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queensland | court_judgement | Queensland Information Commissioner 1993- | Moore and Rockhampton Regional Council [2012] QICmr 16 (18 April 2012) |
Moore and Rockhampton Regional Council [2012] QICmr 16 (18 April 2012)
Last Updated: 28 May 2013
Decision and Reasons for Decision
Application Number: 310799
Applicant: Moore
Respondent: Rockhampton Regional Council
Decision Date: 18 April 2012
Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION –
access applicant sought information concerning dingo baiting
–-
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)
Contents
REASONS FOR DECISION
Summary
On
6 September 2011[1] the
applicant applied to the Rockhampton Regional Council (Council) under the
Right to Information Act 2009 (RTI Act) for access to records
relating to dingo baiting.
The
Council located 16 two-page ‘Agreements for the Provision of Baits for the
Control of Declared Pest Animals Under the Land Protection (Pest and Stock
Route Management) Act 2002 (Qld)’ (Baiting Agreements) between
the Council and various landholders (Landholders). The Council refused
access to the Baiting Agreements, on the basis disclosure would, on balance, be
contrary to the public interest
under section 47(3)(b) of the RTI
Act.[2]
Having
considered the baiting regulatory regime which requires Landholders to notify
neighbours of proposed baiting, and the submissions
of the applicant and
objecting landholders, I am satisfied disclosure of the Baiting Agreements would
not, on balance, be contrary
to the public interest. The applicant is therefore
entitled to access the Agreements, in accordance with the right of access
prescribed
in section 23 of the RTI Act.
Significant procedural steps
During
the external review I consulted with each of the third party
landholders,[3]
(Landholders) and conveyed to the Council my preliminary view disclosure
of the Baiting
Agreements[4] would not,
on balance, be contrary to the public interest.
The
Council accepted my preliminary
view.[5] The Council no
longer contends that access to the Baiting Agreements should be refused.
Additionally,
only two of the eight Landholders contacted the Office of the Information
Commissioner to object to disclosure of relevant
Baiting Agreements
(‘Objecting
Landholders’).[6]
However, given that disclosure of Baiting Agreements between the Council and
non-objecting Landholders may allow for the identification
of the Objecting
Landholders (by inference or process of elimination), it is appropriate for me
deal with all Baiting Agreements
by way of formal decision.
Significant
procedural steps are further set out in the Appendix to this
decision.
Relevant law
The
RTI Act confers a right of access to documents of an
agency.[7] This
right is subject to other provisions of the RTI Act including the
grounds on which an agency may refuse access to
documents.[8]
Relevantly, access may be refused where disclosure would, on balance, be
contrary to the public
interest.[9]
What is 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 ‘public interest’ is usually treated separately from
matters of purely private
or personal interest. Usually, a public interest
consideration is one that is available to all members or a substantial part of
the community should they choose to access it. Importantly, however, in some
circumstances public interest considerations can apply
for the benefit of
particular individuals.
In
assessing the public interest, the RTI Act requires me to disregard irrelevant
factors, consider factors for and against
disclosure,[10] and
weigh these against one another to determine where the balance of the public
interest lies in a particular case.
Findings
I
have not taken into account any irrelevant factors.
Factors favouring disclosure and nondisclosure
Names,
addresses and property particulars appearing in the Baiting Agreements comprise
the personal information of the Objecting
Landholders.[11] This
gives rise to two factors favouring nondisclosure of this
information: • disclosure of the
information could reasonably be
expected[12] to
prejudice[13] the
protection of an individual’s right to
privacy,[14] and
• disclosure of the information could reasonably be
expected to cause a public interest harm if disclosure would disclose
personal
information of a
person.[15]
Weighing
against these nondisclosure factors, however, are substantial public interest
factors favouring disclosure of the Baiting
Agreements to the applicant. These
arise from the baiting regulatory framework and the impact of baiting on the
applicant in this
case.
Each
Baiting Agreement contains a condition that persons intending to lay baits
notify neighbours with property boundaries fronting
or falling within two
kilometres of a proposed bait site. This condition has the force of
law.[16]
The
Queensland Government’s
guidelines[17] on the
use of baits explain the reasons for this binding obligation to notify:
Neighbour notification
Neighbours must be notified to allow them to take appropriate
action.
Owners must give at least 72 hours notification to all neighbours whose
property falls within 2km of the proposed bait site and any
property having
frontage to the holder where baits are to be laid.
The notification must advise that steps (e.g. restraint, muzzling) need to
be taken to ensure that domestic dogs do not gain access
to 1080 baits or
poisoned animals.
The
Council advised during the
review[18] that this
notification obligation applied to relevant Landholders as regards the
applicant. The applicant submits that he did not
receive notification. He
contends that consequently he lost a working dog to bait
poisoning.[19]
One
of the Objecting Landholders advised OIC that the Landholder did not provide
notice as
required.[20] There is
a significant public interest in disclosure to the applicant of Baiting
Agreements in this context so as to:
ensure that the
applicant is aware of neighbours who are using or have previously used baits (as
he was entitled to be made aware
by way of the bait use notification requirement
discussed above), and
enable the
applicant to take future precautions or other remedial action as necessary.
Disclosure
of Baiting Agreements will also serve to reveal environmental or health
risks,[21] by making
available the identity of persons who are using or have used a highly toxic
regulated pesticide without fully complying
with applicable legal conditions.
Disclosure will also contribute to the protection of the
environment,[22] by
not only disclosing the identity of bait users and location of past bait use,
but by encouraging future compliance with the baiting
regulatory regime.
The
second of the Objecting Landholders submits that the Landholder has always
complied with the requirements applying to baiting
programs,[23] which
presumably includes giving notice. Assuming notice was given, the applicant
will be therefore be aware of this Landholder’s
identity such that any
privacy interest attaching to relevant information as appearing on the Baiting
Agreement would be significantly,
if not entirely, diminished. Disclosure of
this information would therefore have a marginal impact – if any –
on the
Landholder’s privacy interests.
Conversely,
disclosure in this context will allow for confirmation of the Landholder’s
compliance, and therefore enhance the
transparency of the baiting regulatory
framework.
Objecting Landholders’ submissions
The
Objecting Landholders submit that their baiting activity could not have resulted
in the poisoning of the applicant’s dog,
given the timing of baiting as
against when the poisoning was said to have occurred, and the fact that weather
conditions would have
neutralised the toxicity of any baits by the time the dog
was poisoned.[24]
The
second of the Objecting Landholders further submits that the applicant is only
seeking access to the requested information for
financial
gain.[25]
Underpinning
these submissions appears to be a concern the Objecting Landholders may be
exposed to legal action if their Baiting Agreements
are disclosed to the
applicant. Submissions of this kind essentially amount to matters of personal
concern, rather than public interest
factors favouring nondisclosure.
Additionally, the submissions raise matters going to the cause of the poisoning
and who may ultimately
bear responsibility for that poisoning. These are
questions of legal liability beyond the scope of this external review.
If
the Baiting Agreements are disclosed it does not follow that the applicant will
necessarily commence, let alone succeed, in any
legal action. Furthermore, if
the ‘complying’ Landholder’s contentions are correct, then it
is difficult to see
how disclosure of relevant Baiting Agreements to the
applicant could expose this Landholder to any detriment, let alone a detriment
that could conceivably amount to a public interest factor favouring
nondisclosure. The Landholder’s identity will, as I have
noted in
paragraph 19, be known to the applicant
in accordance with the mandatory notification process. Further, both
Landholders will on their accounts
be able to demonstrate that their baiting
activities did not lead to the poisoning of the applicant’s dog.
Yet
even accepting that possible exposure to legal action could consist of a
detriment or adverse effect capable of comprising a public
interest factor
favouring nondisclosure, there is a countervailing public interest in allowing
persons such as the applicant access
to information that may assist them in
determining whether they have legal rights which may be asserted, and possibly
vindicated.
The
applicant is entitled to access information that may enable him to assess
options available by way of redress for the loss of
his dog – including
information identifying or confirming the identity of neighbours who have
baited. There is a recognised
public interest in providing individuals with
access to information that may assist them to pursue, or consider pursuing, a
legal
remedy for loss for which a remedy may exist under the
law.[26] Disclosure
of the Baiting Agreements could reasonably be expected to advance that public
interest.
Conclusion – balance of the public interest
I
have discussed at paragraphs 17-20 and 26 above the public interest
considerations favouring disclosure of the Baiting Agreements, each of which
merit substantial weight in
the circumstances of this case. Weighing against
these public interest factors is the possible prejudice to the privacy of the
Objecting
Landholders. Given the notification obligation, I consider that the
privacy interests attaching to relevant personal information
contained in the
Baiting Agreements are not particularly strong in this case, and are
insufficient to displace the significant public
interests favouring disclosure.
Disclosure
of the Baiting Agreements will inform the applicant as to the use of baits on
neighbouring properties, ensure the baiting
regulatory framework operates
transparently and effectively, and foster future compliance with that framework,
particularly the mandatory
notice obligation. In these circumstances, I
consider disclosure of the Baiting Agreements would not, on balance, be contrary
to
the public interest under the RTI Act.
DECISION
I
set aside the Council’s decision dated 13 October 2011, and in
substitution find that disclosure of the Baiting Agreements
would not, on
balance, be contrary to the public interest under section 47(3)(b) of the RTI
Act. The applicant is therefore entitled
to access the Baiting Agreements, in
accordance with the right of access prescribed in section 23 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: 18 April 2012
APPENDIX
Significant procedural steps
Date
Event
8 September 2011
Council received applicant’s RTI access application.
13 October 2011
Council refused access to the information in issue under section 47(3)(b)
of the RTI Act.
20 October 2011
The applicant applied to OIC for external review of the Council’s
decision.
27 October 2011
OIC notified the applicant and Council the external review application had
been accepted. OIC requested Council provide copies of
the information in
issue.
2 November 2011
Information in issue received from Council.
7 March 2012
OIC wrote to third party Landholders and Council conveying preliminary view
disclosure of information in issue would not, on balance,
be contrary to the
public interest under section 47(3)(b) of the RTI Act.
9 March 2012
Objecting Landholder contacted OIC, advised did not accept preliminary
view, and conveyed submissions via telephone in support of
objection to
disclosure of information in issue. Further Objecting Landholder contacted OIC
and advised the Landholder did not accept
OIC’s preliminary view, with
written submissions in support to follow.
14 March 2012
OIC wrote to both Objecting Landholders confirming position and invited
each to apply to participate in the external review.
21 March 2012
Council advised OIC that it accepted OIC’s preliminary view.
25 March 2012
Written submissions received from Objecting Landholder in support of
objections to disclosure.
16 April 2012
In a telephone conversation with an OIC officer, a non-objecting Landholder
advised the Landholder had contacted the applicant directly
and arranged to
provide him with a copy of the Landholder’s Baiting Agreement. OIC
subsequently confirmed with the applicant
that the applicant no longer sought
access to that Agreement.
[1]Received 8
September
2011.[2]Decision
dated 13 October 2011, comprising the ‘decision under
review’. The Council’s decision was made on the basis
disclosure would disclose personal information and prejudice the privacy of
third party
landholders.[3]In
accordance with section 97(4) of the RTI
Act.[4] Apart from
signatures appearing at the foot of the first page of each Agreement,
information to which the applicant does not seek
access (as advised in a
telephone conversation with an OIC officer on 5 March 2012) and which is not in
issue in this review. Additionally,
late in the review process one of the
non-objecting Landholders advised the Office of the Information Commissioner
(OIC) that the Landholder had contacted the applicant directly to arrange
release to him of the Landholder’s Baiting Agreement,
to which the
applicant no longer seeks access through the RTI process. The remaining Baiting
Agreements less these signatures therefore
comprise the ‘information in
issue’.[5]By
letter dated 20 March
2012.[6]Despite
express invitation, neither Landholder applied to participate in the
review.[7]Section 23
of the RTI
Act.[8]Section 47 of
the RTI
Act.[9]Section
47(3)(b) of the RTI
Act.[10]Sections
47(3)(b) and 49(3) of the RTI
Act.[11] That 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.’: RTI Act, schedule 6,
importing the definition set out in section 12 of the Information Privacy Act
2009 (Qld). Most of the information contained in the Baiting Agreements
merely comprises standard terms and conditions, which does not
comprise any
person’s personal information and disclosure of which could not therefore
prejudice any individual’s privacy.
I can identify no grounds either in
the decision under review or generally on which access to this standard
information could be
refused.[12]The
phrase ‘could reasonably be expected to’ requires an expectation
that is reasonably based, ie. neither absurd, irrational
or ridiculous:
see Channel Seven and Redland City Council (Unreported, Queensland
Information Commissioner, 30 June 2011) at paragraph 20 for a restatement of the
principles applying to the
interpretation of this phrase as it used throughout
the RTI
Act.[13]Adopting
the ordinary meaning of the term ‘prejudice’: 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.[14]Schedule
4, part 3, item 3 of the RTI
Act.[15]Schedule
4, part 4, item 6 of the RTI
Act.[16] Section
272 of the Health (Drugs and Poisons) Regulation
1996.[17]
‘Toxin 1080: A guide to safe and responsible use of sodium fluoroacetate
in Queensland’, Department of Employment, Economic
Development and
Innovation, 2009, p. 9. Available at:
http://www.dpi.qld.gov.au/documents/Biosecurity_EnvironmentalPests/IPA-1080-Guidelines-Fluoroacetate.pdf[18]
In a telephone conversation with an OIC officer on 13 February
2012.[19] See for
example applicant’s email correspondence with OIC dated 26 October 2011,
10 January 2012 and 10 February
2012.[20]In a
telephone conversation with an OIC officer on 9 March
2012.[21] A factor
favouring disclosure of information in the public interest: schedule 4, part 2,
item 13 of the RTI
Act.[22]Schedule
4, part 2, item 14 of the RTI
Act.[23] Written
submissions dated 23 March
2012.[24] One
Objecting Landholder made relevant submissions in a telephone conversation with
an OIC officer on 9 March 2012, the second provided
written submissions dated 23
March 2012.[25]
Written submissions dated 23 March
2012.[26]Schedule
4, part 2, item 17 of the RTI Act, ‘disclosure could reasonably be
expected to contribute to the administration of justice for a person’,
reflecting the principles set out by the Information Commissioner in
Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368.
|
queensland | court_judgement | Queensland Information Commissioner 1993- | Z32 and Queensland Building and Construction Commission; J26 (Third Party) [2021] QICmr 52 (14 October 2021) |
Z32 and Queensland Building and Construction Commission; J26 (Third Party) [2021] QICmr 52 (14 October 2021)
Z32 and Queensland Building and Construction Commission; J26 (Third Party) [2021] QICmr 52 (14 October 2021)
Last Updated: 29 August 2022
Decision and Reasons for Decision
Citation:
Z32 and Queensland Building and Construction Commission; J26 (Third
Party) [2021] QICmr 52 (14 October 2021)
Application Number:
315697
Applicant:
Z32
Respondent:
Queensland Building and Construction Commission
Third Party:
J26
Decision Date:
14 October 2021
Catchwords:
ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY
TO PUBLIC INTEREST - recruitment and personnel information
- personal
information - prejudice agency management function - accountability and
transparency - 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 - SUFFICIENCY OF AGENCY SEARCH
EFFORTS - whether agency has taken reasonable steps to identify
and locate
documents requested by applicant - section 130 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
Building and Construction Commission (QBCC) under the Right to
Information Act 2009 (Qld) (RTI Act) for access to various documents
concerning the recruitment by QBCC of a named individual (the third
party).[2]
QBCC
located various documents, both during initial processing and on internal
review. QBCC decided[3] to release
some of these (in whole or part), and to refuse access to others, on the ground
their disclosure 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 QBCC’s
decision to refuse him access to information. The applicant also contested the
adequacy of
QBCC’s searches for documents relevant to his
request.
