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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)

GDS and Queensland University of Technology [2002] QICmr 15 (6 July 2002) 'GDS' and Queensland University of Technology (S 121/01, 7 June 2002, Deputy Information Commissioner Sorensen) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.- 2. These paragraphs deleted. REASONS FOR DECISION Background The applicant is employed by the Queensland University of Technology (the University), and is a member of the academic staff one of its Schools. The Vice-Chancellor of the University received a written complaint from another staff member of the School, following an altercation between the staff member and the applicant on 25 August 2000. Upon receipt of that complaint, the Vice-Chancellor requested the University's Human Resources Department to obtain statements from other staff members. In a letter to the applicant dated 15 September 2000, the Vice-Chancellor gave notice of his decision to initiate a disciplinary investigation and listed seven allegations of possible serious misconduct on the part of the applicant. One of those allegations was based upon a written statement given by a third party, which statement comprises the matter remaining in issue in this review. In his letter to the applicant dated 15 September 2000, the Vice-Chancellor stated that further investigation of the seven allegations was required in accordance with the procedures set out in the University's Enterprise Bargaining Agreement (Academic Staff) 2000-2003 - Disciplinary Action for Misconduct and Serious Misconduct. In accordance with the prescribed procedures under the Enterprise Bargaining Agreement (EBA), the applicant was requested to provide a written response to the allegations within 10 working days. The applicant then went on sick leave and Ms Cathy Grant, an industrial officer with the National Tertiary Education Union, represented him in his dealings with the University. Ms Grant contended that the applicant was unable to respond to the Vice-Chancellor's letter until he was provided with sufficient particulars of the allegations to enable him to respond. The University refused to provide the statements obtained from staff members to support the allegations, asserting that the applicant had already been provided with sufficient particulars of the allegations to enable him to respond. The applicant then applied to the University, by letter dated 22 December 2000, for access, under the FOI Act, to the following documents: any complaints made about my conduct or behaviour by any other staff member or former staff member of the University, any communications between staff members or former staff members of the University, including the Vice-Chancellor, regarding the making of complaints against me, any communications between staff members or former staff members of the University, including the Vice-Chancellor, regarding the decision to make allegations of possible serious misconduct against me. By letters dated 12 February 2001, the University's FOI Coordinator, Ms Tania Meggitt, consulted (in accordance with s.51 of the FOI Act) with relevant staff members of the University about the disclosure of their statements concerning the applicant, which had been given to the University's Human Resources (HR) department. Three of the staff members objected to the disclosure of the statements they had provided. The applicant was informed, by letter dated 2 March 2001, of Ms Meggitt's decision to grant him access to 41 folios, subject to the deletion of a small amount of material which Ms Meggitt decided was exempt matter under s.44(1) of the FOI Act. The applicant was also informed that, pursuant to s.51 of the FOI Act, access was deferred in respect of three documents, until the review entitlements of the relevant third parties had been exhausted. (No internal review of Ms Meggitt's decision was sought by the applicant, and the matter found by Ms Meggitt to be exempt under s.44(1) of the FOI Act is not in issue in this review.) By letter dated 2 March 2001, Ms Meggitt informed the third parties of her decision to disclose their statements to the applicant under the FOI Act. Two of the third parties sought internal review of that decision. The internal review was conducted by Mr Ken Baumber, the University's Registrar, who informed the applicant, by letter dated 12 April 2001, that he had decided to vary the initial decision by finding that the statements given by those two third parties were exempt from disclosure under s.40(c) of the FOI Act. By letter dated 31 May 2001, the applicant's representative, Ms Grant, applied to the Information Commissioner for review, under Part 5 of the Act, of Mr Baumber's decision. External review process The matter in issue (which at the commencement of this review comprised the statements given to the University's HR department by the two third parties) was obtained and examined. At a meeting between members of my staff, the third parties, and officers of the University, the third parties claimed to have been unaware that parts of their statements had been used by the Vice-Chancellor as evidentiary support for certain allegations contained in the Vice-Chancellor's formal letter to the applicant dated 15 September 2000, initiating possible disciplinary action against the applicant, in accordance with the EBA. The third parties were disturbed by this. Each of the third parties applied for, and was granted, status as a participant in this external review, in accordance with s.78 of the FOI Act. The third parties were asked to consider whether they would consent to the disclosure of any part(s) of their statements, and each one agreed to the release of some matter, which, accordingly, is no longer in issue in this review. By letter dated 6 February 2002, I informed the University, and the third parties, of my preliminary view that the matter remaining in issue (with the exception of a small amount of information concerning the personal affairs of individuals other than the applicant) did not qualify for exemption from disclosure to the applicant under s.40(c) or s.46(1) of the FOI Act. By letter dated 19 February 2002, the Registrar of the University informed me that the University accepted my preliminary view and did not wish to contest the matter further. By letters also dated 19 February 2002, each of the third parties informed me that they did wish to contest my preliminary view, and provided submissions in support of their objections to the disclosure of the matter remaining in issue. However, after further discussions and correspondence, one of the third parties withdrew her objection to the disclosure of the balance of her statement, and, accordingly, that matter is no longer in issue. By letter dated 16 April 2002, the University was requested to supply statutory declarations about the circumstances surrounding the taking of the statement from the remaining third party, which statement contains the only matter now remaining in issue in this review. Statutory declarations dated 10 May 2002 were supplied by two officers of the University's HR department, who had requested the third parties to provide statements about the applicant. Both officers had previously supplied a statement about their involvement in the investigation of complaints against the applicant. In making my decision in this matter, I have taken into account: the contents of the statements of both third parties; the applicant's FOI access application dated 22 December 2000; the third party's application for internal review and submissions dated 22 February 2001, 24 August 2001 and 19 February 2002; the University's initial decision dated 2 March 2001 and internal review decision dated 12 April 2001; the joint statements by two officers of the University's HR department dated 7 January 2001, and their individual statutory declarations dated 10 May 2002; the text of the Vice-Chancellor's letter to the applicant dated 15 September 2000; and the relevant provisions of the EBA. It will be useful to set out the relevant provisions from the EBA, which governed the University's handling of the investigation into complaints about the applicant. Clause 49.4.2 of the EBA provides: 49.4.2 Any allegation of Misconduct or Serious Misconduct will be considered by the Vice-Chancellor. If he/she believes such allegation(s) warrant further investigation, the Vice-Chancellor will: (i) notify the staff member in writing and in sufficient detail to enable the staff member to understand the precise nature of the allegation(s) and to properly consider and respond to them; and (ii) require the staff member to submit a written response to the allegation(s) within ten (10) working days of the date of receipt of the written allegation(s). A staff member will be permitted reasonable time during work time to prepare such a response. Clauses 49.4.5 - 49.4.8(iii) of the EBA relevantly provide: 49.4.5 If each of the allegation(s) made against the staff member is denied by the staff member, and the Vice-Chancellor is of the view that there has been no Misconduct or Serious Misconduct, he/she will immediately advise the staff member in writing and may, at the request of the staff member, publish the advice in an appropriate manner. 49.4.6 If one or more of the allegation(s) are admitted by the staff member and the Vice-Chancellor is of the view that the conduct constitutes Misconduct or Serious Misconduct, the Vice-Chancellor will advise the staff member in writing of the decision and the operative date and details of the Disciplinary Action to be taken. 49.4.7 If each of the allegation(s) is wholly or partly denied, or if the staff member has not responded to the allegation(s), the Vice-Chancellor may: (i) decide to take no further action; or (ii) in the case of partial denial or non-response, counsel or censure the staff member in relation to the conduct in question and take no further action; or (iii) refer the matter to the Misconduct Investigation Committee. 49.4.8 Where a matter is referred to the Misconduct Investigation Committee for investigation: (i) the Misconduct Investigation Committee shall be provided with: (a) a copy of the written allegation(s) of Misconduct or Serious Misconduct, as the case may be; and (b) a copy of any written reply to the allegation(s) by the staff member; (ii) the Misconduct Investigation Committee shall: (a) have the right to interview persons and receive written statements from persons regarding the allegation(s); (b) abide by procedural fairness. (iii) the person who is the subject of the allegation(s) of Misconduct or Serious Misconduct shall: (a) have the right to be present (with or without a Representative) during all interviews conducted by the Misconduct Investigation Committee; (b) have the right (personally, or through a Representative) to cross examine persons being interviewed by the Misconduct Investigation Committee during the interview process and in accordance with procedural requirements established by the Misconduct Investigation Committee; (c) have the right (personally or through a Representative) to cross examine persons who provided written statements to the Misconduct Investigation Committee in accordance with procedural requirements established by the Misconduct Investigation Committee; (d) have the right (personally, or through a Representative) to call witnesses for interview by the Committee, give evidence, make submissions and present additional documentation which is relevant to the investigation of allegations of Misconduct or Serious Misconduct; (e) be provided with a copy of all written statements received by the Misconduct Investigation Committee and with a reasonable opportunity to provide a verbal or written response to matters raised in those written statements; I will now turn to a consideration of the exemption provisions that have been invoked in the course of this review. Application of s.46(1) of the FOI Act While the University did not seek to rely on s.46 of the FOI Act in its internal review decision, the third party has raised its application. Section 46(1) and s.46(2) of the FOI Act provide: 46.(1) Matter is exempt if— (a) its disclosure would found an action for breach of confidence; or (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest. 46.(2) Subsection (1) does not apply to matter of a kind mentioned in section 41(1)(a) unless its disclosure would found an action for breach of confidence owed to a person or body other than— (a) a person in the capacity of— (i) a Minister; or (ii) a member of the staff of, or a consultant to, a Minister; or (iii) an officer of an agency; or (b) the State or an agency. Section 46(2) excludes parts of the third party's statement from eligibility for exemption under s.46(1), because they consist of matter of a kind mentioned in s.41(1)(a) of the FOI Act (principally, opinion recorded for the purposes of the University's deliberative processes, i.e., deciding what action to take in respect of the original complaint against the applicant), which was obtained from the third party in her capacity as an officer of the University. (See Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at p.292, paragraphs 35-36, and Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at pp.70-71, paragraphs 27-32.) However, the balance of the statement, which consists of factual matter rather than matter of a kind mentioned in s.41(1)(a), is not excluded from eligibility for exemption under s.46(1). (In light of the finding I will express below, it is unnecessary for me to specifically identify the segments of matter which are excluded from eligibility for exemption under s.46(1), by the operation of s.46(2) of the FOI Act.) Section 46(1)(a) The Information Commissioner discussed the requirements to establish exemption under s.46(1)(a) in Re "B". The test for exemption is to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, with appropriate standing to bring an action to enforce an obligation of confidence claimed to bind the respondent agency not to disclose the information in issue. I am satisfied that there is an identifiable plaintiff (the third party) who would have standing to enforce an obligation of confidence claimed to bind the University not to disclose those parts of her statement which remain in issue. At paragraph 43 of Re "B", the Information Commissioner said that an action for breach of confidence may be based on a contractual or an equitable obligation. There is nothing before me to suggest that the third party might be entitled to rely upon a contractual obligation of confidence in respect of her statement. In relation to equitable obligations of confidence, the Information Commissioner explained in Re "B" that there are five cumulative requirements for protection in equity of allegedly confidential information: it must be possible to specifically identify the information in issue, in order to establish that it is secret, rather than generally available information (see Re "B" at pp.303-304, paragraphs 60-63); the information in issue must possess "the necessary quality of confidence"; i.e., the information must not be trivial or useless information, and it must possess a degree of secrecy sufficient for it to be the subject of an obligation of conscience, arising from the circumstances in or through which the information was communicated or obtained (see Re "B" at pp.304-310, paragraphs 64-75); the information in issue must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it (see Re "B" at pp.311-322, paragraphs 76-102); it must be established that disclosure to the applicant for access under the FOI Act would constitute a misuse, or unauthorised use, of the confidential information in issue (see Re "B" at pp.322-324, paragraphs 103-106); and it must be established that detriment is likely to be occasioned to the original confider of the confidential information in issue if that information were to be disclosed (see Re "B" at pp.325-330, paragraphs 107-118). Requirement (a) I am satisfied that the information contained in the statement which is claimed to be the subject of an obligation of confidence, can be specifically identified. Requirement (b) It is clear that portions of the statement have already been disclosed to the applicant. Some were disclosed by the Vice-Chancellor in his letter to the applicant dated 15 September 2000 (apparently without the knowledge of the third party); other portions have been disclosed during the course of this review with the consent of the third party. With respect to the undisclosed segments of information contained in the statement, it would appear that they are not known to the applicant. I am satisfied that they have a sufficient degree of secrecy/inaccessibility to satisfy requirement (b) above. The third party has contended that her statement was provided at the request of the University, not as a complaint by the third party against the applicant, but simply in order to assist the University to "contextualise" the formal complaint which had been made against the applicant by another officer, and to assist the University in making a decision about the applicant's alleged improper behaviour. The third party has asserted that the statement was provided reluctantly, and on the understanding that the statement would be kept confidential from the applicant. However, as noted above, and contrary to the third party's alleged understanding, the Vice-Chancellor's letter to the applicant dated 15 September 2000 contained a summary of at least some of the contents of the statement, and identified the third party as the source of that information. The information contained in the statement which has been disclosed to the applicant, through the Vice-Chancellor's letter dated 15 September 2000, can no longer be considered confidential information vis-à-vis the applicant. In certain circumstances, however, that might not necessarily disqualify that information from protection in equity. Assuming that circumstances were such that the grant of an equitable remedy would not be futile, a defendant would not ordinarily be permitted to avoid an equitable obligation where the only asserted ground for avoidance arose by virtue of the defendant's own conduct in breach of the equitable obligation. The crucial factor is whether or not the disclosure by the University to the applicant, through the Vice-Chancellor's letter, in itself constituted a breach of an equitable obligation of confidence owed to the third party. If it did, equity might not permit that breach to be compounded by a further disclosure of the information in the form of a copy of the statement: cf. G v Day [1982] 1 NSWLR 25, where the Supreme Court of New South Wales was prepared to restrain the publication of confidential information (the identity of an informant in a sensitive police investigation) notwithstanding a prior unauthorised publication of that information (by way of a brief mention in a television news report). On the other hand, if, having regard to all the relevant circumstances, the disclosure by the University of some of the information contained in the statement was not an unconscionable use of information claimed to have been communicated in confidence, then the fact that the information had previously been communicated to the applicant (in circumstances involving no breach of an equitable obligation of confidence) would mean that no protection was available in equity from disclosure to the applicant of the same information in the form of a copy of the statement. For practical purposes then, the application of requirement (c) for exemption under s.46(1)(a), can be treated as determinative, in the circumstances of this case, of whether or not both the undisclosed, and the previously disclosed, information from the statement qualifies for exemption under s.46(1)(a). Requirement (c) A supplier of confidential information cannot unilaterally and conclusively impose an obligation of confidence: see Re "B" at pp.311-316, paragraphs 79-84, and pp.318-319, paragraphs 90-91. The touchstone in assessing whether requirement (c) to found an action in equity for breach of confidence has been satisfied, lies in determining what conscionable conduct requires of an agency in its treatment of information claimed to have been communicated in confidence. That is to be determined by an evaluation of all the relevant circumstances attending the communication of that information to the agency. The relevant circumstances will include (but are not limited to) the nature of the relationship between the parties, the nature and sensitivity of the information, and circumstances relating to its communication of the kind referred to by a Full Court of the Federal Court of Australia in Smith Kline and French Laboratories (Aust) Limited & Ors v Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291 at pp.302-3: see Re "B" at pp.314-316, paragraph 82. In her submission dated 24 August 2001, the third party acknowledged that no express request for confidentiality was made, but contended that an implied understanding of confidence existed between her and the University. In her submission dated 19 February 2002, the third party stated that: On submission of my 'contextualising' statement, the University Human Resources informed me that the statement was to be held in confidence unless I decided at some point to waive that in confidence restriction. In his statutory declaration dated 10 May 2002, Mr Stephens (one of the two HR officers referred to in paragraph 13 above) stated that: Prior to the statement from [the third party] being supplied I recall having telephone discussions and meetings with [the third party] whereby I informed [the third party] that her statement would be regarded as a confidential document, however, her statement could be used in evidence if the matter eventually was referred to a Misconduct Investigation Committee under the procedures prescribed under the Queensland University of Technology Enterprise Bargaining Agreement (Academic Staff) 2000-2003. I further advised [the third party] that in these matters the person who was the subject of the allegations had a right of reply which would be formally put to [the applicant] in a letter from the Vice Chancellor... The material before me indicates that there was probably some discussion between the University's HR officers and the third party concerning confidential treatment of the third party's statement, but that any statements made by the University's HR officers about confidential treatment were conditional. The HR officers knew, and third party ought reasonably to have understood, that the very purpose for which a statement was sought from the third party, i.e., to assist the investigation of possible disciplinary action against the applicant, would involve procedures that could require disclosure to the applicant of material adverse to his interests. The third party was aware that she was providing information which was adverse to the interests of a person about whom a formal complaint had been made by another staff member. While the third party has contended that she was not herself intending to make a complaint against the applicant, but was simply providing "contextualising" information in support of the other staff member's complaint, I note that none of the information contained in her statement relates to the incident about which the other staff member complained. Rather, her statement contains details of other instances of the applicant's alleged improper behaviour towards staff members. It seems clear that the University considered that the third party's statement contained fresh allegations of serious misconduct against the applicant which required investigation. In accordance with clause 49.4.2 of the EBA, the Vice-Chancellor notified the applicant of the allegations which had been made against him, and requested a response from the applicant. In his statutory declaration dated 10 May 2002, Mr MacAulay of the HR department stated that he and Mr Stephens explained the investigation process to the third party and the other statement-givers: On 15 September 2000 Mr Chris Stephens and I met with the female staff concerned.. as well as their Head of School and Dean of Faculty. At this meeting we advised that [the applicant] had been given a letter from the Vice-Chancellor setting out a number of allegations of possible serious misconduct. We advised the group that [the applicant] had ten working days to respond to the allegations. We also advised the group that once the Vice-Chancellor received the response he could decide as per the misconduct provisions to take no action, take disciplinary action or refer the matter to a Misconduct Committee for investigation. As I recall, we advised the group, as is our normal practice, that if the matter was referred to a Misconduct Committee, [the applicant] would be provided with all relevant documentation including their Statements and they may be required to appear before the Committee for questioning by [the applicant] or his representative regarding their Statements. While the female staff at the meeting expressed concerns for their security, which management undertook to address, they seemed to understand the process and possible steps that lay ahead. There may have been a misunderstanding between the University and the third party regarding the purpose for which her statement was given and the uses to which the University intended to put it. As I have already noted, it is clear that the University regarded the incidents dealt with in the third party's statement as separate incidents of misconduct on the part of the applicant, which warranted (or bolstered the case for) initiating disciplinary action against the applicant. Once the University had decided to initiate disciplinary action in respect of those incidents (as well as others), the University quite properly considered that details of the allegations made by the third party (and other staff) were required to be disclosed to the applicant under clause 49.4.2 of the EBA, in order to accord him procedural fairness. The third party, however, contends that she expected that her statement would be kept confidential from the applicant because she was not intending to make a complaint against him. The third party was upset that, without her consent, the Vice-Chancellor included parts of her statement in his letter to the applicant. From the information before me, I am satisfied that the University gave some explanation to the third party of the nature of the disciplinary investigation process, and what use could possibly be made of her statement. The contents of the statement itself (notably the fact that the introductory paragraph endeavours to specify that the author does not regard herself as a complainant, and in particular the contents of the last paragraph) indicate to my mind that the third party was conscious of the nature of what she was doing, and the possible consequences. It appears to me that, in the final paragraph of her statement, the third party acknowledged the possibility that the information she provided might be disclosed to the applicant. It is clear that she wanted some action to be taken against the applicant in respect of his inappropriate behaviour towards others. It is difficult to reconcile the third party's apparent desire for action to be taken against the applicant, with her stated expectation that the information she provided would be kept confidential from him. I do not consider that it was reasonable for the third party to expect that she could ventilate her specific concerns about the applicant's behaviour, in the context of a potential misconduct investigation, on the basis that the information she supplied would be kept secret from the applicant. It is understandable (given the alleged behavioural propensities of the applicant) that the third party was reluctant to be (and is now offended at having been) cast into the role of an additional complainant. On the other hand, as an employee of the University, the third party owed duties of good faith and fidelity to her employer, which encompassed a positive obligation to disclose to her employer any information, acquired in her capacity as an employee, which the employer might reasonably require for the better management of its operations: see Re Shaw and The University of Queensland [1995] QICmr 32; (1995) 3 QAR 107 at paragraphs 55-56. In my view, the third party had a duty to co-operate with the University's efforts to take appropriate steps to deal with alleged misconduct on the part of the applicant, and to supply any information which the University reasonably required in that regard. Moreover, she ought to have been aware of the provisions of the EBA and the possible course the investigation could take, i.e., the matter being referred to a Misconduct Investigation Committee with the applicant then being entitled to obtain copies of relevant evidentiary statements in accordance with clause 49.4.8(iii)(e) of the EBA. However, regardless of what the third party and other statement-givers were or were not told about the investigation process and the uses to which their statements could be put, and whether or not the third party's statement should properly have been regarded as a complaint against the applicant, or as simply providing information in support of another's complaint, the relevant question is still whether, in all the circumstances, it would be unconscionable conduct on the part of the University to disclose the statement of the third party, without her consent, to the applicant. The following statement in Re "B" (at p.319, paragraph 93) is relevant: Thus, when a confider purports to impart confidential information to a government agency, account must be taken of the uses to which the government agency must reasonably be expected to put that information, in order to discharge its functions. Information conveyed to a regulatory authority for instance may require an investigation to be commenced in which particulars of the confidential information must be put to relevant witnesses, and in which the confidential information may ultimately have to be exposed in a public report or perhaps in court proceedings. The relevant circumstances in this case were that an investigation was being undertaken of potentially serious allegations of misconduct against a work colleague, with whom the supplier of information (the third party) was required to continue to interact on a regular basis. The information provided was sensitive and adverse to the applicant's interests, with potential for recriminations and resentments if it were disclosed to the applicant. While these circumstances tend to tell in favour of confidential treatment, the very purposes for which the relevant information was obtained indicate that any understanding or obligation of confidence must necessarily have been subject to implicit exceptions or conditions, comparable to those explained by the Information Commissioner in Re McCann and Queensland Police [1997] QICmr 10; (1997) 4 QAR 30 at pp.53-54, paragraph 58: I consider that there are three main kinds of limited disclosure which, in the ordinary case, ought reasonably to be in the contemplation of parties to the communication of information for the purposes of an investigation relating to law enforcement. Unless excluded, or modified in their application, by express agreement or an implicit understanding based on circumstances similar to those referred to in the preceding paragraph, I consider that the following should ordinarily be regarded as implicitly authorised exceptions to any express or implicit mutual understanding that the identity of a source of information, and/or the information provided by the source, are to be treated in confidence so far as practicable (consistent with their use for the purpose for which the information was provided) - (a) where selective disclosure is considered necessary for the more effective conduct of relevant investigations ...; (b) where the investigation results in the laying of charges, which are defended, and, in accordance with applicable rules of law or practice ... the prosecutor must disclose to the person charged the evidence relied upon to support the charges; and (c) where selective disclosure is considered necessary - (i) for keeping a complainant ... informed of the progress of the investigation; and (ii) where the investigation results in no formal action being taken, for giving an account of the investigation, and the reasons for its outcome, to a complainant ... . The language of exception (b) above contemplated a criminal investigation. The comparable exception in a disciplinary/grievance investigation would be where disclosure is necessary to accord procedural fairness to a person whose rights or interests would be adversely affected by the findings/outcome of the investigation, including a person who is subsequently charged with a breach of discipline. As the Information Commissioner explained in Re Chambers and Department of Families, Youth and Community Care; Gribaudo (Third Party) [1999] QICmr 1; (1999) 5 QAR 16 at p.23, paragraph 17: In my view, it is not ordinarily a wise practice for an investigator to give witnesses a blanket promise of confidentiality, since the common law requirements of procedural fairness may dictate that the crucial evidence (and, apart from exceptional circumstances, the identity of its provider(s)) on which a finding adverse to a party to the grievance may turn, be disclosed to that party in order to afford that party an effective opportunity to respond. I do not see how it could ordinarily be practicable to promise confidential treatment for relevant information supplied by the parties to a grievance procedure (i.e., the complainant(s) and the subject(s) of complaint) who should ordinarily expect their respective accounts of relevant events to be disclosed to the opposite party (and perhaps also to relevant third party witnesses) for response. Sometimes investigators may be tempted to promise confidentiality to secure the co-operation of third party witnesses, in the hope of obtaining an independent, unbiased account of relevant events. Even then, however, procedural fairness may require disclosure in the circumstances adverted to in the opening sentence of this paragraph. Even assuming that the statement of the third party was communicated to the University in circumstances which imposed an equitable obligation of confidence, any such obligation would have necessarily been subject to implicit conditions/exceptions permitting disclosure of information in circumstances where either procedural fairness, or contractual obligations to a staff member under the EBA, required disclosure. That is because conscionable conduct on the part of the University would require compliance with both statute law and common law (including the common law requirements of procedural fairness, and contractual obligations to University staff under the EBA). The crucial question to my mind is whether or not, at the stage reached in the disciplinary process initiated against the applicant, procedural fairness requires disclosure to the applicant of the statement of the third party, or whether the particulars of alleged misconduct given to the applicant are sufficient to comply with the requirements of procedural fairness at this stage of the disciplinary process, such that a conditional obligation of confidence could continue to apply to the statement for the time being. (I note that it seems clear enough that the statement would have to be disclosed to the applicant, in accordance with cl. 49.4.8(iii)(e) of the EBA, if the particulars of alleged misconduct based on the third party's statement are referred to a Misconduct Investigation Committee.) In Kioa v West [1985] HCA 81; (1985) 60 ALJR 113 at p.127, Mason J of the High Court of Australia said: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Mason J had earlier explained (at p.126) that his reference to rights or interests "must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests". His Honour continued (at p.127): ... the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual, and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations ... What constitutes the observance of fair procedures will vary according to the exigencies of particular cases, but ordinarily the duty to act fairly requires that a person be given an effective opportunity to know the substance of the case against the person, including in particular the critical issues or factors on which the case is likely to turn (cf. Kioa per Mason J at pp.128-129) so that the person is given an effective opportunity to deal with the case against him or her. It appears from the disciplinary procedures set out in the EBA that serious consequences could flow for the applicant (including, potentially, termination of employment) depending on the Vice Chancellor's judgment in respect of any allegations of misconduct to which the applicant admits (see cl. 49.4.6). I consider that it was unfair to the applicant to require him to communicate a response to each of the particulars of alleged misconduct (in terms of admissions, or denials in whole or in part) without access to the evidence on which the particulars were based. I consider that procedural fairness requires disclosure to the applicant of the statement in issue to enable him to understand the precise nature of the allegations against him and to properly consider and respond to them (cf. cl. 49.4.2(i) of the EBA). It follows that disclosure of the statement to the applicant would not constitute unconscionable conduct on the part of the University. Given the nature of the information provided by the third party, the context in which it was provided, the University's own investigation procedures and the requirement to accord the applicant procedural fairness, I am satisfied that equity would not impose an obligation of confidence restraining the University from disclosing to the applicant the adverse information contained in the statement of the third party. I therefore find that requirement (c) to found an action in equity for breach of confidence is not satisfied with respect to the statement of the third party, and that the matter remaining in issue does not qualify for exemption under s.46(1)(a) of the FOI Act. (It is not necessary for me to go on to consider the application to the statement of requirements (d) and (e) for exemption under s.46(1)(a) of the FOI Act.) Section 46(1)(b) Matter will be exempt under s.46(1)(b) of the FOI Act if: it consists of information of a confidential nature; it was communicated in confidence; its disclosure could reasonably be expected to prejudice the future supply of such information; and the weight of the public interest considerations favouring non-disclosure equals or outweighs that of the public interest considerations favouring disclosure. (See Re "B" at pp.339-341, paragraphs 154-160.) The first of these requirements is, for practical purposes, identical to requirement (b) to found an action in equity for breach of confidence, and my comments in that regard above are equally applicable to the application of s.46(1)(b). Communicated in confidence Requirement (b) above is similar in nature to requirement (c) to found an action in equity for breach of confidence. The following is a summary of relevant principles with respect to requirement (b) for exemption under s.46(1)(b), taken from the Information Commissioner's decisions in Re "B" at pp.338-339 (paragraphs 149-153) and Re McCann at paragraphs 21-24, 33-34 and 57-58: The phrase "communicated in confidence" is used in the context of s.46(1)(b) to convey a requirement for a mutual understanding between the supplier and the recipient of the relevant information that the relevant information is to be treated in confidence. The first question is whether there is reliable evidence of an express consensus (for example, the seeking and giving of an express assurance, written or oral, that the relevant information would be treated in confidence) between the supplier and the recipient as to confidential treatment of the information supplied. If there is no evidence of an express consensus, the relevant circumstances attending the communication of the information in issue must be examined to ascertain whether they evidence a need, desire or requirement on the part of the supplier of the information for confidential treatment which, in all the relevant circumstances, the supplier could reasonably expect of the recipient, and which was understood and accepted by the recipient, thereby giving rise to an implicit mutual understanding that confidentiality would be observed. If there was an express or implicit mutual understanding that information would be treated in confidence, it may also be necessary to construe the true scope of the confidential treatment required in the circumstances, e.g., whether it was or must have been the intention of the parties that the recipient should be at liberty to disclose the information to a limited class of persons, or to disclose it in particular circumstances; see, for example, the usual implicit exceptions to an understanding that confidential treatment would be accorded to information conveyed for the purposes of a law enforcement investigation, that are identified in Re McCann at paragraph 58. An obligation or understanding of confidence is ordinarily owed by the recipient of the information for the benefit of the supplier of the information. This means that the supplier may waive the benefit of the obligation or understanding of confidence, including waiver by conduct of the supplier that is inconsistent with a continued expectation of confidential treatment on the part of the recipient. For the reasons explained above at paragraphs 39-41, I am satisfied that any implicit mutual understanding that the statement of the third party would be treated in confidence was necessarily subject to an implicit exception, permitting disclosure to the applicant if procedural fairness required it. I am satisfied that the disciplinary investigation initiated against the applicant had reached the stage where procedural fairness required disclosure to the applicant of the third party's statement. Accordingly, the statement does not qualify for exemption from disclosure to the applicant under s.46(1)(b). Prejudice to the future supply of information Although it is not strictly necessary for me to do so, given the findings I have made in the preceding paragraph, I should also note that I do not consider that disclosure of the matter in issue could reasonably be expected to prejudice the future supply of like information by a significant number of sources in relation to the investigation by the University of staff complaints. It is clear that there was a level of apprehension about providing the University with information adverse to the applicant. However, there was also obviously a considerable amount of concern about the applicant's behaviour, and a clear desire for action to be taken to remedy that behaviour. If any action were to be taken against the applicant, I consider that staff must or ought to have appreciated that information they provided might have to be disclosed to the applicant. The option open to staff was to provide information on which the University could act, or to say nothing and have the situation persist (as indeed the third party contemplated in the final paragraph of her statement). I am not satisfied that disclosure of the information in issue could reasonably be expected to prejudice the future supply of like information from staff in a similar situation. For the reasons explained above, I find that the matter remaining in issue in the third party's statement does not qualify for exemption from disclosure to the applicant under s.46(1)(b) of the FOI Act. Application of s.40(c) of the FOI Act In its internal review decision, the University decided that the third party's statement qualified for exemption under s.40(c) of the FOI Act. Although the third party has not expressly relied upon s.40(c), she has not expressly abandoned reliance on it (in contrast to the University, which has done so). I will therefore briefly address the application of s.40(c) of the FOI Act, which provides: 40. Matter is exempt matter if its disclosure could reasonably be expected to— ... (c) have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel; ... unless its disclosure would, on balance, be in the public interest. The Information Commissioner explained and illustrated the correct approach to the interpretation and application of s.40(c) of the FOI Act in Re Pemberton and The University of Queensland (1994) 2 QAR 293, Re Murphy and Queensland Treasury [1995] QICmr 23; (1995) 2 QAR 744, Re Shaw, and Re McCann. In applying s.40(c) of the FOI Act, it is necessary to determine: whether any adverse effects on the management or assessment by the University of its personnel could reasonably be expected to follow from disclosure of the matter in issue; and if so, whether the adverse effects, either individually or in aggregate, constitute a substantial adverse effect on the management or assessment by the University of its personnel. The adjective "substantial" in the phrase "substantial adverse effect" means grave, weighty, significant or serious (see Re Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663, at pp.724-725, paragraphs 148-150). If the above requirements are satisfied, I must then consider whether the disclosure of the matter in issue would nevertheless, on balance, be in the public interest. In Re "B" at pp.339-341 (paragraphs 154-160), the Information Commissioner analysed the meaning of the phrase "could reasonably be expected to", by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth. In particular, the Information Commissioner said in Re "B" (at pp.340-341, paragraph 160): The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist. The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Concise Dictionary, 3rd Rev. ed 1988); "Regard as ... likely to happen; ... Believe that it will prove to be the case that..." (The New Shorter Oxford English Dictionary, 1993). I accept that the investigation by an agency of complaints or allegations of misconduct about officers of that agency is an aspect of the management or assessment by that agency of its personnel. Substantial adverse effect In his internal review decision dated 12 April 2001, Mr Baumber of the University identified the following adverse effects which he considered could reasonably be expected to follow from disclosure of the matter in issue: [a] refusal by many staff members to provide statements in the future. This will mean that the best people to assist the University in the course of its investigations will not always provide statements, substantially reducing the University's ability to effectively investigate allegations of disciplinary breaches by staff members; [a] reduction in the frankness and candour of statements which are provided. This will mean that the University will have less accurate information on which to assess allegations of disciplinary breaches, seriously prejudicing the University's ability to properly conduct disciplinary proceedings; [and] [an] increase in the reliance on oral statements and comments. This will mean that the University will have less reliable and even inaccurate information before them on which to consider allegations of disciplinary breaches. I have stated above (at paragraphs 53-54) my finding that disclosure of the information in issue could not reasonably be expected to inhibit concerned or aggrieved staff from supplying like information in the future, or from cooperating with similar investigations. Given the University's obligation to follow the procedures laid down in the EBA in conducting its investigation into the applicant's behaviour, I do not see any reasonable basis for expecting that disclosure of the matter in issue could result in a loss of faith by staff in the University. While there may be potential for disharmony in the workplace if and when the applicant returns to work, given what the applicant already knows about the information provided by the third party and other staff members, I do not consider that disclosure of the matter remaining in issue could significantly increase the potential for disharmony. The University having abandoned its claim for exemption, there is no evidence before me that affords a reasonable basis for expecting that disclosure of the statement in issue will result in the University receiving less frank and reliable information in the future. However, I observe that, if the University requests staff members to provide information in the course of an investigation, the interests of the University in the effective management of its personnel, and the interests of all concerned with the investigation, will be best served if that information is provided in a form that will withstand scrutiny (including by the person the subject of the investigation, who, if the University proposes to take action, will ordinarily be entitled to know the substance of the information provided), i.e., if it is framed in careful and temperate language, and supported by particulars. Frank and honest opinion can still be, and preferably should be, expressed in this way. I do not consider that the prospect of disclosure of information of that nature to the subject of an investigation could reasonably be expected to have an adverse effect on the management or assessment by the University of its personnel. Finally, I note that it is a fact of life that both the common law, and the EBA, mandate that procedural fairness be accorded to a member of University staff against whom disciplinary action is initiated. That is the legal context in which the University must manage its personnel. I have difficulty in accepting that disclosure of information to accord procedural fairness to a subject of disciplinary action could have a substantial adverse effect on the management by an agency of its personnel. Just as criminals will go unpunished in the courts if crucial witnesses are not prepared to testify to prove the elements of a contested criminal charge, so disciplinary action cannot be taken against errant staff members if crucial witnesses are not prepared to see the process through. There will be situations where conditional undertakings of confidentiality may enable disciplinary processes to work satisfactorily, but generally speaking I find it too difficult to reconcile the adverse effects claimed by Mr Baumber with the legal realities. It may be true that staff are sometimes reluctant to get involved in the confrontational aspects of disciplinary action taken against a fellow staff member, but only in exceptional circumstances could a disciplinary process be based on evidence kept confidential from the subject of that disciplinary action. For these reasons, I am not satisfied that disclosure of the information in issue at this time could reasonably be expected to have a substantial adverse effect on the management or assessment by the University of its personnel. Public interest balancing test In his decision, Mr Baumber contended that disclosure of information of the type which is in issue here would cause resentment amongst the affected staff, which would result in a lack of cooperation between staff and potential disruption to the University's teaching, administrative and research activities. Mr Baumber argued that the public interest in the effective functioning of the University outweighed the public interest in disclosure of the information in issue to the applicant. In Re Pemberton, the Information Commissioner analysed a number of authorities which established that there can be circumstances in which there is a public interest in a particular applicant having access to particular documents, which might be sufficient to warrant disclosure to that particular applicant, even though no wider public interest considerations favour disclosure to the world at large. The Information Commissioner applied those principles in Re Shaw, stating at paragraph 35: I am satisfied that disclosure of document 1 to Dr Shaw would, on balance, be in the public interest. Dr Shaw’s involvement in, and concern with, the information in document 1 gives rise to a public interest in her having access to what is recorded about her. This, allied with the public interest in the fair treatment of an individual against whom allegations damaging to professional reputation and career prospects have been made, is sufficient to justify a finding that disclosure of document 1 to Dr Shaw would, on balance, be in the public interest. In the present case, the information in issue comprises a number of allegations made against the applicant. The applicant has argued that he has not been provided with sufficient detail regarding those allegations, and the context in which they were provided, to enable him to respond. He is concerned that there may be material, which has not been disclosed to him, which may adversely affect his chances of defending himself against the allegations. I consider that the applicant's involvement in, and concern with, the information contained in the statements is such as to give rise to a public interest in him having access to what has been recorded about him, so that he has an adequate opportunity to properly consider and respond to the allegations against him. There is a strong public interest in the fair treatment of an individual, against whom allegations damaging to reputation and career prospects have been made: see Re Pemberton at pp.376-377, paragraph 190. As I noted at paragraph 46 above, if a finding of serious misconduct were to be made against the applicant based upon the information contained in the statements, there is the potential for his employment to be terminated without further notice. I consider that the disciplinary action initiated against the applicant had reached the stage where procedural fairness required disclosure to him of the third party's statement, and I consider that disclosure of that statement to the applicant would, on balance, be in the public interest. For the reasons stated, I find that the matter remaining in issue does not qualify for exemption from disclosure to the applicant under s.40(c) of the FOI Act. Application of s.44(1) of the FOI Act Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. In applying s.44(1) of the FOI Act, the first question to ask is whether disclosure of the matter in issue would disclose information concerning the personal affairs of a person other than the applicant for access. If that is the case a public interest consideration favouring non-disclosure is established, and the matter in issue will be exempt, unless there are public interest considerations favouring disclosure which outweigh all public interest considerations favouring non-disclosure. In Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, the Information Commissioner discussed in detail the meaning of the phrase "personal affairs of a person" (and relevant variations) as it appears in the FOI Act (see pp.256-257, paragraphs 79-114, of Re Stewart). In particular, the Information Commissioner said that information concerns the "personal affairs of a person" if it concerns the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase "personal affairs", that phrase has a well accepted core meaning which includes: family and marital relationships; health or ill health; relationships and emotional ties with other people; and domestic responsibilities or financial obligations. Whether or not matter contained in a document comprises information concerning an individual's personal affairs is a question of fact, to be determined according to the proper characterisation of the information in question. The matter remaining in issue in this review comprises 3 full paragraphs, and several sentences in two other paragraphs in the third party's statement. It includes the third party's private address, and references to the emotional reactions of two persons to particular situations. I am satisfied that that information falls within the well accepted core meaning of "personal affairs" (discussed above). 74. Because of the way that s.44(1) of the FOI Act is worded and structured, the mere finding that information concerns the personal affairs of a person other than the applicant for access must always tip the scales against disclosure of that information (to an extent that will vary from case to case according to the relative weight of the privacy interests attaching to the particular information in issue in the particular circumstances of any given case), and must decisively tip the scales if there are no public interest considerations which tell in favour of disclosure of the information in issue. It therefore becomes necessary to examine whether there are public interest considerations favouring disclosure, and if so, whether they outweigh all public interest considerations favouring non-disclosure. The applicant's stated purpose in his initial application for access to documents from the University was to obtain copies of complaints against him by officers of the University - as opposed to summaries or paraphrasing of those complaints – to enable him to properly respond to them. Having regard to the content, and the very limited amount, of information which I have found to be information concerning the personal affairs of persons other than the applicant, I can identify no public interest which would be served by the disclosure of that information to the applicant. It would not add anything to his understanding of the University's decision to investigate his conduct, or to his understanding of the substance of complaints made by the third party. I find that those segments of matter which solely concern the personal affairs of the third party and of another individual comprise exempt matter under s.44(1) of the FOI Act. DECISION For the foregoing reasons, I set aside the decision under review (being the decision made on behalf of the University by Mr Baumber on 12 April 2001). In substitution for it, I find that: (a) the matter referred to in paragraph 76 above is exempt matter under s.44(1) of the FOI Act; and (b) the balance of the matter remaining in issue is not exempt from disclosure to the applicant under the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

