemination’ – see FLK v Information Commissioner [2021] QCATA 46 at [17] per McGill J. [28] See, for example, F66 and Brisbane City Council [2021] QICmr 53 (20 October 2021) at [23]-[25].[29] Smith and Sunshine Coast Regional Council; Diamond Energy Pty Ltd (Third Party) [2017] QICmr 42 (5 September 2017) at [16]. See also Underwood and Minister for Housing and Public Works [2015] QICmr 27 (29 September 2015) at [66]-[68].[30] Schedule 4, part 3, item 3 and schedule 4, part 4, section 6 of the RTI Act.