OIC
sought the views of the third party as to possible disclosure of relevant
documents. The third party did not ultimately press
any objections to
disclosure,[6] and QBCC subsequently
agreed to release additional information to the applicant during the review.
Additionally, the applicant
did not press for access to some
information.[7] As a result, only a
small amount of information remains in issue. For reasons explained below, I
consider that the applicant is
entitled to access some of that information.
QBCC may, however, refuse the applicant access to the balance. I therefore vary
QBCC’s
decision to refuse access to all of the information in
issue.
I
am also satisfied that QBCC has taken reasonable steps to locate requested
documents, and therefore discharged its search obligations
under the RTI
Act.
Background
Significant
procedural steps are set out in the appendix to this decision.
Reviewable decision
The
decision under review is QBCC’s internal review decision dated 2 October
2020.
Evidence considered
Evidence,
submissions, legislation and other material considered in reaching this decision
are referred to in these reasons (including
footnotes and Appendix).
9. 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 as
embodied in section 21 of that Act. I consider that in observing and
applying
the law prescribed in the RTI Act, a Right to Information decision-maker will be
‘respecting, and acting compatibly with’ this right and
others prescribed in the HR Act,[8]
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.’[9]
Information in issue
The
information in issue comprises:
segments of
information appearing on the second and third pages of a ‘Statement
Addressing Selection Criteria’ (SASC) authored by the third party;
and
three instances
of two payroll/employee numbers concerning the third party, appearing on two
pages.[10]
For
reasons explained below, I do not consider that grounds exist for refusing
access to the first two segments of information redacted
from the third page of
the SASC. I will refer to this information as the ‘Category A
Information’. I will refer to the balance of information redacted
from the SASC – to which access may, in my view, be refused –
as the
‘Category B
Information’.[11] The
payroll/employee numbers I will simply refer to as the ‘Payroll
Numbers’.
Issues for determination
The
issues for determination are:
whether QBCC may
refuse access to the information in issue on the ground its disclosure would, on
balance, be contrary to the public
interest under section 47(3)(b) of the RTI
Act; and
‘sufficiency
of search’ – that is, whether QBCC has taken reasonable steps to
locate documents relevant to the access
application (such that access to further
documents may be refused, on the ground that any documents are nonexistent or
unlocatable).[12]
Procedural complaints/allegations of bias
Before
dealing with the substantive issues identified in the preceding paragraph, I
should firstly note that the applicant made various
complaints and allegations
during the review, including assertions as to bias against the delegate who
managed most of the external
review, and claims that the applicant had been
denied procedural fairness.
I
am not the delegate against whom relevant allegations were levelled. Thus, it
seems to me that as a matter of fact, the bulk of
the applicant’s
grievances in this regard – including those as to bias – essentially
‘fall away’, and
do not strictly need to be dealt with
further.[13]
As
for complaints as to fairness, having reviewed the procedure followed during
this review I am quite satisfied the applicant has
been treated fairly. He has
been afforded the benefit of detailed preliminary views on issues where those
views were against his
interests. It is also worth remembering that the
applicant is, as a consequence of the external review process, in a considerably
better position than following QBCC’s decisions, having secured access to
a number of pages to which he had been refused access
by QBCC. His success in
this regard follows OIC having independently and impartially:
assessed
relevant information
appraised
QBCC’s decision to refuse access to same
undertaken third
party consultation as required by the RTI Act
advised QBCC of
our view that it had not established grounds for refusing access; and,
ultimately,
secured
QBCC’s agreement to release of that information.
Further,
OIC acceded to the applicant’s 14 June 2021 request for an extension of
time in which to lodge
submissions.[14] We did in our 27
July 2021 letter direct that such submissions be limited to no more than three
pages, but this direction followed
receipt from the applicant of a discursive 17
page submission[15] canvassing a
range of issues (many of which are beyond our power to consider), and was made
in a context where the issues remaining
to be addressed were relatively limited
in number, confined to matters of fact, and the page limit imposed corresponded
with the
length of the OIC letter inviting reply.
This
was also a direction given consistently with not only the broad discretion
conferred on the Information Commissioner to set the
procedure on external
review,[16] but the express power to
give directions prescribed in section 95(2) of the RTI
Act.[17]
OIC
is obliged to conduct reviews
expeditiously,[18] and strives to
meet this obligation with limited resources, which must be apportioned to meet
both a range of statutory duties and
heavy demand for external review from not
just the applicant, but other members of the community. Given this, and the
matters canvassed
in paragraphs 16 and
17, I am satisfied that the page limit
direction made in our 27 July 2021 letter was appropriate, and did not operate
to deny the applicant
fair opportunity to put forward his case.
As
for the applicant’s assertion of bias, and accompanying request of the
Information Commissioner that a delegate other than
the original delegate make
this decision, it is not, as noted at paragraph 14, strictly necessary to deal with this
issue or request, given that the latter has, in practise, occurred: I have come
to this matter
fresh and have had no prior dealings with the review nor, indeed,
the[19]pplicant.19 It is adequate
to simply summarise the Commissioner’s 11 August 2021 reply to the
applicant, noting that the review has been
conducted without irregularity, in
accordance with OIC’s usual practices, and ‘well within the broad
procedural discretion conferred on ...[the Information Commissioner]
(and... delegates) by section 95(1)(a) of the Right to Information Act
2009 (Qld)’.
Finally,
for completeness I note that a recurring theme through the applicant’s
submissions is an insistence that other agencies
and public entities have failed
to properly discharge their duties or, worse, done so
‘corruptly’,[20] coupled
with an insistence that OIC should thus duly report those nominated by the
applicant to other agencies for further action,
in accordance with applicable
statutory
duties.[21]
I should make it clear that I do not share the applicant’s suspicions, and
have identified nothing in the material before me
enlivening relevant reporting
duties. Yet even if I had, I am under no obligation to account to him for the
discharge of such reporting
duties, let alone the world at large via published
reasons for decision.
With
that said, I will now turn to the substantive issues to be
determined.
Access to information
QBCC
maintains that access may be refused to all information remaining in issue. The
applicant, on the other hand, seeks access to
that information.
Having
considered each of QBCC’s and the applicant’s submissions, and the
actual information in issue, my view is that
the preferable position lies
somewhere in between. There is no basis for refusing the applicant access to
the Category A Information.
Disclosure
of the balance of the information in issue – the Category B Information
and the Payroll Numbers – would, however,
on balance be contrary to the
public interest. Access may therefore be refused to this latter
information.
In
deciding whether disclosure of information would, on balance, be contrary to the
public interest,[22] the RTI Act
requires a decision-maker
to:[23]
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 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[24] and Parliament’s
intention that grounds for refusing access to information be interpreted
narrowly,[25] and have not
considered any irrelevant factors.
Findings
Category A Information
As
noted above, I consider the applicant is entitled to access the Category A
Information, for the following reasons.
Favouring
disclosure of the Category A Information is, firstly, the general public
interest in promoting access to government-held
information.[26] Further, disclosure
of this information – material relied on by a candidate for relatively
senior public employment, and apparently
taken into account by the employing
agency[27] – could reasonably
be expected to:[28]
contribute to
the transparency of QBCC’s recruitment processes, and ensure and enhance
the accountability of QBCC for adherence
to merit and equity principles in
making recruitment decisions;[29]
and
reveal
background or contextual information informing QBCC’s decisions to appoint
the third
party.[30]
As
discussed further below, the public interest is served by ensuring the community
can access information allowing it to be satisfied
public sector appointments
are made fairly and transparently. The public interest factors identified in the
preceding paragraph deserve
substantial weight.
Favouring
nondisclosure is the fact that this information is, as QBCC submits, the third
party’s personal
information,[31] giving rise to the
public interest harm factor prescribed in schedule 4, part 4, section 6 of the
RTI Act. The public interest harm
that could, however, reasonably be expected
to follow disclosure of this personal information would be exceedingly minor,
because
the third party – whom the personal information is about, and who
authored that information – does not object to its
release.[32] Given this, I consider
the relevant harm factor merits only slight weight in balancing the public
interest.[33]
QBCC
also argues that disclosure of the Category A Information could reasonably be
expected to prejudice QBCC’s management
function.[34] In an email dated 25
August 2021, QBCC submitted that release of this specific
information:
...could be expected to prejudice the management function of our agency in
relation to current and future personnel. I consider QBCC
employees or
employees from other agencies would be aggrieved at information such as this
example relating to internal staff matters
being disclosed to a third party. I
deem that this should be given substantial weight for nondisclosure in deciding
the public interest.
I
do not accept this submission. As OIC explained to QBCC during the review, it
is not reasonable to expect that disclosure of a
passage of information authored
by and concerning a specific individual in support of that individual’s
job selection claims
could aggrieve other employees (current or prospective) at
all, let alone to an extent that might disrupt or prejudice QBCC’s
management of those employees.
Again,
the determining consideration in this regard is that the third party does not
themself object to release. Given this, I do
not consider it reasonable to
expect that disclosure would perturb or aggrieve other staff in the manner
contended by QBCC, so as
to give rise to the relevant nondisclosure
factor.[35] Accordingly, I am not
satisfied that disclosure of the Category A information could reasonably be
expected to prejudice QBCC’s
management
function.[36] This factor does not,
therefore, need to be taken into account in balancing the public
interest.
I
turn to balance competing factors against one another. Given the third party
does not object to disclosure of his personal information
as embodied in the
Category A information, I am not satisfied that the applicable public interest
harm factor[37] attracts sufficient
weight to displace the weighty accountability and transparency considerations
favouring release discussed in
paragraph 29. While I acknowledge QBCC’s
submissions that disclosure of other material through the course of this review
advances those
public interest considerations, it nevertheless remains
the[38]ase that:38
...there are public interests favouring disclosure [of written job
application materials such as the Category A information]... those include
public interests in revealing the kinds of skills, experience and claims
required to win particular positions, maintaining
public confidence that only
appropriately skilled, experienced and qualified people hold public sector
positions which are funded
by the public purse and ensuring that applications
for similar positions are accurate in their particulars and claims.
...
...[I]t is likely in my view that the higher the seniority of the
position in question, the stronger the public interest will be in disclosing
documents revealing the claims on that position by the successful
applicant.
The
third party was appointed to a relatively senior position within QBCC, an
appointment based in part, I gather, on the Category
A information. The
‘public interest is promoted by ensuring that members of the public can
verify that appointments to the public service are made equitably,
and based
upon the respective merits of the applicants.’
[39]
For
the reasons explained above, then, I am satisfied that release of the Category A
Information will serve this public interest,
to an extent sufficient to displace
the marginal weight attaching to the sole public interest consideration telling
against disclosure.
QBCC
has not discharged the onus it
carries[40] of establishing that a
decision refusing access to the Category A Information is justified. Bearing in
mind, again, the absence
of any objection to disclosure from the third party to
whom this information relates, I am satisfied that the balance of the public
interest in this case favours disclosure.
Category B Information
The
Category B Information consists of potentially identifying references to others
with whom the third party had dealings in a professional
capacity, both within
their then-employing agency and externally. While these segments reflect
entirely commonplace examples of
the types of information often relied on by job
applicants to demonstrate capacity and experience, they are, given the
investigatory
nature of the work in which the third party was engaged,
nevertheless possessed of some sensitivity; a sensitivity I do not think
is
attenuated by the third party’s general lack of objection to disclosure of
the document in which they appear.
As
information about other people, and from which I consider those persons’
identities could reasonably be
ascertained,[41] the Category B
Information comprises the personal information of persons other than the
applicant.[42] Additionally, as
information touching on matters such as workplace performance and the operations
of agency personnel in sensitive
regulatory contexts, I am also of the view that
unconditional disclosure of these limited segments of information could lead to
potential
disquiet, and thus could reasonably be expected to prejudice relevant
agencies’ management
functions.[43] Protecting
personal information and avoiding prejudice to agency management functions are
important public interests, deserving
of considerable weight.
The
same public interest considerations that favour release of the Category A
Information also count in favour of disclosure of the
Category B Information.
However, in this context, my view is that avoiding the public interest harm that
would follow the release
of personal information, and potential prejudice to
agency management function, should be preferred to those favouring disclosure
of
this information. Withholding these segments will avoid potential public
interest harm and prejudice, while not significantly
impairing the applicant or
any other persons’ ability to understand the merits of the third
party’s claims to appointment
nor QBCC’s decision to make such
appointment.
On
balance, then, I am satisfied that factors favouring nondisclosure are
sufficient to displace those in favour. Disclosure of the
Category B
Information would, on balance, be contrary to the public interest, and access
may therefore be refused to this information,
under section 47(3)(b) of the RTI
Act.
Payroll Numbers
These
numbers are rather insignificant items of information, of a largely clerical or
administrative nature. The case for release
strikes as rather marginal; while
disclosure would promote the general public interest in promoting access to
government-held information,[44]
and, to some extent, disclosing information informing the community of QBCC
operations,[45] the relatively
trivial nature of this information is such that neither consideration would seem
to attract anything beyond modest
weight. Nevertheless, in view of the RTI
Act’s express pro-disclosure bias, and the absence of any substantial
considerations
telling against
disclosure,[46] OIC’s initial
view was that their disclosure would not, on balance, be contrary to the public
interest.
QBCC,
however, provided us with submissions during the review establishing that like
information had in the past been used to perpetrate
attempted payroll fraud
against QBCC.[47] Having no reason
to gainsay these submissions, OIC advised the applicant of a revised preliminary
view, to the effect that unconditional
disclosure of the Payroll Numbers could
reasonably be expected to give rise to a public interest
prejudice[48]
sufficient to displace considerations favouring release, and thus tip the
balance of the public interest in favour of nondisclosure.