HIC and Queensland Police Service [1998] QICmr 29 (7 December 1998)

HIC and Queensland Police Service [1998] QICmr 29 (7 December 1998) 'HIC' and Queensland Police Service (S 34/96, 7 December 1998, Information Commissioner Albietz) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.- 4. These paragraphs deleted. REASONS FOR DECISION Background The applicant is a police Sergeant who seeks review of a decision by the Queensland Police Service (the QPS) to refuse him access, under the FOI Act, to records of an interview between a junior officer and the District Officer of the QPS, concerning the applicant's health and its effect on the applicant's work performance. At the time he made his FOI access application, the applicant was the officer in charge of a police station in a country town in Queensland. The junior officer was another officer at that station. It appears that the applicant consulted a general practitioner about health concerns and was referred to a psychiatrist. The psychiatrist diagnosed the applicant as suffering from post-traumatic stress disorder and associated illnesses. The applicant was interviewed by the District Officer concerning his health, and the Assistant Commissioner for the region subsequently directed the District Officer to interview both the applicant and the junior officer concerning the applicant's state of health. The junior officer was interviewed. The applicant later learned of the interview and, by letter dated 31 October 1995, applied to the QPS under the FOI Act for access to the record of interview and other related documents. By letter dated 8 January 1996, Acting Inspector Anderson of the QPS informed the applicant that 30 documents had been located which fell within the terms of the relevant FOI access application. Acting Inspector Anderson decided to grant access to 25 documents in full, but decided that part of folio 1 was exempt under s.46(1) of the FOI Act, and that the whole of folios 27-30 were exempt under s.44(1) and s.46(1) of the FOI Act. By letter dated 9 February 1996, the applicant sought internal review of Acting Inspector Anderson's decision, which was affirmed by Chief Superintendent Freestone in his internal review decision dated 19 February 1996. By letter dated 22 February 1996, the applicant applied to me for review, under Part 5 of the FOI Act, of Chief Superintendent Freestone's decision. External review process The documents containing the matter in issue were obtained and examined. Folios 27-30 comprise the record of the interview between the junior officer and the District Officer. Folio 1 is a memorandum from the District Officer to the Assistant Commissioner for the region. The matter deleted from folio 1 summarises parts of the record of interview. The junior officer was informed of my review, and he applied for, and was granted, status as a participant in accordance with s.78 of the FOI Act. The junior officer has provided a statutory declaration in support of the case made by the QPS that the matter in issue is exempt matter. In making my decision, I have considered the contents of the documents in issue, the correspondence between the applicant and the QPS in the course of dealing with the FOI access application and internal review application, and the following submissions and evidence, which have been exchanged between the QPS and the applicant: submissions by the QPS, dated 9 August and 21 October 1996 statutory declaration of the junior officer, dated 23 July 1996 statutory declaration of an Acting Inspector who replaced the District Officer while he was on sick leave, dated 23 July 1996 statutory declaration of the QPS State Rehabilitation Co-ordinator, dated 22 July 1996 submissions by Gilshenan & Luton, Lawyers, on behalf of the applicant, dated 3 October and 4 November 1996. The submissions of the participants have addressed not only the exemption provisions initially relied on by the QPS, but also the possible application of s.40(c) of the FOI Act. Ultimately, I have found it unnecessary to deal with exemption provisions other than s.40(c) of the FOI Act. Application of s.40(c) of the FOI Act Section 40(c) of the FOI Act provides: 40. Matter is exempt matter if its disclosure could reasonably be expected to— ... (c) have a substantial adverse effect on the management or assessment by an agency of the agency's personnel; ... ... unless its disclosure would, on balance, be in the public interest. I have considered the application of s.40(c) of the FOI Act in Re Pemberton and The University of Queensland (1994) 2 QAR 293, Re Murphy and Queensland Treasury & Ors [1995] QICmr 23; (1995) 2 QAR 744, Re Shaw and The University of Queensland [1995] QICmr 32; (1995) 3 QAR 107, and Re McCann and Queensland Police Service (Information Commissioner Qld, Decision No. 97010, 10 July 1997, unreported). The focus of this exemption provision is on the management or assessment by an agency of the agency's personnel. The exemption will be made out if it is established that disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of its personnel, unless disclosure of the matter in issue would, on balance, be in the public interest. I analysed the meaning of the phrase "could reasonably be expected to", by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth, in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at pp.339-341, paragraphs 154-160. In particular, I said in Re "B" (at pp.340-341, paragraph 160): The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist. The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Dictionary, 2nd ed); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993). If I am satisfied that any adverse effects could reasonably be expected to follow from disclosure of the matter in issue, I must then determine whether those adverse effects, either individually or in aggregate, constitute a substantial adverse effect on the management or assessment by the QPS of its personnel. For reasons explained in Re Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663 (at pp.724-725, paragraphs 148-150), I consider that, where the Queensland Parliament has employed the phrase "substantial adverse effect" in s.40(c) of the FOI Act, it must have intended the adjective "substantial" to be used in the sense of grave, weighty, significant or serious. If I find that disclosure of the whole or any part of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by the QPS of its personnel, I must then consider whether disclosure of that matter would nevertheless, on balance, be in the public interest. Substantial adverse effect At the outset, I consider it appropriate to state that, on my reading of the record of interview comprising folios 27-30, the junior officer did everything in his power to emphasise the positive aspects of the applicant's work performance, while nevertheless truthfully and accurately responding to the questions to which he was directed to reply. It appears to me that the junior officer did his best to maintain loyalty to his colleague, while also recognising and complying with his duty to the QPS. From my examination of the QPS submissions and the evidence, I consider that there are three apprehended adverse effects on the management or assessment by the QPS of its personnel, which call for detailed consideration. I will refer to them as claimed adverse effects (a), (b) and (c). They are: (a) apprehension of management problems if other members of staff, or members of the public, were to obtain access to the matter in issue; (b) management problems caused by a perceived breach of trust (in the QPS disclosing information understood to have been provided to senior management in confidence) and the potential for prejudice to the future supply of like information that is needed for the purposes of management and assessment processes; and (c) the potential for disruption to working relationships within the QPS. Management problems occasioned by wider dissemination of the matter in issue As to claimed adverse effect (a), I indicated in Re Pemberton at pp.365-366, paragraphs 152-154, that s.40(c) of the FOI Act is an exemption provision of a kind where it is ordinarily proper, in assessing the relevant prejudicial effects of disclosure of the matter in issue, to have regard to the effects of disclosure to persons other than just the particular applicant for access under the FOI Act. The content of the matter in issue does not suggest that the applicant has engaged in any conduct upon which disciplinary action could be based. It appears clear that the relevant interview was conducted in order to assess whether the junior officer could shed any light on the effects or potential effects which the applicant's illness might have on the applicant's work performance at an isolated country station. (I should also say that I have no knowledge of whether or not the applicant continues to suffer from any form of illness. He may well have completely recovered.) Nevertheless, I consider that a significant number of fellow officers or members of the public, on reading the matter in issue, could reasonably be expected to form some apprehension about whether the applicant continues to suffer from the illness, and about its potential effects on the applicant's work performance. If the information recorded in the matter in issue were to be disseminated in any community in which the applicant was working, or indeed within the QPS, I consider it reasonable to expect that this could give rise to management difficulties with respect to the applicant, and his relationships with other QPS personnel and/or the public. In this sense, I consider that disclosure of the matter in issue could reasonably be expected to have an adverse effect on the management by the QPS of its personnel. However, at pp.368-371, paragraphs 165-172, of Re Pemberton, I discussed possible qualifications to the ordinary approach described in paragraph 20 above. In addition, s.6 of the FOI Act provides: 6. If an application for access to a document is made under this Act, the fact that the document contains matter relating to the personal affairs of the applicant is an element to be taken into account in deciding - (a) whether it is in the public interest to grant access to the applicant; and (b) the effect that the disclosure of the matter might have. In this case, the interview comprised in folios 27-30 was concerned with the applicant's work performance. In Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, I indicated that, ordinarily, information which concerns an individual's work performance or other work-related matters does not concern that individual's personal affairs (see pp.261-264, paragraphs 91-102). In Re Pope and Queensland Health [1994] QICmr 16; (1994) 1 QAR 616, after reviewing relevant authorities (at pp.658-660), I expressed the following conclusion at p.660 (paragraph 116): Based on the authorities to which I have referred, I consider that it should now be accepted in Queensland that information which merely concerns the performance by a government employee of his or her employment duties (i.e., which does not stray into the realm of personal affairs in the manner contemplated in the Dyrenfurth case) is ordinarily incapable of being properly characterised as information concerning the employee's "personal affairs" for the purposes of the FOI Act. The general approach evidenced in this passage was endorsed by de Jersey J (as he then was) of the Supreme Court of Queensland in State of Queensland v Albietz [1996] 1 Qd R 215, at pp.221-222. Nevertheless, in this case, the basis for concern about the applicant's work performance was ill-health, and I consider that both documents containing matter in issue must be properly characterised as documents that contain matter relating to the personal affairs of the applicant, so that s.6 of the FOI Act is relevant. As a matter of statutory construction, I consider that the reference in s.6(b) of the FOI Act to "the matter" is confined to matter which relates to the personal affairs of the applicant, i.e., it does not extend to other matter which does not relate to the personal affairs of the applicant, although contained in a document which contains some matter that does relate to the personal affairs of the applicant. But, having said that, the matter in issue in the present case which relates to the applicant's personal affairs is the very matter the disclosure of which would be most likely to cause claimed adverse effect (a). The significance of s.6(b) of the FOI Act in this context is that it permits some adjustment or allowance to be made, in evaluating the effects of disclosure, for the fact that the matter in issue relates to the personal affairs of the particular applicant for access. Thus, while the potential for wider dissemination (which could reasonably be expected to cause claimed adverse effect (a)) cannot be entirely discounted, s.6(b) permits account to be taken of the likelihood of the applicant permitting wider dissemination of information obtained under the FOI Act relating to his personal affairs, in circumstances where wider dissemination is likely to be detrimental to his interests (including his privacy interests). I consider that the greatest damage that might be occasioned by any wider dissemination of the matter in issue (i.e., beyond the applicant) would most likely befall the applicant. Damage might also be occasioned to the interests of the junior officer, and wider dissemination could, in my view, reasonably be expected to have an adverse effect on the management by the QPS of its personnel, as explained above. However, the relative weight to be attributed to that adverse effect could appropriately be discounted to an extent that compensates for the considerations which could reasonably be expected to inhibit any wider dissemination by the applicant of the matter that relates to his personal affairs. No similar discounting in reliance on s.6(b) is available in respect of matter in issue which does not relate to the applicant's personal affairs. Understanding of confidence Turning to claimed adverse effect (b), the junior officer has given evidence that he was extremely reluctant to provide any information concerning the applicant's general health and wellbeing to the District Officer. The record of interview clearly shows that that was the case. The junior officer only answered questions when he was directed to do so by the District Officer. The junior officer also stated that he believed that the content of the record of interview was confidential, and that anything said by him was to remain confidential between him and the District Officer. No evidence was provided from the District Officer who, I understand, was absent on sick leave at the time evidence was gathered by the QPS. However, the Acting Inspector who took over from the District Officer did provide evidence which indicated his belief that, in an interview between a commissioned officer and a subordinate officer, an implied confidential relationship exists. It is not difficult to understand why the junior officer did not wish to make any comments relating to the applicant, nor why, when forced to do so, he wished his comments to be kept confidential from the applicant. He was working in a country station, subject to the direct supervision of the applicant. He no doubt wished to maintain both a good working relationship and a good personal relationship with the applicant. He was not a health professional, but was being asked to give his opinion on the effect of the applicant's illness on the applicant's work performance. However, in many cases an investigating officer representing the QPS will not reasonably be able to give an unconditional undertaking as to confidentiality, or be party to an unconditional understanding of confidentiality. As I indicated in Re McCann, it may be necessary for the QPS, in the exercise of its functions and in order to comply with the legal requirements of procedural fairness, to disclose information gained during an interview. However, I also recognised in Re McCann (at paragraphs 47-51 and 57-58) that the circumstances of a particular case can give rise to a conditional understanding of confidentiality. In this case, the junior officer should have been aware that, if it proved necessary to take formal action in relation to the applicant's illness, it may be necessary to disclose the information provided by the junior officer in order to give substance to the case of the QPS. However, I consider that the circumstances of the case were such that there was an implicit understanding between the District Officer (on behalf of the QPS) and the junior officer, that, unless it proved prudent or necessary for the purposes of taking formal action to deal with the applicant's illness, the matter in issue would not be disclosed to the applicant. The State Rehabilitation Co-ordinator of the QPS has given evidence that, not long after the interview took place, the applicant commenced a rehabilitation placement program, and voluntarily transferred to a police station in a larger centre to continue that program. There is nothing in the material before me to show that any formal action which might have required disclosure of the matter in issue to the applicant was ever undertaken by the QPS. I do not suggest that it is a universal rule that any interview involving a direction to answer questions involves an implicit understanding of confidentiality. However, where the circumstances of a particular case justify such a finding, the subsequent disclosure of information (other than in accordance with implicitly understood exceptions permitting disclosure when necessary - see Re McCann at paragraphs 57-58) could reasonably be expected to raise concerns by junior staff about the reliability of protection available to them under an express or implicit understanding that information has been provided to management in confidence, and to prejudice the future supply of information in similar investigations. The weight or seriousness of the apprehended adverse effect increases according to the sensitivity of the information liable to be disclosed. This case is one in which the information sought from the junior officer was of a particularly sensitive kind. It involved not merely a recounting of a factual situation, but a direction that the junior officer give his impression of the health of a colleague and its effect on the colleague's work performance. Such an assessment is necessarily a subjective one, which any worker may well be loathe to have placed on record, not merely from concern that it may be disclosed to the colleague but also out of loyalty to the colleague. Added to this is the special nature of police work. I do not accept, as the QPS contended, that the statutory requirement to answer questions adds significant weight to the case of the QPS. I have previously indicated that all employees owe a duty of good faith and fidelity to their employer, which would encompass a duty to report to the employer information, acquired in the capacity of employee, which the employer might reasonably require for the better management of its operations (see p.125, paragraphs 55-56, of Re Shaw, and paragraph 71 of Re McCann). However, the nature of police work adds significantly to the potential for recrimination and retribution if adverse comments are disclosed. QPS officers have considerable powers that are not shared by other members of the community. A QPS officer is clothed with the authority to take actions invasive of the rights or liberties of a member of the community (including other officers), which may ostensibly be undertaken for appropriate purposes, but in reality be designed to exact retribution. In addition, police officers do not enjoy a 9-to-5 job. Particularly in smaller centres, they may be on 24-hour call and be required to carry out numerous onerous, unpleasant or dangerous duties, where reliance on the support of fellow officers is essential. The scope for a senior officer who is a supervisor of a junior officer, or who is able to influence those who are supervisors of a junior officer, to assign the junior officer to more than his or her fair share of onerous, unpleasant or dangerous duties is far greater than that for a supervisor in most public sector agencies. In the circumstances of this case, I am prepared to accept that any unwarranted breach of the understanding of confidence (in respect of information supplied by the junior officer in the record of interview - folios 27-30) could reasonably be expected to have a substantial adverse effect on the management or assessment by the QPS of its personnel, through the apparent breach of trust involved, and by making it more difficult to obtain full and frank co-operation in similar investigations in the future. Disruption to working relationships With regard to claimed adverse effect (c), I believe that the claim had considerable force while the applicant remained in charge of the station in the country town. The potential for recrimination/retribution of the kind indicated in paragraph 35 above, or at least a souring of relationships between the two officers, was at its height while the applicant and the junior officer staffed the station in the country town. As the applicant has now transferred to another station, that potential has diminished, but I do not believe it can be completely discounted. The QPS has correctly pointed out that there is a potential for further transfers in the future which may yet bring these two officers together again. Disclosure could reasonably be expected to cause management problems within the QPS if any ongoing dispute were to develop between the two officers, or between the junior officer and officers friendly to the applicant. I am satisfied that disclosure of the matter in issue could reasonably be expected to have the three adverse effects discussed above. When aggregated, I find that those adverse effects could reasonably be expected to have a substantial adverse effect on the management or assessment by the QPS of its personnel. Public interest balancing test I accept that there is a public interest in enhancing the accountability of the QPS in respect of its handling of management issues concerning the ill-health of staff. I also recognise that there may be a public interest in a particular applicant having access to information which affects or concerns the applicant to such a degree as to give rise to a justifiable "need to know" which is more compelling than for other members of the public (see Re Pemberton at pp.368-377, paragraphs 164-193 - see also s.6 of the FOI Act). The applicant contended that the "record of interview has a substantial effect on [his] career in the [QPS]". It is also clear that he considers that the interview has affected "promotional and disciplinary issues" facing him. However, the applicant has provided no evidence or submissions as to how the record of interview might have been, or might be, taken into account to his detriment. The evidence I have before me shows that the applicant commenced a rehabilitation placement program and transferred from the country station shortly thereafter (see statutory declaration of State Rehabilitation Co-ordinator). There is no evidence before me that any formal action detrimental to the applicant's career prospects in the QPS has been taken based on the matter in issue, or that any such action is proposed. Nor can I see any basis on which the record of interview could be taken into account in any disciplinary action against the applicant. However, I imagine that it is possible that the record of interview, along with other material relating to his service, might be taken into account in considering the applicant's prospects for promotion. I do not consider that the interest of the applicant in having access to the matter in issue is of the same kind as that discussed in Re Pemberton. While the interview did concern the applicant's work performance, it was in the context of dealing with an illness that he was experiencing at a particular time. The key to resolving such work performance difficulties was in the establishment of an appropriate rehabilitation program, rather than in the applicant considering and addressing any innate concerns about his general work performance. In that sense, the public interest in disclosure to the applicant of the narrow, health-related concerns expressed during the interview is not of a similar kind, nor as strong as, the public interest in disclosure of reports by Heads of Department, assessing shortcomings/areas for improvement in the work performance of a senior academic/research scientist, that were in issue in Re Pemberton. The applicant has already been given a considerable amount of information from the file concerning the management by the QPS of the issues raised by his illness. The only matter to which he has been denied access is the record of interview with the junior officer, and a summary of the interview contained in a report by the District Officer. The satisfaction of the other elements of s.40(c) of the FOI Act gives rise to a prima facie public interest consideration favouring non-disclosure. In this case, I consider that the potential for prejudice to the management and assessment processes of the QPS is substantial. I am not satisfied that the public interest considerations which favour disclosure to the applicant are strong enough to support a finding that disclosure of the matter in issue would, on balance, be in the public interest. I therefore find that the matter in issue is exempt matter under s.40(c) of the FOI Act. DECISION I vary the decision under review (being the decision of Chief Superintendent P J Freestone on behalf of the respondent dated 19 February 1996) by finding that the matter in issue identified at paragraph 9 above is exempt matter under s.40(c) of the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Little and Department of Natural Resources [1996] QICmr 2; (1996) 3 QAR 170 (22 March 1996)

Little and Department of Natural Resources [1996] QICmr 2; (1996) 3 QAR 170 (22 March 1996) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96002Application S 11/95 Participants: DAVID EDWARD LITTLE TIMOTHY CARUTHERS LITTLE DONALD CHARLES LITTLE DIANE ROSEMARY CANTONI Applicants DEPARTMENT OF NATURAL RESOURCES Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - valuation report on land owned by the applicants which the respondent proposes to acquire - whether prepared for briefing, or the use of, the Governor, a Minister or a chief executive in relation to a matter proposed by a Minister to be submitted to Cabinet or Executive Council - whether exempt matter under s.36(1)(c) or s.37(1)(c) of the Freedom of Information Act 1992 Qld. FREEDOM OF INFORMATION - matter in issue being matter of a kind mentioned in s.41(1)(a) of the Freedom of Information Act 1992 Qld (deliberative process matter) - whether disclosure of the matter in issue would be contrary to the public interest - public interest in fair treatment of persons whose property may be compulsorily acquired by government for public purposes - application of s.41(1) of the Freedom of Information Act 1992 Qld - whether matter in issue consists of expert opinion or analysis, excluded from eligibility for exemption under s.41(1) by virtue of s.41(2)(c).FREEDOM OF INFORMATION - whether disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State - application of s.49 of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.36(1), s.36(1)(c), s.37(1), s.37(1)(c), s.41(1), s.41(1)(a), s.41(1)(b), s.41(2)(c), s.49, s.52, s.81Acquisition of Land Act 1967 Qld s.7, s.8, s.9, s.9(3), s.9(4), s.9(5), s.9(6), s.12(5), s.12(5A), s.12(5B), s.15, s.15(1B), s.15(6)Acts Interpretation Act 1954 Qld s.14AFreedom of Information Act 1982 Cth s.36Valuers Registration Regulation 1992 Qld s.6(1)"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Beanland and Department of Justice and Attorney-General, Re (Information Commissioner Qld, Decision No. 95026, 14 November 1995, unreported)Cairns Port Authority and Department of Lands, Re [1994] QICmr 17; (1994) 1 QAR 663Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re [1993] QICmr 2; (1993) 1 QAR 60Hopkins and Department of Transport, Re (Information Commissioner Qld, Decision No. 95028, 28 November 1995, unreported)Hudson as agent for Fencray Pty Ltd and Department of the Premier, Economic and Trade Development, Re [1993] QICmr 4; (1993) 1 QAR 123Jones and Shire of Swan, Re (Information Commissioner WA, Decision Ref: D00694, 9 May 1994, unreported)Mildenhall and Department of Premier and Cabinet (No. 1), Re (1995) 8 VAR 284Murtagh v Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313Searle Australia Pty Ltd v Public Interest Advocacy Centre and Anor [1992] FCA 241; (1992) 36 FCR 111Victorian Public Service Board v Wright [1986] HCA 16; (1986) 160 CLR 145; 64 ALR 206Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 282 DEClSION I set aside the decision under review (being the internal review decision made on behalf of the respondent by Mr Martin Holmes on 23 December 1994). In substitution for it, I decide that the applicants have a right to be given access under the Freedom of Information Act 1992 Qld to the matter withheld from them pursuant to the decision under review.Date of Decision: 22 March 1996..............................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background .............................................................................................................. 1Application of s.36 and s.37 of the FOI Act ............................................................ 3 The evidence .......................................................................................................... 5 Analysis and application of the relevant provisions ............................................. 7Application of s.41 of the FOI Act ........................................................................... 11Application of s.49 of the FOI Act ........................................................................... 18Conclusion ................................................................................................................ 18 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96002Application S 11/95 Participants: DAVID EDWARD LITTLE TIMOTHY CARUTHERS LITTLE DONALD CHARLES LITTLE DIANE ROSEMARY CANTONI Applicants DEPARTMENT OF NATURAL RESOURCES Respondent REASONS FOR DECISION Background1. The applicants seek review of a decision by the respondent to refuse them access under the Freedom of Information Act 1992 Qld (the FOI Act) to parts of a valuation report (and its covering memorandum) in respect of a parcel of land owned by the applicants near Kuranda in North Queensland (hereinafter referred to as "the subject land"). The valuation report was prepared for the purposes of a proposed acquisition by the respondent of the subject land. It addresses a number of proposals from acquisition of the full parcel of land to acquisition of various portions of the subject land.2. By a letter dated 21 September 1994 to the Department of Lands (now the Department of Natural Resources), the applicants sought access under the FOI Act to:(a) any report, submission, memorandum or other writing made on or after the 1st January, 1989 which assesses, contains reference to or otherwise touches or concerns the value of [the subject land];(b) any report, submission, memorandum or other writing made on or after the 1st January 1989 which assesses, contains reference to or otherwise touches or concerns the amount of compensation that would be payable by the Crown in the event that [the subject land] were to be resumed.3. I need not recount all the steps which occurred in the respondent's processing of the FOI access application and the applicants' subsequent application for internal review under s.52 of the FOI Act, but I note that the decision now under review is that made on behalf of the respondent on 23 December 1994 by Mr Martin Holmes. Mr Holmes determined that the valuation report now in issue (which was prepared by a valuer who was an officer of the respondent Department) is exempt matter under s.41(1) and s.49 of the FOI Act, for the following reasons:The Report contains valuation and other information in respect of the Crown's assessment of the quantum of compensation payable for the acquisition. As this information would form the basis of the Crown's primary evidence should the matter be referred to the Land Court, access to these documents at this time could greatly prejudice the Crown's case in the Land Court.The disclosure of the contents of the Report could reasonably be expected to have a substantial adverse effect on the financial and property interests of the State.The non-disclosure of this information is aimed at protecting the interests of the Crown in the event that this matter is referred to the Land Court for a decision. Under these circumstances it would not be in the public interest to disclose this information.Furthermore, the preparation of the "Valuation Report" is part of the deliberative process involved in the functions of government and the release of this information at this time would be contrary to the public interest.This information is therefore exempt matter pursuant to sections 41(1) and 49 of the FOI Act.4. By letter dated 17 January 1995, the applicants sought review by the Information Commissioner, under Part 5 of the FOI Act, in respect of Mr Holmes' decision.5. During the course of the external review process, attempts have been made to negotiate a resolution of the dispute over access to the valuation report. At the same time, negotiations for the acquisition by the respondent of the subject land have continued. As a result of these processes, the respondent has made certain concessions, which have allowed the applicants access to most of the valuation report. The matter remaining in issue broadly comprises the valuation figure for the subject land (and other valuation figures for portions of the subject land, and for other items addressed in the valuation process), segments of the report which record the methodology and reasoning on which the valuer's approach and the various valuation figures were based, and a one page Executive Summary which briefly canvasses issues relevant to proposals for acquisition of the whole, or portions only, of the subject land.6. There are three ways in which the respondent may acquire land:(a) an open-market transaction in which the respondent is in the same position as any other prospective purchaser of land;(b) acquisition, with the agreement of the landowner, under s.15 of the Acquisition of Land Act 1967 Qld, either with the amount of compensation also agreed, or with compensation to be determined by the Land Court; or(c) in the absence of the landowner's agreement to acquisition, compulsory acquisition of land under s.9 of the Acquisition of Land Act, with compensation to be determined by the Land Court.7. The purpose of acquisition of the applicants' land is for the construction of a school. At the time of preparation of this decision, negotiations between the applicants and the respondent for the sale of the subject land were well advanced, but (I have been informed by the applicants' solicitors) not yet concluded. However, if those negotiations ultimately do not result in an agreement, the respondent has available to it all the powers to compulsorily acquire land which are contained in the Acquisition of Land Act.8. The respondent has lodged the following material in support of its case that the matter remaining in issue is exempt matter under the FOI Act: a written submission, dated 2 May 1995 an affidavit of Michael Francis Shine, sworn 28 April 1995 an affidavit of Dennis William Long, sworn 2 May 1995 an affidavit of Peter Francis Tooley, sworn 2 May 1995.9. The material lodged on behalf of the respondent addressed its initial claims for exemption under s.41(1) and s.49 of the FOI Act, but in addition, and for the first time, the respondent claimed that those parts of the valuation report which have not been released to the applicants are exempt under s.36(1)(c) and s.37(1)(c) of the FOI Act, as amended (with retrospective effect) in March 1995.10. In response, the applicants rely on: an affidavit of Michael Andrew Jonsson (the solicitor who has the conduct of this matter on behalf of the applicants) sworn 24 May 1995 a written submission dated 24 May 1995.11. The respondent was given the opportunity to reply to the evidence and submissions lodged on behalf of the applicants, but, by letter dated 19 June 1995, declined that opportunity.12. Relevant parts of the evidence and submissions lodged by the participants are referred to below.Application of s.36 and s.37 of the FOI Act13. The respondent claims that the matter remaining in issue is exempt under s.36(1)(c) and s.37(1)(c) of the FOI Act. Sections 36 and 37 of the FOI Act provide (so far as relevant for present purposes):Cabinet Matter 36.(1) Matter is exempt matter if-- (a) it has been submitted to Cabinet; or (b) it was prepared for submission to Cabinet and is proposed, or has at any time been proposed, by a Minister to be submitted to Cabinet; or (c) it was prepared for briefing, or the use of, a Minister or chief executive in relation to a matter-- (i) submitted to Cabinet; or (ii) that is proposed, or has at any time been proposed, to be submitted to Cabinet by a Minister; or... (4) In this section--"Cabinet" includes a Cabinet committee or subcommittee."chief executive" means a chief executive of a unit of the public sector...."submit" matter to Cabinet includes bring the matter to Cabinet, irrespective of the purpose of submitting the matter to Cabinet, the nature of the matter or the way in which Cabinet deals with the matter.Executive Council matter 37.(1) Matter is exempt matter if-- (a) it has been submitted to Executive Council; or (b) it was prepared for submission to Executive Council and is proposed, or has at any time been proposed, by a Minister to be submitted to Executive Council; or (c) it was prepared for briefing, or the use of, the Governor, a Minister or a chief executive in relation to a matter-- (i) submitted to Executive Council; or (ii) that is proposed, or has at any time been proposed, to be submitted to Executive Council by a Minister; or... (4) In this section--"chief executive" means a chief executive of a unit of the public sector...."submit" matter to Executive Council includes bring the matter to Executive Council, irrespective of the purpose of submitting the matter to Executive Council, the nature of the matter or the way in which Executive Council deals with the matter.14. Both s.36 and s.37 were amended after the commencement of this external review, in a manner which considerably expanded the breadth of their spheres of application. In Re Beanland and Department of Justice and Attorney-General (Information Commissioner Qld, Decision No. 95026, 14 November 1995, unreported) at paragraphs 55-56, I found (for reasons which apply in identical fashion to s.37) that the March 1995 amendments to s.36 were expressly given retrospective operation, with the result that s.36 and s.37, as amended, must be applied even in cases where, as here, the relevant FOI access application predated the March 1995 amendments to s.36 and s.37.15. Section 81 provides that, in a review by the Information Commissioner, the agency which made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant. The respondent therefore carries the onus of establishing the material facts and circumstances which would attract the application of s.36(1)(c) or s.37(1)(c) to the matter remaining in issue.The evidence16. The evidence discloses that in August 1994 the respondent was instructed to acquire the subject land for a proposed high school site. The letter of instruction stated: "In the first instance acquisition by negotiation is proposed. However, if a negotiation acquisition is not successful, it is proposed that resumption action be taken. Sufficient land is required to provide a suitable school site, (15 to 20 hectares) but if insufficient land remains to provide a viable block for the owners, the whole parcel (29.7931 hectares) should be acquired." (exhibit "A" to Mr Shine's affidavit).17. The Program Director, Land Use, within the respondent Department wrote to the applicants' solicitors in September 1994 and received a reply indicating that the applicants were prepared to consider negotiating a sale to the Crown of the whole or part of the subject land, and asking what the Crown was prepared to offer (exhibits "B" and "C" to Mr Shine's affidavit). 18. The Regional Director of the Far North Region of the respondent Department was then instructed by the Program Director, Land Use, to "urgently arrange a detailed valuation of the selected area (when established) and also a valuation of the whole parcel. The two valuations are necessary for the purpose of assessing compensation but at this stage it is not known whether part or whole of the land is to be negotiated" (exhibit "D" to Mr Shine's affidavit). 19. The evidence before me is that negotiations have continued between the applicants and the respondent for the sale of the subject land by private treaty. There is no evidence to the effect that formal procedures under the Acquisition of Land Act have yet been set in train by the respondent, although there is clear evidence of an intention to do so in the event that negotiations for a voluntary sale are unsuccessful.20. Against this background, the evidence lodged by the respondent falls well short of establishing the material facts which would attract the application of s.36(1)(c) or s.37(1)(c) of the FOI Act to the matter remaining in issue.21. Mr Shine is a senior officer in the Acquisitions Section within the Land Use Program of the respondent Department. His duties include the acquisition of land for school sites. Mr Shine has deposed that:8. After the valuation was received in the Acquisitions Section [of the respondent Department] it was placed on the relevant Departmental file which relates to the proposed acquisition and the file, together with the valuation, will in due course be sent from the Acquisitions Section to the Cabinet Legislation and Liaison Unit within the Department of Lands for the purpose of briefing the Honourable the Minister and the Governor in Council in relation to the proposed acquisition of the land, whether by agreement or by compulsory process, under the Acquisition of Land Act 1967. [my underlining.]9. In either case a Proclamation by the Governor in Council is published in the Gazette formally taking the land in question for the purpose stated in the Proclamation.10. Section 9(6) of the Acquisition of Land Act 1967 requires the Governor in Council to consider every application made to the Minister for a Proclamation including all statements and documents accompanying that application in the process of deciding whether to make the Proclamation to take the land.22. Mr Shine's evidence assumes that acquisition of the subject land will proceed under the Acquisition of Land Act, whether by way of compulsory resumption under s.9, or acquisition under s.15 after a written agreement to acquire has been reached with the landowner. Mr Shine has not mentioned the possibility (which is expressly contemplated and reserved by s.15(1B) of the Acquisition of Land Act) of acquisition by purchase. The applicants assert (p.2 of their written submission) that their continuing negotiations with the respondent are negotiations for the sale by private treaty of the subject land. I am not prepared to accept that it is inevitable that the matter of the acquisition of the subject land will be submitted to the Governor in Council, in accordance with either s.9 or s.15 of the Acquisition of Land Act, while there remains a possibility of a sale by private treaty.23. However, to further test the respondent's evidence, I will assume for the moment that there is such an inevitability. Mr Shine's evidence is that the relevant Departmental file, including the valuation, would be forwarded to the respondent's Cabinet Legislation and Liaison Unit for the purposes of briefing the Minister and the Governor in Council in relation to the proposed acquisition of land. Mr Shine is not in a position to say what occurs from that point, and the evidentiary 'trail' is picked up in the affidavit of Mr Long, the respondent's Cabinet Legislation and Liaison Officer (see paragraph 24 below). Mr Shine does, however, make a point of referring to s.9(6) of the Acquisition of Land Act. That provision requires the Governor in Council to consider all statements and documents accompanying an application for resumption made to the Minister under s.9(3). Section 9(4) prescribes the kinds of statements and documents which must accompany an application for resumption made to the Minister under s.9(3); it does not include a valuation report on the land proposed for resumption. The Minister may require additional information to be furnished (s.9(5)), but there does not appear to be any necessity for the Minister to routinely require a valuation report to be furnished, especially since the object of s.9(6) is to ensure that the Governor in Council is satisfied that land may lawfully be taken for a purpose authorised under the Acquisition of Land Act, and that the procedural requirements of s.7 and s.8 have been followed. The question of compensation for the compulsory acquisition of land is dealt with in other sections of the Act (see s.12(5), (5A) and (5B) of the Acquisition of Land Act). Again in the case of acquisition under s.15, a valuation report is not prescribed as a kind of document which must be furnished to the Minister or the Governor in Council, and the object of providing for Governor in Council approval under s.15(6) is to ensure that the Governor in Council is satisfied that the land in question may be lawfully taken for the purpose for which it is proposed to be taken. There is no suggestion on the face of s.15 that the Governor in Council is intended to have any role in approving the amount of compensation payable to a landowner for the acquisition of the relevant land.24. Mr Long, the respondent's Cabinet Legislation and Liaison Officer, deposes that when the relevant Departmental file on the acquisition of the applicants' land is received by him: 4. ... a Briefing Minute will be prepared for the use of the Honourable the Minister in Cabinet in accordance with the established practices in relation to matters to be considered by Cabinet.5. In addition a Draft Proclamation will be prepared for consideration by the Governor in Council for the purposes of taking the applicants' land under the Acquisition of Land Act 1967.6. The Draft Proclamation will then be placed on the file which will be sent to the Office of Cabinet for reference by the Honourable the Minister and the Governor in Council at the appropriate time. The Briefing Minute is not placed on the file, but is kept securely elsewhere in accordance with government policy as to the confidentiality of such documents.25. It is notable that Mr Long does not depose that the valuation report will accompany the Briefing Note prepared for the Minister, let alone that the valuation report was prepared for briefing, or the use of, the Governor, or a Minister or a chief executive (as required by the wording of s.36(1)(c) or s.37(1)(c) of the FOI Act). It appears that the only document which Mr Long prepares for consideration by the Governor in Council under the Acquisition of Land Act is a Draft Proclamation. The relevant Departmental file (which would contain a copy of the valuation report) is then sent to the Office of Cabinet so that it is available "for reference" by the Minister and the Governor in Council at the appropriate time. There is no statement in the evidence to the effect that the valuation report, or the file containing it, will be given to the Governor or the Minister for their briefing or use. Since, as I have explained at paragraph 23 above, the Governor in Council is given no statutory function, under s.9 or s.15 of the Acquisition of Land Act, of considering or approving the amount of compensation payable to a landowner, there is no reason to expect that a valuation report would be required for briefing, or the use of, the Governor in Council.26. Mr Tooley, in his affidavit, deposes that he holds the position of Program Director, Land Valuations, in the respondent Department. Mr Tooley does not, however, depose to any material facts relevant to the application of s.36(1)(c) or s.37(1)(c). He merely attempts to swear the very issue for determination:2. I say that the valuation of the applicants' land prepared by the Department of Lands in connection with a proposed acquisition for School Purposes is exempt from disclosure under the Freedom of Information Act by reason of the provisions of Sections 36(1)(c)(ii) and 37(1)(c)(ii) of that Act which apply to documents prepared for the consideration of Cabinet or the Executive Council.3. I say that the valuation in question is such a document. These assertions, without evidence of facts which support them, must properly be disregarded.Analysis and application of the relevant provisions27. In paragraphs (a), (b) and (c) of s.36(1) and s.37(1), respectively, of the FOI Act, a clear progression is evident in the categories of matter on which the legislature has conferred a 'class claim' for exemption (i.e., where exemption is conferred merely by membership of a defined class or category, irrespective of whether disclosure of the actual contents of a document falling within the defined class would have any prejudicial consequences). The first category comprises matter which has been submitted to Cabinet or Executive Council. The second category requires that matter must have been prepared for submission to Cabinet or Executive Council, and must be, or must have been, proposed by a Minister to be submitted to Cabinet or Executive Council. Where matter has not been submitted to Cabinet or Executive Council, nor prepared for that purpose, it may qualify for exemption under the third category if it was prepared for briefing, or the use of, prescribed persons in relation to a matter submitted, or proposed by a Minister to be submitted, to Cabinet or Executive Council.28. The words following the verb "prepared" in s.36(1)(c) and s.37(1)(c), respectively, attach a purposive requirement to that word. To qualify for exemption, it must be established that the matter in issue was prepared for briefing, or the use of, a prescribed person (a Minister or chief executive in respect of both s.36(1)(c) and s.37(1)(c), or the Governor in respect of s.37(1)(c) only). In addition, the briefing or use must relate to a matter which has been submitted to Cabinet or Executive Council, or which is proposed, or has at some time been proposed, by a Minister to be submitted to Cabinet or Executive Council. (I note that the respondent has not suggested that the matter of the acquisition of the subject land, or of any amount to be paid for the land, has been submitted to Cabinet or Executive Council; rather it relies on the second limb of each provision, i.e., s.36(1)(c)(ii) and s.37(1)(c)(ii).)29. The respondent has not provided any evidence which establishes that the valuation report containing the matter in issue was prepared for briefing, or the use of, the Governor, a Minister or a chief executive. (The highest which Mr Shine was able to put it was that the valuation was contained in a file that he believes will, in due course, be sent to the respondent's Cabinet Legislation and Liaison Unit for the purpose of briefing the Minister. With respect, that only addresses the purpose of sending the file.) In my opinion, it is clear that the valuation report was not prepared for the purpose of briefing, or the use of, the Governor, a Minister or a chief executive. The purpose for which the valuation report was prepared is explained on page 3 of the respondent's own submission:When the Department is required to acquire a property, the Department approaches the property owners to determine if they are willing to sell and what is their asking price. In the meantime the Department arranges for a valuation report for the property to be prepared. Upon receipt of the property owners' asking price, the Department will declare its valuation amount then negotiate with the owner to arrive at a mutually acceptable price. If no asking price is forthcoming from the property owner, the Department will make an offer, which is, in most circumstances, the valuation amount. If agreement cannot be reached on a price, the matter will be referred to the Land Court. I am satisfied on the material before me that the valuation report was prepared for the purpose of negotiating with the applicants to acquire the subject land at an agreed fair price (or, failing agreement, for the purpose of establishing, in proceedings before the Land Court, the amount of compensation to which, in the respondent's contention, the applicants are entitled, upon the acquisition of the subject land by the Crown under the Acquisition of Land Act). 30. Although not strictly necessary for determination in this case (given the deficiencies in the respondent's evidence), the applicants' written submission has raised an issue of statutory construction which is of general significance for the interpretation and application of s.36(1)(c) and s.37(1)(c) of the FOI Act. It is the first issue raised in the following extract from the applicants' written submission. The second issue raised in the following extract illustrates another ground on which the respondent has failed to make out its case for exemption in this instance: 9. ... The time of creation of a document is the time at which the purpose for its creation is to be ascertained [citing Re Hudson as agent for Fencray Pty Ltd and Department of the Premier, Economic and Trade Development [1993] QICmr 4; (1993) 1 QAR 123 at p.134]. In the situation where matter has been prepared for a single purpose, it is a relatively simple exercise to determine whether that purpose qualifies for exemption under either section 36(1)(c)(ii) or 37(1)(c)(ii). Matter may, however, have been prepared for more than one purpose (including both qualifying and non-qualifying purposes). The Act is ambiguous to the extent that it does not specify the test which must be applied in determining the eligibility of matter for exemption in circumstance where it has been prepared for both a qualifying and a non-qualifying purpose. At the one extreme, Parliament may have intended that matter will be exempt if at least one of several purposes underlying its preparation is a qualifying purpose (and however incidental that purpose may be). At the other extreme, matter may only have been intended by Parliament to be exempt if it was prepared solely for a qualifying purpose of purposes. In the case of ambiguity, the Act should be construed in the manner which furthers, rather than hinders, its objects. In resolving this ambiguity, the promotion of free access to information (section 5(1) of the Act) dictates that the narrower construction (i.e. the sole purpose test) should be preferred [citing Victorian Public Service Board v Wright (1986) 160 CLR 145; s.14A of the Acts Interpretation Act 1954 Qld]. Accordingly, for matter to be exempt under either provision, it must have been prepared solely for a qualifying purpose or purposes. 10. Secondly, the use of the phrase "... is proposed, or has at any time been proposed ..." in sections 36(1)(c) and 37(1)(c) of the Act imports a limitation upon the qualifying purposes thereby introduced. The phrase does not connote the future tense. Thus, matter which was prepared for briefing or the use of a prescribed person in relation to a matter which may (or even will) at some future time be proposed to be submitted to Cabinet or Executive Council by a Minister will not qualify for exemption. ... 16. In summary, if the Respondent seeks to invoke exemption under sections 36(1)(c)(ii) or 37(1)(c)(ii), it is not enough for it to glibly assert the possibility that proceedings may be taken at some future time under the Acquisition of Land Act 1967. The Department must establish, by appropriate evidence, that the subject valuation was prepared solely for briefing or use by a prescribed person in relation to a matter that either is or has been proposed for submission by a Minister to Cabinet or Executive Council. The mere possibility of such a proposal being made at some future time cannot satisfy either section. At its highest, the Respondent's evidence suggests that the valuation may form part of the material to be used to brief the Minister and the Governor in Council if acquisition of the applicants' land is to proceed either compulsorily or by agreement under the Acquisition of Land Act 1967. These contingencies were, when the valuation was brought into existence, and remain, nothing more than speculation.31. I think there is considerable force in these submissions. Put at its highest, the respondent's case depends on the proposition that one of the purposes for which the valuation report was prepared (remote and contingent though it must have been) was for briefing or use of the Governor, a Minister or a chief executive in the event that the applicants' land had to be acquired under the Acquisition of Land Act (though, as I have explained above, the evidence falls short of establishing that proposition in any event). If the applicants' first submission quoted above is correct, it affords a complete answer to that proposition.32. I consider that the applicants are correct in asserting that the words of s.36(1)(c) and s.37(1)(c) are ambiguous in their application to a situation where the matter in issue has been prepared for more than one purpose, including one or more which is not a qualifying purpose according to the terms of s.36(1)(c) or s.37(1)(c). (I note that precisely the same difficulty may arise in the interpretation of s.36(1)(b) and s.37(1)(b).) I also accept that it is correct in the context of freedom of information legislation to resolve any such ambiguity in favour of an interpretation which would further, rather than hinder, free access to information: Victorian Public Service Board v Wright [1986] HCA 16; (1986) 160 CLR 145 at p.153; Searle Australia Pty Ltd v Public Interest Advocacy Centre and Anor [1992] FCA 241; (1992) 36 FCR 111 at p.115. (I note that these cases were not referred to by the Victorian Administrative Appeals Tribunal (M T McNamara, Presiding Member) when coming to the opposite conclusion on an essentially identical issue in Re Mildenhall and Department of Premier and Cabinet (No. 1) (1995) 8 VAR 284 at p.290. I do not think the Tribunal's reliance on Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 282, a case where the context was far removed from the interpretation of ambiguous words in a statutory provision contained in remedial/beneficial legislation, can be logically preferred to the principles I have stated in this paragraph.)33. I have a significant reservation, however, as to whether the ambiguity should be resolved in favour of the narrowest possible interpretation (i.e. a 'sole purpose' test) or whether a less extreme interpretation would be more appropriate given the nature of the exemption provisions in question. The application of a strict 'sole purpose' test may produce unintended consequences: for example, a document that was prepared for the purpose of briefing a Minister, a chief executive, and a number of senior officials of a Department (on a matter submitted, or proposed by a Minister to be submitted, to Cabinet or Executive Council) may not qualify for exemption under s.36(1)(c) or s.37(1)(c) if a 'sole purpose' test were applied, because the purpose of briefing senior officials other than the chief executive would not be a qualifying purpose. 34. I consider that the test which is most appropriate to the nature of these exemption provisions, one which places a sensible limit on the breadth of the class of documents eligible for exemption while remaining consistent with the natural sense of the words chosen by the legislature, is a 'dominant purpose' test. I use the adjective "dominant" in its primary sense (according to the Australian Concise Oxford Dictionary) of "ruling, prevailing, most influential", such that there can be only one of two or more purposes for the preparation of a document which is the dominant of those purposes. In circumstances where there were multiple purposes for the preparation of the matter in issue, not all of which are qualifying purposes under s.36(1)(c) or s.37(1)(c), the application of those provisions would require a finding on an ultimate question of fact, to be determined by an objective examination of the relevant primary facts and circumstances, as to whether or not the dominant purpose for the preparation of the matter in issue was one of the qualifying purposes for exemption under s.36(1)(c) or s.37(1)(c). Where a specific and direct purpose for the preparation of the matter in issue can be identified from the relevant primary facts and circumstances, that will ordinarily be the most reliable indicator of the dominant purpose for which the matter in issue was prepared.35. Whether a 'sole purpose' test or a 'dominant purpose' test is applied in this case, the respondent's contention that the matter in issue is exempt under s.36(1)(c) or s.37(1)(c) must fail. The matter in issue was certainly not prepared for the sole purpose of briefing the Governor, or a Minister or a chief executive, and the dominant purpose for its preparation was that which I have stated in paragraph 29 above.36. I also consider that the applicants' second submission quoted at paragraph 30 above is correct. The evidence does not establish that there is a matter which is now proposed, or has at any time been proposed, by a Minister to be submitted to Cabinet or Executive Council, and in relation to which the matter in issue was prepared for briefing, or the use of, the Governor, or a Minister or a chief executive. The respondent has lodged no evidence of a proposal by a Minister to submit such a matter to Cabinet or Executive Council. This is an additional reason why the respondent's case for exemption under s.36(1)(c) or s.37(1)(c) must fail.37. I note that there is a curious difference in the positioning of the words "by a Minister" in the context of s.36(1)(c)(ii) and s.37(1)(c)(ii) as compared to s.36(1)(b) and s.37(1)(b). In s.36(1)(b) and s.37(1)(b), the words "by a Minister" immediately follow the verb "proposed", making it clear that the relevant proposal for submission of the matter in issue to Cabinet or Executive Council must be a proposal by a Minister. In s.36(1)(c)(ii) and s.37(1)(c)(ii), the words "by a Minister" do not immediately follow the verb "proposed", which raises the question of whether the words "by a Minister" might have been intended to qualify the verb "submitted" rather than the verb "proposed". In my opinion, that cannot have been the legislature's intention. If intended to qualify the verb "submitted", the words "by a Minister" would be otiose, since a matter can only be submitted to Cabinet or Executive Council by a Minister. Moreover, Parliament cannot, in my opinion, have intended to create a 'class claim' for exemption capable of being triggered by the simple expedient of an official, no matter how junior, proposing that a matter be submitted by a Minister to Cabinet or Executive Council, and preparing documents for briefing, or the use of, a chief executive in relation to the matter. Such an interpretation would be inconsistent with, and allow the potential for widespread abuse of, the professed objects of the FOI Act, especially those concerned with enhancing the accountability of government and government officials, and promoting informed public participation in the processes of government (including policy development processes). According to s.14A of the Acts Interpretation Act 1954 Qld, in interpreting a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Applying that approach, the words "by a Minister" must in my opinion be construed as qualifying the verb "proposed" rather than the verb "submitted" in s.36(1)(c)(ii) and s.37(1)(c)(ii) of the FOI Act. The same result would follow from the application of the interpretive principle referred to in paragraph 32 above.38. For the foregoing reasons, I am satisfied that the matter in issue is not exempt matter under s.36(1)(c) or s.37(1)(c) of the FOI Act.Application of s.41 of the FOI Act39. The respondent also claims that the matter remaining in issue is exempt matter under s.41 of the FOI Act, which (so far as relevant for present purposes) provides: 41.(1) Matter is exempt matter if its disclosure--(a) would disclose--(i) an opinion, advice or recommendation that has been obtained, prepared or recorded; or(ii) a consultation or deliberation that has taken place; in the course of, or for the purposes of, the deliberative processes involved in the functions of government; and(b) would, on balance, be contrary to the public interest. (2) Matter is not exempt under subsection (1) if it merely consists of-- ...(b) factual or statistical matter; or(c) expert opinion or analysis by a person recognised as an expert in the field of knowledge to which the opinion or analysis relates....40. A detailed analysis of s.41 of the FOI Act can be found in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at pp.66-72, where I said:21. Thus, for matter in a document to fall within s.41(1), there must be a positive answer to two questions:(a) would disclosure of the matter disclose any opinion, advice, or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, (in either case) in the course of, or for the purposes of, the deliberative processes involved in the functions of government; and(b) would disclosure, on balance, be contrary to the public interest?22. The fact that a document falls within s.41(1)(a) (i.e. that it is a deliberative process document) carries no presumption that its disclosure would be contrary to the public interest. ...41. I am satisfied that the matter remaining in issue falls within the terms of s.41(1)(a) of the FOI Act. Paragraph 12 of Mr Shine's affidavit identifies the relevant deliberative process involved in the functions of government as: "... negotiations with the applicants as to the compensation payable [for acquisition of the subject land], and ... determining whether or not agreement can be reached as to the amount of compensation payable, or whether the matter should be referred to the Land Court."42. The respondent has submitted two main arguments as to why disclosure of the matter remaining in issue would be contrary to the public interest. The first argument, in essence, overlaps the respondent's contention, for the purposes of invoking s.49 of the FOI Act, that disclosure would prejudice the financial or property interests of the State. I have therefore drawn on the respondent's evidence and submissions relevant to s.49 in order to fully expound what I understand to be the nature of its case in this regard. The following paragraphs of Mr Tooley's affidavit are relevant:5. I say that there is a public interest in the non-disclosure of deliberative process matters before the process of deliberation has been completed and the appropriate authority has decided upon and agreed to the amount of compensation payable for the acquisition of the land required for the relevant public purpose.6. I say that public interest is greater than, and prevails over, the private interest of the applicants in this matter in seeking to discover the details of the Department's valuation.7. Further, or alternatively, I say that the disclosure of the valuation would have a substantial adverse effect on the financial or property interests of the State within the meaning of Section 49 Freedom of Information Act because of the negotiating advantage which the applicants would enjoy vis-à-vis the State in a situation in which there has been no mutual exchange of valuations and supporting data.8. I say that in my experience as a valuer for the State the longer an opponent has a valuation in his or her possession the greater the opportunity to subject that valuation to detailed critical analysis, thereby gaining a significant advantage at any subsequent negotiation over the side which has not received a valuation by way of exchange.9. I say, therefore, that the subject valuation should be exempt from disclosure under Section 49 Freedom of Information Act until the applicants are ready to make a mutual exchange of valuations and/or supporting data after they have first retained a valuer to make a valuation on their behalf of the land to be acquired from them.43. The respondent's written submission addressed this argument as follows (at p.4):In applying the public interest it is submitted that in the acquisition of land process, the Department, in the negotiating process is required to maximise the public benefit by acquiring the land for a fair price and the property owner is similarly trying to maximise his benefit. A normal commercial practice is in effect. The valuation report is seen as the Department's negotiating base and release of the report without a mutual exchange taking place would prejudice negotiations. In the event that the quantum of compensation payable is referred to the Land Court, for the Department to release the valuation report to the property owner without a mutual exchange of documentation short circuits the natural process of mutual exchange and results in an unfair bias in favour of the property owner that would not be in the interest of procedural fairness. The Department is then placed in a disadvantaged position when presenting its case in the Land Court which would be contrary to the public interest.44. An essentially similar point is made in a slightly different way in the respondent's written submission on s.49 of the FOI Act:If there was no mutual exchange of valuation reports and the Department divulged its negotiating base i.e. its valuation report, the Department would be at a distinct disadvantage. Such action would enable the property owner to then acquire a valuation which would take into consideration the contents of the Department's report. The property owner's valuation would not be independent and would invariably be considerably higher than the Department's valuation. This unfair commercial practice could reasonably be expected to have an adverse effect on the negotiated price and therefore on the financial interest of the State. Any increased price which has resulted from biased negotiations would be seen as substantial in the eyes of the taxpayers of Queensland. As the Department has published policies and procedures for the taking of land, the premature release of the valuation report in question would be setting a precedent which could reasonably be expected to have a substantial adverse effect on the financial interests of the State. Such an outcome would not be in the public interest ... .45. I do not think there is any substantial merit in the respondent's arguments. They are reminiscent of the arguments advanced by the respondent in Murtagh v Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313, where the Commonwealth equivalent of s.41 of the FOI Act (s.36 of the Freedom of Information Act 1982 Cth) was invoked to oppose the disclosure to the taxpayer of documents explaining the basis for a taxation assessment that the taxpayer had appealed to the Taxation Board of Review. The arguments for the Commissioner of Taxation (set out at ALR pp.328) included:... If the taxpayer were given access to the Commissioner's working files, the taxpayer would know precisely what the Commissioner knew and also what the Commissioner did not have knowledge of.... This would put the taxpayer in a far stronger position vis-à-vis the Commissioner than the Commissioner vis-à-vis the taxpayer.46. This line of argument by the Commissioner of Taxation was convincingly dismissed by the Commonwealth Administrative Appeals Tribunal, chaired by Davies J (President) (at p.329):We do not accept the contention put forward that it is in the interests of the public that negotiations between taxpayers and the Australian Taxation Office should proceed on inadequate knowledge. We abhor the contention that "mutual half-light" should be "the necessary pre-condition of negotiation and settlement". ... We think it highly undesirable that, in a case such as the present, both the Australian Taxation Office and the taxpayer should not work together to ascertain the relevant facts and to arrive at a proper conclusion having regard to the whole of the relevant facts. ... The process of ascertaining all relevant facts is likely to be enhanced if the taxpayer knows what are the facts which the Australian Taxation Office has taken into account. In so far as those facts are not the full facts of the matter, the taxpayer may supplement them with further information.In general, we do not think it desirable that the taxation system should proceed upon the basis of negotiation in "mutual half-light". ... we think an attempt should be made to arrive at the proper tax which is payable. This can be achieved only if all relevant facts are ascertained. In our opinion, the granting of access to documents which show the factual basis upon which officers of the Australian Taxation Office have proceeded is likely to advance this process.47. In my opinion, similar considerations should apply with equal, if not greater, force to processes by which an agency of government takes the property of citizens for public purposes. This is one of the most intrusive powers which a government is able to exercise against a citizen. Moreover, it is a fundamental principle of Australia's system of law and government that, in the absence of exceptional circumstances, the State ought not compulsorily acquire the property of a citizen on other than just terms. In my opinion, the balance of the public interest lies in ensuring that the process of acquisition is as transparent as possible for the affected citizen, who should be permitted access to information that would assist an assessment of whether fair compensation is paid for the property acquired.48. I do not accept the respondent's argument (see paragraphs 42-43 above, and paragraph 6 of Mr Tooley's affidavit) to the effect that, as an agent for the wider public interest in attempting to acquire property for public purposes, the greater public interest is served by maximising its negotiating advantage against a property-owner who is trying to "maximise his benefit". It would, in my opinion, be short-sighted and erroneous to suggest that the public interest in saving public money would justify a government agency in seeking to negotiate the acquisition of a citizen's property on less than just terms. The greater public interest lies in preserving the principle of public acquisition of private property on just terms. Any citizen may be affected by a government proposal to acquire private property for public purposes. The interest in fair treatment of citizens by government in the course of acquisition processes is an interest which is common to all citizens and for their benefit.49. It is difficult to give any substantial weight to the respondent's contentions that disclosure of its valuation reports (other than in the course of a mutual exchange of valuations with a landowner whose property is targeted for acquisition) would give the landowner a significant negotiating advantage through having the opportunity to subject the respondent's valuation to detailed critical analysis, and to obtain a valuation report which took into consideration the contents of the respondent's valuation report. I can see no valid reason why a landowner whose property is targeted for acquisition should not have the opportunity to subject the respondent's valuation report to detailed critical analysis. The object of the exercise is, after all, to determine a fair amount of compensation for acquisition of the property. A landowner hoping to persuade the respondent that it has undervalued the landowner's property will have to convincingly attack the assumptions, or evidence, or methodology on which the respondent's valuation report is based, with or without the assistance of another report from an independent valuer. The respondent's professional valuers can be expected to defend and justify their assessments if they are satisfied they have not erred in any material respect.50. Moreover, the respondent will ordinarily be in the superior bargaining position by virtue of its ability to resort to compulsory acquisition if a sale cannot be achieved by negotiation. If the respondent considers it is being subjected to undue delay by a meritless attack on its valuation report, it can invoke the machinery for acquisition under the Acquisition of Land Act, whereupon the landowner's interest in the relevant land is converted into a right to claim compensation under that Act. The dispute as to a figure which represents fair compensation would then be resolved by the Land Court under a procedure whereby both parties would be forced to disclose the basis of, and justify, the valuations which they place on the relevant property.51. I do not accept that early disclosure of the respondent's valuation reports would involve procedural unfairness to the respondent in the event that an acquisition reached the stage of a contest in the Land Court over fair compensation for the property acquired. It is part of the discipline of a professional valuer to explain and justify assessments made in the exercise of professional judgment, and to re-assess them if satisfied (after taking into account assessments or criticisms by other professional valuers) that an error has occurred, or, for example, a logically preferable alternative approach to the valuation should have been adopted. Nor do I accept that the respondent would be disadvantaged in presenting its case to the Land Court. The Land Court's procedures will allow the respondent sufficient opportunity to subject the landowner's valuation reports and expert evidence to critical scrutiny. I doubt that any real advantage to the landowner, through having earlier access to the respondent's valuation reports and more time to subject them to critical scrutiny, would occur in most cases. I consider that any procedural advantage that did occur would be minor, and not such as to attract the application of s.41(1) of the FOI Act. Any such advantage could, in my opinion, only validly be claimed to be contrary to the public interest if it could be demonstrated that it was likely to result in the Land Court (with all its expertise in valuation matters) awarding more than fair compensation for property acquired under the Acquisition of Land Act.52. The respondent's arguments have not persuaded me that disclosure to the applicants of the matter remaining in issue would be contrary to the public interest. In this regard, I note and endorse the views expressed by the Western Australian Information Commissioner in another case involving a dispute over access to an agency's valuation reports by a landowner whose property was targeted for resumption, Re Jones and Shire of Swan (Information Commissioner WA, Decision Ref: D00694, 9 May 1994, unreported) at pp.8-9:... it is not in the public interest that these negotiations be conducted in "mutual half-light". If it is in the public interest, and I consider that it is, that a local authority acquiring a ratepayer's property should make every effort to ensure that a price that is both fair and equitable to the ratepayer and fair to the ratepayers of the shire is paid to the ratepayer for his or her land, then - in my view - there is no damage to the public interest in disclosing to the ratepayer valuations of the property that have been obtained by the local authority in the course of that process.The agency has a considerable power to compulsorily resume a ratepayer's land. In my opinion, it is in the public interest that where negotiations have been undertaken by the agency for the voluntary acquisition of such land the agency is seen to act fairly in its dealings with ratepayers. Voluntary acquisition ought to be seen as a fair alternative to compulsory resumption proceedings and, in my opinion, it is in the public interest that the ratepayer in this instance be provided with access to the valuation reports in order to assist him to assess the basis upon which the agency's offer has been made and the fairness of that offer. Disclosure may facilitate the process of reaching agreement upon a fair market value for the property. In my view, that public interest outweighs the public interest , if indeed there is any, in the agency making a profit or "getting the best deal" in this matter. The public interest in acting fairly in the interests of the ratepayers of the shire as a whole is not incompatible with the public interest in acting fairly in the interests of this individual ratepayer.53. The second of the respondent's arguments as to why disclosure of the matter remaining in issue would be contrary to the public interest is contained in the following paragraphs of Mr Tooley's affidavit:10. Further, or alternatively, I say that I am a Member of the Valuers Registration Board pursuant to the Valuers Registration Act 1992, and in that capacity I am concerned to ensure that the provisions of the Act and the Regulation are carried into effect. Section 6(1) of the Valuers Registration Regulation 1992 provides as follows:"6.(1) A registered valuer must not disclose or make use of a valuation made for a client.(2) Subsection (1) does not apply if -(a) the client gives the valuer written permission to disclose the details of the valuation; or(b) the valuer is required by law to disclose the details."11. I believe that the aforesaid section 6 applies to registered valuers employed in the Department of Lands in their carrying out valuations pursuant to section 74 of the Valuation of Land Act 1994, and in particular the subject valuation.12. It is of extreme concern to the Department of Lands that under the provisions of the Freedom of Information Act 1992, it finds itself in the position of having to provide information directly to a third party without the client's consent. This requirement is not placed on private sector operators. It clearly puts at risk client - service provider relationships and severely limits the Department's ability to be retained for valuation activities of this type. 1t further jeopardises the Department's ability to generate revenue.54. This evidence from Mr Tooley appears to be directed to the public interest test, in that it is being suggested that disclosure of the valuation report under the FOI Act would be against the public interest because such a disclosure would amount to a breach of a statutory duty of confidence owed by a registered valuer to a client. (I note that no claim for exemption has been made under s.46(1) of the FOI Act (matter communicated in confidence), nor could it be, given the terms of s.46(2) and the fact that the matter in issue is matter of a kind mentioned in s.41(1)(a) and was communicated between persons in the capacity of officers of an agency: see Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at p.292, paragraphs 35-36).55. The contention evident in Mr Tooley's affidavit is, however, untenable for two reasons. First, for reasons explained in Re Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663 at pp.731-732 (paragraphs 175-180), I consider that s.6 of the Valuers Registration Regulation does not apply to valuers employed as officers of the respondent Department, when carrying out their duties of office. Secondly, even if that provision did apply to copies of the valuation report in issue that are held by valuers within the Land Valuations division of the respondent Department, copies are also held within the Acquisitions Section of the Land Use Program of the respondent Department, where they are held in that Section's capacity as client (or perhaps as agent for another Department as client) of the valuer who prepared the report. A client in possession of a valuation report prepared for the client's purposes ordinarily owes no duty of confidence in respect of the report: see Re Hopkins and Department of Transport (Information Commissioner Qld, Decision No. 95028, 28 November 1995, unreported) at paragraphs 32-46. Even if the respondent (or its client Department) had in this case engaged a private valuer, the resulting valuation report would still be subject to the FOI Act in the hands of the respondent (or its client Department). I do not think there is any real substance in the concerns expressed in paragraph 12 of Mr Tooley's affidavit. I consider that the contention raised in the above-quoted paragraphs of Mr Tooley's affidavit is not one deserving of any substantial weight in the application of s.41(1)(b) of the FOI Act.56. Before leaving s.41, I should note that most, if not all, of the matter remaining in issue is excluded from eligibility for exemption under s.41(1) of the FOI Act by virtue of s.41(2)(c), because it merely consists of expert opinion or analysis by expert valuers (for the reasons explained in Re Cairns Port Authority at p.687, paragraphs 48-49). The respondent's written submission (at p.3) asserted (rather briefly, and without any supporting detail) that the matter in issue included advice and recommendations which were to be distinguished from "expert opinion or analysis". I think that such a distinction could frequently be difficult to draw, and that in many circumstances an expert's advice or recommendations would legitimately be regarded as encompassed within the phrase "expert opinion or analysis". In this case, the respondent has not sought to identify that matter which it asserts is advice or recommendation, and is distinguishable from expert opinion or analysis, so I have no basis upon which to address the merits of the issue in the instant case.57. That issue is purely academic in any event, since I have considered on their merits the respondent's arguments in respect of the public interest balancing test contained in s.41(1)(b), and for the foregoing reasons, I am satisfied that disclosure to the applicants of the matter remaining in issue would not be contrary to the public interest, and hence that it is not exempt matter under s.41(1) of the FOI Act.Application of s.49 of the FOI Act58. Section 49 of the FOI Act provides: 49. Matter is exempt matter if its disclosure could reasonably be expected to have a substantial adverse effect on the financial or property interests of the State or an agency unless its disclosure would, on balance, be in the public interest.59. The correct approach to the application of the phrase "could reasonably be expected to" is explained in Re "B" at pp.334-341, paragraphs 154-160. Those words call for the decision-maker to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e., expectations for the occurrence of which real and substantial grounds exist.60. For the reasons explained in Re Cairns Port Authority at pp.724-725 (paragraphs 147-150), I consider that the legislature must have intended the adjective "substantial" in the phrase "substantial adverse effect" to be used in the sense of grave, weighty, significant or serious.61. The respondent's contentions on the application of s.49 are set out at paragraphs 42 and 44 above. I do not think these contentions have any substance, in the absence of evidence that would afford a reasonable basis for an expectation that disclosure of the matter in issue would result in the respondent paying more than fair compensation for the acquisition of the applicants' land. Having regard to the considerations to which I have referred at paragraphs 49-51 above, I am not satisfied that there are real and substantial grounds for expecting that disclosure of the matter remaining in issue would have any adverse effect on the financial or property interests of the State, and certainly not a substantial adverse effect.62. In any event, considerations of the kind referred to at paragraphs 47, 48 and 52 above, would, in my view, warrant a finding that disclosure to the applicants of the matter in issue would, on balance, be in the public interest.Conclusion63. For the foregoing reasons, I set aside the decision under review, and in substitution for it, I find that the applicants have a right to be given access under the FOI Act to the matter in issue...............................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