The
applicant continues to press for access to these
numbers.[49] The applicant’s
case, as I understand it, is that each number may enable him to frame future RTI
access requests (i.e., by
reference to the numbers). It is not obvious to me
how this would be so, nor why he requires access to the actual number –
should there be documents of interest to him connected to one of these numbers,
there would seem to be more than enough information
available to him on the
pages on which these numbers appear (they being the only information redacted
from those particular pages)
to enable him to make a meaningful
application.
In
any event, even if the above assumptions are mistaken, and refusing access to
these numbers does impair the applicant in the manner
he asserts, this outcome
is to be preferred to the converse which I accept could reasonably be expected
to follow unconditional release
under the RTI Act – potential fraud on a
public agency.
In
summary, then, I find that considerations favouring nondisclosure of the Payroll
Numbers as discussed above[50]
attract weight sufficient to displace those that may tell in favour of release.
Accordingly, disclosure of the Payroll Numbers would,
on balance, be contrary to
the public interest. Access may therefore be refused to this
information.Sufficiency of search
OIC’s
external review functions include investigating and reviewing whether agencies
have taken reasonable steps to identify
and locate documents applied for by an
applicant.[51]
OIC
asked QBCC for information concerning search steps taken by it by way of letter
dated 21 April 2021. It duly provided advice
in
reply,[52] which we relayed to the
applicant by way of letter dated 31 May 2021, noting that QBCC had in processing
their application undertaken
some 9.5 hours of searches, across seven days, of
both electronic and physical document repositories.
We
further advised the applicant that QBCC had certified to us its satisfaction
that no further documents exist, advice we were prepared
to accept. Given this,
we concluded that QBCC’s searches appeared to have been reasonable, and we
could identify no further
searches it might reasonably be required to
undertake.
In
reply,[53] the applicant submitted
that QBCC should be required to conduct further searches for documents
concerning several meetings at which
QBCC officers and the third party (then
employed by another agency) were
present.[54]
OIC
addressed the above contentions by letter to the applicant dated 27 July 2021.
Having summarised the applicant’s position
in terms equivalent to those
stated in the preceding paragraph, our letter continued as follows (footnotes
included):
I disagree.
The terms of your access application as originally lodged with QBCC requested
access to documents concerning... [the third party’s] QBCC
employment, and those concerning ‘the establishment, recruitment and
selection’ of and for several nominated positions.
Going by QBCC’s initial decision, it appears that QBCC then issued you
with a notice of intention to refuse to deal under section
42 of the RTI Act,
following which you agreed to narrow the terms of your application, so as to
request ‘copies of documents regarding the recruitment process of...
[the third party]’ for two positions within
QBCC.[55]
From the documents supplied by
you,[56] however, none of the
meetings nominated in your submissions concerned ‘the recruitment process
of [the third party]’ as targeted in your narrowed access
application.[57] Those documents
instead appear to evidence:
in the case
of the 5 December 2017 and proposed 22 March 2018 meetings, inter-agency liaison
between QBCC and... [the other agency], initiated by the former in an
effort to better manage its interactions and dealings with the latter; and
in the case
of the 6 March 2018 meeting, the conduct (and resolution) of a specific
administrative investigation undertaken by...
[the other agency] of
certain QBCC actions.
Requiring QBCC to undertake further searches for documents relating to
inter-agency meetings or a particular administrative investigation
– in
response to a narrowed application for documents concerning two specific
recruitment processes – lies beyond what
is reasonable. Documents of the
former kind fall outside the scope of the present application; should you wish
to pursue access
to same, you will need to lodge a fresh access application with
QBCC.
As for your general request for searches for
‘any other documents concerning any other meetings or communications
which can be established between...[the former QBCC Commissioner
and the Third
Party] which can be
identified’:[58] were it
even possible for an agency such as QBCC to deal with such a vague and sweeping
request,[59] it is not competent for
an applicant to unilaterally expand the terms of an access application on
external review.[60] You applied
for access to documents in terms as summarised above, and you are bound by the
terms of that application.[61]
The
applicant continues to insist that QBCC has failed to take reasonable steps to
locate relevant documents, his 10 August 2021 submissions
in reply to
OIC’s 27 July 2021 letter essentially maintaining the position summarised
in paragraph 51. Without wishing to
appear presumptuous, these latter submissions appear to be premised on
dissatisfaction with the fact that the
information the applicant has had
disclosed to him by QBCC does perhaps not rise to the level he would expect,
based on his subjective
construction and understanding of law and regulation
governing public sector recruitment.
Whether
or not the applicant’s apprehensions are justified is a matter entirely
outside of my remit on external review, and
on which I offer no opinion. The
adequacy or otherwise of the content of ‘recruitment process’
documentation (as opposed to searches for that process documentation),
and the processes followed by a given agency in making recruitment decisions,
are not matters that
fall for me to explore in an external review conducted
under the RTI Act. My role is limited to ascertaining whether, relevantly,
QBCC
has discharged its search obligations in response to the applicant’s
access application. On that issue, I can say little
more than OIC did in our
letter to him dated 27 July 2021, extracted in paragraph 52 above. In other words, I do not accept
that reasonable steps require QBCC, in responding to an access application for
documents ‘regarding the recruitment process’ for two
positions, to ‘cast the net’ any more broadly than it has: let alone
for documents relating to inter-agency meetings,
a particular administrative
investigation by another, unrelated agency, or ‘any other documents
concerning any other meetings’ between nominated
individuals.
Accordingly,
as a matter of fact I am satisfied that QBCC has taken reasonable steps to
identify and locate documents applied for
by the applicant. While I consider the
preceding finding sufficient to dispose of this issue, if it is necessary to do
so, I find
that access to further documents may be refused, on the ground that
such documents – to the extent they would fall within the
scope of the
access application – are nonexistent or
unlocatable.[62]
Additional matters
Before
concluding these reasons, I should briefly address two further issues pressed by
the applicant through this review: the authorship
of and comments made in the
decision under review, i.e. QBCC’s internal review decision.
On
the first, the applicant contests the legitimacy or validity of the decision
under review, contending that it was authored by an
officer less senior to the
initial decision maker ‘in flagrant breach of the RTI
Act’.[63] The applicant
contends that this amounts to ‘criminal activity in public
service’ by certain QBCC officers, and presses for the
‘outcome’ of this review – presumably, this decision
– to ‘reflect such
findings’.[64]
On
the second, the applicant takes issue, as I understand, with commentary in the
internal review decision defending and/or explaining
the recruitment processes
the subject of the applicant’s RTI access
application.[65]
Each
matter exemplifies the applicant’s desire that OIC make findings on issues
that are outside our power or authority, which
desire appears to be premised on
a misconceived notion that we have some free-ranging policing or disciplinary
role on external review.
As I have observed above, our role is limited to
merits review of an agency decision to refuse access to information, not to
vindicate
general suspicions harboured by an applicant, nor to make public
denouncements of asserted agency
shortcomings.[66] The Information
Commissioner does, as noted, have an obligation to report evidence of breach of
duty or misconduct in limited
circumstances;[67] that reporting
obligation is, however, not one required to be carried out by way of published
decision or declaration, or with an
accounting to an applicant or any other
review participant.
Do
such matters have any bearing, then, on the external review exercise? Given
that external review is merits review, the short answer
is no. As we explained
to the applicant in our 27 July 2021 letter, (by way of quotation of
observations made by the Right to Information
Commissioner in an earlier,
unrelated decision, in response to similar arguments by another applicant):
[68]
...OIC conducts a ‘merits review’ of the relevant agency
decision:
This means that OIC stands in the shoes of the agency and can make any
decision that was open to the agency to make. The effect of
this is that any
procedural issues that may have arisen when the agency was processing the
application are irrelevant on external
review. OIC’s role is to conduct a
fresh review of the relevant facts and law, and make a fresh decision.
Accordingly, an applicant
is not prejudiced by any procedural issues or defects
that may have occurred during processing as these are corrected and/or are
irrelevant under a merits review process.
With
all that said, having traversed the above issues I do think it appropriate that,
at least as regards the question of
authorship,[69] I record my
observation that I can see nothing untoward with QBCC’s internal review
decision. It clearly bears the name, position,
and signature of the-then Acting
Commissioner, a position I think I may safely assume was of higher rank than
that of the initial
decision-maker. That the document’s metadata indicates
the document itself was created by another, more junior, officer is
neither here
nor there. From personal experience, it is a routine and commonplace course of
action in the contemporary public service
for electronic documents such as
correspondence, draft reasons for decision or other statutory instruments to be
brought into existence
by a subordinate officer, resulting in that officer being
recorded as the document’s originator by the computer application
used to
create[70] or
finalise[71] the document. The
content of such correspondence or instrument, however, will be
settled,[72] endorsed and issued by
an appropriately empowered officer or delegate.
The
above appears to have been exactly the case here, such that even if I did have
some obligation to entertain and address this issue
on external review, there is
no objective, probative material before me to cause me to do
so.DECISION
I
vary, under section 110(1)(b) of the RTI Act, QBCC’s decision to refuse
access to all of the information in issue, by finding
that:
QBCC may only
refuse access to the Category B Information and Payroll Numbers, under section
47(3)(b) of the RTI Act; and
QBCC has not
established grounds for refusing access to the Category A
Information.
I
further record my satisfaction that QBCC has taken reasonable steps to identify
and locate documents relevant to the applicant’s
RTI access application,
and therefore discharged the search obligations it bears under the RTI Act. To
the extent it may be necessary,
access may be refused to any additional
documents relevant to the terms of the applicant’s narrowed RTI access
application
under section 47(3)(e) of the RTI Act, on the basis they are
nonexistent or unlocatable within the meaning of section 52 of the
Act.
I
have made this decision as a delegate of the Information Commissioner, under
section 145 of the RTI Act.K
ShepherdActing Right to Information CommissionerDate:
14 October 2021
APPENDIX
Significant procedural steps
Date
Event
29 October 2020
OIC received the application for external review.
2 November 2020
OIC requested preliminary documents from QBCC.
11 November 2020
OIC received the requested documents from QBCC.
24 November 2020
OIC notified the applicant and QBCC that the external review application
had been accepted and requested further documents from QBCC.
9 December 2020
OIC received the requested documents from QBCC.
10 March 2021
OIC consulted the third party and invited the third party to apply to
participate in the review.
22 March 2021
The third party applied to participate in the review, and provided OIC with
submissions.
8 April 2021
OIC notified the third party that their application to participate in the
review had been accepted.
21 April 2021
OIC conveyed a preliminary view to the applicant, agency and third party.
23 April 2021
OIC received further submissions from QBCC in response to the preliminary
view. OIC received the applicant’s request for clarification
of parts of
the preliminary view.
27 April 2021
OIC provided clarification to the applicant.
6 May 2021
OIC received the third party’s submission in response to the
preliminary view.
11 May 2021
Having received no reply from the applicant to OIC’s 21 April 2021
preliminary view, OIC wrote to the applicant, confirming
that information
discussed in that correspondence was no longer in issue.
11 May 2021
OIC conveyed the third party’s submission, and the applicant’s
position in response to the preliminary view, to QBCC.
17 May 2021
OIC received QBCC’s submissions in response to OIC’s 21 April
2021 preliminary view, including agreement to release some
additional
information.
31 May 2021
OIC requested QBCC release relevant information to the applicant. OIC
conveyed a further preliminary view to the applicant.
15 June 2021
OIC received the applicant’s submissions in response to OIC’s
31 May 2021 preliminary view.
6 July 2021
OIC conveyed the applicant’s submissions to QBCC and requested QBCC
consider disclosing further documents.
21 July 2021
OIC received QBCC’s further submissions regarding disclosure of
further documents.
27 July 2021
OIC conveyed a further preliminary view to the applicant.
10 August 2021
OIC received the applicant’s submissions in response to OIC’s
further preliminary view.
11 August 2021
OIC wrote to the applicant concerning conduct of the review.
12 August 2021
OIC requested QBCC consider disclosing further information.
25 August 2021
QBCC agreed to release some additional information.
7 September 2021
OIC requested QBCC disclose additional information to the applicant. OIC
confirmed with the applicant, QBCC and the third party that
the next step in the
review would comprise a written decision. OIC asked the third party to confirm
continuing participation in the
review; the third party confirmed their
participation.
[1] Application dated 19 May
2020.[2] The third party was, as I
understand, appointed on secondment to a position within QBCC, then subsequently
appointed to a position
on contract, following an open recruitment and selection
process.[3] Initial decision dated
11 August 2020; internal review decision dated 2 October
2020.[4] Section 47(3)(b) of the
RTI Act.[5] Application dated 29
October 2020.[6] See email from
the third party to OIC dated 6 May 2021. The third party did, however, wish to
remain as a participant in the review,
their application to participate under
section 89(2) of the RTI Act having been accepted by OIC prior to withdrawal by
them or their
objections.[7] See
email from OIC to the applicant dated 11 May
2021.[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] XYZ at
[573].[10] ‘New
appointment paperwork from 14 May 2018 000003’ (one instance); ‘New
appointment paperwork from 14 May 2018
000007’ (two
instances).[11] A copy of
relevant pages of the SASC, with each Category clearly marked, will accompany
the copy of these reasons forwarded to
QBCC.[12] Sections 47(3)(e) and
52 of the RTI Act.[13] As I have
had no prior dealings with this matter, nor the
applicant.[14] Email to
applicant dated 14 June
2021.[15] Dated 15 June
2021.[16] Section 95(1)(a) of
the RTI Act.[17] And comports
entirely with the practice in superior courts - see, by way of just one example,
order 2 of Sheridan DCJ in Wood v Commissioner of Police [2021] QDC
209.[18] Section 90 of the RTI
Act.[19] And thus, have no
actual bias against the applicant, and could not be said not to bring an
impartial mind to the determination of
the issues in this review, in the eyes of
a fair-minded lay bystander: Ebner v Official
Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR
337.[20] Paraphrasing, for
example, the applicant’s 10 August 2021 submissions, referring to
‘corrupt
conduct’.[21] Such as that
prescribed in section 113 of the RTI
Act.[22] 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,
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.[23] Section 49
of the RTI Act.[24] Section 44
of the RTI Act.[25] Section
47(2)(a) of the RTI Act.[26]
Implicit in the object of the RTI
Act.[27] Antony and Griffith
University (2001) 6 QAR 31
(Antony).[28] The
phrase ‘could reasonably be expected’ requires a decision-maker to
distinguish ‘between what is merely possible ...
andexpectations 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, 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].[29]
Schedule 4, part 2, item 1 of the RTI Act. The
Information Commissioner and predecessors have previously recognised the
existence of public interest
considerations favouring disclosure of information
that will, as here, ‘enhance the accountability of ...[agencies]
for adherence to merit and equity principles in job selection
processes’ (Antony at [47].)