L52 and Queensland Police Service [2020] QICmr 69 (24 November 2020)

L52 and Queensland Police Service [2020] QICmr 69 (24 November 2020) Last Updated: 25 March 2021 Decision and Reasons for Decision Citation: L52 and Queensland Police Service [2020] QICmr 69 (24 November 2020) Application Number: 315281 Applicant: L52 Respondent: Queensland Police Service Decision Date: 24 November 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - applicant seeks incident report involving former partner - prejudice flow of information to agency - protection of an individual's right to privacy - personal information - whether disclosure would, on balance, be contrary to public interest - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to an incident report involving the applicant and his former de facto partner, for use in court proceedings in an overseas jurisdiction. QPS located 1 page and decided[2] to refuse access to parts of the page on the ground that disclosure would, on balance, be contrary to the public interest. The applicant applied[3] to the Office of the Information Commissioner (OIC) for external review of QPS’s decision refusing access. For the reasons set out below, I affirm QPS’s decision and find that access to the information in issue may be refused on the ground that disclosure would, on balance, be contrary to public interest. Background Significant procedural steps taken in the external review are set out in the Appendix. Reviewable decision The decision under review is QPS’s decision dated 19 March 2020. Evidence considered In reaching my decision, I have had regard to the submissions, evidence, legislation, and other material referred to throughout these reasons (including footnotes and Appendix). 8. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[4] particularly the right to seek and receive information.[5] I consider a decision-maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the IP Act and the Right to Information Act 2009 (Qld) (RTI Act).[6] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation[7]: ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[8] Information in issue The information in issue is parts of a one page document entitled “Street Check Summary” (Information in Issue) and can be described as the personal information of the applicant’s former de facto partner. Issue for determination The issue to be determined is whether access to the Information in Issue may be refused on the ground that disclosure would, on balance, be contrary to the public interest. Relevant law Under the IP Act, a person has a right to be given access to documents of an agency to the extent they contain the individual’s personal information.[9] However, this right is subject to other provisions of the IP Act and the RTI Act including the grounds on which an agency or Minister may refuse access to documents.[10] Access may be refused to information where its disclosure would, on balance, be contrary to the public interest.[11] 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.[12] In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[13] identify factors irrelevant to the public interest and disregard them identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Additionally, I have kept in mind the pro-disclosure bias[14] of the RTI Act and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly.[15] Findings Irrelevant factors I have not taken any irrelevant factors into account in reaching my decision. Factors favouring disclosure QPS must be transparent and accountable in how it deals with members of the public (Transparency and Accountability Public Interest Factors).[16] The Information in Issue comprises the personal information of another individual/s appearing in the context of QPS officers responding to and dealing with a request for assistance involving the applicant and his former de facto partner. I accept that disclosing this information would advance the Transparency and Accountability Public Interest factors to some degree. However, I do not consider that the disclosure of the Information in Issue would advance QPS’s accountability and transparency in any significant way, particularly given the applicant has been provided with all of the information that is solely his personal information and which details his interactions with the QPS officers. I am satisfied that the information which has been disclosed to the applicant provides sufficient information to further his understanding of how QPS handled the request for assistance, thereby substantially reducing the weight to be afforded to these factors. Accordingly, I afford these two factors favouring disclosure low weight. The applicant submitted:[17] The two parties to the Incident that [the applicant seeks] a full release of information is and [the applicant’s former de facto partner]. [The former de facto partner] and [the applicant] had, up to September of last year been in a 9 year long Defacto relationship, Living together both in [another country] and Australia. Since September 2019 [the former de facto partner] and [the applicant] separated for the reason detailed in the incident report... The Family Court of the [other country] is presently in the process of hearing evidence to separate [their] common property, and a final separation of assets. Having the un-redacted report is [an] important piece of information that [the applicant needs] to submit as relevant evidence. The redacted report is like any piece of half evidence...useless. The applicant further submitted:[18] [He is] aware the different jurisdictions might be a problem but [he is] again hoping common sense prevails and hopefully it won’t be necessary to request the [Family Court of the other country] provide a subpoena to request the document as [he knows] this will be time consuming and delaying when in essence common sense should prevail... And:[19] The foreign jurisdiction is obviously far different to our own .. to ask the family court in Australia for a Subpoena to release the report [...] is a simple matter .. the [Family Court of the other country] will not issue a subpoena requiring the release of information for many legal reasons beyond [the applicant’s] grasp of their laws . so all [the applicant] can do is ask [OIC] for common sense and common law to prevail .. and give [him] access to a document that both parties instigated [sic] The applicant also submitted that the Street Check Summary is a ‘substantive part of [his] affidavit’.[20] Given these submissions, I have considered whether disclosing the Information in Issue could reasonably be expected to contribute to the administration of justice generally, including procedural fairness, [21] or to the administration of justice for a person, namely the applicant.[22] Procedural fairness, or natural justice, refers to the common law requirement to act fairly in the making of administrative decisions which affect a person’s rights, interests or legitimate expectations. The fundamental requirements of procedural fairness—that is, an unbiased decision-maker and a fair hearing—should be afforded to a person who is the subject of a decision. The fair hearing aspect of procedural fairness requires that, before a decision that will deprive a person of some right, interest or legitimate expectation is made, the person is entitled to know the case against them and to be given the opportunity of replying to it.[23] Accordingly, the person must be provided with adequate information about material that is credible, relevant and significant to the adverse finding to be made, so that the person can be given the opportunity to make effective representations to the decision-maker.[24] My understanding is that the applicant believes that disclosure of the Information in Issue will afford him the opportunity to make effective representations in the Family Court proceedings which have already been commenced in the other country. I have carefully examined the Information in Issue and the information within the Street Check Summary which has been released to the applicant by QPS. I consider that disclosure of the Information in Issue would not assist the applicant in any significant way in such proceedings nor afford the applicant procedural fairness because, broadly speaking, it details the state and feelings of the former de facto partner of the applicant that carry with them no criminality or illegality and the information already released to the applicant demonstrates that QPS were of the view that no action was warranted. Additionally, I note that in proceedings such as those in which the applicant is involved in the other country, disclosure or discovery processes appear to be available to him, as acknowledged in his submission set out at paragraphs 18 and 19 above. I also note that Division 4 of Chapter 4 of the Uniform Civil Procedure Rules 1999 (Qld) provides a mechanism by which foreign legal process can be served in Queensland. While I acknowledge the applicant’s submissions, that the subpoena process may be ‘time consuming’ and ‘beyond [the applicant’s] grasp’, I note that he has advised OIC that he has a legal representative acting on his behalf[25]n those proceedings.25 Given the availability of these disclosure mechanisms, his legal representation, and also noting that ‘[t]he RTI Act was not ... designed to serve as an adjunct to c[26]rt processes’,26 I conclude that disclosure of the Information in Issue could not reasonably be expected to contribute to the administration of justice generally. Accordingly, I consider that the factor favouring disclosure relating to the administration of justice generally, including procedural fairness, does not apply in these circumstances. In some circumstances, information can be accessed under the RTI Act for litigation purposes,[27] but only if the administration of justice for a person factor is sufficient to outweigh other public interest considerations, such as privacy. This is generally limited to circumstances where disclosure of the information sought ‘would assist [an applicant] to pursue [a] remedy, or to evaluate whether a remedy is available, or worth pursuing’.[28] Usually, such consideration precedes any pursuit of a legal remedy. Here, however, the applicant has advised that he is currently involved in proceedings, knows his cause of action, and is pursuing a remedy. What he seeks is an unredacted copy of the Street Check Summary for evidentiary purposes. Given this, I consider disclosure of the Information in Issue could not reasonably be expected to contribute to the administration of justice in the sense contemplated in Willsford in relation to the proceedings which have already been commenced in a substantive way.[29] Additionally, I note the existence of court discovery processes outlined at paragraph 23 above and the fact that the RTI Act was not designed to be an adjunct to such processes. Accordingly, while I consider that the factor favouring disclosure relating to the administration of justice for the applicant applies in these circumstances, I consider that it has low weight. Based on the above, I consider that the factor favouring disclosure relating to the administration of justice generally, including procedural fairness does not apply in the circumstances of this matter. While I consider the disclosure of the information in issue could reasonably be expected to contribute to the administration of justice specifically for the applicant, I afford the factor low weight because disclosure of the Information in Issue would not assist the applicant in any significant way in the proceedings in which he is involved and there are mechanisms in place which would allow the applicant to access information of this type within those proceedings. Accordingly, I afford the factor favouring disclosure relating to the administration of justice for the applicant low weight. Factors favouring nondisclosure The RTI Act recognises that disclosing an individual’s personal information to someone else can reasonably be expected to cause a public interest harm[30] and that a further factor favouring nondisclosure arises if disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[31] While the Information in Issue appears in a Street Check Summary about the applicant, it is itself solely comprised of the personal information of another individual/s which, broadly, includes personal contact details relating to an attendance at a Police Station. Given the nature of the personal information, I am satisfied that the extent of the public interest harm that could be anticipated from disclosure is significant. Additionally, I consider that disclosure would disclose private details about the individual/s, resulting in an intrusion into their private life or ‘personal sphere’, thus giving rise to a reasonable expectation of prejudice to the protection of the individuals’ right to privacy. Accordingly, I am satisfied that the privacy public interest factor favouring nondisclosure applies and carries significant weight. Accordingly, I afford the personal information harm factor and the privacy factor, significant weight. Balancing factors I have considered the pro-disclosure bias in deciding access to information.[32] On balance, I consider the nondisclosure factors outweigh the disclosure factors in relation to the Information in Issue. Accordingly, I find that access to the Information in Issue may be refused on the ground that its disclosure would, on balance, be contrary to the public interest.DECISION I affirm QPS’s decision by finding that disclosure of parts of 1 page would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.Assistant Information Commissioner CorbyDate: 24 November 2020 APPENDIX Significant procedural steps Date Event 19 March 2020 OIC received the applicant’s application for external review. 26 March 2020 OIC notified QPS and the applicant that the application for external review had been received and requested procedural documents from QPS. 30 March 2020 OIC received the procedural documents from QPS. 7 April 2020 OIC notified QPS and the applicant that the external review application had been accepted and requested a copy of the document located from QPS. 15 April 2020 OIC received a copy of the document located from QPS. 21 May 2020 OIC received an emailed submission from the applicant. 23 June 2020 OIC received an emailed submission from the applicant. 30 June 2020 OIC conveyed a preliminary view to the applicant. OIC received an emailed submission from the applicant. 2 July 2020 OIC received an emailed submission and an oral submission from the applicant. 24 July 2020 OIC wrote to the applicant confirming the preliminary view. 25 July 2020 OIC received an emailed submission from the applicant. 28 July 2020 OIC received an oral submission from the applicant. 16 October 2020 OIC received an emailed submission from the applicant. [1] Access application dated 4 February 2020.[2] Decision dated 19 March 2020.[3] External review application dated 19 March 2020.[4] The HR Act came into force on 1 January 2020.[5] Section 21 of the HR Act. [6] 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].[7] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [8] XYZ at [573].[9] Section 40 of the IP Act.[10] Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent it could refuse access to the document under section 47 of the RTI Act were the document to be the subject of an access application under the RTI Act.[11] Section 67(1) of the IP Act and section 47(3)(b) and 49 of the RTI Act. [12] However, there are some recognised public interest considerations that may apply for the benefit of an individual.[13] Section 49(3) of the RTI Act. [14] Section 44 of the RTI Act.[15] Section 47(2) of the RTI Act.[16] Schedule 4, part 2, items 1 and 3 of the RTI Act. [17] Email to OIC seeking external review dated 19 March 2020.[18] Submission to OIC dated 30 June 2020.[19] Submission to OIC dated 16 October 2020.[20] Submission to OIC dated 23 June 2020.[21] Schedule 4, part 2, item 16 of the RTI Act.[22] Schedule 4, part 2, item 17 of the RTI Act.[23] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (Kioa) at 584 per Mason J.[24] Kioa at 629 per Brennan J.[25] Submission to OIC dated 30 June 2020.[26] Phyland and Department of Police (Unreported, Queensland Information Commissioner, 31 August 2011) at [24].[27] A public interest factor favouring disclosure arises where disclosure could contribute to the administration of justice for an individual (schedule 4, part 2, item 17). A relevant public interest consideration was also identified and analysed by the Information Commissioner in Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 (Willsford) at [17]. [28] Willsford at [17](c).[29] Willsford at [17](c).[30] Schedule 4, part 4, section 6(1) of the RTI Act. [31] Schedule 4, part 3, item 3 of the RTI Act. [32] Section 44 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Sandy and Brisbane City Council [2009] QICmr 47 (18 September 2009)

Sandy and Brisbane City Council [2009] QICmr 47 (18 September 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210797 Applicant: A Sandy Respondent: Brisbane City Council Decision Date: 18 September 2009 Catchwords: FREEDOM OF INFORMATION – section 46(1)(a) of the Freedom of Information Act 1992 (Qld) – matter communicated in confidence – whether section 46(2) applies - section 41(1) of the Freedom of Information Act 1992 (Qld) - matter relating to deliberative process – whether disclosure would, on balance, be contrary to the public interest Contents REASONS FOR DECISION Summary 1. I set aside the decision under review and find that the matter in issue is not exempt from disclosure under section 46(1)(a) of the Freedom of Information Act 1992 (Qld) (FOI Act) or section 41(1) of the FOI Act. Background 2. By letter dated 5 November 2008 (FOI Application), the applicant applied to Brisbane City Council (Council) for access to: Documents or reports since January 1, 2007 relating to the parity factor concerning CTS units. 3. In its original decision dated 12 January 2009, Council refused access to relevant documents under section 46(1)(a) of the FOI Act (Original Decision). 4. By letter dated 29 January 2009, the applicant applied for internal review and made submissions in support of her application (Internal Review Application). 5. By letter dated 26 February 2009 Mr David Askern, Chief Legal Counsel, affirmed Council’s Original Decision (Internal Review Decision). 6. By letter dated 3 March 2009, the applicant applied under Part 5 of the FOI Act for external review of the Internal Review Decision. Decision under review 7. The decision under review is Council’s Internal Review Decision. Steps taken in the external review process 8. By letters dated 12 and 13 March 2009, this Office notified the parties that the external review application had been accepted. 9. By letter dated 20 March 2009, Council provided copies of the documents relevant to this review. 10. By letter dated 1 April 2009, this Office asked Council to: • perform further searches for documents responding to the applicant’s FOI Application; and • provide further submissions in support of its claim for exemption under section 46(1)(a) of the FOI Act by 15 April 2009. 11. In a telephone conversation on 16 April 2009, Mr Wesener of Council advised this Office that: • the file had been passed on to Mr Askern • it was likely that Council would request an extension of time in which to respond this Office’s letter of 1 April 2009. 12. By letter dated 21 April 2009, Council requested a meeting in which to make submissions about the Lord Mayor’s Expenditure Review Committee (LMERC) and Council’s exemption claims. 13. On 20 May 2009, Mr Wesener, Mr Askern and Mr Nick Shaw (Council’s Financial Performance Manager) participated in a teleconference with Ms Henry and Ms Banks of this Office to discuss the documents in issue, the LMERC process and the exemptions claimed by Council over relevant material. 14. By letter dated 24 June 2009, this Office advised Council: • of the preliminary view that apart from information which identified property owners[1], the documents in issue were not exempt from disclosure under sections 46(1)(a) or 41(1) of the FOI Act • that unless this Office heard from Council by 8 July 2009, it would proceed on the basis that Council accepted the preliminary view. 15. On 14 July 2009, a staff member of this Office telephoned Council and left a message with Mr Askern’s office for him to call this Office regarding the external review. 16. By letter dated 15 July 2009, this Office advised Council that given that no response had been received to the letter of 24 June 2009, it assumed that Council accepted the preliminary view and the file had been closed in accordance with the matters set out on the final page of the preliminary view letter dated 24 June 2009 which explained that this would be the consequence if no response was received from Council. 17. By email dated 16 July 2009, Council requested that the external review file be re-opened and an extension of time until 31 July 2009 be granted for Council to make submissions in response to the preliminary view dated 24 June 2009. 18. By letter dated 22 July 2009, this Office asked Council to provide submissions by 31 July 2009 addressing: • Council’s reasons for delay in responding to the preliminary view letter; • any prejudice which would be suffered by Council should the extension of time not be granted; and • the merits of Council’s claim for exemption under sections 46(1)(a) and 41(1) of the FOI Act. 19. By email dated 31 July 2009, Council advised that: “... Council would appreciate an extension of time in which to make our submission in support of our original request for an extension of time to make submissions against your Office’s preliminary view on this matter. “ 20. By letter dated 31 July 2009, the Information Commissioner advised Council that Council’s request for a further extension of time was declined and set out the reasons for that decision. 21. By letter dated 4 August 2009 (received on 5 August 2009), Ms Sarah Zeljko, Council’s Acting Chief Legal Counsel provided submissions regarding the merits of Council’s claims for exemption and suggested that a meeting be held with Mr Askern upon his return from leave in the week starting 11 August 2009 to “discuss any questions or concerns [this Office] may have regarding [Council’s submissions]”. 22. By letter to Council dated 2 September 2009, this Office confirmed that no further extension of time would be granted. 23. In a telephone conversation with a staff member of this Office on 16 September 2009, the applicant asked this Office to issue a formal decision. Matter in issue 24. The matter remaining in issue in this review can be described as: LMERC Minutes LMERC Minutes Registers Powerpoint presentation – Review of Rating Methodology for Community Title Schemes (2008-2009 Budget) Powerpoint presentations – Rates and Charges (2008-09 Budget)• Examples showing rates on properties from realestate.com and other CTS developments CTS Rating Methodology Review - Impacts on CTS Differential Categories CTS Impact reports Powerpoint presentation – Review of the Rating of Community Title Schemes (2009-2010 Budget) General Rate Distribution Charts from 2008-09 to 2009-10 for each ‘Option’ presented for 2009-10 budget Graphs showing 2008-09 Average Annual General Rates for each ‘Option’ presented for 2009-10 budget Powerpoint presentations – CTS Rating Remission (2008-09) Remission Impact Reports Rates Parity Comparisons Parity examples – single properties (Matter in Issue). 25. I note that as the ‘Decision of the Brisbane City Council’ dated 9 December 2008 postdates the FOI application, it falls outside the scope of the review and does not form part of this decision. 26. I also note that as Council did not object to the part of the preliminary view dealing with information found to be exempt under section 44(1) of the FOI Act (comprising information which could identify property owners) and the applicant accepts this point, this information is no longer in issue in this review and does not form part of this decision. Findings Section 46(1) of the FOI Act 27. Section 46(1)(a) provides as follows: 46 Matter communicated in confidence (1) Matter is exempt if - (a) its disclosure would found an action for breach of confidence; or ... 28. Section 46(1)(a) of the FOI Act protects information which a court would order an agency to keep confidential on the basis that the agency was bound to comply with an equitable or contractual obligation of confidence. 29. However, prior to examining 46(1)(a) matters, it is necessary to determine whether section 46(2) of the FOI Act applies. Section 46(2) of the FOI Act 30. Under section 46(2) of the FOI Act, if the relevant information consists of deliberative process matter,[2] it will not qualify for exemption under section 46(1)(a) of the FOI Act. 31. Section 46(2) of the FOI Act provides: ... (2) Subsection (1) does not apply to matter of a kind mentioned in section 41(1)(a) unless it consists of information communicated by a person or body other than— (a) a person in the capacity of— (i) a Minister; or (ii) a member of the staff of, or a consultant to, a Minister; or (iii) an officer of an agency; or (b) the State or an agency. 32. Section 41(1)(a) of the FOI Act provides: 41 Matter relating to deliberative processes (1) Matter is exempt if its disclosure - (a) would disclose – (i) an opinion, advice or recommendation that has been obtained, prepared or recorded; or (ii) a consultation or deliberation that has taken place; (III) in the course of, or for the purposes of, the deliberative processes involved in the functions of government; and ... 33. The effect of section 46(2) of the FOI Act is that matter relating to the ‘deliberative processes’ of government cannot be exempt under section 46(1) of the FOI Act unless its disclosure would found an action for breach of a confidence owed to a person or body other than the State of Queensland, an agency or relevant official. This means that intra-agency and inter-agency communications of deliberative process matter cannot qualify for exemption under section 46(1) of the FOI Act. 34. As noted by the Information Commissioner in Cairns Port Authority and Department of Lands (1994) 1 QAR 663[3] one of the purposes of section 46(2) of the FOI Act is to: ... prevent the possibility of agencies attempting to circumvent the public interest component of the test for exemption of deliberative process matter under s.41(1), by purporting to attach obligations of confidence to intra-agency and inter-agency communications of deliberative process matter, in the hope of attracting exemption under s.46(1). Council’s submissions 35. Council submits that:[4] • section 46(2) of the FOI Act does not apply to the Matter in Issue as LMERC is not an agency for the purposes of the FOI Act; and • the Matter in issue is not matter of a kind mentioned in 41(1)(a) of the FOI Act, that is, deliberative process matter. Analysis – is LMERC an ‘agency’ for purposes of the FOI Act 36. Council submits that LMERC is similar in function to the Executive Council and Expenditure Review Committee of the State Government. 37. While this may be the case, LMERC’s similarity to the Executive Council or Expenditure Review Committee does not advance Council’s argument that LMERC is not a relevant body comprised within an agency for the purposes of the FOI Act. 38. In this respect, I note that: • the Executive Council and Expenditure Review Committee are clearly subject to the FOI Act • the fact that Parliament has included certain exemption provisions specifically relating to documents submitted to Executive Council and Cabinet supports this conclusion • the fact that there are no exemption provisions under the FOI Act which specifically relate to the comparative functions of Council does not mean that its committees are not subject to the application of the FOI Act. 39. I also refer to section 8 of the FOI Act which provides: 8 Meaning of agency (1) In this Act – agency means a department, local government or public authority. (2) For this Act – (a) a board council, committee, subcommittee or other body established by government to help, or to perform functions connected with, an agency is not a separate agency, but is taken to be comprised within the agency; and (b) a reference to an agency includes a reference to a body that is taken to be comprised within an agency. 40. On the basis of the matters set out above, I am satisfied that: • LMERC is a committee established by the Lord Mayor to perform functions connected with Council • LMERC is taken to be comprised within Council • a reference in the FOI Act to an agency (in this case Council) includes a reference to a body that is taken to be comprised within an agency. 41. Accordingly, on the basis of the matters set out above, LMERC falls within the definition of an agency for the purposes of the FOI Act. Analysis – is it deliberative process matter 42. In summary, Council submits that: • the Matter in Issue is not matter of a kind mentioned in 41(1)(a) of the FOI Act (that is, that the Matter in Issue does not form part of the deliberative processes of government) • the Matter in Issue comprises documents which: o are part of an investigatory mechanism set up to present options to the Lord Mayor for inclusion in his budget o simply reveal information about performance and requirements of Council (and do not reveal any information about the deliberative process of the Lord Mayor or Council) • section 41(1) of the FOI Act applies only to protect documents that record the process of deliberation • section 41(1) of the FOI Act does not protect documents containing expert opinion or analysis. Expert opinion or analysis 43. I agree that section 41(1)(2)(c) contains an exception which excludes expert opinion or analysis by a person recognised as an expert in the field of knowledge to which the opinion or analysis relates. 44. In Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663 the Information Commissioner found that a relevant indicator which will determine whether a person is recognised as an expert, is whether the person would be accepted by a court as qualified to give expert opinion evidence (in the relevant field of knowledge) on an issue requiring resolution by a court. 45. On the information available to me, I am satisfied that Council officers[5] prepared the Matter in Issue in the course of their work as Council officers as there is no evidence before me that these officers were specifically retained as experts to perform this work. Accordingly, I am not satisfied that the Matter in Issue can be characterised as expert opinion or analysis. Protection of documents prepared for deliberative processes 46. Section 41(1)(a) clearly encompasses documents prepared for the purposes of the deliberative processes of government and is not limited to documents which record deliberative processes. 47. The Matter in Issue consists of documents prepared by Council officers[6] for presentation to LMERC in order for the Lord Mayor and LMERC to consider Council’s options regarding changes to the rating system for properties which are part of community title schemes. 48. On the information available to me, I am satisfied that whether or not the Matter in Issue was created as part of an investigatory mechanism of Council, it can also be said to have been prepared by Council officers for the use of Council in its deliberative processes. 49. In summary and on the basis of the matters set out above, I am satisfied that: • LMERC is taken to be comprised within Council and falls within the definition of an ‘agency’ for the purposes of the FOI Act • the Matter in Issue is an advice, opinion or recommendation, or forms part of a deliberation • the steps taken by LMERC in considering the options available regarding the system of rates for community title schemes comprise a deliberative process • the Matter in Issue is an advice, opinion or recommendation prepared for the purposes of the deliberative processes of government • the Matter in Issue was not communicated by a person or body other than an officer of an agency • the Matter in Issue is matter of a kind mentioned in section 41(1)(a) of the FOI Act. Findings 50. Based on the matters set out above, I am satisfied that in the circumstances the Matter in Issue: • consists of information prepared for the deliberative processes of government prepared by officers of an agency • falls within section 46(2) of the FOI Act and accordingly section 46(1) of the FOI Act does not apply. 51. On account of this finding, it is unnecessary to further consider Council’s submissions in respect of its claim for exemption from disclosure under section 46(1)(a) of the FOI Act. 52. It is however necessary to consider whether the Matter in Issue is exempt from disclosure under section 41(1) of the FOI Act. Section 41(1) of the FOI Act 53. Given my finding that the Matter in Issue satisfies the requirements of section 41(1)(a) of the FOI Act, it is necessary to consider whether its disclosure would be contrary to the public interest as set out section 41(1)(b) of the FOI Act. 54. I confirm that unlike other exemption provisions within the FOI Act that incorporate a public interest test, there is no prima facie public interest consideration favouring non-disclosure within section 41(1) of the FOI Act. Finding that disclosure would be contrary to the public interest is a separate requirement for exemption which must be independently established. 55. I also confirm that it is the responsibility of the party claiming the exemption to establish that:[7] a) specific and tangible harm to an identifiable public interest(s) would result from disclosing the matter in issue b) the harm is of sufficient gravity that, when weighed against competing public interest considerations which favour disclosure, it would, on balance, be contrary to the public interest. 56. This means that Council must identify the specific and tangible harm that would result to an identifiable public interest or interests if the Matter in Issue were disclosed. The identified harm to the public interest must then be weighed against public interest considerations in favour of disclosure. Council’s submissions 57. I note Council’s submissions made in the telephone conference on 29 April 2009 that: • it is contrary to public policy to release the preliminary information used to formulate the budget • difficulties arise when information is released to the public in the preliminary stages of policy forming • members of the public are able to attend information sessions and have access to Council’s call centre in order to obtain information about the impact of rate rises on individuals • release of the matter in issue would be contrary to the public interest. 58. I also note the matters set out in the letter dated 4 August 2009 signed by Ms Zeljko including that: “... [The OIC publication titled “Deliberative Process”] further states that ‘where deliberative process matter is concerned, two significant public interest considerations favouring disclosure will frequently be relevant: • enhancing the accountability of agencies and individual officers for the performance of their official functions • promoting informed public participation in the processes of government’ We submit that disclosure of the [Matter in Issue concerning] rates and Parity Factor LMERC would not enhance the accountability of LMERC and the members of LMERC. LMERC is framed in a confidential nature to encourage members and specialist consultants to provide submissions regarding the Lord Mayor’s financial options. Further, it should be noted that there is no public participation in the process of the Council budget, nor is there a requirement for public participation. Even once the Lord Mayor’s Budget is presented to the Chamber of Council, there is no public participation in the process of the Council budget. The public are only entitled to read the Lord Mayor’s Budget Speech and view the final budget documents. The specific and tangible harm to an identifiable public interest ... [is that]: • the Lord Mayor’s decision making process would be compromised by release • the Lord Mayor would be hampered in preparing and producing a commercially sound Budget to Council • unlike other local governments, there is no alternative mechanism in place for Council to prepare and produce its own budget • there is no other confidential mechanism whereby Council can make submissions, such as the submissions made in relation to the Parity Factor, to the Lord Mayor.” Analysis – public interest 59. I note that the Information Commissioner has previously stated[8] that public access to pre-decisional thinking processes of agencies, even well after the event may, in appropriate cases, be valuable in furthering accountability and public understanding of the operations of government agencies. 60. Additionally, the Information Commissioner has rejected the argument that it is not in the public interest to release information on the basis that it has the potential for being misrepresented. In Queensland Community Newspapers Pty Ltd and Redland Shire Council; Civic Projects (Raby Bay) Pty Ltd & Others (Third Parties)[9] the Information Commissioner said: If the public were to be denied access to any report answering that description, on the ground of its potential for being misrepresented by quoting out of context, there would be a substantial diminution in the flow of information to the public on issues of significant public importance that are being addressed through political/governmental processes. Opportunities for informed public debate allow for misrepresentations to be corrected. 61. It is also clear that: • both the 2008-09 and 2009-10 budgets of Council have been released • the Matter in Issue reveals that before coming to a decision, LMERC considered a number of options presented to it, along with a large amount of data, in order to decide upon an appropriate outcome. 62. On the information available to me, I am satisfied that: • the public having access to documents which show Council’s deliberation and decision-making process about a matter of considerable public interest (that is, rate rises), is not contrary to the public interest • this is a case where the public interest would be served by release of documents which show Council’s decision making process in coming to an important decision about increasing rates for a significant number of residents, particularly given that the Matter in Issue reveals that LMERC considered a number of options presented to it, along with a large amount of data, prior to deciding upon an appropriate outcome • Council has not established that a specific tangible harm to an identifiable public interest would occur if the Matter in Issue were disclosed. Findings 63. Based on the matters set out above, I am satisfied in the circumstances that: • disclosure of the Matter in Issue would not, on balance, be contrary to the public interest • the Matter in Issue does not qualify for exemption from disclosure under section 41(1) of the FOI Act. DECISION 64. I set aside the decision under review and find that the Matter in Issue is not exempt from disclosure under section 46(1)(a) or section 41(1) of the FOI Act. ________________________ J Kinross Information Commissioner Date: 18 September 2009 [1] Which was found to be exempt from disclosure under section 44(1) of the FOI Act.[2] Described as being the policy forming processes and decision-making functions of an agency which occur towards the end stage of a larger process following investigations of various kinds and obtaining inputs from relevant sources – see Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at paragraphs 28 and 30.[3] At paragraph 41.[4] In Ms Zeljko’s letter dated 4 August 2009.[5] As submitted by Council on page 7 of its submissions dated 4 August 2009, in its submissions made in the teleconference on 20 May 2009 and the Original and Internal Review Decisions.[6] As submitted by Council on page 7 of its submissions dated 4 August 2009, in its submissions made in the teleconference on 20 May 2009 and the Original and Internal Review Decisions.[7] Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at paragraph 140; Trustees of the De La Salle Brothers and Queensland Corrective Services Commission [1996] QICmr 4; (1996) 3 QAR 206 at paragraph 34.[8] Criminal Justice Commission and Department of Public Prosecutions; Harris (Third Party) [1996] QICmr 12; (1996) 3 QAR 299 at paragraph 38.[9] [1998] QICmr 2; (1998) 4 QAR 262 at paragraph 48.

queensland

court_judgement

Queensland Information Commissioner 1993-

Sport Drinks Australia Pty Ltd and Department of Tourism, Small Business and Industry; Yensch (Third Party) [1997] QICmr 27 (11 April 1997)

Sport Drinks Australia Pty Ltd and Department of Tourism, Small Business and Industry; Yensch (Third Party) [1997] QICmr 27 (11 April 1997) Sport Drinks Australia Pty Ltd and Department of Tourism, Small Business and Industry (S 178/96, 11 April 1997, Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.- 4. These paragraphs deleted. Background This is a 'reverse FOI' application by Sport Drinks Australia Pty Ltd (the applicant) which seeks review of the decision made on behalf of the Department of Tourism, Small Business and Industry (the Department) by Mr Peter Phair on 17 October 1996. Mr Phair decided to give the applicant for access, Mr Roy Yensch, access in full to a document described as a "conference memo" dated 7 November 1990 (the document in issue), which records details of a conference between Mr Payne, a director of the applicant, and a Mr Bob Smith of the Liquor Licensing Division of the Department. The FOI access application which gave rise to this external review was lodged by Mr Yensch, who was formerly involved with the applicant in relation to co-operative business projects involving transfer of a hotel licence from Cheepie to Labrador at the Gold Coast. The document in issue concerns discussions between Mr Smith and Mr Payne in relation to transfer of the hotel licence. It is clear that Mr Yensch and the applicant have had a falling out. After receiving Mr Yensch's FOI access application, Mr Mark Jones (Administrative Law Officer of the Department), by letter dated 16 August 1996, consulted Mr Payne, in accordance with s.51 of the FOI Act, about disclosure of the document in issue. In a facsimile transmission dated 23 August 1996, the applicant informed Mr Jones that the document in issue was regarded as "confidential and commercially sensitive". In a letter dated 6 September 1996, Mr Jones informed the applicant of his initial decision that the document in issue was not exempt under the FOI Act, and that Mr Jones was prepared to give Mr Yensch access in full to the document in issue. Mr Jones considered the application of s.45(1)(c) of the FOI Act, and s.46(1)(a) and (b) of the FOI Act. In relation to s.45(1)(c) of the FOI Act, Mr Jones considered that the issues surrounding the application for removal of the Cheepie licence were common knowledge within the liquor industry, and as the information in the document in issue was out of date and innocuous in nature, he considered it unlikely to have any continuing commercial sensitivity. Mr Jones found that for the purposes of s.45(1)(c)(i), disclosure of the document in issue could not reasonably be expected to have an adverse effect on the applicant's business, commercial or financial affairs. Similarly, for the purposes of s.45(1)(c)(ii), Mr Jones could see no reasonable basis for expecting that any other person, if placed in a similar position to the applicant, would decline to provide the Department with information of the kind set out in the document in issue, if that matter were to be disclosed under the FOI Act. In relation to the application of s.46(1)(a) and s.46(1)(b), Mr Jones took the view that the document in issue lacked the necessary quality of confidence for the document in issue to be exempt under either of those provisions. By letter dated 3 October 1996, the applicant sought internal review of Mr Jones' decision. On behalf of the applicant, Mr Payne objected to the decision to disclose the document in issue to the applicant, and also asserted that the document in issue was incorrect in a particular detail. In his internal review decision, Mr Phair affirmed Mr Jones' decision, on the same grounds stated by Mr Jones. By letter dated 14 November 1996, the applicant applied to me for review, under Part 5 of the FOI Act, of Mr Phair's decision. Mr Payne has represented the applicant in the course of my review. External review process The Assistant Information Commissioner, Mr G Sammon, arranged for representatives of the Department to provide a briefing on the factual background to the issue of the transfer of the relevant hotel licence. My office also obtained the files of the Liquor Licensing Division of the Department in relation to the transfer of the licence. The Deputy Information Commissioner informed Mr Yensch and the applicant that it was proposed to inform each of them of the other's identity (as FOI access applicant, and 'reverse FOI' applicant for review, respectively) unless an objection was received to this proposal. No objection was received, and Mr Yensch and the applicant were informed accordingly. Mr Yensch applied to become a participant in this external review, in accordance with s.78 of the FOI Act and I granted that application. The document in issue referred to a third party, a Mr Bate. He was also invited to participate in this external review, but he declined the invitation. Mr Bate wrote to my office on 20 December 1996 objecting to disclosure of the document in issue, not on the basis of any exemption under the FOI Act, but on the principle that he objected to a person obtaining access to a document held by a government department merely by paying a $30 application fee. Given the clear legislative intent of the FOI Act, and the legal right conferred by s.21 of the FOI Act, Mr Bate's objection obviously has no substance in law. In a letter dated 10 December 1996, I conveyed to the applicant my preliminary views on the status of the document in issue in this external review. In the event that the applicant did not accept those preliminary views, I extended to the applicant the opportunity to lodge evidence and submissions in support of any case that it wished to make that the document in issue was exempt under the FOI Act. The applicant responded by letter dated 15 January 1997, suggesting that this external review may be resolved by a compromise involving release to the applicant of a document which concerns Mr Yensch, which was partially released to the applicant as a result of its own FOI access application to the Department (the document has been referred to by the applicant as "Memo B"), in return for which the applicant would consent to release of the document in issue to Mr Yensch. This proposal was put to Mr Yensch, and to the Department, but was rejected by both of them. After the applicant was informed of the response to its compromise proposal, it was again given the opportunity to lodge evidence and submissions in support of its claim for exemption in respect of the document in issue. The applicant replied on 21 March 1997 complaining in general that it was unfair that the Department was prepared to give Mr Yensch access to the document in issue in this external review, but was prepared to claim that at least part of Mr Yensch's document (Memo B) was exempt from disclosure to the applicant under the FOI Act. (It appears that the applicant did not seek internal review of the Department's decision to give it access to part only of Memo B. Certainly, I do not have jurisdiction in this review to determine whether the Department was correct in finding that part of Memo B comprises exempt matter under the FOI Act.) Ultimately, the applicant did not lodge any evidence and/or written submissions to support its claim that the document in issue comprises exempt matter under the FOI Act. Given the applicant's response (when consulted by the Department under s.51 of the FOI Act) that the document in issue was "confidential and commercially sensitive", I will consider the application of s.45(1) and s.46(1) of the FOI Act, to the document in issue. In the course of its letter dated 15 January 1997, putting its compromise proposal, Mr Payne, on behalf of the applicant, said: In the normal course of events, we would raise no objection to the disclosure of the Memo in question. However, the Record of Interview contains incorrect and/or confused points and therefore is inaccurate in parts. In a facsimile transmission to my office dated 21 March 1997, Mr Payne said: ... the tone reflected in your recent letters, suggests to us that you have ascertained our conference with Mr Smith was above board, open and just a normal business discussion - we agree. These extracts appear to me to be tantamount to an admission on behalf of the applicant that there is really nothing so sensitive in the document in issue as to warrant exemption from disclosure under the FOI Act. As a result of inquiries made during the course of the external review, through the conference referred to in paragraph 12 above, and examination of the Department's files in relation to transfer of the Cheepie hotel licence, I am satisfied that the following information, which is relevant to the document in issue, must be considered to be public knowledge: An application was made to the Licensing Commission (the predecessor to the Liquor Licensing Division of the Department) to remove the licence of the Royal Mail Hotel, Cheepie, to a site situated at the corner of Olsen Avenue and Central Street, Labrador, (see the order dated 27 November 1989 made by the Licensing Court); This removal did not proceed, and the licence was purchased by Lewiac Pty Ltd which then successfully applied to the Licensing Court to substitute a new site at Oxley Drive, Coombabah, for the site at Olsen Avenue and Central Street, Labrador (see the order of the Licensing Court, Judge Quirk D.C.J. dated 7 June 1991). Application of s.45 of the FOI Act Section 45(1) of the FOI Act provides as follows: 45.(1) Matter is exempt matter if - (a) its disclosure would disclose trade secrets of an agency or another person; or (b) its disclosure - (i) would disclose information (other than trade secrets) that has a commercial value to an agency or another person; and (ii) could reasonably be expected to destroy or diminish the commercial value of the information; or (c) its disclosure - (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government; unless its disclosure would, on balance, be in the public interest. I considered in detail, the correct interpretation of s.45(1) of the FOI Act in my decision in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491. At paragraph 43 (p.504) of Re Cannon, I indicated my agreement with a decision of the Victorian Supreme Court in Ansell Rubber Company Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VicRp 7; [1967] VR 37 that in order for matter to qualify as a trade secret, it must be secret and that matters of public knowledge or of general knowledge in an industry cannot be claimed to be secret. In relation to s.45(1)(b) of the FOI Act, in paragraphs 57-60 (pp.514-515) of Re Cannon, I indicated that matter will not have any commercial value if it is already in the public domain. Finally, at paragraph 83 (p.521) of my reasons for decision in Re Cannon, I indicated that, under s.45(1)(c) of the FOI Act, if information is already in the public domain, or is common knowledge in the relevant industry, it would ordinarily be difficult to show that disclosure of that information could reasonably be expected to have an adverse effect on the business, professional, commercial or financial affairs of the person whom the information concerns. I find, therefore, that the matter in the document in issue which comprises information already in the public domain (namely, the proposal to transfer the Cheepie licence to the site at Olsen Avenue and Central Street, Labrador) does not qualify for exemption under s.45(1)(a), s.45(1)(b) or s.45(1)(c) of the FOI Act. The applicant has not demonstrated that there is anything in the document in issue which would disclose trade secrets of the applicant, have a commercial value to the applicant, or the disclosure of which could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of the applicant, or to prejudice the future supply of such information to government. My own examination of the document in issue does not suggest to me that there is any matter in the document in issue which qualifies for exemption under s.45(1) of the FOI Act. Finally, in Re Cannon I indicated that matter may lose its exempt status over time. The relevant references are as follows: • Section 45(1)(a) - Re Cannon, paragraph 48 (pp.508-609) • Section 45(1)(b) - Re Cannon, paragraph 56 (pp.513-514) • Section 45(1)(c) - Re Cannon, paragraphs 83 and 84 (p.521). I consider that the matter in issue no longer concerns the applicant's business plans, because the applicant no longer has an interest in the Cheepie licence, it having been sold to Lewiac Pty Ltd. It appears to me that the entire document is of historical interest only. I therefore find that there is no matter in the document in issue which qualifies for exemption under s.45(1)(a), s.45(1)(b) or s.45(1)(c) of the FOI Act. Application of s.46(1) of the FOI Act Section 46(1) of the FOI Act provides as follows: 46.(1) Matter is exempt if - (a) its disclosure would found an action for breach of confidence; or (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest. I considered the correct interpretation and application of s.46(1)(a) and s.46(1)(b) in my decision in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279. In that decision, I noted that an element in common to both s.46(1)(a) and s.46(1)(b) is that, in order for matter to qualify for exemption under those provisions, the matter must be confidential in nature. For the reasons set out above, I consider that the information described in paragraph 20 above which is now in the public domain cannot be considered to be confidential in nature. In addition, the applicant has not demonstrated that any of the matter in the document in issue is confidential in nature, and on my examination of the document in issue, I find that there is nothing in the document in issue which I consider to be confidential in nature. In Re "B", at paragraph 71 (p.307), I noted that information may lose its quality of confidence with the passage of time, and so fail to qualify for exemption under s.46(1)(a). The same proposition also applies to s.46(1)(b) of the FOI Act - see paragraph 148 of Re "B" (pp.337-338). I am satisfied that there is no information in the document in issue which retains the quality of confidence (if, indeed, it ever was confidential) necessary to found an action for breach of confidence. I consider the information to be of historical interest only, and I note that the applicant no longer has an interest in the Cheepie licence. I conclude that the document in issue does not qualify for exemption under s.46(1)(a) or s.46(1)(b) of the FOI Act. Decision For the foregoing reasons, I affirm the decision under review.

queensland

court_judgement

Queensland Information Commissioner 1993-

Potter and Brisbane City Council [1994] QICmr 18; (1994) 2 QAR 37 (19 August 1994)

Potter and Brisbane City Council [1994] QICmr 18; (1994) 2 QAR 37 (19 August 1994) Last Updated: 26 February 2001 OFFICE OF THE INFORMATION ) L 9 of 1993COMMISSIONER (QLD) ) (Decision No. 94018) Participants: T C J POTTER Applicant - and - BRISBANE CITY COUNCIL Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - documents in issue comprising legal advice given to the respondent by its own employee legal advisers - whether documents in issue subject to legal professional privilege - whether employee legal advisers had the requisite degree of independence in giving professional advice - whether advice given in furtherance of an abuse of statutory power - whether documents exempt under s.43(1) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.14, s.28(1), s.43(1), s.44(1), s.52, s.52(3)(b)Judicial Review Act 1991 QldSolicitors Admission Rules 1968 Qld Alfred Crompton Amusement Machines Ltd v Customs and Excise Commission (No. 2) [1972] 2 QB 102Attorney-General for the Northern Territory v Kearney [1985] HCA 60; (1985) 158 CLR 500; 59 ALJR 749; 61 ALR 55Clarkson and Attorney-General's Department, Re (1990) 4 VAR 197Citibank Ltd, Re [1989] 1 Qd R 516; sub nom Deputy Commissioner of Taxation v Citibank Ltd 93 FLR 469; 19 ATR 1847; 88 ATC 4, 941Famous Artists International Pty Ltd v Australian Broadcasting Corporation (1992) 7 BR 395 Geary and Australian Wool Corporation, Re (Commonwealth AAT, No. V86/575, 16 October 1987, unreported)Norman and Mulgrave Shire Council, Re (Information Commissioner Qld, Decision No. 94013, 28 June 1994, unreported)Page and Metropolitan Transit Authority, Re (1988) 2 VAR 243Proudfoot and Human Rights and Equal Opportunity Commission, Re [1992] AATA 317; (1992) 16 AAR 411Smith and Administrative Services Department, Re (1993) (Information Commissioner Qld, Decision No. 93003, 30 June 1993, now reported at [1993] QICmr 3; (1993) 1 QAR 22)Trotman and Occupational Health and Safety Authority, Re (Victorian AAT, No. 92/16882, 26 November 1992, unreported)Ventura Motors and Metropolitan Transit Authority, Re (1988) 2 VAR 277 (Vic AAT)Wagen and Community Services Victoria, Re (Victorian AAT, No. 91/26202, 21 November 1991, unreported)Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 DECISIONThe documents in issue are exempt documents under s.43(1) of the Freedom of Information Act 1992 Qld, and accordingly the decision under review (being the decision made on behalf of the respondent by Mr R N Metcalfe on 23 June 1993) is affirmed.Date of Decision: 19 August 1994...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) L 9 of 1993COMMISSIONER (QLD) ) (Decision No. 94018) Participants: T C J POTTER Applicant - and - BRISBANE CITY COUNCIL Respondent REASONS FOR DECISIONBackground1. The applicant seeks review of the respondent's decision refusing him access to six documents which are claimed by the respondent to be exempt under s.43(1) of the Freedom of Information Act 1992 Qld (referred to in these reasons for decision as the FOI Act). 2. By letter dated 19 May 1993, Mr Potter made application to the Brisbane City Council (the Council) under the FOI Act for access to documents relating to a number of matters. The relevant requests, for the purposes of this external review, were for access to: 1. All information held by Council and Alderman G Quirk dealing with the decision to introduce the above scheme (one-way traffic scheme - Blackwattle Street, Macgregor) and the subsequent refusal to remove it. 2. All information held by Council supporting its position that the Judicial Review Act 1991 does not apply to the decision to leave the scheme in place. 3. In a letter dated 23 June 1993, Mr R N Metcalfe advised Mr Potter of his decision on the FOI access application. Mr Metcalfe was Director, General Manager's Branch, and Town Clerk of the Council, and was therefore the principal officer of the Council for the purposes of the FOI Act. Mr Metcalfe decided that Mr Potter could have access to some documents but refused access to the six documents in issue on the basis that they were exempt under s.43(1) of the FOI Act (the legal professional privilege exemption).4. After inspecting the documents to which access had been granted, Mr Potter indicated, by a letter to the Council dated 30 June 1993, that he did not consider that he had been given access to all relevant documents. In that letter, Mr Potter also requested that Mr Metcalfe reconsider his decision in relation to the documents for which access had been refused. It should be noted that it was not open to Mr Potter to apply for internal review of the decision under s.52 of the FOI Act as the initial decision was made by the principal officer of the Council (see s.52(3)(b) of the FOI Act).5. Mr Metcalfe responded by a letter of 28 July 1993 advising the applicant that further documents had been found and that the Council was prepared to grant access to a number of these documents but claiming exemption for parts of documents under s.44(1) of the FOI Act (thepersonal affairs exemption). Mr Metcalfe declined to reconsider his decision in relation to the documents for which exemption under s.43(1) of the FOI Act was claimed, but did amplify the reasons for his original decision.6. By a letter dated 16 August 1993, Mr Potter made application to the Information Commissioner for review of Mr Metcalfe's decision, in accordance with Part 5 of the FOI Act. Mr Potter's application sought review only in respect of the decision to refuse access to documents under s.43(1) of the FOI Act.The External Review Process7. Copies of the six documents in issue have been obtained and examined. Each of the documents is a memorandum to the Manager, Corporate Services Division, Brisbane City Council. They bear various dates between August and December 1992. Each memorandum was signed by, or on behalf of, the City Solicitor or the Acting City Solicitor, and each comprises legal advice in relation to continuing requests by the applicant and his solicitors for a statement of reasons which the applicant claimed was required to be given to him by the Council under the Judicial Review Act 1991 Qld.8. On the basis of my examination of the documents, I wrote to the Council on 17 September 1993 stating my preliminary view that each of the documents on its face appeared to satisfy the primary test for attracting legal professional privilege, in that each had been created for the sole purpose of giving legal advice to the Council. However, I also raised the secondary issue as to whether: the City Solicitor, the Acting City Solicitor and the City Solicitor's Branch (as it then was) had the quality of "independence" discussed in the High Court's decision in Waterford v the Commonwealth of Australia (1986-7) 136 CLR 54 so as to enable a claim of legal professional privilege to be maintained in respect of legal advice obtained by the Manager of the Corporate Services Division from the City Solicitor and the Acting City Solicitor.9.. I invited the Council to provide me with a written submission addressing relevant facts, circumstances and legal arguments which bear on this issue.10. The Council responded by letter dated 6 October 1993 and on the basis of the information conveyed in that submission, the preliminary assessment was made that the documents in issue were exempt under s.43(1) of the FOI Act. That preliminary view was communicated to the applicant by letter dated 14 January 1994, together with an explanation of the basis on which the view had been formed. The applicant was invited, if he wished to continue to contest the exemption claims made under s.43(1) of the FOI Act, to lodge a written submission in support of his case. The applicant replied by letter dated 19 January 1994 indicating that he thought it was important to establish without doubt that the City Solicitor had the necessary degree of independence to sustain a claim for legal professional privilege. The applicant also raised the possibility that there had been a deliberate abuse of statutory power by the Council and suggested that this would be sufficient to deprive the Council of any claim for legal professional privilege which it might otherwise have in respect of the documents in issue.11. In order to obtain a more complete understanding of the workings of the City Solicitor's Branch of the Council, evidence was obtained in the form of a statutory declaration executed on 17 May 1994 by Mr P E P O'Brien. Mr O'Brien held the office of City Solicitor for the Council from 1970 until 1992. The applicant was given the opportunity to comment upon Mr O'Brien's evidence and did so by letter dated 28 May 1994. Applicant's Submissions12. In his letter of 19 January 1994, Mr Potter set out his reasons for pursuing the matter and his submissions in relation to whether the documents in issue are exempt under s.43(1) of the FOI Act. I set out below relevant extracts from that letter: My reason for pursuing this matter is that there is a deep resentment among Shirland Street residents about the way Council implemented the one way scheme in Blackwattle Street and the loss of amenity and safety which has resulted in our street. My freedom of information request has proved that there is no technical justification for the scheme and that, in fact, Council's own officers have recommended against it. The attached letter summarises the frustration felt in Shirland Street about what appears to be a deliberate abuse of statutory power. I believe that Council should protect the rights and interests of all its ratepayers and should work for, rather than against them. Council has declined to provide a Statement of Reasons as required under the Judicial Review Act on the grounds that the Act does not apply in this case. To prove otherwise would involve initiating a Supreme Court action with the possibility of having costs awarded against us.13. In his letter of 28 May 1994, the applicant reiterated a number of the points raised in his earlier letter and stated further as follows: As I see it, there are two issues to be resolved: 1. Whether or not the City Solicitor had at the material time the quality of "independence" so as to enable claims of legal professional privilege to be maintained in respect of legal advice obtained from the City Solicitor. 2. Whether or not the Council is responsible for a deliberate abuse of statutory power which has prevented others from exercising their rights under the law. ... Council did not follow its own policy on Residential Street Management or the advice of its own traffic experts. My freedom of information request has not uncovered any technical or other reasons for implementing the scheme apart from the fact that it was ordered by Alderman G. Quirk after consulting with selected residents of Blackwattle Street. The residents of Shirland Street were denied their rights to protect their own interests before the scheme was implemented without notice. Council has also refused to provide a Statement of Reasons as required under the Judicial Review Act. To challenge the Council on this matter would require initiating a Supreme Court action and risk having costs awarded against us. By implementing the scheme in the way that it did, Council has deliberately denied us our rights. In addition, failure to provide a Statement of Reasons covers up the real reasons for implementing the scheme and constitutes a deliberate abuse of statutory power. Page 33 of [Re Smith and Administrative Services Department (1993) (Information Commissioner Qld, Decision No. 93003, 30 June 1993, now reported at [1993] QICmr 3; (1993) 1 QAR 22)] which was forwarded to me with your letter dated 14 January 1994 states in paragraph 93 that the privilege's protection should not be afforded to communications made to further a deliberate abuse of statutory power, thereby preventing others from exercising their rights under the law. As a result of my Freedom of Information request, I have found no technical or other reasons for implementing the scheme. It appears that Alderman G. Quirk was convinced by selected residents in Blackwattle Street to implement the scheme and it was done in such a manner that the residents in Shirland Street were denied their rights. To deny access to the documents in question, closes off any question of challenging Council's decision and effectively condones an unfair process which has already been criticised by the Ombudsman.Respondent's Submissions and Evidence14. As I had communicated my preliminary view that I was satisfied that the documents in issue had been created for the sole purpose of giving legal advice to the Council, the bulk of the respondent's submission related to the question of the independence of the advice which had been given. The Council asserted that the requisite degree of independence did exist, pointing to the requirement that staff of the City Solicitor's Branch be admitted and hold a current practising certificate, and also to the status of the City Solicitor under the Solicitors Admission Rules 1968.15. As noted above, evidence was also obtained from Mr O'Brien who was the City Solicitor from 1970 until he resigned in or about October 1992. Mr O'Brien gave evidence that the City Solicitor's Branch was a sub-unit of the Corporate Services Division of the Council. The City Solicitor's Branch was established by resolution of the Council and made responsible for the following business, procedures and functions: (i) acting as legal adviser to the Council; (ii) preparation of legal instruments and contracts on behalf of the Council; (iii) the drafting of ordinances and such other legislation as instructed by the Deputy Town Clerk and Manager; (iv) the conduct of litigation on behalf of the Council; (v) the conduct of legal processes for the enforcement of Council ordinances, and any other acts, rules, regulations or statutory instruments which the Council had the power or duty to enforce; (vi) the recording and safe custody of all titles and documents evidencing ownership by the Council of real and personal property and of such contracts for sale or purchase of goods and services as are entrusted to the City Solicitor for that purpose; (vii) the maintenance of the Council's legal library; and (viii) the preparation and publication of the material required by s.55 of the City of Brisbane Act 1924-1986 Qld.16. Mr O'Brien gave further evidence in relation to the operation of the City Solicitor's Branch during his term of office, as follows: 7. As City Solicitor, I was in charge of the City Solicitor's Branch within the Corporate Services Division (and previously the General Administration Division). In my capacity as City Solicitor, I was answerable in relation only to administrative matters to the Manager of the Corporate Services Division (and previously the Manager of the General Administration Division). The types of matters in respect of which I was answerable to the Manager of the Corporate Services Division (and previously the Manager of the General Administration Division) included staffing, budgeting and policy matters. 8. At the time the documents in issue were created in 1992, the City Solicitor's Branch was divided into three sections. Mr Don Wright, Senior Solicitor/Common Law, was the head of the Common Law Section of the City Solicitor's Branch. Mr Terry Griffith, Senior Solicitor/Conveyancing, was in charge of the Conveyancing Section of the City Solicitor's Branch. Mr Neil Boge, Solicitor/Draftsman, was in charge of the section relating to the drafting of acts, ordinances and resolutions. In total, approximately 14 professional staff were employed in the three sections of the City Solicitor's Branch. The professional staff employed within the Branch were all required to be admitted to practice in Queensland as solicitors or barristers. I treated Mr Wright, Mr Griffith and Mr Boge, as heads of their respective sections, as being wholly responsible for the work undertaken by those sections, their responsibility was analogous to that of partners in a private solicitor's firm. 9. Instructions were received by the City Solicitor's Branch from a number of individuals within the BCC who wished to obtain legal advice or assistance from the Branch. I had in place a procedure by which all instructions came through myself as City Solicitor. I tried to ensure that instructions received by the Branch would originate from a manager or director level of the various units of administration of the BCC but often instructions were received from officers in less senior positions. I would receive the instructions and determine which section, and particular professional staff member within that section, should have the carriage of the matter which was the subject of the instructions. The matter would then be assigned to that professional staff member and he or she would have complete carriage of the matter. Generally matters which were assigned to the Common Law Section concerned town planning issues, prosecutions, rates recovery and general advice matters. All real property matters were assigned to the Conveyancing Section and that section also undertook advice work in relation to issues relevant to conveyancing. The Drafting Section of the Branch received all instructions relating to the drafting of ordinances, resolutions and legislation and also undertook general advice work as allocated by myself. 10. In many circumstances, the legal advice provided by the professional staff within the Branch was done on an oral basis. This was especially the case in relation to legal advice which I provided to the Town Clerk and the Mayor. Written legal advice provided to the various units of administration of the BCC was undertaken in a memorandum format. Those memoranda of advice went out under my name as City Solicitor and were also initialled by the relevant professional staff member who had the carriage of the particular matter. 11. I was not (and my professional staff through me were not) answerable to anyone within the BCC in relation to the contents of the legal advice provided in response to instructions received by the Branch. There were instances when the conclusions reached in the advice rendered by myself and my professional staff was not appreciated by the person from whom instructions were received but there was never an instance where I received pressure to give advice contrary to that which I had previously given because the person from whom instructions were received was dissatisfied with the conclusions reached in the advice. 12. There were instances when one of my young professional staff members may have given legal advice which the person who provided the instructions regarding that advice would refer to myself, as City Solicitor, with a request to review the conclusions reached by my professional staff. I would, in those circumstances, either review the advice of the staff member myself or ask one of my senior solicitors to review the advice. In most instances I would, after reviewing the advice, go back to the person from whom instructions had been received and confirm the advice previously rendered. However, in some instances where the conclusions reached by the professional staff member were incorrect, I would amend the advice so it correctly represented the law as applied to the facts and circumstances in issue. However, in each instance, the advice rendered by the Branch to the persons from whom instructions were received would be based on an analysis of the facts in issue and law relevant to those issues which were the subject of the instructions and would not be formulated to provide the conclusion which may have been desired by the person giving instructions relating to the advice. 13. At all times, in my capacity as City Solicitor, I was acutely aware of the need to maintain the independence of the City Solicitor's Branch in respect of the legal advice provided by the branch to the BCC and the other work carried out by the Branch as legal adviser to the BCC. I was, during my time as City Solicitor, familiar with the decision of the English Court of Appeal in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioner [No. 2] [1972] 2 QB 102. In particular, the following comments of Lord Denning MR in his judgment of that case were always in the back of my mind: "Being a servant or agent too, he may be under more pressure from his client. So he must be careful to resist it. He must be as independent in the doing of right as any other legal adviser ... ." 14. I believe that during my period as City Solicitor, the functioning of the City Solicitor's Branch was such that the relationship between myself as City Solicitor (together with the professional staff of the Branch) and the persons from whom instructions were received within the BCC was professional relationship which secured to the advice an independent character notwithstanding the employment, as was discussed in the reasons of Mason and Wilson JJ in the decision of the High Court of Australia in Waterford v the Commonwealth of Australia [1987] HCA 25; (1986-1987) 163 CLR 54, at p.62.Applicable Law17. Section 43 of the FOI Act provides as follows: 43.(1) Matter is exempt matter if it would be privileged from production in a legal proceeding on the ground of legal professional privilege. (2) Matter is not exempt under subsection (1) merely because it appears in an agency's policy document.18. In my reasons for decision in Re Smith and Administrative Services Department (Information Commissioner Qld, Decision No. 93003, 30 June 1993, now reported at [1993] QICmr 3; (1993) 1 QAR 22), I discussed at length (paragraphs 78-98) the requirements for exemption under s.43 of the FOI Act. At paragraph 82 of my decision I referred to the useful summary of principles set out in the decision of Mr K Howie, Member of the Victorian Administrative Appeals Tribunal, in Re Clarkson and Attorney-General's Department (1990) 4 VAR 197, at p.199. Of particular relevance in this case is the fourth principle stated by Mr Howie, which I set out below: Legal professional privilege attaches to confidential professional communications between salaried legal officers and government agencies. It must be a professional relationship which secures to the advice an independent character. The reason for the privilege is the public interest in those in government who bear the responsibility of making decisions having free and ready confidential access to their legal advisers. Whether or not the relationship exists is a question of fact.19. In my decision in Re Smith I considered (in the context of advice from the Queensland Crown Solicitor's Office to a government department, see paragraphs 88-90) the position of advice from salaried or "in-house" legal officers. The leading case is Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54. In that case, Mason and Wilson JJ canvassed relevant authorities from other jurisdictions on this issue, including the English Court of Appeal decision in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioner (No. 2) [1972] 2 QB 102. Their Honours concluded (at p.62): In our opinion, given the safeguards to which reference is made in the various citations, there is no reason to place legal officers in government employment outside the bounds of legal professional privilege. The proper functioning of the legal system is facilitated by freedom of consultation between the client and the legal adviser. ... To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have a free and ready confidential access to their legal advisers. Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment.20. However, in his decision in Waterford, Brennan J (at p.72) stated: I am ... unable to accept the notion that salaried lawyers are generally to be assimilated to the position of the independent legal profession for the purpose of determining the availability of legal professional privilege.21. His Honour was concerned that the employment relationship creates conflict between the independence necessary for a legal adviser and the loyalties, duties and interests of an employee (p.71). However, His Honour went on to state that the position of lawyers employed in the offices of Crown Solicitors, the Australian Government Solicitor and Departments of the respective Attorneys-General were sufficiently independent to attract legal professional privilege (pp.72-73).22. Brennan J's suggested distinction between those employed in a traditional legal advice department and salaried legal advisers in other departments or statutory authorities, was not supported by other judges of the High Court in Waterford. Mason and Wilson JJ (at p.62), Deane J (at p.81-2) and Dawson J (at p.95-97) focus on the nature of advice given and the quality of the relationship between adviser and client. This accords with the views expressed in Attorney-General for the Northern Territory v Kearney [1985] HCA 60; (1985) 158 CLR 500 by Gibbs CJ (at p.510) and Dawson J (at p.530-1). There is nothing in these decisions which precludes the possibility of legal professional privilege applying to advice given by a legal adviser employed by a department or statutory authority, other than a traditional legal advice department of the kind referred to by Brennan J in Waterford.23. Since the decision in Waterford, courts and tribunals have on numerous occasions accepted that legal professional privilege may apply to communications to or from employee legal advisers (provided of course that all other requirements for the application of legal professional privilege are satisfied), and I also accept that proposition. The following cases involved legal advisers employed by statutory authorities: Famous Artists International Pty Ltd v Australian Broadcasting Corporation (1992) 7 BR 395 (Federal Court); Re Geary and Australian Wool Corporation (Commonwealth AAT, No. V86/575, 16 October 1987, unreported); Re Page and Metropolitan Transit Authority (1988) 2 VAR 243 (Vic AAT); Re Ventura Motors and Metropolitan Transit Authority (1988) 2 VAR 277 (Vic AAT); and Re Trotman and Occupational Health and Safety Authority (Victorian AAT, No. 92/16882, 26 November 1992, unreported). The case of Re Wagen and Community Services Victoria (Victorian AAT, No. 91/26202, 21 November 1991, unreported) involved a legal adviser employed by a Victorian government department. For a case involving a legal adviser employed by a corporation, see Re Citibank Ltd [1989] 1 Qd R 516; sub nom Deputy Commissioner of Taxation v Citibank Limited (1988) 93 FLR 469; 88 ATC 4,941.24. Despite the number of cases that have considered the point, discussion of the requirements for establishing the necessary degree of independence (that, in the words of Mason and Wilson JJ in Waterford, will secure to the advice an independent character notwithstanding the employment) has been limited. In Kearney, Gibbs CJ (at p.510) indicated that privilege would extend to legal advice given by employees provided that, in giving the advice, they are acting in their capacity as legal advisers. His Honour went on to say that advice would only be privileged if the lawyer who gives it has been admitted to practice and (His Honour inclined to think) remains subject to the duty to observe professional standards and the liability to professional discipline.25. In Waterford, Deane J, while not deciding the point, suggested that the privilege would be restricted to persons who "in addition to any academic or other practical qualifications were listed on a role of current practitioners, held a current practising certificate, or worked under the supervision of such a person" (pp.81-82). Dawson J (at p.96-97) referred to the requirement that the legal adviser be qualified to practise law and be subject to the duties to observe professional standards and the liability to professional discipline. In Waterford, Brennan J (at p.70) suggested that admission to practice as a barrister or solicitor is a necessary condition for attracting legal professional privilege. (This suggestion was made in the context of raising a separate requirement, namely, that the legal adviser must be competent, as well as independent. His Honour indicated that there was much to be said for the view that admission to practice is the sufficient and necessary condition for attracting the privilege so far as the requirement of competence is concerned).26. The requirements were further discussed by the Commonwealth Administrative Appeals Tribunal in Re Proudfoot and Human Rights and Equal Opportunity Commission [1992] AATA 317; (1992) 16 AAR 411, where the importance of the legal adviser holding a current practising certificate was emphasised (at pp.414-415). This was not, however, a requirement mentioned by the majority judges in Waterford. It would not, therefore, appear to be a necessary requirement for establishing the requisite degree of independence; although, where present, it will doubtless be of some weight in assisting to establish the requisite degree of independence.Application of s.43(1) to the Documents in Issue27. Having examined the documents in issue, I am satisfied that they were all created for the sole purpose of giving legal advice to the Council. I am further satisfied that they were created in the course of a professional relationship which secured to the advice an independent character notwithstanding the employment of the legal advisers by the Council. The advice was given by professional staff acting in their capacity as legal advisers. The legal advisers in question were all admitted as solicitors or barristers in the State of Queensland. All held practising certificates. Mr O'Brien has given evidence that, although in relation to administrative matters the City Solicitor's Branch was under the control of a division of the Council, in relation to the provision of legal advice the City Solicitor and his professional staff were not answerable to anyone within the Council in respect of the content of legal advice given. I am satisfied that the City Solicitor and the professional staff of the City Solicitor's office were appropriately qualified legal practitioners, who conducted their practice with the requisite degree of independence from their employing organisation, such that legal advice given in the course of conducting their practice was capable of attracting legal professional privilege.28. In addition to the question of the independence of the legal advice provided, the applicant has suggested that privilege could not attach to the particular communications in issue because the Council was responsible for a deliberate abuse of statutory power. I discussed the exception to legal professional privilege based on crime, fraud or abuse of statutory power at paragraphs 91-95 of my decision in Re Smith. At paragraph 94, I quoted the words of Gibbs CJ in Kearney (at p.516) in which His Honour set out the initial hurdle which must be overcome by a person who asserts that the exception operates in a particular case. I reproduce that passage below: The privilege is of course not displaced by making a mere charge of crime or fraud, or, as in the present case, a charge that powers have been exercised for an ulterior purpose. This was made clear in Bullivant v Attorney-General for Victoria ([1901] AC) at pp 201, 203, 205, and in O'Rourke v Darbishire [1920] AC 581 at 604, 613-4, 622-3, 63-3. As Viscount Finlay said in the latter case [at p 604] "there must be something to give colour to the charge". His Lordship continued: "The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact. ... The court will exercise its discretion, not merely as to the terms in which the allegation is made, but also as to the surrounding circumstances, for the purpose of seeing whether the charge is made honestly and with sufficient probability of its truth to make it right to disallow the privilege of professional communications".29. In my view, the applicant's allegations of abuse of statutory power are not sufficient to deny the protection of legal professional privilege to the documents in issue. There is nothing in those documents which establishes, or even suggests, that they constitute or include communications made to further an abuse of statutory power.30. I therefore find that the six documents in issue are exempt under s.43(1) of the FOI Act.31. In his letter of 19 January 1994, the applicant asked that I consider a number of options before completely denying access, should I ultimately decide in favour of the Council. Those options were:(1) Council waive legal professional privilege;(2) full release without prejudice on condition that the documents cannot be used in any future legal action;(3) partial release with exempt sections to the documents omitted;(4) release of a report summarising the contents of the documents;(5) view documents with no copies being made available.32. In my role as Information Commissioner, I have no jurisdiction to consider the release of documents which I have found to be exempt, or to instruct the Council to grant access to any part of those documents, or to waive legal professional privilege. I note that the Council has a discretion to grant access to the documents, or parts of the documents, both within the terms of the FOI Act (see the discretion given by s.28(1) as explained at paragraphs 13-16 of my reasons for decision in Re Norman and Mulgrave Shire Council (Information Commissioner Qld, Decision No. 94013, 28 June 1994, unreported)) and outside the terms of the FOI Act (see s.14 of the FOI Act). Whether it chooses to adopt one of the courses suggested by Mr Potter is a matter for the Council.Conclusion33. For the reasons given earlier, I am satisfied that the documents in issue are exempt under s.43(1) of the FOI Act, and I affirm the decision of Mr R N Metcalfe, dated 23 June 1993, in relation to the documents in issue......................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