[30] Schedule 4, part 3, item 11
of the RTI Act.[31] 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.’ This
definition applies for the purposes of the RTI Act: schedule 5. Relevant
information falls within this
definition.[32] Email from third
party dated 6 May 2021.[33] And,
for completeness, do not consider the related privacy nondisclosure factor
stated in schedule 4, part 3, item 3 arises for balancing,
in view of the third
party’s lack of objection to the release of this information.
Alternatively, if it did apply, the third
party’s position means that
factor would attract only very minimal weight in balancing the public interest,
insufficient to
shift the balance of the public interest in favour of
nondisclosure.[34] Schedule 4,
part 3, item 19 of the RTI
Act.[35] Noting that in the
event similar information concerning other employees came to be considered for
disclosure under the RTI Act, those
employees would have fair opportunity to put
their own concerns as to release in accordance with the third party consultation
requirements
stated in sections 37 and 89 of the RTI Act.
[36] And certainly not the
related public interest harm factor set out in schedule 4, part 4, section 3(c)
of the RTI Act, which requires
reasonable expectation of not just mere
prejudice, but a ‘substantial adverse effect’ – a grave,
weighty, significant
or serious effect – on management by an agency of
agency staff (Cairns Port Authority and Department of Lands; Cairns Shelf Co
No.16 Pty Ltd (Third Party) [1994] QICmr 17; (1994) 1 QAR 663 at [150]). QBCC did not rely on
this harm factor, and given the onus it bears under section 87 of the RTI Act,
it is therefore not strictly
necessary that I address it – I do so,
parenthetically, in the interests of
completeness.[37] Ie, schedule
4, part 4, section 6 of the RTI
Act.[38] Re Byrnes and
Department of Environment [2006] WAICmr 6 at [90] and [107], as regards a
written expression of interest for a position.
[39] Hawck and Department of
Training and Industrial Relations (Unreported, Queensland Information
Commissioner, 31 January 1997),
[38].[40] Section 87 of the RTI
Act.[41] Being information such
as position titles.[42] A weight
that, unlike the Category A information, is not attenuated by the third
party’s general lack of objection to release
of the SASC, for the reason
that the Category B information is, as noted, not personal information about the
third party, but others.[43]
Schedule 4, part 3, item 19 of the RTI
Act.[44] Implicit in, for
example, the object of the RTI
Act.[45] Schedule 4, part 2,
item 3 of the RTI Act.[46]
Accepting that the numbers comprise personal information, they do not appear
overly sensitive examples of information of this kind,
such that the public
interest harm presumed to flow from their release would not appear significant.
As with SASC information discussed
above, it is also the case that the person to
whom they relate – the third party – does not object to their
disclosure.
As information concerning public employment, these numbers do not
seem to me to fall within the third party’s ‘personal
sphere’
so as to attract the operation of the privacy nondisclosure factor in schedule
4, part 3, item 3 of the RTI Act. If
I were wrong, then given the third
party’s lack of objection to their disclosure, I would afford this
consideration slight
weight.
[47] Submissions dated 21 July
2021.[48] Being the
nondisclosure factor prescribed in schedule 4, part 3, item 2 of the RTI Act
– prejudice financial affairs of entities,
and/or a discrete public
interest consideration warranting weighting and balancing (noting the lists of
public interest considerations
set out in schedule 4 are not
exhaustive).[49] Submissions
dated 10 August 2021.[50]
Particularly those identified in footnote 48.[51]
Section 130 of the RTI Act. For a recent discussion
of principles applicable to sufficiency of search and nonexistent document
cases, see V45 and Queensland Police Service [2021] QICmr 30 (16 June
2021) (V45).[52]
Submissions dated 17 May
2021.[53] Submissions dated 15
June 2021.[54] Documentary
evidence of which meetings the applicant had obtained, as I understand, by way
of earlier RTI access applications, and
which was linked to his submissions.
[55] And which latter,
narrower application therefore comprises that the subject of the decision under
review and, ultimately, this external
review.[56] That is,
‘2018-01-25 – Email...[QBCC to other agency]’,
‘2018-03-12 - Letter ...[Third Party to QBCC]; ‘2018-03-13
– Email...[QBCC to Third
Party]’.[57] Or indeed,
even the terms of your access application as originally framed, none of these
meetings concerning the ‘establishment,
recruitment and selection’
of and for any
positions.[58] Paragraph
65.[59] Noting the
obligation borne by an applicant to ‘give sufficient information
concerning the document to enable a responsible officer of the agency or the
Minister to identify
the document’: section 24(2)(b) of the RTI
Act.[60] Robbins and Brisbane
North Regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30,
[17].[61] As narrowed in
consultation with QBCC.[62]
Sections 47(3)(e) and 52 of the RTI Act. For a recent discussion of principles
relevant to the application of these provisions, see
V45.[63] Submissions
dated 10 August 2021. This contention is, as I understand, based on the PDF
document’s properties or metadata,
which disclose an ‘author’
other than the decision’s signatory.
[64] As above. See also the
applicant’s 15 June 2021
submissions.[65] See
particularly paragraph 33 of the applicant’s 15 June 2021
submissions.[66] And certainly
not to consider whether QBCC has ‘establish[ed] the lawful
recruitment and selection of [the Third Party] to executive position(s)
at the QBCC’ (applicant’s 15 June 2021 submissions, paragraph
34).[67] See footnote 21.[68]
V45 at [17].[69]
The second being a matter I have already touched on: see paragraph 54.[70]
E.g., Microsoft Word.[71] E.g.,
Adobe PDF programs.[72] Or have
been settled.
|
queensland | court_judgement | Queensland Information Commissioner 1993- | DG30RG and State Library of Queensland [2012] QICmr 24 (18 May 2012) |
DG30RG and State Library of Queensland [2012] QICmr 24 (18 May 2012)
DG30RG and State Library of Queensland [2012] QICmr 24 (18 May 2012)
Last Updated: 17 July 2012
Decision and Reasons for Decision
Application Number: 310525
Applicant: DG30RG
Respondent: State Library of Queensland
Decision Date: 18 May 2012
Catchwords: RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO
INFORMATION – REFUSAL OF ACCESS – applicant sought
access to
documents comprising her complete personnel HR file – whether there are
reasonable grounds to be satisfied that documents
are unlocatable –
sections 47(3)(e) and 52(1)(b) of the Right to Information Act 2009 (Qld)
– whether 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)
Contents
REASONS FOR DECISION
Summary
The
applicant applied to the State Library of Queensland (SLQ) for access to
her complete personnel Human Resources (HR) file held by SLQ or
SLQ’s shared service provider, the Corporate Administration Agency
(CAA), for the period June 2008 to October 2010.
SLQ
decided[1] to give the
applicant access to all personnel records held by CAA not previously provided to
her[2] and to refuse
access to certain documents on the basis that they are subject to a claim of
legal professional privilege.
The
applicant sought external review of SLQ’s decision.
As
a result of further searches conducted on external review, SLQ located
additional documents comprising:
535 email items
from SLQ’s Enterprise Vault email folders
6 documents from
SLQ’s corporate file system; and
8 documents from
CAA TRIM document management system files and electronic document files.
After
carefully considering all of the information before
me,[3] I am satisfied
that SLQ is entitled to refuse access to:
further
documents on the basis that they are unlocatable; and
information on
the basis that it is exempt as it is subject to legal professional privilege
(Relevant
Information).[4]
Significant procedural steps
Significant
procedural steps relating to the application are set out in the Appendix.
Reviewable decision
The
decision under review is SLQ’s decision dated 22 December 2010.
Evidence considered
Evidence,
submissions, legislation and other material I have considered in reaching my
decision is disclosed in these reasons (including
footnotes and Appendix).
Issues remaining for determination
As
a result of informal negotiations conducted by this Office during the course of
the external review,[5]
the issues remaining for determination in this external review are:
whether the
searches conducted by SLQ to locate information responsive to the access
application are sufficient to establish that
no further documents can be
located; and
whether SLQ can
refuse access to the Relevant Information on the basis that it is subject to
legal professional privilege.
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]
Sufficiency of search
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.[7]
The
Information Commissioner considered the grounds for refusal of access set out in
section 52 of the RTI Act in PDE and the University of
Queensland
[8]
(PDE).
In
PDE, the Information Commissioner said
that:[9]
... [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[10] 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 of 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
○ 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.[11]
As
for unlocatable documents, for an agency to be entitled to refuse access 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 SLQ?
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.
When
applying for external review, the applicant raised concerns that further
information responsive to the scope of her application
should exist.
Specifically, the applicant indicated that she was seeking correspondence
exchanged between specific SLQ staff members
about:
her workplace
grievance with another employee
the psychiatric
assessment reports that were made about her; and
communication
from the Public Service Commission to SLQ about the psychiatric assessment
reports.
SLQ
subsequently undertook additional searches for information relating to the
specific information sought by the applicant. The search
efforts were explained
in SLQ’s submission dated 25 March 2011. The search certification sheets
and search record tables show
that comprehensive and systematic searches were
undertaken. I accept the submission as accurate.
The
specific additional searches undertaken were of:
SLQ’s
Enterprise Vault email folders of SLQ employees specified by the applicant
SLQ’s
corporate file system; and
CAA’s TRIM
document management system files and electronic document files.
As
a result of the additional searches undertaken, SLQ located the following
additional documents:
535 email items
from SLQ’s Enterprise Vault email folders
6 documents from
SLQ’s corporate file system; and
8 documents from
CAA’s TRIM document management system files and electronic document
files.
Specific additional information sought by the applicant
The
applicant submits[12]
that she has not received information about:
a complaint she
made about another SLQ employee about the documenting of the applicant’s
children’s whereabouts; and
a complaint she
made about another SLQ employee about importation of private artwork to
SLQ’s Cairns office.
The
terms of the access application limit the scope of the external review to
information which could reasonably be expected to form
a part of the
applicant’s personnel Human Resources file regarding her employment by
SLQ.
In
relation to complaints made about SLQ employees by other SLQ employees, SLQ have
submitted
that:[13]
If a SLQ case is being managed by CAA, CAA would hold a separate
confidential case management file which would contain all documentation
relevant
to the case. These documents ARE NOT stored on a staff members personnel HR
file. The only time documentation relating to
the case would be stored on a
staff members personnel HR file would be if disciplinary action was taken which
resulted in an outcome
(penalty – i.e. financial), this notification would
be stored on their personnel HR file and notation that a separate disciplinary
file exists.
Filing specifications (i.e. case stored under who’s name) would
depend on how the complaint was brought to our attention i.e.
by who and how.
Generally when these types of requests are made, the person seeking information
would need to provide full particulars
of the case to ensure that the relevant
case/information is presented accurately to the persons involved.
Therefore, if a staff member requested their personnel HR file, unless
there was a disciplinary outcome, no case documentation would
be present. The
persons involved are able to request to view documentation from the case in
accordance with the Public Service Regulations
Act 2008.
On
this basis, I am satisfied that the complaint information sought by the
applicant would not form a part of her personnel HR file
and, accordingly, it
does not fall within the scope of this external review.
Are there reasonable grounds to be satisfied that further documents are
unlocatable?
In
short, yes.
Where
documents requested in an application cannot be located, an agency may refuse
access provided the requirements (as discussed
in this decision) are
satisfied.
The
applicant’s mere assertion that more documents must exist is not
sufficient evidence upon which I can make a finding that
documents which fall
within the scope of the access application do exist.
Further,
there is nothing before me to suggest that the search certification sheets and
search record tables completed by SLQ’s
staff are not
credible.[14]
I
am also satisfied that SLQ’s searches have been carried out in a
systematic way taking into account the factors identified
in PDE. Having
carefully reviewed SLQ’s submissions, together with the submissions lodged
by the applicant, I am satisfied that SLQ
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 can be located.
Accordingly,
I am satisfied that:
SLQ has taken
all reasonable steps to locate documents within the scope of the access
application; and
access to
further information can be refused on the basis that it is
unlocatable.[15]
Legal professional privilege
An
agency may refuse access to information where the information would be
privileged from production in a legal proceeding on the
ground of legal
professional
privilege.[16]
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.[17]
In
addition, privilege extends to any document which directly reveals, or which
allows a reader to infer, the content or substance
of a privileged
communication.[18]
Advice privilege may also extend, subject to application of the dominant purpose
test, to notes, drafts, charts, diagrams, spreadsheets
and other documents by
the client in the course of communicating information to the legal
adviser.[19]
I
have carefully considered the Relevant Information and I am satisfied that the
information:
was created for
the dominant purpose of seeking or giving legal advice—SLQ sought and
received legal advice from Crown Law in
relation to a number of issues arising
as a result of disciplinary action commenced against the applicant and the
applicant’s
extended absence from the workplace
was
communicated:
○ in
confidence—the information reveals that the communications remained
confidential between relevant employees of SLQ
and CAA (as SLQ’s shared
service provider for HR matters) and legal officers of Crown Law; and
○ by a
professional, independent legal advisor—the advice was provided to SLQ by
legal officers employed by Crown
Law.[20]
Accordingly,
I am satisfied that SLQ is entitled to refuse access to the Relevant Information
on the basis that it would be privileged
from production in a legal proceeding
on the ground of legal professional privilege.
DECISION
I
vary SLQ’s decision by finding that SLQ is entitled to refuse access
to:
further
documents under section 47(3)(a) of the RTI Act on the ground that they are
unlocatable under section 52(1)(b) of the RTI
Act; and
the Relevant
Information 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.
I
have made this decision as a delegate of the Information Commissioner, under
section 145 of the Right to Information Act 2009 (Qld).
________________________
Louisa Lynch
Acting Assistant Information Commissioner
Date: 18 May
2012APPENDIX
Significant procedural steps
Date
Event
21 October 2010
The State Library of Queensland (SLQ) receives the applicant’s
access application dated 4 October 2010. The access application was
non-compliant.
18 November 2010
The access application becomes compliant.
22 December 2010
SLQ decides to:
give the
applicant access to all personnel records held by the Corporate Administration
Agency (CAA); and
refuse access to
certain documents on the basis that they are subject to a claim of legal
professional privilege.
10 January 2011
The applicant applies to OIC for external review.
22 February 2011
Crown Law, on behalf of SLQ, provides OIC with a copy of the documents to
which the applicant was refused access.
2 March 2011
OIC informs the applicant that the external review application has been
accepted and confirms that the issues in this external review
are sufficiency of
search and refusal of access.