KBN and Department of Families, Youth & Community Care [1998] QICmr 8; (1998) 4 QAR 422 (30 June 1998)

KBN and Department of Families, Youth & Community Care [1998] QICmr 8; (1998) 4 QAR 422 (30 June 1998) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 98008Application S 95/95 Participants: "KBN" Applicant DEPARTMENT OF FAMILIES, YOUTH AND COMMUNITY CARE Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - applicant seeking access to identifying information concerning an individual identified by the applicant's birth mother as being the applicant's natural father - whether such information concerns the personal affairs of the applicant - whether such information concerns the personal affairs of the named individual - whether disclosure of the information would, on balance, be in the public interest - application of s.44(1) and s.44(2) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.5(1)(a), s.5(1)(b), s.5(1)(c), s.6, s.44(1), s.44(2), s.51, s.51(3), s.81Adoption of Children Act 1964 Qld s.39A, s.39AA(2)"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Fotheringham and Queensland Health, Re [1995] QICmr 24; (1995) 2 QAR 799Order No. 200-1997 (Information and Privacy Commissioner, Province of British Columbia, November 28, 1997, unreported)Pemberton and The University of Queensland, Re (1994) 2 QAR 293Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227 DECISION I affirm the decision under review (being the decision identified in paragraph 5 of my accompanying reasons for decision).Date of decision: 30 June 1998............................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background 1Matter in issue 2External review process 3Issue for determination 4Section 44 of the FOI Act - "Matter concerning personal affairs" 4 Whether the matter in issue is information concerning the personal affairs of a person 5 Applicability of the s.44(2) exception 5 Application of s.44(1) public interest balancing test 6 Age of the matter in issue 8 Age of the applicant 8 Incidents of history 10 The Department as the only real source of information 11 Social circumstances 11 Need to know / Right to know 13 Medical information 14 Nature of the name 14 Likelihood of search/contact 15 Effect of disclosure 16 Privacy of the named person 16 Credibility or accuracy of information (and inconsistent Departmental practice) 18 Consideration of caselaw from other jurisdictions 20 Conclusion 21Decision 21 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 98008Application S 95/95 Participants: "KBN" Applicant DEPARTMENT OF FAMILIES, YOUTH AND COMMUNITY CARE Respondent REASONS FOR DECISION Background1. The applicant seeks review of the respondent's decision to refuse her access, under the Freedom of Information Act 1992 Qld (the FOI Act), to information (recorded on documents created in connection with the applicant's birth and subsequent admission to a nursing home) which would identify the individual named by the applicant's birth mother as being the applicant's natural father.2. By letter dated 1 January 1994, the applicant sought access, under the FOI Act, to any documents held by the Department of Family Services and Aboriginal and Islander Affairs, the predecessor of the respondent (the Department), which would indicate the name of the applicant's natural father.3. In response to that application, Ms Ann Cazzulino, Senior FOI Officer with the Department's FOI Branch, advised the applicant by letter dated 23 June 1994 that the Department held one relevant file (i.e., Adoption File 753 Ad). Ms Cazzulino advised the applicant that there were two folios in that file which contained information of the type sought by the applicant, and that she had decided to grant access to those two folios (which had been numbered for identification as folios 44 and 46), subject to the deletion of small portions of matter.Ms Cazzulino's decision was that the withheld portions of matter were exempt matter under s.44(1) of the FOI Act, on the basis that the information in question concerned the personal affairs of the individual to whom it related ('the putative father'), and that its disclosure to the applicant would not, on balance, be in the public interest: The deleted material is the name of the person identified by your mother as your father. The information is private to him and without his confirmation it would not be appropriate to disclose his name. There is no record that this person substantiated his paternity. He may never have known of your mother's claim and had an opportunity to confirm it.[It is unlikely that he is still alive and consultation with surviving relatives regarding disclosure would be a breach of his personal affairs, of which they may well not be aware.]I have also considered whether a public interest exists in disclosure of the information to you. I am, however, of the opinion that it is not in the public interest to release this type of personal information to any person, without proper authority from the individuals concerned. 4. By letter dated 13 July 1994, the applicant sought an internal review of Ms Cazzulino's decision in respect of the withheld portions of folios 44 and 46. In her application for internal review, the applicant provided details which she considered were relevant in determining the question of whether disclosure to her of the matter in issue would, on balance, be in the public interest.5. The application for internal review of Ms Cazzulino's original decision was one of a number of such applications received by the Department at the same time. All of those applications for internal review were placed in abeyance while the Department conducted a review of its general policy (i.e., that which is applied by Departmental officers in their dealings with the public, apart from responding to access applications under the FOI Act) concerning the disclosure of material that would identify putative fathers. When that policy review had concluded, the Department's internal review officer, Mr D A C Smith, advised the applicant by letter dated 4 May 1995 that he had conducted the requested internal review in her case, and had decided to affirm Ms Cazzulino's initial decision (to refuse access to the withheld portions of folios 44 and 46). Enclosed with Mr Smith's letter to the applicant were his written decision and reasons for decision (6 pages), and an 'Issues Paper' (7 pages) outlining the issues relevant to the question of the public interest.6. By letter dated 12 May 1995, the applicant applied to me for review, under Part 5 of the FOI Act, of Mr Smith's decision. Matter in issue7. I consider it important, for the purposes of the discussion which follows, to describe the matter in issue in its proper context: Folio 44 is a pro forma, bearing the heading "State Children Department. "The Infant Life Protection Acts of 1905 and 1918." Roll of Nursing Home. The Roll to be Kept by each Occupier". It records information concerning the applicant's admission to, and removal from, a nursing home in 1923, and details concerning the identities of the applicant's natural parents, as provided to the proprietor of the nursing home by the applicant's birth mother at the time of the admission. Folio 46 is a pro forma, bearing the heading "State Children Department. Infant Life Protection Act". It contains information recorded by an officer of the Department in December 1922, concerning the applicant's birth mother and the putative father, as conveyed to the officer by the birth mother.The matter in issue (on both of the folios in issue) consists of the Christian name and surname of the putative father (2 words).8. For the sake of completeness, I note that the remainder of folios 44 and 46, to which the applicant was given access, disclose the following relevant details concerning the putative father: his occupation (carpenter), marital status (single), religion (Methodist), and place of residence (East Brisbane). On folio 46, in response to a pro forma question as to whether the putative father would support the applicant, the answer recorded is that he would not, and that there was no evidence of paternity. Also on folio 46, under the heading "Remarks", the departmental officer who completed the form wrote: "This girl told me she did not know[putative father's surname]'s address. I did not believe this as he is the father of her first child."External review process9. The present case is one of a number of applications for external review which have been lodged by individuals in similar circumstances to the applicant, and in which the Department has refused to grant access to identifying information concerning the putative father of the applicant for access. In view of the similarity of the issues raised by these applications,I considered it appropriate to proceed by identifying a suitable 'test case', and proceeding to make a determination in that case. Other cases (including the present application) were held in abeyance, to be determined on the basis of an application of the general principles established in the 'test case' to the particular circumstances of each of the cases held in abeyance.10. My first selection as an appropriate test case raised issues common to all of the applications, and had the advantage that the applicant was represented by solicitors, and hence was well placed to address all relevant issues. I forwarded a letter to the solicitors representing the applicant in that case, in which I canvassed at length the relevant issues as I perceived them, and expressed the preliminary view that the Department's decision appeared to be justified.I invited the applicant's solicitors in that case to lodge a written submission and/or evidence in support of their case. As it turned out, the applicant in that case decided not to contest the preliminary view I had expressed, and the application for review was withdrawn.11. I selected the present case as the alternative 'test case', since it was the earliest application made in the group of cases which raise common issues. By letter dated 12 January 1998,I conveyed to the applicant my preliminary view that the matter in issue was exempt matter under s.44(1) of the FOI Act, and my reasons for having formed that preliminary view, andI invited the applicant to lodge a written submission and/or evidence in reply.12. In early February, a member of the applicant's family telephoned a member of my investigative staff to advise that the applicant did not accept my preliminary view, and wished to lodge a written submission addressing the matters discussed in my 12 January 1998 letter to the applicant. However, on 19 June 1998, I received a letter from a solicitor who had been assisting the applicant in this matter, advising that no further submissions would be made, either by the solicitor or by the applicant herself.13. In formulating my decision and reasons for decision in this matter, I have had regard to the matters discussed in the correspondence between the applicant and the respondent (as referred to in paragraphs 2-5 above), and the applicant's 12 May 1995 application for external review. Issue for determination14. The sole issue to be determined in the present external review is whether the Department has satisfied the onus which it bears, under s.81 of the FOI Act, of establishing that the portions of folios 44 and 46 which have been withheld from the applicant, are exempt matter under s.44(1) of the FOI Act.Section 44 of the FOI Act - "Matter concerning personal affairs"15. Section 44 of the FOI Act provides (so far as relevant for present purposes):Matter affecting personal affairs 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. (2) Matter is not exempt under subsection (1) merely because it relates to information concerning the personal affairs of the person by whom, or on whose behalf, an application for access to a document containing the matter is being made.16. The s.44(1) exemption clearly extends the scope of its protection to information concerning the personal affairs of deceased persons. In applying s.44(1) of the FOI Act, one must first consider whether disclosure of the matter in issue would disclose information that is properly to be characterised as information concerning the personal affairs of a person. If that requirement is satisfied, a prima facie public interest favouring non-disclosure is established, and the matter in issue will be exempt, unless there exist public interest considerations favouring disclosure which outweigh all identifiable public interest considerations favouring non-disclosure, so as to warrant a finding that disclosure of the matter in issue would, on balance, be in the public interest.17. In my reasons for decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227,I identified the various provisions of the FOI Act which employ the term "personal affairs" and discussed in detail the meaning of the phrase "personal affairs of a person" (and relevant variations thereof) as it appears in the FOI Act (see paragraphs 79-114 of Re Stewart). In particular, I said that information concerns the "personal affairs of a person" if it concerns the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase "personal affairs", that phrase has a well-accepted core meaning which includes: family and marital relationships; health or ill-health; relationships with and emotional ties to other people; and domestic responsibilities or financial obligations.Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, based on a proper characterisation of the matter in question.Whether the matter in issue is information concerning the personal affairs of a person18. At paragraph 9 of his 4 May 1995 reasons for decision, Mr Smith stated that the name of an individual alone is not generally regarded as information concerning the personal affairs of the individual, but may be so when the name is linked with some other information of a personal nature. Mr Smith then continued:10. Because disclosure of the name would disclose more than merely a name, namely a link to his being named as the father of a child, I am prepared to accept that the matter is potentially exempt pursuant to section 44(1) in that it is information concerning the personal affairs of a person. ... [Mr Smith's emphasis]11. If the name of a person named as being the father of another person is the personal affairs of the first person, as has been concluded in this case, it could be argued that equally it is also the personal affairs of the child [in this matter, the applicant] and I make that finding.19. In Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at p.343,I acknowledged that information can concern the personal affairs of more than one person.I consider that Mr Smith was correct in his finding that the matter in issue is properly to be characterised as information which concerns the personal affairs of the putative father, and which also concerns the personal affairs of the applicant, for the purposes of s.44(1) of the FOI Act.Applicability of the s.44(2) exception20. At pp.343-345 (paragraphs 173-178) of Re "B", I explained how s.44(1) and s.44(2) of the FOI Act apply to information which concerns the personal affairs of the applicant for access, and which also concerns the personal affairs of another person. At paragraph 176 of Re "B", I said:Where ... the segment of matter in issue is comprised of information concerning the personal affairs of the applicant which is inextricably interwoven with information concerning the personal affairs of another person, then:(a) severance in accordance with s.32 [i.e., to provide access to a document subject to the deletion of exempt matter] is not practicable;(b) the s.44(2) exception does not apply [for reasons explained at paragraphs 175-176 of Re "B"]; and(c) the matter in issue is prima facie exempt from disclosure to the applicant according to the terms of s.44(1), subject to the application of the countervailing public interest test contained within s.44(1).21. I consider that analysis to be directly relevant to the present case. The matter in issue comprises information concerning the personal affairs of the putative father, inextricably interwoven with information concerning the applicant's personal affairs. Accordingly, the matter in issue is prima facie exempt from disclosure to the applicant, subject to the application of the public interest balancing test contained within s.44(1).Application of s.44(1) public interest balancing test22. The task of determining, after weighing competing interests, where the balance of public interest lies, will depend on the nature and relative weight of the conflicting public interest considerations which are identifiable as relevant in any given case. 23. I have previously explained that the range of public interest considerations which may become relevant in the application of exemption provisions which incorporate a public interest balancing test is not confined to those considerations given explicit legislative recognition in s.5 of the FOI Act (see Re Fotheringham and Queensland Health [1995] QICmr 24; (1995) 2 QAR 799 at p.809, paragraph 23). I note, however, that disclosure to the applicant of the matter in issue in folios 44 and 46 would not advance the legislative objects specified in s.5(1)(a) or (b) of the FOI Act (i.e., promoting open discussion of public affairs, enhancing government accountability, informing the community about government's operations). The only possibly applicable legislative object is that specified in s.5(1)(c): providing members of the community with access to information held by government in relation to them. 24. In her 13 July 1994 application for internal review, the applicant raised a number of specific arguments as to why the matter in issue should be disclosed to her. At paragraph 7 of his reasons for decision, Mr Smith quoted the specific points made in the internal review application which Mr Smith considered relevant to the application of the public interest balancing test:I met my natural mother [*] five years ago, she was then 93 years of age, and I was 66 years. We had discussed my birth and why I was given up for adoption, and her consequent return to live with her family at their property [*]. We discussed my father, but she could not recall his name, saying she had tried to put it all behind her. She had subsequently married [*] and had given birth to two more children [*], the same names she had given to my brother and me [*], before our adoption. Her children born after her marriage are [*]. I believe this indicated she had blotted out our existence, along with the memory of our father, with the birth of the two subsequent children.She could not remember the exact date of my birth, only that it was in December.Consider her age then 93 to 96 years. She told me my father had promised to marry her, but then after I was born, he told her he was already married.After finding [*] there developed a close bond between us and regular contact and visits were maintained up until her death in August 1993. When I made contact with my brother's adoptive family they said there was speculation in the area where they lived as to who the father was. I would rather know than speculate, my brother is now deceased and was a bachelor with no descendants.From my point of view I only wish to know what I believe is rightfully mine, the name of my parents. I do not wish to cause any distress nor make any gain other than personal fulfilment by finding the name of my father. I feel there is an anomaly in your finding which protects an adult father, most probably now deceased, but demonstrates no regard for his child [myself] now aged 71 years, or those of my three children, seven grandchildren and five great-grandchildren.[*] - segments of identifying information concerning the access applicant or her family members have been deleted.25. In his reasons for decision, and the Issues Paper attached thereto, Mr Smith identified and discussed at length a number of factors, including those raised by the applicant, which he considered were relevant to the determination of the public interest balancing test in the group of FOI access applications dealing with identifying information concerning putative fathers. Mr Smith stated that he recognised that some of the issues which he identified overlap, some balance each other out, and others arguably should be regarded as irrelevant to the question of the public interest. The factors identified and discussed by Mr Smith were: social circumstances credibility or accuracy of information departmental practice privacy age of the person age of documents need to know right to know medical history and the like incidents of history sources of information nature of the name itself likelihood of search effect of disclosure26. Mr Smith concluded that, on the particular facts of the applicant's case, there were a number of public interest factors which supported her access application: the information is of considerable age [72 years]; the applicant is of advanced age [72 years]; the social circumstances of the time; the Department is the only practical source of the information; the applicant has demonstrated a strong desire to know the information through her comments which go to her sense of personal fulfilment and relate to what she sees as her rights and the rights of her family, as against the rights of other parties. This factor is reinforced on consideration of section 6 of the FOI Act; the applicant has indicated that she only wishes to know the name, she does not wish to cause any distress or make any other gain through receiving the information.27. On the other hand, Mr Smith recognised two factors which, in his view, supported a conclusion that disclosure to the applicant of identifying information concerning the putative father would not be in the public interest: the privacy of the named person; and the credibility or accuracy of the information.28. Mr Smith also referred (at paragraph 14 of his reasons for decision) to the Department's general policy (see paragraph 5 above) on the disclosure of identifying information concerning putative fathers, which had been reaffirmed in the following terms:... identifying information regarding putative fathers only be disclosed where paternity is confirmed and provided there is no objection to disclosure and contact lodged under adoption legislation.29. Mr Smith expressed the view (at paragraphs 20-21 of his reasons for decision) that there were significant arguments as to why, in the public interest, the matter in issue should be disclosed to the applicant. However, he stated that the Departmental review of its general policy in such cases, which he had requested be undertaken in light of the factors favouring disclosure of identifying information in such cases, had resulted in the reaffirmation of the Department's policy without any material change. Accordingly, Mr Smith said that, while the policy must be considered in light of the merits of each individual case, it would be inappropriate to use the provisions of the FOI Act to effect a change in the Department's general policy, and that he was therefore constrained to apply the Department's general policy (as quoted above), to refuse access to the matter in issue. 30. In conclusion, Mr Smith noted (at paragraph 22 of his reasons for decision):This is not an entirely satisfactory conclusion of this matter and I consider there are grounds for me to refer this application and the class of applications in general to the relevant program manager in the Department for further consideration. To elaborate this view, I consider that this matter is so sensitive that it should be dealt with not through the FOI Act, but through an administrative arrangement that considers each application on its unique facts and, whether information is to be provided or denied, this is done in the context of professional services, including counselling and support.31. I shall now discuss each of the factors identified by Mr Smith in his 4 May 1995 internal review decision, and the Issues Paper attached thereto, as being relevant to the determination of where the balance of public interest lies, specifically in terms of the relative weight which I consider should be afforded to each of those factors, and where, ultimately, I consider the balance of public interest lies in the specific circumstances of the present case.Age of the matter in issue32. In flagging this issue, Mr Smith stated (Issues Paper, item 6):In many situations the sensitivity of documents reduces with age and in many situations documents are regarded as able to be destroyed or able to be publicly released after a certain period of time. ...While these records are not destroyed or available to the public because they represent someone's personal records, one view is that their sensitivity has decreased. An alternate view is that age does not decrease the sensitivity of the particular information in question.33. In Re Fotheringham, I considered the relevance of the age of documents as a factor in determining the weight to be accorded, in a particular case, to the public interest in safeguarding the privacy of personal affairs information. With respect to the age of the documents in issue in Re Fotheringham, which were medical records concerning a deceased person, recorded between the period 1919 to 1951, I stated (at p.812, paragraph 31):I accept that the age of the documents in issue is a relevant factor. Privacy concerns in respect of deceased persons may lose their potency with the passage of time, such that even sensitive personal information eventually reaches a stage where its primary interest or significance is merely historical. This is largely a question of degree. If, for example, [the deceased person whose records were sought] had died in 1852 rather than 1952, or a hundred years ago, I think that considerably less weight would be accorded to the protection of her privacy, even in respect of confidential medical records.34. As indicated previously, the documents containing the matter in issue in the present case were created in December 1922 (folio 46) and February 1923 (folio 44). Assuming thatthe putative father was at least the same age as the applicant's birth mother at the time(i.e., 26 years of age), he would (if still alive) now be more than 100 years old. However, in all the circumstances of the present case, and given the particular nature of the matter in issue, which has not been confirmed or acknowledged to be accurate, I consider that the sensitivity of that information is not diminished to any significant degree, despite the passage of some 76 years since the information was recorded. I shall consider in greater detail below (see paragraphs 70-75) the relevant considerations concerning the potential invasion of privacy of the putative father, or of members of his family (in the event that the matter in issue were to be released), which have led me to this view.Age of the applicant35. In addressing this issue, Mr Smith stated (Issues Paper, item 5) that arguments could be advanced as to the relevance, as well as the non-relevance, of the age of a particular access applicant. On one hand, Mr Smith noted, the older an access applicant is, the more likely it is that their parents are dead, making the matter in issue arguably less sensitive. In addition, recent changes to adoption legislation had enabled access applicants, in some cases, to gain access to identifying information concerning their birth mothers, but by the time the identifying information had been obtained, and the individual traced, they had already died (thus removing them as a possible source of information concerning the identity of the access applicant's natural father).36. On the other hand, Mr Smith noted that it could also be argued that the sensitivity of the matter in issue could increase over time:particularly among relatives of the person who had known the person and lived a life with that person without the information that the person has been named [rightly or wrongly] as being the father of a child they knew nothing about, and which information may not be able to be confirmed if the named person is dead.37. I consider that the age of the applicant does not, to any significant degree, affect the continuing sensitivity of the matter in issue. It is therefore not a factor which, in my view, is to be afforded any substantial weight in determining where the balance of public interest lies in the present case.Incidents of history38. This factor, according to Mr Smith's analysis (Issues Paper, item 8), is linked to the previous issue, and is related primarily to the timing of the change to Queensland's adoption legislation (which took place in the early 1990's):It is likely that a number of applicants will continue for a time to be persons of advanced years who by the time they obtain information under the adoption legislation find that their mothers are dead. The mother would have been the most likely source of information in relation to their father and should the mother be alive and apply for the information in question, namely information she gave at the time of birth of her child, she would get the information under the FOI Act without deletion. Presumably therefore the mother in those cases would most likely give this information to her child, though she could also decide to withhold it.39. Specifically in relation to the facts of the applicant's case, Mr Smith noted (at paragraphs 17 and 18 of his reasons for decision):17. The information released to the applicant under adoption law enabled her to trace her birth family and she has set out her experiences in meeting her mother and her brother's adoptive family. The applicant has also presented a possible reason why her mother did not or could not provide her with the name of her birth father. Her mother is now deceased, as is her brother. Now the Department remains the only reasonable and clearly available avenue for obtaining the information.18. There is also a note on the papers released that the same man was the father of the applicant and her brother. This raises a question of whether one should suspect that the name recorded may not be correct [the same person was named by the mother as being the father of the applicant and the father of her brother, yet she told the applicant she could not recall his name]. A further observation is that the applicant was advised as fact on 10 March, 1989 that she had a "full brother". Given the stated policy, it is of interest that this statement was based only on information given in the 1920s by the mother, unconfirmed and unacknowledged by the person named as being the father of both children.40. In his analysis concerning this issue, Mr Smith stated as a matter of general principle that a birth mother would, if alive, be able to apply for the information in question, namely information she gave at the time of birth of her child, and would get the information under the FOI Act without deletion. However, it would seem to me that a birth mother would generally have no need to apply under the FOI Act to gain access to information which she herself had supplied to the Department. Having said that, I do acknowledge that an application under the FOI Act to gain the information in issue might be appropriate in particular circumstances, in which the birth mother could not recall the information she hadprovided to the Department. (The applicant contends that hers is such a case, but the issue is hypothetical as her birth mother is now deceased, and therefore could not make such an application under the FOI Act.)41. Further, Mr Smith's analysis proceeded on the basis that, having gained access to the information in issue under the FOI Act, the child's mother could decide to withhold that information from her child, but that it was "most likely" or "more probable than not" that the mother would divulge that information to the child. In the present case, Mr Smith noted that the applicant had provided an explanation as to why her birth mother could not, or would not, provide her with the information she sought (i.e., her birth mother's stated inability to recall the information). 42. I can accept that in many situations a mother may be willing to divulge information of the type in issue to her child, given the passage of time since that information was recorded.However, I can also conceive of a number of possible scenarios in which a mother would not be amenable to disclosing that information to her child, despite the passage of time. 43. In the absence of any supporting evidence, I consider that it is impossible to presume with any degree of confidence what a mother would be "most likely" to do in such a situation.In all of the circumstances, I consider that this factor is too speculative to be deserving of any substantial weight in determining where the balance of public interest lies.The Department as the only real source of the information44. Mr Smith identified as another possibly relevant factor (and one related to the previous point) the fact that, in view of the death of the applicant's birth mother, the Department represents "the only reasonable and clearly available avenue for obtaining the information" (reasons for decision, paragraph 17). Without providing any detailed analysis on the issue, Mr Smith determined that this factor was among the group of factors which favoured disclosure of the matter in issue.45. In my view, this factor is irrelevant to the question for determination. In determining whether there are public interest considerations favouring disclosure of the matter in issue to the access applicant, which are sufficiently strong to outweigh those considerations which tell in favour of preserving the privacy of information concerning the personal affairs of the putative father, it should not matter whether or not other potential sources of that information exist (unless another existing source effectively makes the information in issue a matter of public record, in which event the weight to be accorded the relevant privacy interest will be diminished: see Re Fotheringham at pp.810-811; paragraphs 26-29).Social circumstances46. Mr Smith indicated (Issues Paper, item 1) that at the time the matter in issue was recorded, the father of a child born outside of marriage was not accorded any status in relation to the child (other than for purposes of maintenance, which was not relevant if adoption occurred).The names of putative fathers were rarely recorded on birth registration forms, and the individuals concerned were never contacted or consulted in relation to such children, and may not even have been aware of their existence.47. Further, Mr Smith stated that, at the time the matter in issue was recorded, there were certain social reasons why a mother might not want to divulge the identity of the father of a child born outside of marriage, and that there were known instances of mothers giving either the wrong name or a fictitious name when asked to state the name of the child's father, and some instances of the father's name being recorded as unknown, or the mother refusing to divulge the name of the father.48. Mr Smith correctly pointed out that both the social climate and relevant legislation, in respect of children born outside of marriage, are now much different. The person named as the father of a child is "more likely to know, is more likely to be involved and to have the opportunity of expressing his views." Referring to my reasons for decision in Re Stewart, in which I had stated (at paragraph 76) that current community standards should be applied in determining whether information concerns the personal affairs of a person, Mr Smith considered that the same approach should be applied in determining matters of public interest.49. I accept that social mores change over time, and that society's general attitude toward children born outside of marriage is, in many respects, very different from what it was at the time the matter in issue was recorded (in 1922-1923). However, I also recognise the existence of particular situations, or elements of society, in which disclosure of information that a person is stated to have fathered a child outside marriage could still be viewed as potentially damaging to the reputation or social status of the individual in question (eg., already married men, prominent public figures, clergy).50. I note that in his internal review decision, Mr Smith stated (at paragraph 14) that the existing Departmental policy on the release of identifying information concerning putative fathers is that such information "can only be disclosed where paternity is confirmed and provided there is no objection to disclosure and contact lodged under adoption legislation."51. The procedure for the lodging of an "objection to disclosure and contact" to which Mr Smith referred is that provided for in the Adoption of Children Act 1964 Qld (and specifically, Part 4A of that Act, dealing with "Access to Identifying Information"). Under s.39AA(2) of that Act, the only persons entitled to lodge an objection to disclosure of identifying information are "a birth parent of an adopted person, or an adopted person". Section 39A of that Act defines "birth parent" in terms of the person(s) whose consent to the adoption of an adopted person was given or dispensed with in accordance with the law of Queensland applicable to adoptions at the time when the adoption took place. Under the relevant law applicable in the circumstances of the present case, in the case of an illegitimate child, the consent of the child's mother (if living in Queensland) was the only consent required. Accordingly, under the relevant legislative scheme, the child's father, whether ascertained or putative, did not come within the definition of "birth parent", and hence is a person to whom the scheme for lodgment of an objection to the disclosure of identifying information would be inapplicable.Since the only relevant person who could lodge such an objection to disclosure and contact would be the birth mother, the Department's policy obviously proceeds on the assumption that a birth mother who does not object to being identified to, and contacted by, her natural child, would be prepared to disclose to the child details concerning the identity of the birth father. For the reasons stated at paragraphs 42-43 above, I do not believe that the assumption necessarily follows.Need to know / Right to know52. In recognising the relevance of an applicant's "need to know" in the class of applications under consideration before him, Mr Smith stated (Issues Paper, item 7): ...applicants have put this factor in terms of they themselves are now advanced in years and need the satisfaction of knowing the name stated to be their father before they die. In most of the applications a strong desire, even the need to know is a strong motivation (eg. "So I can feel a complete person." "Everyone else has rights but I have none even at my age; I need an identity; I am not named on either my birth mother's or adopted mother's death certificates." "Don't you think it causes stress to me.").53. In the applicant's case, Mr Smith stated (at paragraph 19 of his reasons for decision) that the applicant had demonstrated a strong desire to know the information in issue, and that he considered this to be one of the factors which favoured a finding that disclosure of that information to the applicant would, on balance, be in the public interest.54. Although not expressing a view on the "right to know" issue, Mr Smith identified it as a relevant consideration, which had some overlap with other factors (Issues Paper, item 12):One view is that there is an inherent right for a person to know who his/her parents are unless otherwise prevented by law. Does this right extend to knowing who another person with knowledge has stated is that person's parent?55. As I said in Re Stewart (at p.233, in parenthesis under point (b) of paragraph 9), the issue of whether a document falls within the terms of an exemption provision is generally to be approached by evaluating the consequences of disclosure of the document in issue to any person entitled to apply for it (pursuant to the general right of access conferred by s.21 of the FOI Act), or as is sometimes said, "to the world at large", and I noted that this general principle is appropriate because the FOI Act confers no power to control the use to which a person granted access to a document under the FOI Act will put the document or information contained in it. Although there are proper exceptions to that general principle, it has particular force in the application of s.44(1) of the FOI Act (see Re Pemberton and The University of Queensland (1994) 2 QAR 293 at pp.369-370, paragraphs 168-169).56. Nevertheless, the caselaw which I reviewed in Re Pemberton at pp.368-377 (paragraphs 164-193) establishes that, in an appropriate case, there may be a public interest in a particular applicant having access to information which affects or concerns that applicant to such a degree as to give rise to a justifiable "need to know" which is more compelling than for other members of the public. Where the exemption provision under consideration incorporates a public interest balancing test, a public interest consideration of the kind described may be taken into account, in an appropriate case.57. Similar considerations underlie s.6 of the FOI Act, although its operation is confined to documents containing matter which relates to the personal affairs of an applicant for access. Section 6 of the FOI Act provides: 6. If an application for access to a document is made under this Act, the fact that the document contains matter relating to the personal affairs of the applicant is an element to be taken into account in deciding-- (a) whether it is in the public interest to grant access to the applicant; and (b) the effect that the disclosure might have.58. The relaxation (effected by s.6 of the FOI Act) of the general principle of viewing release under the FOI Act as "release to the world at large" is ordinarily appropriate, in the case of an application for access to matter concerning the personal affairs of the access applicant, because the access applicant is ordinarily the appropriate person to exercise control over any use or wider dissemination of information (obtained under the FOI Act) which concerns the personal affairs of the access applicant. However, that rationale carries less weight where the information in issue concerns the 'shared personal affairs' of the access applicant and another individual, because in such situations each individual concerned should have a measure of control over the dissemination of information which concerns their personal affairs, and the access applicant should not be put in a position to control dissemination of information concerning the personal affairs of the other affected individual unless such an outcome would, on balance, be in the public interest.59. Nevertheless, in the present case, the fact that the information in issue concerns the applicant's personal affairs, and that her interest in obtaining access to it is more compelling than for other members of the public, are considerations which tell in favour of a finding that disclosure to the applicant would on balance, be in the public interest, and they must therefore be weighed in the balance with other competing public interest considerations.Medical information 60. Mr Smith stated (Issues Paper, item 13) that "an argument has been raised in some situations that the person needs to know details about their parents so that relevant medical information can be obtained." However, Mr Smith further noted that this argument had not been a strong factor in any of the cases considered to date, and "particularly with older people, would not seem to be particularly relevant".61. I consider that it would be a rare case in which a consideration of that kind would be entitled to any substantial weight in the application of a public interest balancing test. Any argument based upon an individual's need to establish medical history information concerning their parents presupposes the establishment of a biological link between the individual seeking information and the person identified as their parent. However, the disclosure of the matter in issue would establish nothing more than the name of an individual, which, given the absence of acknowledgment or confirmation of paternity, does not amount to proof of that person's biological relationship to the access applicant. The establishment of such a biological link, and identification of any relevant medical history details, could not be achieved with that information in isolation, but would necessitate direct contact with the person named, or other identifiable family members.Nature of the name62. Mr Smith stated (Issues Paper, item 10) that the argument raised in connection with this issue related to whether the name in issue was common, or unusual. According to Mr Smith,one point of view is that if the name which is sought (either the Christian name or the surname, or both) is a common name, then it could be released without breaching the privacy of the person named (as it would not specifically identify a particular individual).63. However, in relation to this issue, Mr Smith further stated:While it is a principle worthy of consideration, it would be unfair to a person whose named father happened to have an unusual name.My view is that this factor is not relevant, and should not affect the question of whether or not access is given to the information.64. I agree with Mr Smith's analysis, and find that the nature of the name in issue is not a relevant consideration in the application of the public interest balancing test incorporated in s.44(1).Likelihood of search/contact65. The relevant considerations which Mr Smith identified in relation to this issue (Issues Paper, item 11) were:There are some applicants where it is quite obvious that their desire and perhaps their need is to actually find a person and find that part of their life. In relation to others, their primary goal seems to be simply to know a name. Some who have obtained the name have expressed satisfaction that they have been provided with this information, that they can now rest and they have no intention of searching for the person or causing concern for anyone.Some have offered to give undertakings that they will not search for the person. That would be difficult to enforce and would probably be unfair. However, this view expressed by the applicant might be taken note of.It would be difficult to prevent a person or a relative of that person at another time searching and using the information provided to assist with that search. So, in general, this issue might not be considered as relevant to the question at hand, however, it may become relevant if a person has demonstrated such a strong likelihood of search that harassment of another person is more likely than not.66. At paragraph 19 of his reasons for decision, Mr Smith referred to the applicant's stated intentions in this regard:The applicant has indicated that she only wishes to know the name, she does not wish to cause any distress or make any other gain through receiving the information.67. However, I agree with Mr Smith's view that any undertaking not to search for the person named (or any surviving relatives) would be unenforceable in practice. I also consider that an access applicant's present stated intention not to initiate search efforts would be open to change at any time. I do not share Mr Smith's view that this issue is irrelevant to the question at hand, unless the likelihood of search is such that "harassment of another person is more likely than not". I consider that any search efforts which ultimately result in contact with the person named could have a variety of negative effects, short of harassment, which should be taken into consideration. One such negative effect, which I consider in more detail at paragraphs 74 below, is the effect which such contact may have upon not only the person named, but also on other members of his family (if any), where no biological link between that individual and the access applicant has been established.Effect of disclosure68. In addressing this issue (Issues Paper, item 14), Mr Smith stated that while there are possible negative aspects of disclosure, the possible positive aspects of such disclosure should be recognised:If adoption reunion is able to be taken as a guide, it seems more likely than not that reunion with a relative from whom there has been a long separation or even not ever known is more likely to be a positive experience.69. There is no evidence before me of the types of fact situations present in the cases referred to by Mr Smith in which adoption reunions have been positive experiences, and whether the facts of such cases are at all similar to those in the present case. Thus there is no evidence before me on which to conclude that an adoption reunion is just as likely to be a positive experience in a case such as this, in which the paternity of the putative father is unconfirmed, as in cases where the identities of both birth parents are known. Accordingly, I consider that this factor cannot be afforded any substantial weight in determining where the balance of public interest lies in the present case.Privacy of the named person70. Mr Smith stated (Issues Paper, item 4) that he considered the privacy interest of the person named to be the major consideration weighing against disclosure of the matter in issue:The major opposition to disclosure comes from the view that to do so may be an invasion of the privacy of the person named, or in the terms of the FOI Act [section 5(2)(b)], that disclosure may have a prejudicial effect on his private affairs.This view is reinforced by the issues raised above about the accuracy of the information and the view that the person named may not have been aware of the pregnancy/birth. In this regard I have noted the comments in Stewart's case that a consideration is that release of documents affects who retains the capacity to control the documents and should be regarded as release to any applicant or to the "world at large".This issue needs to be given significant weight as it is possible that action taken on being given identifying information could cause embarrassment, confusion or annoyance. It is the major issue that has to be balanced against any competing public interests.71. I agree with Mr Smith's analysis that this factor is one of the most significant considerations weighing against disclosure of the matter in issue. I consider it important to reiterate, in this regard, that the Department's own policy on the disclosure of identifying information concerning putative fathers does not permit the disclosure of such information in cases in which paternity has not been acknowledged. Presumably, the rationale for this policy is concern for the privacy rights of the person concerned, in respect of information which has not been acknowledged to be accurate. 72. As I have stated previously, it is true that the privacy interest of individuals in particular information concerning them may diminish over a period of time, and may be outweighed if there are public interest considerations of sufficient strength to warrant a finding that disclosure would, on balance, be in the public interest. However, I consider that the nature of the information in issue is such that the person(s) concerned would still have a reasonable expectation of privacy in respect of the information in question (despite the passage of time).73. Once again, I consider it important to emphasise that the putative father is identified in the context of that individual having been stated by the birth mother to have fathered a child outside marriage some 76 years ago. The only information concerning the putative father, as recorded in the documents in issue, is that provided to the Department by the applicant's birth mother. There was no contemporaneous acknowledgment of paternity by the person identified as the putative father, nor any court proceedings resulting in a declaration of paternity in respect of that individual. 74. Assuming the putative father (whose name comprises the matter in issue) to be the applicant's natural father, there is no independent confirmation that he knew about the birth mother's pregnancy, or the applicant's birth. He may already have been married (as the applicant states she was advised by her birth mother), or may have subsequently married. In either case, that individual may well have gone on to have a family, whose members do not know that the putative father had previously had a child. On the other hand, the person named could, in fact, have no biological link with the applicant, and may no longer be alive to challenge his identification as putative father. In either case, to release the individual's name now would, in my view, constitute a significant incursion into that individual's privacy. It may unfairly damage the reputation of the putative father, or assuming (as is likely) that the person named is now dead, may unfairly tarnish his memory in the eyes of surviving family members.75. For all of the above reasons, I consider that the privacy interest of the person named is a highly significant factor, which must be accorded substantial weight in determining where the balance of public interest lies in the present case.76. I consider it appropriate here to comment on the question of consultation. In his internal review decision (at paragraphs 24-27), Mr Smith commented on the question of consultation:24. Should I have been minded to release the information, before coming to a final conclusion as to whether the matter should be released I would have needed to consider the provisions of section 51(1) of the FOI Act as to whether disclosure of the matter may reasonably be expected to be of substantial concern to the person whose name the information is, or, if he is dead, to his closest relative.25. This question raises further issues for consideration in that if consultation were to proceed, the very act of consultation may breach the privacy principles involved. On the other hand, some would say that in some circumstances, the person or a relative may not reasonably be expected to have a substantial concern. Another factor in this and other like applications is that the named person is more likely to be dead and any consultation would then need to take place with the closest living relative, to which status the applicant, but for her adoption, may have a legitimate claim. 26. The age of the information also raises the question of what steps that are reasonably practicable to obtain the views of the person concerned need to be taken? 27. I consider it is possible to adequately comply with section 51(1) and that this should not be an obstacle to release of the information. However, this whole question of consultation lends weight to the conclusion reached above, that this area should be dealt with not through the FOI Act but through a sensitive administrative arrangement.77. While I accept that it may be possible to undertake a process of consultation, I consider that it would raise certain practical difficulties. As noted in the preceding excerpt from Mr Smith's internal review decision, s.51 of the FOI Act requires that an agency which proposes to give access to matter, the disclosure of which may reasonably be expected to be of substantial concern to a person, may only give access to such matter if it has first taken such steps as are reasonably practicable to obtain the views of the person concerned about whether or not the matter is exempt matter. Section 51(3) provides that "person concerned", in relation to a person who has died, means the person's closest relative.78. Undertaking such consultation in the circumstances of the present case would involve: first, making the assumption that the putative father's name, as provided to the Department by the applicant's birth mother, was not fictitious; and undertaking searches of public records such as electoral rolls, vital statistics records (register of death certificates), and telephone directory listings, in an effort to locate the person named, or the closest relative of that individual.79. In regard to the practicality of undertaking searches of the public records mentioned above,I note that: even if the name provided by the applicant's birth mother is not fictitious, there would be no way of establishing whether that individual had remained in Queensland (thus necessitating searches of interstate records); and the closest relative of a deceased person may bear a different surname than that of the deceased person.80. In addition to those practical difficulties, I agree with Mr Smith that the very act of consultation would involve a significant intrusion into the lives of persons contacted, who may in fact have no biological connection at all with the applicant. I consider that any consultation process undertaken in the present case would raise concerns about invasion of privacy, of the type which I have discussed above.Credibility or accuracy of information (and inconsistent Departmental practice)81. In his Issues Paper (item 2), Mr Smith indicated that there may be uncertainty as to whether the matter in issue is accurate, and questioned whether this issue is relevant to the application of the public interest balancing test in s.44(1). Mr Smith also stated that the Department's varying and inconsistent practice over the years, in respect of the release of such information, "may support a view that this issue should not be accorded a significant weighting".82. Mr Smith further stated (Issues Paper, item 3) that different records of the Department contain information about birth fathers or putative fathers, and in a variety of such records the information has come from a single, unconfirmed source - the mother of the child. As the Department's practice in relation to the release of such information had not been consistent, Mr Smith indicated that this raised an issue of fairness, which had been one of the reasons for seeking clarification of the Department's policy in respect of the release of such information.83. I consider that the decision as to whether information of the type presently in issue should be disclosed to a particular access applicant must be made on the basis of the specific fact situation present in that individual's case. What may appear to be inconsistent practices on the part of the Department in respect of the disclosure of such information may well reflect differing responses properly tailored to the circumstances present in individual cases. 84. As I have previously stated, while it is possible that the person named as the applicant's putative father is her natural father, it is also possible that he is not. In paragraph 15 of his internal review decision, Mr Smith stated that he had perused the relevant files, and that there was no evidence that the person named as putative father had ever acknowledged paternity, or that he had known of the pregnancy or birth. On one analysis of the facts of the present case, as recorded on the document in issue, the putative father knew of the pregnancy and birth, and had failed or refused to indicate whether he was prepared to provide for the applicant's support. On another view, the birth mother provided information concerning the putative father to the Department without his ever being aware of the pregnancy and birth.It could well be that the applicant's birth father (who may or may not be the person named on the document in issue) did not know of the applicant's birth, and was never asked to acknowledge paternity or whether he was prepared to provide for the applicant's support. 85. In the circumstances of the present case, I acknowledge that the birth mother could have genuinely been unable to recall the identity of the applicant's birth father, due to her advanced age (93 years) at the time of her reunion with the applicant. I note that at the time the information recorded on folio 46 was provided to the Department (in 1922), although expressing suspicion about the birth mother's statement that she did not know the putative father's address, the departmental officer recording the information appeared to accept the truthfulness of the birth mother's identification of the putative father. However, in my view, the officer's implicit acceptance of the birth mother's identification of the putative father cannot be taken as verification of the information provided by the applicant's birth mother, which remains uncorroborated. 86. Mr Smith mentioned, but did not comment further upon, a proposal that the matter in issue, should it be released, could be endorsed with the following qualifying statement: "the release of the name of the person named as being the child's father does not in any way confirm that the person named is the applicant's father, it is merely the name stated by the applicant's mother as being his/her father." (Issues Paper, item 2).87. The difficulty which I have with such a qualification is that it would not lessen the potential negative consequences of release for the putative father or his surviving relatives (whichI have discussed at paragraph 74 above). Further, I consider that it would not advance, in the manner contended for, any of the public interest considerations in favour of disclosure of the matter in issue. Consideration of caselaw from other jurisdictions88. My research has disclosed only one case, decided under Freedom of Information legislation, in which the central issue was the access applicant's entitlement to gain access to the name of her putative father, as recorded in records concerning the applicant held by a government agency. That decision (Order No. 200-1997, 28 November 1997, unreported), by the Information and Privacy Commissioner of the Province of British Columbia, Canada, concerned an application for review of a decision by the province's Ministry for Children and Families, to deny access to the name of the person identified in the access applicant's adoption file as being her natural father.89. In support of its decision to refuse to grant access to the information sought, the Ministry submitted that the information in issue may be inaccurate or unreliable. In support of that submission, the Ministry filed affidavit evidence in which the Supervisor of the Adoption Section of the Ministry deposed that: in her experience, it was not uncommon for birth fathers to be falsely named by birth mothers; birth mothers sometimes write letters in which they admit to falsely naming the birth father; birth fathers sometimes deny that they are the fathers during interviews (the Supervisor acknowledging that some denials are false, but that she believed many to be credible).90. With respect to this issue, the Information and Privacy Commissioner stated:... there is nothing in the adoption records which would indicate a basis for questioning the accuracy or reliability of the information concerning the birth father in this case. According to the original account of the birth mother, who is now deceased, the birth mother and father were engaged and had had a relationship of more than several years. The father was then killed in the Korean War. While I can understand, given the sensitivity of illegitimacy, that some birth mothers may develop a fictitious relationship, the depth of detail available in this adoption record concerning the father and his parents and the fact that the adoption was handled through a law firm militate against the conclusion that the information is inaccurate or unreliable. The Ministry's concern that the information may be inaccurate or unreliable is speculative.I do not consider the evidence of the Supervisor concerning her experiences with other birth parents to provide a sufficient evidentiary basis to conclude that this record is not accurate or reliable ... Without some basis to question the accuracy or reliability of the specific information contained in this adoption record, I am not prepared to conclude that the personal information is likely to be inaccurate or unreliable.91. Another factor cited by the Ministry in support of its decision to refuse access was the privacy rights of the person named; i.e., its concern "that disclosure of the information in dispute may unfairly damage the reputation of the named father among "his surviving family and friends" ". The Information and Privacy Commissioner rejected the Ministry's concern in this regard, on the basis of the detailed information recorded in the applicant's adoption records:Given that, in this case, the named individual was relatively young when he died, has likely been dead for forty-six years, there are no living siblings, the parents would be in their nineties (and therefore may not be alive) and the identities of former friends are unknown, I find that the prospects for unreasonable invasion of the privacy of the named father are extremely remote.In the result, the Information and Privacy Commissioner directed the Ministry to give the applicant access to the name of her "alleged" father.92. I consider the outcome in that case to have been justifiable on its particular facts. However, that fact situation is readily distinguishable from the circumstances of the present case.Whereas the record before the Information and Privacy Commissioner contained extensive evidence verifying the relationship between the birth mother and the individual named as the birth father, there is no evidence in the present case to corroborate the birth mother's identification of the person named as the applicant's putative father. Further, in the present case, there is no evidence that the applicant's natural father (who may or may not be the individual whose name is in issue) died young, without leaving family or friends. Indeed, as recorded at paragraph 24 above, the applicant's natural father was apparently already married at the time of his relationship with the applicant's birth mother. If so, that individual may well have descendants, or other family members, still living.93. Given the significant factual differences noted above, I find nothing in the British Columbia Information and Privacy Commissioner's analysis of the issues in the case before him which alters my assessment of the relative weight to be accorded to the various public interest considerations which I have identified as being relevant in the application of the public interest balancing test in s.44(1) of the FOI Act to the matter in issue in the present case.Conclusion94. This case calls for the exercise of judgment on some difficult issues concerning sensitive and personal matters: issues on which, I suspect, reasonable minds might well differ.I sympathise with the applicant's concern at not knowing the identity of her birth father.However, after examining all of the factors which I consider to be relevant, including the competing public interest considerations discussed in detail above, I am not satisfied that the public interest considerations which favour disclosure to the applicant of the matter in issue are strong enough to outweigh the public interest (inherent in the satisfaction of the test for prima facie exemption under s.44(1) of the FOI Act) in safeguarding the privacy of information concerning the personal affairs of a person other than the applicant for access.I am not satisfied that disclosure of the matter in issue would, on balance, be in the public interest. Accordingly, I find that the matter in issue is exempt matter under s.44(1) of the FOI Act. Decision95. For the foregoing reasons, I affirm the decision under review..........................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Jose and Queensland Police Service [2014] QICmr 7 (7 March 2014)