2 March 2011
OIC informs SLQ that the external review application has been accepted and
requests SLQ to:
conduct any
further searches it considered necessary to locate the missing documents
identified by the applicant;
provide OIC with
search certifications and record of searches tables completed by staff
conducting the further searches; and
provide OIC with
a submission setting out:
○ locations
that were searched
○ reasons
those locations were chosen
○ search
terms used in any electronic databases; and
○ if no
further documents can be located, any explanation SLQ can offer as to why no
further documents exist.
25 March 2011
SLQ provides OIC with:
a
submission
signed search
certifications and record of searches tables; and
electronic
copies of additional documents located as a result of further searches conducted
(Additional Documents).
20 June 2011
The applicant provides a submission in support of her case.
29 July 2011
SLQ provides OIC with a copy of the schedules of documents released under
SLQ’s decision dated 22 December 2010 and details
of documents released to
the applicant in response to an earlier request to CAA under the now repealed
Freedom of Information Act 1992.
7 November 2011
OIC requests SLQ to consider releasing to the applicant documents contained
with the Additional Documents that would form part of
the applicant’s
employee record under the Public Service Regulation 2008
(PSR).
18 November 2011
SLQ advises OIC that it will review the Additional Documents to assess
whether they form part of the applicant’s employee record
under the
PSR.
22 November 2011
OIC conveys a written preliminary view to SLQ regarding SLQ’s
decision to refuse access to documents on the basis that they
are subject to a
claim of legal professional privilege and invites SLQ to provide submissions in
support of its case by 6 December
2011 if the view is contested.
7 December 2011
SLQ requests an extension of time within which to provide
submissions.
8 December 2011
OIC advises SLQ that an extension to provide a written submission is
granted until 13 December 2011.
13 December 2011
SLQ provides a submission.
16 December 2011
SLQ advises OIC that a view has been formed on whether the Additional
Documents form part of the applicant’s employee record
under the PSR.
SLQ’s view in relation to each document is detailed in 3 schedules
according to where each document was located:
Schedule
1—from Enterprise Vault email folders (535 Email Items)
Schedule
2—from SLQ’s corporate file system (6 documents); and
Schedule
3—from CAA TRIM document management system files and electronic document
files (8 documents).
20 December 2011
OIC conveys a written preliminary view to the applicant regarding
SLQ’s decision to refuse access to documents on the basis
that they are
subject to a claim of legal professional privilege and invites the applicant to
provide submissions in support of her
case by 24 January 2012 if the view is
contested.
20 December 2011
Following negotiations with SLQ, OIC conveys a second written preliminary
view to SLQ regarding SLQ’s decision to refuse access
to documents on the
basis that they are subject to a claim of legal professional privilege and
requests that SLQ arrange for a copy
of the relevant documents to be provided to
the applicant in accordance with the preliminary view by 16 January 2012.
17 January 2012
SLQ advises OIC that by correspondence dated 16 January 2012, SLQ released
relevant documents to the applicant in accordance with
the second preliminary
view.
25 January 2012
SLQ provides OIC with an amended Schedule 1 for the Additional Documents
regarding the 535 Email Items.
2 February 2012
SLQ provides OIC with a further amended Schedule 1 for the Additional
Documents regarding the 535 Email Items.
29 February 2012
OIC categorises the Additional Documents as follows:
Outside
date range
Irrelevant
Employee
record
Medical
Document; and
Legal
professional privilege.
29 February 2012
OIC conveys a written preliminary view to the applicant in relation to
Categories 1 to 4 of the Additional Documents and invites the
applicant to
provide submissions in support of her case by 14 March 2012 if the view is
contested.
29 February 2012
OIC conveys a written preliminary view to SLQ in relation to Categories 1
to 4 of the Additional Documents and requests a submission
in support of
SLQ’s claim in relation to Category 5. OIC invites SLQ to provide
submissions in support of its case by 21 March
2012 if the view is
contested.
29 February 2012
The applicant acknowledges receipt of OIC’s written preliminary view,
indicates that she already has “all the medical records” and
advises that she will correspond further once she has had an opportunity to
digest the information contained within the preliminary
view.
20 March 2012
SLQ advises that it:
accepts
OIC’s preliminary view in relation to Categories 1 to 4 of the Additional
Documents
will assess the
employee record documents to identify any personal information of third parties
that cannot be released to the applicant;
and
requests an
extension of time within which to provide a submission in support of its claim
in relation to Category 5 of the Additional
Documents.
20 March 2012
OIC advises SLQ that an extension to provide a written submission is
granted until 28 March 2012.
28 March 2012
SLQ provides OIC with a copy of the Email Items which comprise Category 5
of the Additional Documents highlighted in accordance with
its claim for
exemption on the basis that the information is subject to legal professional
privilege.
26 April 2012
OIC conveys a verbal preliminary view to SLQ in relation to Category 5 of
the Additional Documents which SLQ accepts.
27 April 2012
OIC conveys a written preliminary view to the applicant in relation to
Category 5 of the Additional Documents and the sufficiency
of searches conducted
by SLQ to locate all documents responsive to the scope of the access
application. OIC invites the applicant
to provide submissions in support of her
case by 11 May 2012 if the view is contested.
1 May 2012
The applicant advises OIC that she does not accept the preliminary view and
provides a submission. The applicant submits that she
has not received
information relating to certain complaints made by her.
9 May 2012
OIC requests SLQ to provide a submission in relation to procedures
following receipt of a complaint about an SLQ employee by another
SLQ
employee.
9 May 2012
SLQ provides a submission.
[1] By decision dated
22 December 2010.[2]
By correspondence dated 29 July 2011, SLQ advised OIC that CAA had previously
released to the applicant, by correspondence dated
2 July 2009, the
applicant’s entire personnel records file held by CAA as a result of an
application to CAA under the now repealed
Freedom of Information Act 1992
(Qld).[3]
Including relevant submissions made by the Applicant and
SLQ.[4] The Relevant
Information comprises all of the information contained within email items
126-128, 190, and 209-211 and some of the
information contained within email
items 86, 88, 99-102, 114-125, 129-184, 187-189, 191-193, 196-199, 201, 203-205,
208 and 311-312.[5]
Including the conveying of preliminary views to the applicant, by correspondence
dated 20 December 2011 and 29 February 2012, which
were not contested and deemed
by this Office to be accepted by the
applicant.[6] As set
out in section 47(3) of the RTI
Act.[7] Under
section 52(1) of the RTI
Act.[8] 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. [9] At
paragraph 34.[10]
See PDE at paragraph
37.[11] At
paragraph 49.[12]
By correspondence dated 1 May
2012.[13] By
correspondence dated 9 May
2012.[14] Attached
to SLQ’s submissions about search efforts dated 25 March
2011.[15] In
accordance with sections 47(3)(e) and 52(1)(b) of the RTI
Act.[16] Under
section 48 and schedule 3, section 7 of the RTI
Act.[17] Esso
Australia Resources Ltd v Commission of Taxation [1999] HCA 67; (1999) 74 ALJR
339.[18]
Commissioner of Australian Federal Police v Propend Finance (1997) 188
CLR 501 at 569; AWB v Cole (No. 1) (2006) 152 FCR 382, 417
[132].[19]
Saunders v Commissioner, Australian Federal Police [1998] FCA 833; (1998) 160 ALR 469,
471-472.[20] In
Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 (at
paragraphs 88-90), the Information Commissioner found that legal professional
privilege could apply to communications between
legal officers employed by Crown
Law and Crown Law’s clients, provided those communications satisfied the
tests for legal professional
privilege.
|
queensland | court_judgement | Queensland Information Commissioner 1993- | P60 and Department of Education [2021] QICmr 35 (1 July 2021) |
P60 and Department of Education [2021] QICmr 35 (1 July 2021)
Last Updated: 12 January 2022
Decision and Reasons for Decision
Citation:
P60 and Department of Education [2021] QICmr 35 (1 July
2021)
Application Number:
315774
Applicant:
P60
Respondent:
Department of Education
Decision Date:
1 July 2021
Catchwords:
ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL WITH
APPLICATION - SUBSTANTIAL AND UNREASONABLE DIVERSION OF RESOURCES
- request for
information relating to a workplace investigation into the applicant’s
conduct - whether dealing with the access
application would substantially and
unreasonably divert the agency resources from their use in performing its
functions - whether
section 60 of the Information Privacy Act 2009 (Qld)
applies
REASONS FOR DECISION
Summary
1. The applicant
applied[1] to the Office of Industrial
Relations (OIR)[2] under the
Information Privacy Act 2009 (Qld) (IP Act) for ‘all
information relating to the workplace investigation commenced in August 2019
into my conduct’ between 8 August 2019 to 30 June 2020.
2. OIR decided to refuse to deal[3]
with the application on the ground that all of the documents would fall into an
exempt class, because disclosure could reasonably
be expected to prejudice the
effectiveness of a lawful method or
procedure.[4]
3. The applicant applied[5] to the
Office of the Information Commissioner (OIC) for external review of
OIR’s decision. Early in the review process, OIR accepted OIC’s view
that section 59 of the IP
Act did not apply, and in the alternative, submitted
that section 60 of the IP Act applied on the basis that processing the
application
would substantially and unreasonably divert OIR’s resources.
4. OIR provided extensive submissions to OIC to support its position that
processing the application would substantially and unreasonably
divert its
resources.[6] In summary, OIR relied
on the complexity of the workplace investigation, the number of parties involved
and the geographical distribution
of them across Queensland, challenges
associated with searching for ‘all information’ across
multiple OIR databases, the high workload of OIR, the particular nature and
tenure of the applicant’s employment at OIR,
shortcomings of its
recordkeeping practices and procedures, and the limited resources available to
its RTI Unit.
5. For the reasons set out below, I set aside OIR’s decision. I find
that OIR is not entitled to refuse to deal with the application
under section 60
of the IP Act.
Background and evidence considered
6. Significant procedural steps relating to the
external review are set out in the Appendix.
7. The decision under review is OIR’s decision dated 10 December
2020.
8. The submissions, legislation and other material I have considered in
reaching this decision are set out in these reasons (including
footnotes and
Appendices).
9. 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.[8]
I have acted in this way in making this
decision.[9] 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]
Issue for determination
10. The issue for determination is whether OIR is
entitled to refuse to deal with the application under the IP Act on the basis
that
dealing with it would substantially and unreasonably divert OIR’s
resources from the performance of its
functions.[12]
Relevant law
11. 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] An agency
is required to deal with an access application unless doing so would, on
balance, be contrary to the public
interest.[14]
12. Section 60(1) of the IP Act permits an agency to refuse to deal with
an access application if the agency considers the work involved
in dealing with
the application 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.
13. The phrase ‘substantially and unreasonably’ is not
defined in either the IP Act, the RTI Act or the Acts Interpretation Act
1954 (Qld). It is therefore appropriate to consider the ordinary meaning of
these words.[15] The dictionary
definitions[16] of those terms
relevantly provide:
‘substantial’
means ‘of ample or considerable amount, quantity, size, etc.’
‘unreasonable’
means ‘exceeding the bounds of reason; immoderate;
exorbitant.’
14. In deciding whether dealing with an application would substantially and
unreasonably divert an agency’s resources from the
performance of its
functions, the IP Act requires a decision-maker to have regard to the resources
that would be used for:[17]
identifying,
locating, or collating the documents
making copies,
or edited copies of any documents
deciding whether
to give, refuse, or defer access to any documents, including resources that
would be used to examine any documents
or conducting third party consultations;
and
notifying any
final decision on the application.
15. The question of whether the impact on an agency’s resources would
be ‘substantial’ is a question of fact. In
previous decisions, the
Information Commissioner has held that relevant factors to consider
include:[18]
the
agency’s resources and
size[19]
the other
functions of the agency;[20]
and
whether and to
what extent processing the application will take longer than the legislated
processing period of 25 business
days.[21]
16. In determining whether the work involved in dealing with an application
is unreasonable, it is not necessary to show that the
extent of the
unreasonableness is
overwhelming.[22] Rather, it is
necessary to weigh up the considerations for and against, and form a balanced
judgement of reasonableness, based
on objective
evidence.[23] Factors that have
been taken into account in considering this question
include:[24]
whether the
terms of the request offer a sufficiently precise description to permit the
agency, as a practical matter, to locate the
documents sought
the public
interest in disclosure of documents
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
the
agency’s estimate of the number of documents affected by the request, and
by extension the number of pages and the amount
of officer time
the
reasonableness or otherwise of the agency’s initial assessment and whether
the applicant has taken a cooperative approach
in rescoping the application
the timelines
binding on the agency
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
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.
17. Refusing to deal with an application under section 60 of the IP Act is
subject to certain prerequisite procedural steps, set out
in section 61 of the
IP Act. Where section 60 of the IP Act is raised on external review, it remains
appropriate for an agency to
engage in consultation that would ordinarily have
occurred under section 61 of the IP Act.
OIR’s submissions
18. In its first submission to OIC raising the ground of substantial and
unreasonable diversion of resources, OIR submitted as follows:
Preliminary enquiries have been undertaken from the business unit who
advised that the investigation was complex, took well over a
year and generated
a large volume of administrative documents and handwritten notes ... Given the
complexity and nature of this matter,
a request for “all documents”
would require HR staff to conduct searches for a years’ worth of emails
and handwritten
notes, most of them of a merely administrative nature.
HR has advised that there is a HR investigation file containing the
evidentiary material and other relevant documentation.
[25]
19. Later in the review, OIR expanded on the above submission to provide
details of the number of individuals relevant to, and business
units involved in
managing, the investigation. OIR explained that the complexity of the
investigation was complicated further by
the involved individuals and units
being geographically spread across Queensland and the associated travel and
business continuity
arrangements. OIR particularly submitted that:
To meet the requirement of ‘all information relating
to...’ document searches will need to be conducted with all individuals
identified in the investigation report, authorising officers, investigation
officers and officers who have been required to perform an administrative or
management function as a result of the investigation.
...
Given the subject, complexity, volume ... the work required to conduct
searches to identify responsive documents, review them against
the IP Act
application scope is onerous and substantial in use of resources and time and
effort required to achieve just his [sic] part of the process. I have
identified a significant number of OIR staff and business units who will be
required to conduct searches,
as documents are kept in a wide variety of
formats, locations and business units. The requirement to conduct broad searches
would
unreasonably divert OIR officers from their core business, which is
ensuring the safety of Queensland
workers.[26]
20. OIR also provided OIC with:
details about
its organisational structure, including that it has approximately 800 employees
across Queensland, in numerous regional
offices
an overview of
the functions of Workplace Health and Safety Queensland (WHSQ)
information
about the particular duties performed by the applicant in their role, and
relevant responsibilities of the applicant’s
work unit; and
details about
its information management structure, particularly noting that it does not have
a whole of organisation electronic document
and records management system
(EDRMS) but instead, uses multiple electronic platforms across the
agency to store documents in addition to physical
files.[27]
21. OIR submitted that due to the applicant’s particular
responsibilities and long tenure with OIR, any electronic searches
would be
‘likely to return an excessive volume of records and documents
unrelated to the investigation. Once the searches are completed,
OIR officers
will need to spend many hours or several days manually reviewing the material to
determine if any fall within the application
scope’.