Jose and Queensland Police Service [2014] QICmr 7 (7 March 2014) Last Updated: 7 August 2014 Decision and Reasons for Decision Citation: Jose and Queensland Police Service [2014] QICmr 7 (7 March 2014) Application Number: 311779 Applicant: Jose Respondent: Queensland Police Service Decision Date: 7 March 2014 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - information exchanged between managers about the applicant - administration of justice - agency’s management functions - personal information and privacy - whether disclosure of the information would, on balance, be contrary to the public interest - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to a report about his employment (Report). QPS located the Report and released it in full to the applicant.[1] The applicant sought internal review on the basis that QPS had not located the two attachments mentioned in the Report. QPS subsequently located the attachments and decided[2] to release Attachment 1 and refuse access to Attachment 2. The applicant applied to the Office of the Information Commissioner (OIC) for external review of QPS’s decision to refuse access to Attachment 2. For the reasons set out below, I vary QPS’s decision and find that access to Attachment 2 may be refused under section 67(1) of the IP Act and section 47(3)(b) of the Right to Information Act 2009 (Qld) (RTI Act) on the basis that disclosure would, on balance, be contrary to the public interest under section 49 of the RTI Act. Background Significant procedural steps are set out in the Appendix. Reviewable decision In its internal review decision dated 27 August 2013, QPS indicated that it intended to make a separate healthcare decision[3] in relation to Attachment 2. As no subsequent healthcare decision was made, the decision under review is QPS’s deemed decision to refuse access to Attachment 2. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). Information in issue The information in issue is Attachment 2 which is a response provided by the applicant’s then supervisor at the request of the author of the Report.[4] Relevant law Under the IP Act, an individual has a right to be given access to documents of an agency which contain the individual’s personal information.[5] This right of access is subject to some limitations, including that an agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[6] The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. Findings Where does the balance of the public interest lie in this matter? In assessing the public interest in this matter, I have considered all of the applicant’s submissions. I am satisfied that disclosing Attachment 2 to the applicant would, on balance, be contrary to the public interest, for the reasons set out below. Irrelevant factors No irrelevant factors arise in the circumstances of this case. Factors favouring disclosure Personal information of the applicant Attachment 2 is about the applicant’s employment with QPS and is therefore his personal information;[7] this raises a public interest factor favouring disclosure.[8] Given the context in which the information was given and the particular nature of the information, the public interest in the applicant having access to his personal information is high. Transparency and accountability A public interest factor in favour of disclosure will arise where disclosure of information could reasonably be expected to enhance government accountability and provide reasons or background information for government decisions.[9] QPS has released complete copies of the Report and Attachment 1[10] to the applicant. To the extent those documents set out issues relating to the applicant’s employment and any associated recommendations made by QPS, I consider the above public interests have been significantly discharged. However, I acknowledge that these factors may be further advanced through disclosure of Attachment 2 and therefore, I afford them moderate weight in favour of disclosure. Administration of justice There are public interest factors favouring disclosure if disclosing information could reasonably be expected to contribute to the administration of justice for a person, including by providing procedural fairness.[11] The applicant contends that Attachment 2 is defamatory and that he has made a complaint of workplace bullying and victimisation through false reports. The applicant submits that Attachment 2 is required to prove his complaint. I have therefore considered whether disclosure of Attachment 2 would assist the applicant in pursuing legal action in this regard. In Willsford and Brisbane City Council[12] the Information Commissioner discussed the public interest in the administration of justice in the context of allowing a person with an actionable wrong to pursue a remedy. The Information Commissioner found that this factor can arise if an applicant demonstrates that: they have suffered loss or damage or some kind of wrong, in respect of which a remedy is, or may be, available under the law they have a reasonable basis for seeking to pursue the remedy; and disclosing the information would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available or worth pursuing.[13] On the evidence before me, I am not satisfied that the applicant has demonstrated the above elements in this matter. It is evident from the applicant’s submissions that he did not need Attachment 2 to lodge a complaint with the Anti-Discrimination Commission of Queensland as a proceeding has already been commenced. In addition, Attachment 2 comprises the opinions and observations of the author in relation to the operational capacity of the applicant. While I am unable to provide any further description of Attachment 2,[14] I am not satisfied that disclosure of this information will enable the applicant to pursue a legal remedy or evaluate whether the remedy is available. The applicant also contends that “it is in the public interest for a full and frank disclosure of all documentation relating to allegations made against [him].” I have therefore considered whether disclosure of Attachment 2 would afford the applicant procedural fairness in his dealings with QPS about his employment. The type of information contained within Attachment 2 is in the nature of a supervisor providing a superior officer with their observations of a subject officer within the workplace. This type of information can be distinguished from matters involving adverse allegations against a subject officer in the context of a workplace grievance. In that situation, procedural fairness generally requires that the substance of the allegations be put to the subject officer before, and or, during the investigation. As noted in paragraph 15, the Report and Attachment 1 have been released to the applicant and, to the extent they set out issues relating to the applicant’s employment and any associated recommendations made by QPS, I consider the public interest in relation to the administration of justice has been discharged. Having carefully considered Attachment 2, I am satisfied that its disclosure would not further the applicant’s procedural fairness in his dealing with QPS about his employment. I therefore find that the public interest factor in relation to the administration of justice does not arise here. Incorrect or misleading information A public interest factor favouring disclosure also arises where disclosure could reasonably be expected to reveal the information was incorrect or misleading.[15] The applicant argues that Attachment 2 “contains falsehoods, embellishment of facts and exaggerations and which was written in such a way to achieve the end result that [the author] desired, which was having me forced out of the QPS.” While I am prohibited from disclosing the content of Attachment 2 in the review,[16] it can broadly be described as the opinions and observations of the author in relation to the operational capacity of the applicant. On the information available to me, I am not satisfied that the QPS’s record of these opinions and observations is inaccurate or misleading. I therefore find that the public interest factor in relation to revealing that information was incorrect or misleading does not arise here. Factors favouring nondisclosure Prejudice to an agency’s management functions QPS has submitted that disclosure of Attachment 2 could reasonably be expected to prejudice its management function of QPS and cause a public interest harm by adversely affecting the management or assessment by QPS of its staff.[17] QPS has confirmed that the applicant’s supervisor was ‘fulfilling a management function of QPS when he submitted this information ...’ QPS has raised concerns that if managers knew that such information would be disclosed, they may be less cooperative in providing frank responses to their superiors. In any workplace, supervisors have a responsibility to lead and support their employees and address particular issues arising in relation to individual employees. To effectively perform these functions, supervisors must be able to openly discuss issues impacting their area of responsibility with senior management. I am satisfied that disclosing Attachment 2 could reasonably be expected to affect QPS’s management function in that supervisors may, in the future, be reluctant to candidly engage in the management of employment issues. In the circumstances of this case, I consider that significant weight should be given to these factors in favour of nondisclosure. Personal information of third party The information also contains the personal information of the applicant’s supervisor; the author of Attachment 2. This raises factors favouring nondisclosure in relation to privacy and safeguarding personal information.[18] The applicant contends that the information contained within Attachment 2 is not the “private and personal information [of the author], but is readily known to the general police population” as it is the author’s knowledge of the applicant and there is nothing in Attachment 2 which “would in any way impact adversely on [the author]”. Generally, information created in the course of a person’s employment is considered to be their routine personal work information[19] and as such, does not attract a high privacy interest and the harm arising from disclosure is considered to be low. However, I do not consider this is the case in relation to Attachment 2. Given the particular character of the information provided by the author, I am satisfied that it is not of a routine nature and the harm which could result from disclosure is high. I therefore consider that significant weight should be given to these factors in favour of nondisclosure. Balancing the public interest In this case, the factors favouring disclosure are not of insignificant weight. The applicant’s ability to access his personal information carries a high weight and the accountability and transparency factors would be somewhat further advanced by disclosure of Attachment 2. However, the factors favouring nondisclosure carry significant weight. In particular, I consider that the prejudice to QPS’s management function would be substantial if the particular type of information in Attachment 2 was disclosed. Having carefully considered all of the information available to OIC and the relevant public interest factors discussed above, I am satisfied that the factors favouring disclosure are outweighed by the factors favouring nondisclosure. Accordingly, disclosure of Attachment 2 would, on balance, be contrary to the public interest. DECISION I vary the QPS’s deemed decision and find that access to Attachment 2 may be refused on the basis that disclosure would, on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________ JS Mead Right to Information Commissioner Date: 7 March 2014 APPENDIX Significant procedural steps Date Event 8 July 2013 QPS received the access application. 25 July 2013 QPS issued a decision on the access application. 9 August 2013 QPS received the internal review application. 27 August 2013 QPS issued its internal review decision. 16 October 2013 OIC received the applicant’s application for external review and sought processing information from QPS. 23 October 2013 QPS provided copies of documents relating to the processing of the access application, the Report, Attachment 1 and Attachment 2. 30 October 2013 OIC telephoned QPS to ascertain whether a separate healthcare decision had been made. QPS advised that no healthcare decision was made. 1 November 2013 OIC asked QPS to provide a submission setting out reasons why it considered access to Attachment 2 should be refused. OIC also wrote to the applicant and advised that enquiries were being made to assist OIC in considering whether to exercise discretion to extend the time for the applicant to apply for external review. 6 November 2013 OIC received a submission from the applicant. 8 November 2013 OIC notified the applicant and QPS in writing that the external review had been accepted out of time. OIC also asked QPS to provide the submission in relation to its decision. 20 November 2013 OIC received QPS’s submission. 4 December 2013 OIC wrote to QPS and requested a further submission. 11 December 2013 OIC received QPS’s further submission. 7 February 2014 OIC wrote to the applicant conveying a preliminary view that disclosure of Attachment 2 would, on balance, be contrary to the public interest and invited him to provide a submission supporting his case. 21 February 2014 OIC received the applicant’s submission. [1] Dated 25 July 2013.[2] Dated 27 August 2013.[3] In accordance with sections 51 and 30(5) and (6) of the RTI Act.[4] Section 121 of the IP Act provides that the Information Commissioner must not, in a decision, or in reasons for a decision, on an external review, include information that is claimed to be contrary to public interest information.[5] Section 40 of the IP Act. [6] Under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act. Section 49 of the RTI Act sets out the steps to take in deciding the public interest. Schedule 4 of the RTI Act sets out various public interest factors for and against disclosure which may be relevant in deciding where the balance of the public interest lies.[7] Personal information is defined in section 12 of the IP Act as “information or an opinion... whether true or not... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion”.[8] Schedule 4, part 2, item 7 of the RTI Act. [9] Schedule 4, part 2, items 1, 10 and 11 of the RTI Act.[10] An assessment of the applicant’s performance by his supervisor during a secondment.[11] Schedule 4, part 2, item 16 and 17 of the RTI Act. [12] Willsford and Brisbane City Council (Unreported, Queensland Information Commissioner, 27 August 1996) (Willsford). [13] Willsford at paragraph 17. [14] See footnote 3.[15] Schedule 4, part 2, item 12 of the RTI Act.[16] See footnote 3.[17] Schedule 4, part 3, item 19 and part 4, section 3(c) of the RTI Act.[18] Schedule 4, part 3, item 3 and part 4, section 6(1) of the RTI Act.[19] Routine personal work information is information that is solely and wholly related to the routine day to day work duties and responsibilities of a public service officer. See OIC’s guideline Routine personal work information of public servants available on OIC’s website http://www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/processing-applications/routine-personal-work-information-of-public-sector-employees.

queensland

court_judgement

Queensland Information Commissioner 1993-

Villanueva and Queensland Nursing Council [2000] QICmr 2 (26 April 2000)