[28]
22. OIR broadly quantified the estimated searches as follows:
... search requests will need to be sent to
[numerous individuals] to find all information
relating to the investigation into the complaint about the applicant’s
conduct. Further, document searches
will need to be sent to OIR’s Data and
Evaluation business unit and ICTS to search archived outlook files
[of former officers]. Conducting the searches
will require several hours, impacting on the daily business of the Data &
Evaluation business unit and
ICTS. Additionally, document searches will need to
be reviewed by appropriately qualified officers for relevance. The work involved
in conducting the searches represents an unreasonable and substantial diversion
of OIR’s resources.[29]
23. OIR also made submissions[30]
about the resourcing of its RTI and Privacy team, including that:
it is currently
operating under its existing staff establishment, with a very high workload
key staff are
shortly ending their employment with the RTI Unit and remaining staff will
include one principal adviser, one senior
adviser and one adviser responsible
for making decisions on a running average total of between 75-87 access
applications at any one
time
officers are
also responsible for managing other information release requests
existing
resources are less than adequate to manage the current workload of the unit;
and
recruitment is
constrained due to current budgetary limitations.
24. In a later submission[31] OIR
provided further information regarding the amount of time involved to assess and
process the application. OIR submitted that:
OIR’s RTI
and Privacy team annually receives and processes in excess of 580 access
applications, 160 administrative access applications
for WHSQ investigations and
issues 300 disclosure decisions, in addition to dealing with privacy complaints
and managing court based
disclosure processes
searching for
the personal information of the applicant will involve ‘a significant
amount of work for each person identified as likely to hold documents’
search
requests would need to be sent to multiple regional offices, consultancies, and
individuals[32]
IT
remote searches of former employee email accounts would need to be
conducted
‘significant
time’ would be required to review responsive documents and convert to
PDF, estimated at ‘one minute per email that does not contain
attachments’; and
email searches
will not capture ‘all documents’ as handwritten notes, text
messages or documents in shared drives will not be
captured.[33]
25. OIR estimated that the work involved in processing the application would
take over 90 hours[34] and a further
2 hours per third party consultation, with additional (unquantified) time
required for ‘marking up and collation of
documents’.[35]
26. In its submissions, OIR referred to support it provided to the applicant
during the workplace investigation process, the avenue
of internal review
available to the applicant through the Queensland Ombudsman and the need for
balance in affording the applicant
natural justice and confidentiality and
privacy of other individuals involved.
27. OIR questioned the motives of the applicant for making the
application.[36] This is an
irrelevant consideration and I have had no regard to it in making this
decision.[37]Findings
28. Consistent with the requirement to consult under section 61 of the IP
Act, OIR proposed that the applicant consider narrowing
the scope of the
application to a ‘copy of the HR investigation
file’.[38] While the
applicant did not agree to this
proposal,[39] I find that OIR
satisfied the consultation requirements, in the context of this review.
29. As noted at paragraph 1 above,
the applicant is seeking access, under the IP Act, to information relating to
the workplace investigation commenced in August
2019 into her conduct. The
applicant requested all documents, including electronic transmissions, over an
11 month timeframe.
30. This is not the first time the applicant has applied to OIR for documents
regarding her employment. The applicant has made at
least two previous
applications, in narrower terms, which have both been the subject of external
review. In both reviews, the applicant
accepted OIC’s preliminary view
that she was not entitled to access the requested information comprising source
complaint documents
and witness statements, on public interest grounds. In both
matters, OIC explained to the applicant that she had, albeit unintentionally,
applied to access information which would ordinarily be refused on public
interest grounds. The applicant subsequently made an application
with a broader
scope to capture her personal information, ie. the application which is the
subject of OIR’s refusal to deal
decision.
31. The scope of this application does not canvass a variety of subject
matters nor seek documents over a period of multiple
years[40] or from business units
with divergent functions. Rather, it reflects the type of access application
that is commonly processed by
government agencies where individuals are seeking
information about themselves, from their employer, in relation to a workplace
investigation.
In processing such applications, it is reasonable to expect that
records of the officer’s work unit, supervisors, and human
resources would
be relevant to search.
32. A key hurdle that OIR faces in establishing that processing the
application would be substantial, is the absence of an estimate
of the total
number of responsive pages, despite confirming that it has located several
workplace investigation files relating to
the matter. I acknowledge that the
Information Commissioner has previously found in favour of an agency without an
estimate of total
responsive
pages[41], but also observe that
case involved a scope spanning 30 years, which is not comparable to the 11 month
period applicable here.
33. OIR has submitted that the records of multiple
individuals[42] need to be searched.
While the estimated number is more than one or two, it still equates to very
small percentage of its total workforce
(800 staff). Even if it did take each
officer 2 hours each to search their records, that is a small percentage of an
ordinary working
day. Also, given the ease with which Outlook can be
electronically searched for emails, and the general obligations on public
service
officers to retain their records in an organised and retrievable
way,[43] I consider an estimate of
2 hours per officer is generous. In addition, it is not uncommon for an IT
unit to be required to conduct
searches of archived records of former officers.
Officers in those units are generally highly proficient in efficiently locating
information electronically.
34. As set out above, OIR has already located workplace investigation files.
I accept these will need to be assessed to identify information
that may be
released to the applicant, and any to which grounds for refusing access apply.
However, this is what is ordinarily involved
in processing an application and is
accordingly, why an agency is afforded 25 business days under the
legislation to make its decision.
While there are a number of officers that
would need to do searches of their own records, it is unlikely that consultation
with third
party witnesses would be required as access to such information would
ordinarily be refused on public interest
grounds.[44]
35. I accept that the RTI Unit at OIR has experienced resourcing issues and
staffing changes/shortages in recent months. However,
processing applications
under the IP Act forms part of the core business of the RTI Unit. The
substantial and unreasonable refusal
to deal provision is a mechanism to deal
with applications that would divert the resources of the agency away from its
other functions.
While some applications may take longer to process than others
due to the complexity and sensitivity of issues involved, this will
not enliven
the refusal to deal provision. The legislation provides other, less punitive
mechanisms, to deal with more complex or
elongated applications, eg. requesting
an extension of time to the processing
period.[45]
36. While I acknowledge OIR’s submission that it does not have a whole
of organisation EDRMS in place, the RTI Unit does have
access to the Outlook
email system, which it can use to contact the relevant individuals in the
various regional offices, to ask
them to search their records for documents
responding to the terms of the IP Act application. Presumably, this would lead
to those
officers searching their emails, hardcopy records and any other
electronic storage systems available to them, collating the documents
and
returning them to the RTI Unit for independent assessment. Given the particular
scope of the request, I do not consider this
would substantially divert
OIR’s resources.
37. Taking into account the above, and particularly, the:
scope of the
application concerns one subject matter, ie. the workplace complaint
investigation
fact it has been
made under the IP Act thereby limiting responsive documents to those containing
the applicant’s personal information
request is
limited to documents dated within an 11 month period; and
absence of an
estimate of the number of pages involved,
I am unable to find that processing the application would be a substantial
diversion of agency resources.
38. Returning to the scope of the application, it does not, on its face,
appear to me to be unreasonable. It reflects the type of
application commonly
made by applicants involved in public service workplace matters and is of a
nature that is routinely processed
by various agencies of all sizes, including
small local councils and statutory bodies with far less resources than OIR.
While I accept
these applications can raise sensitive workplace issues and
require discretion on the part of the RTI Unit, these factors do not
amount to
unreasonableness. Importantly, an individual is entitled to access their
personal information held by government and there
is a particularly strong
public interest in granting an individual access to information about their
public sector employment.[46]
39. While I acknowledge OIR’s concerns about protecting the
confidentiality and privacy of other persons involved in a workplace
investigation, there are grounds on which to refuse access to such information
in section 47 of the RTI Act, if
required.[47] It is not unreasonable
for an individual to seek access to information about their employment in a
workplace complaint context. There
is no evidence before me to suggest
procedural fairness was not afforded to the applicant during the investigation,
however, that
does not mean the applicant cannot apply to access her personal
information in documents relating to the investigation. Indeed, one
of the
objects of the IP Act is to afford people a right to access their personal
information held by government and exercising that
right is an entirely separate
process to appealing the outcome of a workplace investigation.
40. Throughout the review, OIC has observed that OIR has not sought to apply
or interpret the IP Act in accordance with its primary
object, ie. to give an
individual a right of access to their personal information in the possession of
government.[48] There have also been
instances where OIR has not provided OIC with requested assistance. For example,
OIC is yet to receive a copy
of the investigation files identified by OIR; these
would have been helpful to OIC in assessing whether processing the application
would reach the ‘substantial’
threshold.[49] OIR has also chosen
not to provide an estimate of the total number of responsive pages which
ordinarily is a key factor relied on
by the Information Commissioner in
considering section 60 of the IP
Act.[50] OIR sought multiple
extensions of time and while OIC has been open to granting these given
OIR’s ongoing resourcing issues,
they operated to cause further delay and
disadvantage to the applicant in terms of preventing her from accessing any
information
to which she may be entitled under the IP Act. As at the date of
this decision, the applicant has not been granted access to any
of her personal
information relating to the workplace complaint investigation through the IP Act
process.[51]
41. On the basis of the above, I am satisfied that dealing with the access
application would not substantially and unreasonably divert
OIR’s
resources in the performance of its functions and therefore, section 60 of the
IP Act does not apply. DECISION
42. For the reasons set out above, I set aside OIR’s decision. I find
that OIR is not entitled to refuse to deal with the application
under section 60
of the IP Act.
43. I have made this decision as a delegate of the Information Commissioner,
under section 139 of the IP Act.K
ShepherdAssistant Information Commissioner Date: 1
July 2021
APPENDIX
Significant procedural steps
Date
Event
10 December 2020
OIC received the external review application.
18 December 2020
OIC advised OIR and the applicant that the application for external review
was accepted.
22 January 2021
OIC issued a preliminary view to OIR that it could not refuse to deal with
the application under section 59 of the IP Act.
5 February 2021
OIR accepted OIC’s preliminary view and raised section 60 of the IP
Act as an alternative ground to refuse to deal with the
application. OIR
proposed a narrowed scope for the applicant to consider.
12 February 2021
OIC relayed OIR’s proposed narrowed scope and claim of substantial
and unreasonable diversion of resources to the applicant.
The applicant declined to narrow the scope of her access application.
16 February 2021
OIC relayed the applicant’s response to OIR and issued a preliminary
view that section 60 of the IP Act did not apply to the
application.
26 February 2021
OIR made verbal submissions to OIC in support of its substantial and
unreasonable diversion of resources claim.
2 March 2021
OIR requested an extension of time and advised OIC it had identified two
investigation files containing relevant documents.
3 March 2021
OIC granted the extension of time and requested a copy of the two files
which OIR had identified.
23 March 2021
OIC received submissions from OIR in support of its substantial and
unreasonable diversion of resources claim.
14 April 2021
OIC issued a further preliminary view to OIR.
4 May 2021
OIC granted an extension of time to OIR.
7 May 2021
OIC received further submissions from OIR.
11 May 2021
OIC advised the applicant that the external review would be finalised by
way of a formal decision.
29 June 2021
OIC contacted OIR regarding its submissions and advised the review would be
finalised by a formal decision.
OIR provided OIC with a copy of the invitation to attend an interview and
outcome letter which were sent to the applicant in relation
to the workplace
investigation. OIR raised concerns about OIC referring to particular parts of
its submissions due to the workplace
investigation context.
1 July 2021
OIR provided OIC with further information.
[1] On 9 November
2020.[2] OIR joined the Department
of Education in December 2017 (refer to
<https://www.oir.qld.gov.au/about-us>). While the Department
of Education
is the respondent agency to this review, I refer to OIR throughout as that is
the organisational unit which handled
the application and
review.[3] On 10 December
2020.[4] Section 59 of the IP Act
and schedule 3, section 10(1)(f) of the Right to Information Act 2009
(Qld) (RTI Act). [5]
External review application dated 10 December
2020.[6] 5 February 2021, 23 March
2021 and 7 May 2021. [7] Section
21 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] In
accordance with section 58(1) of the HR
Act.[10] Freedom of
Information Act 1982 (Vic) and the Charter of Human Rights and
Responsibilities Act 2006 (Vic).
[11] XYZ at
[573].[12] OIR bears the onus of
establishing this in the affirmative, under section 100 of the IP
Act.[13] Section 40 of the IP
Act.[14] Section 58 of the IP
Act.[15] Section 14B of the
Acts Interpretation Act 1954
(Qld).[16] Macquarie Dictionary
Online www.macquariedictionary.com.au
[17] Section 60(2) of the IP
Act. [18] This is not an
exhaustive list.[19]
Middleton and Building Services Authority (Unreported, Queensland
Information Commissioner, 24 December 2010) at
[34]-[37].[20] 60CDYY and
Department of Education and Training [2017] QICmr 52A (7 November 2017) at
[18].[21] ROM212 and
Queensland Fire and Emergency Services [2016] QICmr 35 (9 September 2016) at
[40].[22] F60XCX and
Department of the Premier and Cabinet [2016] QICmr 41 (13 October 2016) at
[90].[23] ROM212 and
Queensland Fire and Emergency Services [2016] QICmr 35 (9 September 2016) at
[42], adopting Smeaton v Victorian WorkCover Authority (General) [2012]
VCAT 1550 (Smeaton) at
[30].[24] Smeaton at
[39].[25] Email to OIC dated 5
February 2021.[26] Submission to
OIC dated 19 March 2021.[27]
Submission to OIC dated 19 March 2021. OIR acknowledged that the absence of an
EDRMS was a shortcoming in its information management
system and explained that
while a project for the migration of records into an EDRMS had been completed,
the project was placed on
hold due to budgetary constraints imposed after the
COVID-19 pandemic. Therefore, OIR continues to use ‘a combination of
paper records, multiple digital formats and shared drives to store records for
the foreseeable
future.’[28]
Submission to OIC dated 19 March 2021.
[29] Submission to OIC dated 19
March 2021. [30] Submission to
OIC dated 19 March 2021. [31]
On 7 May 2021.[32] In its
submissions, OIR did specify the number of regional offices and individuals
involved and I have taken those figures into account
in reaching this decision.
However, in view of OIR’s submissions regarding sensitivities of the
workplace investigation context,
I have excluded the figures from these reasons.
Given the decision is adverse to OIR and favourable to the applicant, the
absence
of these figures do not serve as a disadvantage the applicant. I would
note however that it does somewhat limit the precedent value
of these reasons in
terms of agencies seeking in the future seeking guidance as to the application
and interpretation of section
60 of the IP Act. I have also had regard to the
limitation set out in section 121(3) of the IP
Act.[33] This point was outlined
in OIR’s submission dated 19 March
2021.[34] Estimating between 2
to 3.5 hours per officer (including former
employees).[35] Page 3 of
OIR’s submission received on 7 May
2021.[36] Page 6 and 7 of
OIR’s submissions dated 19 March
2021.[37] Section 60(3) of the
IP Act.[38] Email to OIC dated 5
February 2021.[39] During a
telephone call with OIC on 12 February
2021.[40] Notably, the date
range of this application is less than 11
months.[41] Middleton and
Department of Health (Unreported, Queensland Information Commissioner, 10
June 2011) did not identify total estimated pages, but the scope of that access
application under the RTI Act included documents spanning 30 years, which is
significantly different to the 11 month timeframe of
the access application
under consideration in this
review.[42] OIR raised concerns
about OIC including the figures in these reasons. See footnote 32
above.[43] Section 7(1) of the
Public Records Act 2002 (Qld) requires public agencies to ‘make
and keep full and accurate records of its activities and have
regard to any relevant policy, standards and guidelines made by the archivist
about the making and keeping of public records.’ I also note the
Records Governance Policy v1.0.2, with requirements 3 and 5 being particularly
relevant.[44] Noting that third
party consultation is only required where an agency is considering disclosure of
the relevant information. [45]
Section 55 of the IP Act.[46]
Schedule 4, part 2, item 7 of the RTI Act. See W7SV7G and Department of
Education [2018] QICmr 24 (22 May 2018) at
[14].[47] Section 67 of the IP
Act provides that access to information may be refused under the IP Act on the
same grounds as in section 47
of the RTI
Act.[48] Section 3 of the IP
Act.[49] Requested by OIC by
email on 3 March 2021. [50] See
Middleton and Department of Environment and Resource Management
(Unreported, Queensland Information Commissioner, 30 May 2011) at [27]
– [28] (12,900 pages); Mathews and The University of Queensland
(Unreported, Queensland Information Commissioner, 5 December 2011) at [34]
(5,828 pages); F60XCX and Office of the Queensland Parliamentary Counsel
[2016] QICmr 42 (13 October 2016) at [95] (11,113
pages).[51] Although I
understand certain information was provided to the applicant during the
investigation process, eg. invitation to attend
an interview and an outcome
letter.
|
queensland | court_judgement | Queensland Information Commissioner 1993- | Cannon and Department of Police [2011] QICmr 50 (20 December 2011) |
Cannon and Department of Police [2011] QICmr 50 (20 December 2011)
Last Updated: 1 February 2012
Decision and Reasons for Decision
Application Number: 310622
Applicant: Cannon
Respondent: Department of Police
Decision Date: 20 December 2011
Catchwords: RIGHT TO INFORMATION - REFUSAL TO DEAL WITH APPLICATION -
applicant seeking all information provided by a witness to police
in the course
of police investigations into offences of which applicant was convicted -
whether access application expressed to relate
to all documents that contain
information relating to a stated subject matter - whether all of the documents
to which the application
relates would comprise exempt information - whether
agency may refuse to deal with application under section 40 of the Right to
Information Act 2009 (Qld)
Contents
REASONS FOR DECISION
Summary
The
applicant applied to the Department of Police
(QPS)[1] for
access to all information supplied by an informant (Witness A) to police
officers during their investigations into the applicant.
QPS
decided to neither confirm nor deny the existence of the requested information
under section 55 of the Right to Information Act 2009 (Qld) (RTI
Act).
I
have decided that QPS may refuse to deal with the access 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
all of the
documents to which the application relates comprise exempt information under
schedule 3, section 10(1)(f) of the RTI Act.
Background
In
2005 the applicant was convicted of drug-related offences in the Supreme Court
of Queensland.[2] A
number of witnesses gave evidence against the applicant, including Witness A.
The applicant’s appeal against his conviction
was refused by the
Queensland Court of Appeal in 2007. Subsequently the applicant was ordered to
pay a sum of money to the State
of Queensland under the Criminal Proceeds
Confiscation Act 2002 (Qld).
Published
judgments from the above court proceedings identify Witness A by name and
disclose that s/he was a police informant, gave
evidence against the applicant
at trial and received indemnity from prosecution from the Attorney-General.
In
February 2011, the applicant applied to QPS under the RTI Act for access to all
information supplied by Witness A to QPS in relation
to investigations into the
applicant (Requested Documents).
QPS
decided[3] to neither
confirm nor deny the existence of the Requested Documents under section 55 of
the RTI Act. The applicant then applied
to the Information Commissioner for
external review of QPS’ decision.
On
external review, the applicant submits that disclosure of the Requested
Documents will demonstrate that he was not given a fair
trial. He also submits
that the information will be adverse to the reliability and credibility of
Witness A and will demonstrate
that the evidence provided by Witness A was
inaccurate and/or not given to his lawyers during his trial. The applicant has
also
indicated that he seeks the Requested Documents to make a complaint to the
Crime and Misconduct Commission.
QPS
submits that disclosure of the Requested Documents could reasonably be expected
to prejudice the ability of QPS to obtain similar
information from witnesses in
the future and also, reduce the effectiveness of the systems and processes used
by QPS in investigating
criminal activity.
Reviewable decision
The
decision under review is QPS’ decision dated 6 April 2011 to neither
confirm nor deny the existence of the Requested Documents
under section 55 of
the RTI Act.
Steps taken in the external review process
Significant
procedural steps relating to the application and external review process are set
out in the Appendix.
Evidence considered
Evidence,
submissions, legislation and other material I have considered in reaching my
decision are as disclosed in these reasons
(including footnotes and
appendix).
A
review of a decision in which the agency has relied on a section of the RTI Act
which does not require the requested documents to
be located presents procedural
challenges.[4] However,
where the nature of any documents is evident from the terms of the access
application, the Office of the Information Commissioner
(OIC) may not
require the agency to provide OIC with the relevant documents. In the
circumstances of this case, OIC did not ask QPS to
provide copies of the
Requested
Documents.[5]
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 for to deal with an access application, as
follows:
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 has considered
would, on balance, be contrary to the public
interest.[6] Schedule 3
of the RTI Act lists exempt information relating to law enforcement or public
safety, including:
10 Law enforcement or public safety information
(1) Information is exempt information if its disclosure could reasonably
be expected to—
...
(f) prejudice the effectiveness of a lawful method or procedure for
preventing, detecting, investigating or dealing with a contravention
or possible
contravention of the law;
Findings
It
is a matter of public record that Witness A provided QPS with information about
the applicant during QPS investigations into drug-related
offences. As this is
the very nature of the information sought by the applicant I am of the view that
the existence of relevant
documents cannot be neither confirmed nor denied under
section 55 of the RTI Act. This view was put to, and accepted by, QPS during
the external
review.[7]
For
section 40 of the RTI Act to apply in this case I must firstly be satisfied that
the 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.
Following
a careful assessment of the access application I am satisfied that it is
expressed to relate to all documents relating to
a stated subject matter,
specifically, information provided by Witness A to QPS during its investigations
into the applicant and
drug-related offences.
Secondly,
I must be satisfied that all of the documents to which the application relates
would comprise exempt information. The requirements
of the exemption in
schedule 3, section 10(1)(f) of the RTI Act are:
the existence of
a lawful method or procedure for preventing, detecting, investigating or dealing
with a contravention or possible
contravention of the law
that disclosure
could reasonably be expected to prejudice this method or procedure; and
the exceptions
in schedule 3, section 10(2) of the RTI Act do not apply.
Having
considered the evidence in this matter, I am satisfied that:
the QPS practice
of obtaining information from informants and witnesses in relation to criminal
activity is a lawful method or procedure
for preventing, detecting,
investigating and dealing with contraventions or possible contraventions of the
law
it is reasonable
to expect that informants and witnesses may be reluctant to cooperate with QPS
in future criminal investigations
if they are aware that the information they
provide may be disclosed to an offender, outside the usual court processes,
including
after that offender has been convicted and sentenced; and
it is reasonable
to expect that the methods by which QPS uses informants and witnesses to gather
information in relation to suspects
may be prejudiced by disclosure of the
Requested Documents.
I
have also assessed the exceptions to this exemption outlined in schedule 3,
section 10(2) of the RTI Act and find that none apply
in this case.
On
the basis of my findings set out above, I am satisfied that the Requested
Documents comprise exempt information under schedule
3, section 10(1)(f) of the
RTI Act.
In
his submissions, the applicant raised a number of public interest factors in
support of his view that the Requested Documents should
be disclosed. The
exemptions in schedule 3 of the RTI Act set out the types of information which
Parliament has decided, would,
on balance, be contrary to the public interest to
disclose. Once the requirements of an exemption have been established, I am
prevented
by the RTI Act from considering any other public interest factors,
including those raised by the applicant. Therefore, in considering
whether the
Requested Documents comprise exempt information, I have not been able to take
into account the public interest arguments
raised by the applicant during this
review.
DECISION
I
vary the decision of QPS and find that QPS 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
to which the application relates
comprise exempt information under schedule 3, section 10(1)(f) of the RTI Act.
________________________
J KinrossInformation Commissioner
Date: 20 December 2011
APPENDIX
Significant procedural steps
Date
Event
1 February 2011
The applicant applied to QPS under the RTI Act for access to all
information supplied by Witness A to QPS officers in relation to
their
investigations into his drug-related offences.
6 April 2011
QPS made a decision neither confirming nor denying the existence the
documents requested by the applicant under section 55 of the
RTI Act.
8 April 2011
The applicant applied to OIC for external review of the QPS’
decision.
19 May 2011
OIC informed QPS and the applicant that the application had been accepted
for review.
31 May 2011
OIC conveyed a preliminary view to QPS that:
in the
circumstances of this case, the neither confirm nor deny provision in section 55
of the RTI Act did not apply; and
QPS may refuse
to deal with the application under section 40 of the RTI Act.
6 June 2011
QPS accepted OIC’s preliminary view and made further submissions in
relation to the application of exemptions in schedule 3
of the RTI Act to the
requested information.
20 October 2011
OIC received written submissions from the applicant.
28 October 2011
OIC conveyed a preliminary view in writing to the applicant that QPS was
entitled to refuse to deal with the application under section
40 of the RTI
Act.
7 November 2011
The applicant notified OIC by letter that he did not accept the preliminary
view and made further submissions.
8 and 18 November 2011
The applicant made further written submissions to OIC, seeking to amend the
terms of his original access application.
[1] This agency is
commonly known as Queensland Police
Service.[2] R v
Cannon [2007] QCA 205 at [1].
[3] Decision dated 6
April 2011.[4] See
EST and Department of Family Services and Aboriginal and Islander Affairs
[1995] QICmr 20; (1995) 2 QAR 645 at paragraph 20 where the Information Commissioner of
Queensland considered the operation of section 35 of the repealed Freedom of
Information Act 1992 (Qld) which is the equivalent of section 55 of the RTI
Act. [5] See also
section 40(2) of the RTI Act.
[6] As set out in
section 48 of the RTI
Act.[7] OIC
preliminary view dated 31 May 2011 and response from QPS dated 6 June 2011. For
this reason, section 109 of the RTI Act does
not apply in this case.
|
queensland | court_judgement | Queensland Information Commissioner 1993- | Hart MP and Department of Transport and Main Roads [2022] QICmr 28 (25 May 2022) |
Hart MP and Department of Transport and Main Roads [2022] QICmr 28 (25 May 2022)
Last Updated: 15 February 2023
Decision and Reasons for Decision
Citation:
Hart MP and Department of Transport and Main Roads [2022] QICmr
28 (25 May 2022)
Application Number:
316456
Applicant:
Mr Michael Hart MP
Respondent:
Department of Transport and Main Roads
Decision Date:
25 May 2022
Catchwords:
ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT
INFORMATION - CABINET INFORMATION - email relating to Cabinet
meeting - 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
The
applicant applied[1] to the Department
of Transport and Main Roads (Department) under the Right to
Information Act 2009 (Qld) (RTI Act) for access to:
...policy implementation directions sent to the Transport Department from
the Minister for Transport and/or Minister for Procurement
regarding Best
Practice Industrial Conditions (BPIC’s) to be included in contract
conditions for Gold Coast Light Rail stage
3 and any feedback on the policy from
the Department of Transport to either Minister.
The
Department identified 82 pages. The Department
decided[2] to refuse access to all 82
pages, on the ground they comprised exempt information under schedule 3, section
2(1)(b) of the RTI Act:
information the disclosure of which would reveal any
consideration of Cabinet or otherwise prejudice the confidentiality of Cabinet
considerations or operations.
The
applicant applied to the Office of the Information Commissioner (OIC) for
external review of the Department’s decision. During the review, the
Department and the applicant each accepted OIC’s
preliminary views to the
effect that some information may be released, while access to other information
may be refused, on the ground
decided by the Department. As a consequence, a
one-page email remains in issue, to which the applicant continues to seek
access.
For
reasons explained below, access to that page may be refused. It comprises
exempt information under schedule 3, section 2(1)(b)
of the RTI Act. I affirm
the Department’s decision.
Background
Significant
procedural steps are set out in the Appendix to this decision.
Reviewable decision
The
decision under review is the Department’s decision dated 30 November
2021.
Evidence considered
Evidence,
submissions, legislation and other material considered in reaching this decision
are referred to in these reasons (including
footnotes and Appendix).
8. 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.[3] 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,[4] 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’.[5]
Information in issue
The
information in issue is a one-page email.
Issue for determination
The
issue for determination is whether the Department may refuse access to the page
in issue, on the ground it comprises exempt information
under schedule 3,
section 2(1)(b) of the RTI Act.
Relevant law
The
RTI Act confers a right of access to documents of government agencies such as
the Department.[6] This right is
subject to other provisions of the RTI Act, including grounds on which access
may be refused.[7] Section 47(3)(a)
of the RTI Act permits an agency to refuse access to documents to the extent
they comprise exempt information.[8]
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(1) of the RTI Act relevantly
provides:
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.
...
(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.
Discussion
The
email in issue was sent on the same day as a certain Cabinet Budget Review
Committee (CBRC)[9] meeting.
From the time of sending, and its contents, I infer that the email was sent in
the hours following that meeting. Its contents
relate to that meeting.
As a matter of fact, I am satisfied that disclosure
of this page would reveal[10] a
consideration of Cabinet or otherwise prejudice the confidentiality of Cabinet
considerations or
operations.[11]
Disclosure
of the page in issue would, in my view, have consequences analogous to those the
Federal Court accepted would ‘breach the necessary confidentiality of
the Cabinet process,’[12]
by permitting, at the least, ‘reliable inferences to be
drawn’ about the ‘subject matter of discussions by
Cabinet’.[13] I consider
that this would undermine or prejudice the confidentiality of Cabinet
considerations or operations.
The
information in issue otherwise satisfies the requirements for exemption under
schedule 3, section 2(1) of the RTI Act, being within
10 years of its
‘relevant date’[14] and
not, to my knowledge, having been officially published by decision of
Cabinet.[15]
Access
to that information may therefore be
refused.[16]
Applicant’s submissions
I
conveyed the above reasoning to the applicant by letter dated 22 April 2022. In
reply, the applicant relevantly
submitted[17] as
follows:
I fail to see how feedback from the Department regarding the
implementation drawbacks of a cabinet decision AFTER it has been made
would be
exempt and I ask you to review the documents with this in mind. The precedent
such a decision would make would be widely
felt and something I would need to
raise in Parliament because it would lead to most RTI’s being denied as
everything could
be linked back to an original cabinet decision.
As
I advised the applicant in subsequent emails, the email in issue does not
comprise ‘feedback’ from the Department,
but a communication from
the Office of the Minister for Transport and Main
Roads;[18] and,
regardless,. whether documents created after a Cabinet meeting
comprise Cabinet exempt information under schedule 3, section 2(1)(b) of the RTI
Act will be a question of fact and degree, to be assessed on a case by case
basis and having regard to all relevant circumstances.
[19]
It
is perhaps also worth noting that, as I further advised the
applicant,[20] OIC deals with many
applications for external review in any given year that involve documents
ultimately referable to a Cabinet decision
or decisions, but which matters do
not involve or give rise to Cabinet exemption claims.
In
any event, I am obliged to ‘...take the Act as it stands... [and]
not embark on political questions about the scope of the
Act’.[21] In this
case, having reviewed the document in issue, and considered relevant matters
such as the timing of its creation and its contents,
I am satisfied that its
disclosure would reveal a consideration of Cabinet, or otherwise prejudice the
confidentiality of Cabinet
considerations or operations. Accordingly, I am
satisfied that the information in issue comprises exempt information to which
access
may be refused, under sections 47(3)(a) and 48, and schedule 3, section
2(1)(b) of the RTI Act.
Decision
I
affirm the decision under review.
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
Commissioner
Date: 25 May 2022
APPENDIX
Significant procedural steps
Date
Event
1 December 2021
OIC received the applicant’s application for external review.
OIC requested preliminary documents from the Department.
10 December 2021
OIC received requested preliminary documents from the Department.
21 December 2021
OIC notified the applicant and Department that the external review
application had been accepted.
OIC requested the information in issue from the Department.
17 January 2022
OIC received the information in issue from the Department.
24 March 2022
OIC conveyed a preliminary view to the Department.
16 April 2022
The Department replied to OIC’s preliminary view, agreeing to release
some information.
22 April 2022
OIC requested that the Department release relevant information. OIC
conveyed a preliminary view to the applicant that access to some
information may
be refused.
26 April 2022
The applicant replied to OIC’s preliminary view, generally accepting
that view but requesting access to the information in issue.
27 April 2022
OIC reiterated to the applicant the preliminary view that access to the
information in issue may be refused.
29 April 2022
The applicant requested a formal written decision.
[1] Application dated 5 May
2021.[2] Decision dated 30
November 2021.[3] As embodied in
section 21(2) 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] XYZ at
[573].[6] Section 23 of the RTI
Act.[7] 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).[8] As defined in section 48
of the RTI Act.[9] Committees of
Cabinet are included within the meaning of Cabinet – see schedule 3,
section 2(5) of the RTI Act. I have had
access to and reviewed the submission
presented to CBRC at the relevant meeting and to which the information in issue
relates, and
CBRC’s decision on that
submission.[10] ‘To
make known; disclose; divulge’: Macquarie Dictionary, 7th
Edition (the word being undefined in the RTI
Act).[11] Also undefined in the
RTI Act. The dictionary definition includes ‘course’,
‘process’ or ‘transaction’: Macquarie
Dictionary, 7th
Edition.[12] Spencer v
Commonwealth of Australia (No 3) [2012] FCA 637 at [24] per 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 this
provision.[13] As
above.[14] Schedule 3, section
2(5) of the RTI Act.[15]
Schedule 3, section 2(2)(b) of the RTI
Act.[16] Section 47(3)(a) of the
RTI Act.[17] Submissions dated
26 April 2022.[18] Email dated 4
May 2022.[19]Email dated 27
April 2022.[20] As
above.[21] Webb v Information
Commissioner [2021] QCATA 116 at [16] (McGill J).
|
queensland | court_judgement | Queensland Information Commissioner 1993- | Clegg and Crime and Corruption Commission [2017] QICmr 9 (16 March 2017) |
Clegg and Crime and Corruption Commission [2017] QICmr 9 (16 March 2017)
Last Updated: 10 August 2017
Decision and Reasons for Decision
Citation:
Clegg and Crime and Corruption Commission [2017] QICmr 9 (16
March 2017)
Application Number:
312863
Applicant:
Clegg
Respondent:
Crime and Corruption Commission
Decision Date:
16 March 2017
Catchwords:
ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT
INFORMATION - CONTEMPT OF PARLIAMENT - documents provided to
the Parliamentary
Crime and Corruption Committee - whether disclosure would infringe privileges of
Parliament - whether exempt -
section 67(1) of the Information Privacy Act
2009 (Qld) - section 47(3)(a) and 48 and schedule 3 section 6(1)(c)(i) of
the Right to Information Act 2009 (Qld)
REASONS FOR DECISION
Summary
The
applicant applied under the Information Privacy Act 2009 (Qld) (IP
Act) to the Crime and Corruption Commission (CCC) for access to a
report sent by the former Crime and Misconduct Commission (CMC) to the
Parliamentary Crime and Corruption Committee (PCCC) containing certain
allegations and information the applicant had provided to the CMC. The access
application noted that the information
was contained within two CDs and a
report.
The
CCC decided that one CD comprised exempt information owing to the CCC
exemption[1] but exercised its
discretion under section 48(3) of the RTI Act and gave the applicant full access
to the CD on the basis that because
it had been provided by the applicant, it
contained information known to him.[2]
In its decision, the CCC also refused access to a report of the
applicant’s allegations (Report) created by the former CMC and sent
to the PCCC on the basis that it was exempt from release as its public
disclosure would infringe
the privileges of
Parliament.[3]
The
applicant applied to the Information Commissioner for external review of the
CCC’s decision. For the reasons set out below,
I have decided to affirm
that access to the remaining information in issue - the Report - may be refused
under the IP Act on the
ground that it is exempt information.
Background
The
applicant has made complaints to the former Criminal Justice Commission, the
former CMC, the CCC and also the PCCC since 2001
alleging misconduct and
corruption by particular Queensland Police Service officers, public sector
employees as well as certain members
of State Parliament, the judiciary and the
legal profession.
The
applicant has made extensive submissions to the Office of the Information
Commissioner (OIC) explaining that he seeks the Report because the
allegations he has made over time have never been investigated by the entities
and
individuals to whom he has complained. I acknowledge the importance of
these matters to the applicant and the effort he has taken
to present the
background of his concerns to OIC.
Significant
procedural steps relating to the application and the external review are set out
in the appendix to this decision.
Reviewable decision
The
decision under review is the CCC’s decision dated 3 June
2016.
Evidence considered
Evidence,
submissions, legislation and other material considered in reaching this decision
are disclosed in these reasons (including
footnotes and
appendix).
Issue for determination
The
issue for determination is this review is whether access to the Report can be
refused on the basis that its public disclosure
would infringe the privileges of
Parliament.
Relevant law
Information
will be exempt information to which access may be
refused[4] where its public disclosure
would infringe the privileges of
Parliament.[5]
The
privileges of Parliament derive from section 9 of the
Constitution of Queensland 2001 (Constitution of
Queensland) and section 8 of the Parliament of Queensland Act 2001
(Qld) (PQ Act), the latter providing that ‘proceedings in the
Assembly cannot be impeached or questioned in any court or place out of the
Assembly’.
One
of the privileges of Parliament is the power to control its own proceedings,
such as by way of Standing Orders. Standing Order
211A[6] provides:
211A. Confidentiality of proceedings for Parliamentary Crime and
Corruption Committee and Ethics Committee
(1) The proceedings of the Parliamentary Crime and Corruption Committee and
the Ethics Committee or a subcommittee of those committees
that is not open to
the public or authorised to be published remains strictly confidential to the
committee until the committee has
reported those proceedings to the House or
otherwise published the proceedings.
‘Proceedings’
is defined in section 9 of the PQ Act as, relevantly, a document presented to a
Parliamentary committee
or prepared or made under the authority of such a
committee.[7]
Findings
The
PCCC is a committee of Parliament[8]
for the purposes of section 9(1) of the Constitution of Queensland, and is
therefore entitled to all of the privileges enjoyed by Parliament.
The
Chairperson of the CCC has sworn to the fact that the Report was either
presented or submitted to a committee or prepared or made
under the authority of
a committee and that accordingly, it is a proceeding in the Assembly and subject
to parliamentary privilege.
I
accept the Chairperson of the CCC’s sworn statutory declaration and on
that basis find that the Report comprises a document
presented or submitted to a
committee and is therefore ‘proceedings’ caught by Standing Order
211A. There is nothing
before me to suggest that the PCCC has reported the
contents of the Report to the House, nor otherwise published or authorised its
publication.[9] Its public disclosure
would therefore breach a Standing Order, and hence infringe a privilege of the
Parliament.[10] I therefore
consider that the Report comprises exempt information to which access may be
refused.
As
set out in paragraphs 4 and 5 above the applicant made extensive submissions to
OIC during this review but I have been unable to
take them into account when
reaching this decision. [11] I wish
to explain why this is the case. This external review deals with exempt
information, that is, a certain limited category
of information that Parliament
has identified, as noted in section 48(2) of the RTI Act, as being contrary to
the public interest
to disclose in all circumstances. Importantly, if
information satisfies a legal test for exemption, I can only consider
submissions on the application
of the exemption provision. The
applicant’s submissions were not directed to the application of the
Parliamentary exemption
provision; he raised general public interest arguments.
DECISION
I
affirm the CCC’s decision to refuse access to the Report under section
67(1) of the IP Act and section 47(3)(a) of the RTI
Act, on the basis the
information is exempt information under section 48 of the RTI Act as information
the public disclosure of which
would infringe the privileges of Parliament,
within the meaning of schedule 3, section 6(c)(i) 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).L LynchAssistant
Information Commissioner Date: 16 March 2017
APPENDIX
Significant procedural steps
Date
Event
17 June 2016
OIC received the applicant’s application for external review.
OIC asked the CCC to provide information relevant to the application.
27 June 2016
OIC received the requested information from the CCC.
4 July 2016
OIC notified the applicant and the CCC that the external review had been
accepted. OIC asked the CCC to provide a copy of the information
in issue and
search information.
18 July 2016
OIC received some of the requested information in issue from the CCC.
12 August 2016
OIC asked CCC to provide the remaining CD in issue to the applicant.
22 November 2016
OIC asked the CCC to supply OIC with a statement sworn by an appropriate
officer attesting to the material facts on which the CCC
relied in claiming
parliamentary privilege.
5 December 2016
OIC received a statutory declaration sworn by the Chairman of the
CCC.
12 December 2016
OIC conveyed a preliminary view to the applicant and invited the applicant
to provide submissions by 9 January 2017 if he did not
accept the preliminary
view.
19 December 2016
OIC received a request for an extension of time to provide submissions from
the applicant. OIC granted an extension until 16 January 2017.
12 January 2017
OIC received submissions from the applicant contesting the preliminary
view.
31 January 2017
OIC advised the applicant that a decision will be prepared.
[1] Under sections 47(3)(a) and 48
and schedule 3, section 10(4) of the Right to Information Act 2009 (Qld)
(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.[2]The decision noted that a
second CD could not be found, but during the external review the CCC located a
second CD containing information
supplied to it by the applicant. The CCC agreed
to release this CD dating from 2009 to the applicant.
[3]Under section 67(1) of the IP
Act together with sections 47(3)(a) and 48 and schedule 3, section 6(c)(i) of
the RTI Act. [4] Under
sections 47(3)(a) and 48 of the RTI
Act.[5] Schedule 3, section
6(c)(i) of the RTI Act.[6] Made
pursuant to section 11 of the PQ Act. Standing Order 211A was preceded by
Standing Order 206 and, from 1999, Standing Order
197.[7] Section 9(2)(d) and (g) of
the PQ Act. [8] The PCCC is a
committee of Parliament pursuant to section 291 of the Crime and Corruption
Act 2001 (Qld) and the definition of ‘committee’ is contained in
the Schedule to the PQ Act. The former Parliamentary Criminal
Justice Committee
(PCJC) was also a committee of the Legislative Assembly pursuant to
section 115 of the Criminal Justice Act 1989 (Qld).
[9] Nor that the PCJC had done so,
and nor that the Parliament itself has authorised their
publication.[10] For the sake of
completeness, I am also satisfied that quite apart from breaching Standing Order
211A, public disclosure of these
documents would also hinder, impede or impair
the making of similar communications in the future for the purpose of
transacting the
business of the PCCC, affecting the quality of information
available to the PCCC, and therefore breaching the ‘freedom from
impeachment’ privilege contained in section 8(1) of the PQ Act, in
accordance with the principles and analysis in Waratah Coal Pty Ltd and
Department of State Development, Infrastructure and Planning (Unreported,
Queensland Information Commissioner, 10 December 2012), at
[26]-[39].[11] This was
explained to the applicant in telephone conversations with OIC on 12 August 2016
and 19 December 2016.
|
queensland | court_judgement | Queensland Information Commissioner 1993- | GDS and Queensland University of Technology [2002] QICmr 15 (6 July 2002) | "\nGDS and Queensland University of Technology [2002] QICmr 15 (6 July 2002)\n\n\n\n\n'GDS' and Quee(...TRUNCATED) |
queensland | court_judgement | Queensland Information Commissioner 1993- | HIC and Queensland Police Service [1998] QICmr 29 (7 December 1998) | "\nHIC and Queensland Police Service [1998] QICmr 29 (7 December 1998)\n\n\n\n\n'HIC' and Queensland(...TRUNCATED) |
queensland | court_judgement | Queensland Information Commissioner 1993- | Little and Department of Natural Resources [1996] QICmr 2; (1996) 3 QAR 170 (22 March 1996) | "\nLittle and Department of Natural Resources [1996] QICmr 2; (1996) 3 QAR 170 (22 March 1996)\n\n\n(...TRUNCATED) |
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