Villanueva and Queensland Nursing Council [2000] QICmr 2 (26 April 2000) Last Updated: 18 January 2006 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 02/2000 Application S 76/98 Participants: MARIA M VILLANUEVA Applicant QUEENSLAND NURSING COUNCIL Respondent A MIDWIFE MS SIMONE TALBOT DR MICHAEL GORDON Third Parties DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - documents relating to an investigation by the respondent of a complaint made by the applicant about the professional conduct of a midwife - whether disclosure of the matter in issue is prohibited by s.139 of the Nursing Act 1992 Qld - consideration of s.16 and s.48 of the Freedom of Information Act 1992 Qld. FREEDOM OF INFORMATION - refusal of access - whether disclosure could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law - application of s.42(1)(e) of the Freedom of Information Act 1992 Qld. FREEDOM OF INFORMATION - refusal of access - whether disclosure would disclose information concerning the personal affairs of the midwife - whether disclosure would, on balance, be in the public interest - application of s.44(1) of the Freedom of Information Act 1992 Qld. FREEDOM OF INFORMATION - refusal of access - whether disclosure would disclose information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information - whether disclosure would, on balance, be in the public interest - application of s.46(1)(b) of the Freedom of Information Act 1992 Qld. ii Freedom of Information Act 1992 Qld s.8, s.16, s.42(1)(e), s.43(1), s.44(1), s.46(1)(b), s.48, s.76(1), s.78(2), s.85(1), s.92(1) Freedom of Information (Review of Secrecy Provision Exemption) Amendment Act 1994 Qld Freedom of Information Act 1982 Vic s.33(1) Judicial Review Act 1991 Qld Medical Act 1939 Qld Nursing Act 1992 Qld s.103(2), s.103(4), s.103(5)(a), s.109, s.139, s.139(3) Whistleblowers Protection Act 1994 Qld s.55(1) Anderson and Australian Federal Police, Re [1986] AATA 79; (1986) 4 AAR 414 Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596; 65 ALJR 167 "B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279 Cannon and Australian Quality Egg Farms Limited, Re [1994] QICmr 9; (1994) 1 QAR 491 Director-General, Department of Families, Youth and Community Care and Department of Education; Perriman (Third Party), Re [1997] QICmr 2; (1997) 3 QAR 459 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 74 ALJR 339 Godwin and Queensland Police Service, Re [1997] QICmr 11; (1997) 4 QAR 70 Goldberg v Ng (1994) 33 NSWLR 639 Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 Griffith and Queensland Police Service, Re [1997] QICmr 13; (1997) 4 QAR 110 Kavvadias v Commonwealth Ombudsman [1984] FCA 55; (1984) 52 ALR 728 Lapidos and Auditor-General of Victoria, Re (1989) 3 VAR 343 McCann and Queensland Police Service, Re [1997] QICmr 10; (1997) 4 QAR 30 McEniery and Medical Board of Queensland, Re [1994] QICmr 2; (1994) 1 QAR 349 Ng v Goldberg (Supreme Court of New South Wales, No. 5342 of 1989, No. 4995 of 1990, Powell J, 2 March 1993, unreported) "NHL" and The University of Queensland, Re [1997] QICmr 1; (1997) 3 QAR 436 Pemberton and The University of Queensland, Re (1994) 2 QAR 293 Pope and Queensland Health, Re [1994] QICmr 16; (1994) 1 QAR 616 State of Queensland v Albietz [1996] 1 Qd R 215 Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227 "T" and Queensland Health, Re [1994] QICmr 4; (1994) 1 QAR 386 University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177 DECISION I set aside the decision under review (being the decision made on behalf of the respondent by Mr J O'Dempsey on 2 April 1998). In substitution for it, I decide that the matter in issue (as described in paragraph 23 of my accompanying reasons for decision) does not qualify for exemption from disclosure to the applicant under the Freedom of Information Act 1992 Qld, except for the following information which I find is exempt matter under s.44(1) of the Freedom of Information Act 1992 Qld - (a) the 26th-32nd words appearing in the final paragraph on page 1 of document 6; (b) the first full sentence appearing on page 2 of document 6; (c) the 5th-9th words of the fifth sentence, and the last eight words of the seventh sentence, as contained in the first paragraph appearing under the heading "Our client's nursing experience" in document 8. Date of decision: 26 April 2000 ......................................................... F N ALBIETZ INFORMATION COMMISSIONER TABLE OF CONTENTS Page Background ................................................................................................................. 1 External review process .............................................................................................. 2 Matter in issue ............................................................................................................. 5 Submission that s.139 of the Nursing Act prohibits disclosure of the matter in issue 6 Application of s.42(1)(e) of the FOI Act ..................................................................... 11 Application of s.43(1) of the FOI Act ......................................................................... 13 Application of s.44(1) of the FOI Act ......................................................................... 14 Public interest balancing test ............................................................................. 19 Application of s.46(1)(b) of the FOI Act .................................................................... 19 (a) matter of a confidential nature ..................................................................... 20 (b) that was communicated in confidence .......................................................... 20 Submissions of the midwife, the QNC and the QNU .................................... 21 Submissions of Ms Talbot ........................................................................... 25 Submissions of Dr Gordon .......................................................................... 27 (c) the disclosure of which could reasonably be expected to prejudice the future supply of such information ................................................................ 30 Submissions of the midwife, the QNC and the QNU .................................... 30 Submissions of Ms Talbot ........................................................................... 33 Submissions of Dr Gordon .......................................................................... 33 Public interest balancing test ............................................................................. 35 Conclusion ................................................................................................................... 37 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 02/2000 Application s 76/98 Participants: MARIA M VILLANUEVA Applicant QUEENSLAND NURSING COUNCIL Respondent A MIDWIFE MS SIMONE TALBOT DR MICHAEL GORDON Third Parties REASONS FOR DECISION Background 1. The applicant seeks review of the decision of the Queensland Nursing Council (the QNC) to refuse her access, under the Freedom of Information Act 1992 Qld (the FOI Act), to certain documents and parts of documents that relate to a complaint which the applicant made to the QNC about the professional conduct of a midwife. 2. On 22 December 1994, the applicant gave birth to a stillborn baby at Ipswich General Hospital. The birth took place under the supervision of a registered midwife employed by the Hospital. While it is not necessary for the purposes of this decision to discuss in detail the events surrounding the birth, I should note that it is clear from the material before me that the applicant believes that her baby was alive at the time the applicant was admitted to the Hospital's Maternity Unit. The applicant believes that the actions of the midwife during the delivery caused or contributed to the baby's death. 3. On 3 January 1997, the applicant lodged a complaint with the QNC regarding the midwife's actions during the delivery of the applicant's baby. The QNC has responsibility under the Nursing Act 1992 Qld for regulating compliance by Queensland nurses with proper standards of professional conduct. A person aggrieved by the conduct of a nurse, midwife et cetera is entitled to make a written complaint to the QNC, and the QNC may cause an investigation to be conducted into the conduct of the nurse, midwife et cetera. At the conclusion of its 2 investigation, the QNC must decide whether there is substance to the complaint and whether any further action should be taken in respect of the complaint. 4. The QNC conducted an investigation of the applicant's complaint under the Nursing Act, which included interviewing the applicant and the midwife, and others present in the maternity unit on the day in question, as well as obtaining expert opinion regarding the midwife's actions during the delivery. At the conclusion of its investigation, the QNC decided that the midwife's actions did not contribute to the death of the applicant's baby, and therefore decided not to bring a disciplinary charge against the midwife under the Nursing Act. 5. By application dated 2 January 1998, the applicant applied to the QNC for access under the FOI Act to: Records, information, reports, etc, in full, in relation to the investigation undertaken by Mrs Lisa Harrison - Nurse advisor - investigator appointed by the QNC regarding the conduct of [the midwife]. ... Complaint made to the QNC - 3 - January 1997 concerning conduct of [the midwife] during management of the labour and delivery of my baby (stillborn) on 22 December 1994. - Documents held by the QNC. 6. By letter dated 5 March 1998, Ms S Henry, the QNC's FOI Coordinator, advised the applicant that she had decided to give the applicant access to a number of documents falling within the scope of the applicant's FOI access application, but that she had decided that other documents were exempt from disclosure, in whole or in part, under s.43(1) or s.46(1)(b) of the FOI Act. On 26 March 1998, the applicant wrote to the QNC seeking internal review of Ms Henry's decision. Mr J O'Dempsey, Executive Officer of the Council, conducted the internal review and, by letter dated 2 April 1998, informed the applicant that he had decided to affirm Ms Henry's decision. 7. By letter dated 22 May 1998, the applicant applied to me for review, under Part 5 of the FOI Act, of Mr O'Dempsey's decision. External review process 8. Copies of the matter in issue were obtained and examined. The midwife who was the subject of the applicant's complaint to the QNC was informed of my review, and, through her solicitors (Roberts & Kane) she applied for, and was granted, status as a participant in this review, in accordance with s.78(2) of the FOI Act. 9. On 29 June 1998, I wrote to the applicant to advise her that I had formed the preliminary view that some of the matter in issue qualified for exemption under s.43(1) of the FOI Act - legal professional privilege. The applicant accepted my preliminary view in that regard, and that matter is no longer in issue in this review. 10. Also on 29 June 1998, I wrote to the QNC to convey my preliminary view that one document claimed by the QNC to be exempt from disclosure under s.43(1) of the FOI Act did not qualify for exemption under that provision. I also conveyed my preliminary view that, on the basis of the material then before me, the bulk of the matter in issue claimed to be exempt from disclosure under s.46(1)(b) of the FOI Act did not appear to qualify for exemption under that provision. So that I could give detailed consideration to the QNC's claim for exemption under s.46(1)(b), I asked the QNC, and the officer who conducted the investigation into the 3 complaint lodged by the applicant with the QNC (a Ms Harrison) to provide me with written submissions/evidence in relation to a number of matters concerning the investigation. 11. Mr O'Dempsey responded on behalf of the QNC by letter dated 7 July 1998. He declined to provide the submissions/evidence I had requested due to the expense which he contended would be involved in preparing that material, in addition to the fact that Ms Harrison was absent on maternity leave. Mr O'Dempsey stated that, while the QNC did not resile in any way from its reliance upon s.43(1) and s.46(1)(b) of the FOI Act, it now also wished to rely on s.42(1)(e) of the FOI Act in claiming exemption from disclosure in respect of the matter in issue. Mr O'Dempsey also made a number of observations regarding the QNC's investigative procedures. 12. I responded to the matters raised by Mr O'Dempsey in a letter to the QNC dated 23 July 1998. I expressed the preliminary view that none of the matter in issue qualified for exemption under s.42(1)(e) of the FOI Act. I also addressed a number of the issues raised by Mr O'Dempsey regarding the procedures followed by the QNC in conducting investigations of complaints. 13. Mr O'Dempsey then requested a meeting with the case officer in charge of the preliminary investigation in this review. That meeting took place on 28 August 1998 and was attended by the QNC's solicitor. As part of the purpose of the meeting was to discuss the matter in issue, and the application to it of the relevant exemption provisions relied upon by the QNC, it was not possible to invite the applicant to attend that meeting. As a result of the meeting, Mr O'Dempsey stated that, while the QNC was not prepared to withdraw its claim for exemption, it would give consideration to preparing a summary of the QNC's findings regarding its investigation into the midwife's conduct, and to providing the applicant with a copy of that summary, in an effort to give the applicant some more information regarding the QNC's findings. That summary was provided to the applicant (with the midwife's consent) during the course of the review; however, the applicant indicated that she nevertheless wished to continue to pursue access to the matter in issue. 14. On 4 September 1998, I wrote to the midwife's solicitors to convey to them my preliminary view that the bulk of the matter in issue did not qualify for exemption from disclosure to the applicant under the FOI Act. In the event that the midwife did not accept my preliminary view, I invited her solicitors to lodge written submissions and/or evidence in support of her case for exemption of the matter in issue. 15. In response, the midwife's solicitors advised me that their client did not accept my preliminary view. They provided a 25 page submission, dated 1 October 1998, in support of their client's claim that the matter in issue qualified for exemption under s.44(1) and s.46(1)(b) of the FOI Act. They also argued that there was a secrecy provision contained in the Nursing Act which prohibited disclosure of the matter in issue. 16. By letters dated 18 January 1999, the Deputy Information Commissioner wrote to two third parties who are referred to in the matter in issue - Ms Simone Talbot and Dr Michael Gordon - in order to advise them of my review, and to ascertain whether or not they objected to the disclosure to the applicant of the matter in issue which concerned them. Ms Talbot was, at the time of the relevant incident, a student nurse at the Ipswich General Hospital's Maternity Unit, and was present during the birth of the applicant's baby. Dr Gordon is an Obstetrician and Gynaecologist who was approached by the QNC to give his opinion of the midwife's 4 actions during the delivery of the applicant's baby. He also provided a reference for the midwife, which comprises part of the matter in issue. 17. Both Ms Talbot and Dr Gordon advised that they objected to the disclosure to the applicant of the matter in issue which concerned them. Both lodged written submissions in support of their claims for exemption under s.46(1)(b) of the FOI Act. In addition, the Queensland Branch of the Australian Medical Association (the AMA) and the National Association of Specialist Obstetricians & Gynaecologists (NASOG) both lodged written submissions in support of Dr Gordon's objection to disclosure. 18. I also consulted with another Obstetrician and Gynaecologist who is briefly referred to in the matter in issue as having expressed an oral opinion regarding the midwife's conduct, and who also provided the midwife with a reference (which comprises part of the matter in issue) - Dr Gilroy. Dr Gilroy advised that he did not wish to participate in my review and that he would accept my decision regarding whether or not the matter in issue which concerned him, qualified for exemption under the FOI Act. 19. On 23 February 1999, I received a written submission from the Queensland Nurses' Union (the QNU) in support of the midwife's objection to disclosure of the matter in issue. The QNU also stated that it had grave concerns that disclosure of the matter in issue would adversely affect all nurses - not only nurses who are the subject of complaint to the QNC, but any nurse who is requested to provide information, opinions or references for the purpose of a QNC investigation. 20. Copies of all submissions were provided to the applicant for response. She provided a number of separate responses to the various submissions, and copies of those responses were provided to the QNC, the midwife's solicitors, Ms Talbot and Dr Gordon. None of those participants elected to lodge any material in reply. On 1 June 1999, the applicant wrote to me to advise that she had recently reviewed my 5th and 6th Annual Reports and that she had identified a number of cases discussed in those reports which she believed involved issues similar to the issues involved in this review. She then listed the cases which she considered were of relevance to my decision. 21. In summary, the submissions received from the various participants which I have taken into account in reaching my decision in this matter are as follows: (a) letter from the QNC dated 7 July 1998 and letter from the QNC's solicitors dated 5 October 1998 (the substance of which I communicated to the applicant in my letter dated 28 January 1999), and the applicant’s submission in reply dated 4 March 1999; (b) the midwife's submission dated 1 October 1998 and the applicant’s submission in reply dated 9 March 1999; (c) the submission of the QNU dated 23 February 1999 and the applicant’s submission in reply dated 4 March 1999; (d) the submission of Dr Michael Gordon dated 11 March 1999; (e) the submission of the Queensland Branch of the AMA dated 3 March 1999 (lodged in support of Dr Gordon’s case); (f) the submission of NASOG dated 30 March 1999 (lodged in support of Dr Gordon’s case); (g) the submission of Ms Simone Talbot dated 12 March 1999; (h) the applicant’s submission dated 23 April 1999 in reply to (d) to (g) above. 5 22. Unfortunately, I have gained little assistance from the submissions which the applicant lodged in support of her case for disclosure of the matter in issue. In those submissions she discussed, at length, the medical procedures that were performed on her on the day in question, and provided technical information of a medical nature regarding those procedures. I have advised the applicant that submissions and information of that type are not relevant to the issues I am required to determine in this review. I do not have jurisdiction to decide whether or not the midwife's actions were negligent. My jurisdiction is limited to a consideration of the matter in issue and a decision as to whether or not that matter qualifies for exemption under the FOI Act. Matter in issue 23. The matter in issue in this review consists of the following documents: · Documents claimed to be wholly exempt from disclosure: Document Number Description of Document 5 Letter dated 19 May 1997 from Roberts & Kane to QNC. 6 Transcript of interview with midwife. 8 Letter dated 7 August 1997 from Roberts & Kane to QNC with enclosures: · Reference by Dr Kevin Gilroy (Obstetrician & Gynaecologist) · Reference by Diane Wiseman (Registered midwife) · Reference by Dr Michael Gordon (Obstetrician & Gynaecologist). 9 Draft statement of Simone Talbot (unsigned). 11 Statement of Dr Michael Gordon dated 15 September 1997. 12 Final investigation report by Lisa Harrison (Nurse Adviser) dated 30 September 1997. · Document claimed to be partially exempt from disclosure: Document Number Description of Document 13 Letter dated 13 October 1997 from Lisa Harrison to Roberts & Kane with enclosure: · Outline of final investigation report by Lisa Harrison (Nurse Adviser) dated 13 October 1997. 24. The exemption provisions relied upon by the various participants who object to disclosure of the matter in issue are s.42(1)(e), s.43(1), s.44(1) and s.46(1)(b) of the FOI Act. In addition, the midwife's solicitors claim that s.139 of the Nursing Act is a secrecy provision which, notwithstanding the operation of s.16 and s.48 of the FOI Act, prohibits disclosure of the matter in issue under the FOI Act. If that claim were to be accepted, such that I were to find that disclosure of the matter in issue to the applicant is prohibited by s.139 of the Nursing Act, it would be unnecessary for me to consider the application to the matter in issue of the particular exemption provisions relied upon. Accordingly, I will deal with the secrecy claim under s.139 first. 6 Submission that s.139 of the Nursing Act prohibits disclosure of the matter in issue 25. Section 139 of the Nursing Act provides: Confidentiality of documents and information 139.(1) In this section-- "court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions; "person to whom this section applies" means a person who is, or has been-- (a) a member of the Council or a committee of the Council; or (b) a member of the Committee; or (c) an employee of the Council; or (d) a person performing functions or exercising powers under, or for the purposes of, this Act; "produce" includes permit access to; "protected document" means a document that was made or obtained by a person as a person to whom this section applies, and includes a document seized, a copy of a document made, or an extract of a document taken, under this Act; "protected information" means information that was disclosed to, or obtained by, a person as a person to whom this section applies. (2) A person to whom this section applies must not-- (a) make a copy of, or take an extract from, a protected document; or (b) make a copy of protected information; or (c) whether directly or indirectly, disclose or make use of a protected document or protected information; unless the person does so-- (d) in the performance of the person's functions or the exercise of the person's powers under, or in relation to, this Act; or (e) otherwise under or for the purposes of this Act. 7 Maximum penalty--100 penalty units or imprisonment for 6 months. (3) A person to whom this section applies is not required-- (a) to disclose protected information to a court; or (b) to produce a protected document in court; unless it is necessary to do so for the purpose of carrying this Act into effect. 26. Section 16 of the FOI Act provides: 16.(1) This Act is intended to operate to the exclusion of the provisions of other enactments relating to non-disclosure of information. (2) Subsection (1) has effect subject to section 48 (Matter to which secrecy provisions of enactments apply). 27. Section 48 of the FOI Act provides: 48.(1) Matter is exempt matter if its disclosure is prohibited by an enactment mentioned in the Schedule 1 unless disclosure is required by a compelling reason in the public interest. (2) Matter is not exempt under subsection (1) if it relates to information concerning the personal affairs of the person by whom, or on whose behalf, an application for access to the document containing the matter is being made. 28. The Nursing Act is not listed in Schedule 1 to the FOI Act. 29. Notwithstanding s.16 of the FOI Act, which provides that the FOI Act is intended to operate to the exclusion of the provisions of other enactments relating to non-disclosure of information (but subject to the application of s.48 of the FOI Act which makes special provision in respect of a select group of statutory secrecy provisions, of which s.139 of the Nursing Act is not one), the midwife's solicitors have argued that s.139 of the Nursing Act has the effect of prohibiting disclosure of "protected documents" or "protected information" otherwise than under the Nursing Act: Schedule 1 [to the FOI Act] sets out the ten statutes to which s.48 applies and the Nursing Act is not included in this list. Both the FOI Act and the Nursing Act date from 1992. However, the FOI Act was assented to (the last action in the legislative process) on 19 August 1992. The Nursing Act was assented to some three and a half months later on 30 November 1992. Accordingly, the Nursing Act is later legislation. In terms of documents generated by the Council, the provisions of s.139 of the Nursing Act constitutes more specific legislation than the combined operation of ss.16 and 48 of the FOI Act. Where there is an inconsistency between the two legislative approaches, a later more specific Act is capable of repealing pro tanto the earlier legislation. See Enman v Enman [1942] SASR 131. One needs to consider, therefore, whether the two legislative 8 provisions can be read together and whether the later Act is in fact inconsistent with the more general provisions of the FOI Act. This will depend to some extent on the construction of the definitions contained in s.139 [of the Nursing Act]. ... 30. I do not accept the submission by the midwife's solicitors as set out above. The first flaw in their submission is that the present form of s.48 of the FOI Act was enacted in 1994 (i.e., after Parliament enacted s.139 of the Nursing Act), after a thorough review of secrecy provisions in Queensland legislation and a careful assessment of those which should be accorded special status under an amended s.48 of the FOI Act. The position was explained in the preamble to the Freedom of Information (Review of Secrecy Provision Exemption) Amendment Act 1994 Qld as follows: Parliament's reasons for enacting this Act are-- 1. In order to balance openness against legitimate claims for secrecy in the interest of people about whom the Government holds information and in the public interest, the Freedom of Information Act 1992 (the "FOI Act") allows exemptions from access to certain matters. 2. Section 48 of the FOI Act makes matter exempt if it falls within the terms of a specified type of secrecy provision (a "section 48 secrecy provision") and its disclosure would, on balance, be contrary to public interest. 3. The exemption in section 48 operates only for 2 years from the FOI Act's date of assent on 19 August 1992. 4. On a reference from the Government, the Queensland Law Reform Commission has reviewed existing secrecy provisions in Queensland legislation identified by Government departments. 5. The purpose of the review was to-- (a) identify section 48 secrecy provisions; and (b) recommend whether the exemption from access given by each section 48 secrecy provision should continue. 6. As a result of its review, the Commission recommended that the exemption from access given by the section 48 secrecy provision in certain Acts should continue. 7. The Parliament of Queensland accepts the recommendation. ... 31. The Queensland Law Reform Commission (the QLRC) had expressed the view that s.139 of the Nursing Act did not come within the terms of s.48 of the FOI Act as originally enacted, and did not recommend that it be given special status under an amended s.48 of the FOI Act by inclusion in the proposed new Schedule 1 to the FOI Act. The Legislative Assembly decided to act in accordance with the views expressed by the QLRC. Had the Legislative 9 Assembly intended that s.139 of the Nursing Act should take precedence over the right of access to documents of the QNC conferred by s.21 of the FOI Act, it would have included s.139 of the Nursing Act in Schedule 1 to the FOI Act. 32. I do not accept that it was Parliament's intention that the careful provision made by s.16 and s.48 of the FOI Act could be overridden by any piece of legislation enacted subsequent to the FOI Act which contains a secrecy provision, unless that intention appeared in the clearest of terms from the language employed in the subsequently enacted piece of legislation. The purpose of including Schedule 1 in the FOI Act was to allow Parliament to make special provision for the operation, within the scheme of the FOI Act, of selected statutory secrecy provisions, through the application of s.48(1) of the FOI Act, and not simply to permit a secrecy provision, contained in legislation enacted thereafter, to override the provisions of the FOI Act. Parliament's intent in that regard has been made clear by the fact that Schedule 1 to the FOI Act has been amended on various occasions since it was first enacted, so as to include additional statutory secrecy provisions, i.e., Parliament has specifically turned its mind to which secrecy provisions warrant protection of their operation within the access scheme provided for in the FOI Act (by having the benefit of the operation of s.48 of the FOI Act) and has included those secrecy provisions in Schedule 1 to the FOI Act. For example, s.55(1) of the Whistleblowers Protection Act 1994 Qld has been added to Schedule 1 since that Schedule was first enacted. 33. In any event, the argument put by the midwife's solicitors fails on the proper construction of the terms of s.139 of the Nursing Act, which is a secrecy provision of a type quite common in Queensland legislation, being designed to prohibit officers of a specified government agency from disclosing (otherwise than in the course of, or for the purposes of, discharging their duties of office), or taking personal advantage of, information obtained in the performance of their duties of office. Such provisions are not designed to restrict dissemination of information by an agency where that is necessary or appropriate in carrying out the functions of, or discharging legal duties and obligations imposed on, the relevant government agency or its officers. It is important to note that the terms of s.139 of the Nursing Act expressly cast their duties of non-disclosure on individual officers/employees who fall within the definition of "person to whom this section applies", not on the QNC itself. Yet it is the QNC, as a body corporate established by the Nursing Act, which is subject to the disclosure obligations imposed on agencies (as defined in s.8 of the FOI Act) by the FOI Act. Section 139 of the Nursing Act is concerned with the discipline or integrity of officers of a government agency, and not with an agency's compliance with its obligations under the FOI Act (see Kavvadias v Commonwealth Ombudsman [1984] FCA 55; (1984) 52 ALR 728). 34. Accordingly, I find that s.139 of the Nursing Act does not operate to prohibit disclosure of the matter in issue by the QNC under the provisions of the FOI Act. 35. The midwife's solicitors also argued that s.139(3) is of relevance to the issues before me: In addition, "Court" is defined by s.139(1) very broadly so as to include any Tribunal, authority or person having power to require the production of documents or the answering of questions. It is suggested that the Information Commissioner comes within that definition and so disclosure pursuant to the FOI Act is also excluded by the provisions of s.139(3) of the Nursing Act. 10 36. Section 139(3) relates to production of documents by officers of the QNC to a court, tribunal, et cetera. It does not apply to or affect the disclosure of documents to applicants for access under the FOI Act. I note that the QNC did not seek to rely upon s.139(3) to refuse to produce for my inspection for the purposes of this review, copies of the matter in issue. Nor do I consider that that course of action would have been open to it in reliance upon s.139(3). Section 76(1) of the FOI Act provides: 76.(1) The commissioner may require the production of a document or matter for inspection for the purpose of enabling the commissioner to determine-- (a) whether the document or matter is exempt; or (b) if a document in the possession of a Minister is claimed by the Minister not to be an official document of the Minister - whether the document is an official document of the Minister. 37. Section 85(1) of the FOI Act provides: 85.(1) If the commissioner has reason to believe that a person has information or a document relevant to a review under this division, the commissioner may give to the person a written notice requiring the person-- (a) to give the information to the commissioner in writing signed by the person or, in the case of a body corporate, by an officer of the body corporate; or (b) to produce the document to the commissioner. 38. Section 92(1) of the FOI Act provides: 92.(1) No obligation to maintain secrecy or other restriction on the disclosure of information obtained by or given to agencies or Ministers, whether imposed under an enactment or a rule of law, applies to the disclosure of information to the commissioner for the purposes of a review under this part. 39. I consider that s.92(1) was deliberately framed in such broad terms to indicate that there should be no restriction on the disclosure (by agencies or Ministers) of documents or information to the Information Commissioner, for the purposes of a review under Part 5 of the FOI Act. That is consistent with the clear intention of the Parliament, apparent on the proper construction of Part 5 of the FOI Act, that the Information Commissioner should "stand in the shoes" of the agency whose decision is under review, for the purpose of undertaking a full review of the merits of that agency's decision, with full access to all relevant information that was available to that agency. 40. I will now deal with the application to the matter in issue of the various exemption provisions in the FOI Act that have been relied upon by the participants. 11 Application of s.42(1)(e) of the FOI Act 41. Section 42(1)(e) of the FOI Act provides: 42.(1) Matter is exempt matter if its disclosure could reasonably be expected to-- ... (e) prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law); ... 42. The correct approach to the interpretation and application of this exemption provision was explained in Re "T" and Queensland Health [1994] QICmr 4; (1994) 1 QAR 386. The object of s.42(1)(e) is to provide a ground for refusing access to information, where disclosure of the information could reasonably be expected to prejudice the effectiveness of lawful methods and procedures employed by government agencies undertaking law enforcement activities. 43. In its letter dated 7 July 1998, the QNC raised the issue of the application of s.42(1)(e) of the FOI Act to the matter in issue, but did not address the requirements of the exemption provision, nor did it identify the lawful method or procedure the effectiveness of which, it contended, could reasonably be expected to be prejudiced by disclosure of the matter in issue. I communicated to the QNC my preliminary view that the matter in issue does not qualify for exemption under s.42(1)(e). In their letter dated 5 October 1998, the QNC's solicitors advised that while their client did not withdraw its reliance upon s.42(1)(e), it had no further submissions to make in relation to its claim for exemption under s.42(1)(e). 44. At p.393 (paragraphs 23-24) of Re "T", I stated: 23. There is a diverse group of government agencies in Queensland performing law enforcement functions directed towards preventing, detecting, investigating or dealing with contraventions or possible contraventions of the law. Each agency will have developed (and will probably continue to develop and refine) methods and procedures to assist in the performance of its particular law enforcement responsibilities. Some methods and procedures may depend for their effectiveness on secrecy being preserved as to their existence, or their nature, or the personnel who carry them out, or the results they produce in particular cases. It is not possible to list the types of methods or procedures which may qualify for protection under s.42(1)(e) of the FOI Act. Each case must be judged on its own merits. The question of whether or not the effectiveness of a method or procedure could reasonably be expected to be prejudiced by the disclosure of particular matter sought in an FOI access application, is the crucial judgment to be made in any case in which reliance of s.42(1)(e) is invoked. 24. There may be cases where the disclosure of particular matter will so obviously prejudice the effectiveness of law enforcement methods or procedures that the case for exemption is self-evident, but ordinarily in a review under Part 5 of the FOI Act it will be incumbent on an agency to 12 explain the precise nature of the prejudice to the effectiveness of a law enforcement method or procedure that it expects to be occasioned by disclosure, and to satisfy me that the expectation of prejudice is reasonably based. I will ordinarily not be able to refer in my reasons for decision to the precise nature of the prejudice, nor in many cases to the nature of the relevant methods or procedures (where that would subvert the reasons for claiming an exemption in the first place) but I will, in any event, need to be satisfied that the agency has discharged its onus under s.81 of the FOI Act of establishing all requisite elements of the test for exemption under s.42(1)(e) of the FOI Act. 45. The only types of investigative methods or procedures which appear to have been adopted by Ms Harrison in investigating the applicant's complaint consisted of interviewing, or otherwise obtaining written information from, the various people involved in the incident in question (i.e., the midwife, the applicant and her husband, Ms Talbot, et cetera), and from other midwives and medical practitioners; and reviewing relevant documentary evidence such as hospital notes and medical records. On the information before me, I am unable to see how the effectiveness of any of those methods or procedures could reasonably be expected to be prejudiced by disclosure of the matter in issue. They are routine methods of investigation, used by law enforcement/investigative agencies on a regular basis. 46. In Re Anderson and Australian Federal Police [1986] AATA 79; (1986) 4 AAR 414, Deputy President Hall of the Commonwealth AAT said (at p.425): Questions of prejudice are, I think, more likely to arise where the disclosure of a document would disclose covert, as opposed to overt or routine methods or procedures. 47. In Re Lapidos and Auditor-General of Victoria (1989) 3 VAR 343, Deputy President Galvin of the Victorian AAT said (at p.352): Document No. 14 identifies certain methods or procedures but of so patently an ordinary and fundamental kind as to preclude the conclusion that disclosure of them would or would be reasonably likely to prejudice their effectiveness. 48. At p.394 (paragraph 30) of Re "T", I said: Obviously, the method used by law enforcement agencies of gathering information in relation to an investigation from as many sources as possible, the evaluation of that information and the placement of it on the agencies' records is a fundamental and overt method, the disclosure of which would not prejudice its effectiveness in the future. 49. I therefore find that none of the matter in issue qualifies for exemption under s.42(1)(e) of the FOI Act. 13 Application of s.43(1) of the FOI Act 50. Section 43(1) of the FOI Act provides: 43.(1) Matter is exempt matter if it would be privileged from production in a legal proceeding on the ground of legal professional privilege. 51. The s.43(1) exemption turns on the application of those principles of Australian common law which determine whether a document, or matter in a document, is subject to legal professional privilege. In brief terms, legal professional privilege attaches to confidential communications between lawyer and client made for the dominant purpose of seeking or giving legal advice or professional legal assistance, and to confidential communications made for the dominant purpose of use, or obtaining material for use, in pending or anticipated legal proceedings: see Esso Australia Resources Ltd v Commissioner of Taxation (1999) 74 ALJR 339. 52. The QNC claims that parts of Ms Harrison's final report (document 12) are exempt from disclosure to the applicant under s.43(1) of the FOI Act. That report was sent to the QNC's solicitors under cover of a letter dated 1 October 1997, with a request for advice in relation to certain matters in connection with the investigation and the report. (The applicant accepted my preliminary view that the covering letter from the QNC to its solicitors qualified for exemption under s.43(1) of the FOI Act, and that letter is therefore no longer in issue in this review.) In my letter to the QNC dated 29 June 1998, I had expressed the preliminary view that the report itself did not qualify for exemption under s.43(1). I also pointed out to the QNC the fact that it had disclosed to the applicant parts of the outline of Ms Harrison's report (document 13) and that some of the information contained in that outline was identical to the information contained in the report itself. I therefore expressed the preliminary view that, even if I were to be satisfied that the final report was subject to legal professional privilege, it was arguable that the QNC had waived its right to claim privilege at least over those parts of the report which had already been disclosed to the applicant in the form of document 13. 53. In its response dated 7 July 1998, the QNC stated that it accepted that it had waived legal professional privilege in respect of those parts of Ms Harrison's report which had already been disclosed to the applicant, but that it did not otherwise "resile in any way from its reliance upon s.43(1)". In their letter dated 5 October 1998, the QNC's solicitors advised that their client had no further submissions to make in support of the claim for exemption under s.43(1). 54. I am not satisfied, on the material before me, that Ms Harrison's final report dated 30 September 1997 was brought into existence for the dominant purpose of seeking or obtaining legal advice from the QNC's solicitors, or for the dominant purpose of use in pending or anticipated legal proceedings, so as to attract legal professional privilege and qualify for exemption under s.43(1) of the FOI Act. Rather, I consider that the report was brought into existence primarily to comply with the requirements of s.103(5)(a) of the Nursing Act. Section 103 of the Nursing Act deals with the conduct of an investigation by the QNC, and the appointment of an inspector to conduct the investigation (in this case, Ms Harrison). Section 103(4) provides that the inspector must give the person who is the subject of the complaint full particulars of the complaint, and must provide that person with an opportunity, during the course of the investigation, to make a formal submission to the inspector. Section 103(5) provides: 14 103.(5) The inspector must give3/4 (a) to the Council - a written report, in reasonable detail, of findings and opinions based on the findings, in relation to the complaint; and (b) to the person who is the subject of the complaint - a written outline of the report and general particulars of findings adverse to the person. 55. Accordingly, I find that document 12 was brought into existence for the dominant purpose of complying with the requirements of s.103(5)(a) of the Nursing Act. I accept that a copy of the report was sent by the QNC to its solicitors for advice about certain matters, but I do not accept that that was the dominant purpose for which the report was brought into existence. 56. I therefore find that no part of document 12 attracts legal professional privilege, or exemption from disclosure under s.43(1) of the FOI Act. Application of s.44(1) of the FOI Act 57. Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. 58. In applying s.44(1) of the FOI Act, one must first consider whether disclosure of the matter in issue would disclose information that is properly to be characterised as information concerning the personal affairs of a person. If that requirement is satisfied, a prima facie public interest favouring non-disclosure is established, and the matter in issue will be exempt, unless there exist public interest considerations favouring disclosure which outweigh all identifiable public interest considerations favouring non-disclosure, so as to warrant a finding that disclosure of the matter in issue would, on balance, be in the public interest. 59. In my reasons for decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, I identified the various provisions of the FOI Act which employ the term "personal affairs", and discussed in detail the meaning of the phrase "personal affairs of a person" (and relevant variations thereof) as it appears in the FOI Act (see pp.256-257, paragraphs 79-114, of Re Stewart). In particular, I said that information concerns the "personal affairs of a person" if it concerns the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase "personal affairs", that phrase has a well-accepted core meaning which includes: · family and marital relationships; · health or ill health; · relationships and emotional ties with other people; and · domestic responsibilities or financial obligations. 15 60. Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, to be determined according to the proper characterisation of the information in question. 61. The midwife claims that all of the matter in issue concerns her personal affairs and therefore is prima facie exempt from disclosure under s.44(1) of the FOI Act. In their submission dated 1 October 1998, the midwife's solicitors argued (at p.12): ... The circumstances pertaining to [the midwife] are very different to those considered in State of Queensland v Albietz [1996] 1 Qd R 215 and a number of other cases discussed by the Information Commissioner. In State of Queensland v Albietz, the names of the departmental officers were only relevant because they were acting as public employees. The same applies to the police officers considered by the New South Wales Court of Appeal in Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606. In one sense, because [the midwife] was employed by a government hospital, her duties as a midwife or nurse could be seen to be those of a public employee. This might be particularly applicable if her personal affairs were discussed in a document relating to the financial administration, for example, of the Ipswich Hospital. In reality, the documents [in] question came into existence and contained information relating to her employment and other aspects of her life through a complaint made against her in a purely personal capacity. If she had been employed by a nursing home or by a private hospital and she were the subject of a complaint under the Nursing Act, very similar documents would have come into existence and the considerations arising with regard to those documents would be no different to those which arise in the present case. The Nursing Act provides for a series of complaints and investigations against nurses acting in a professional but purely private capacity. This is very different to the position of public servants or police officers whose names are recorded in documents because they are carrying out a public role. The documents in question relate to [the midwife's] general experience as a nurse but more particularly to her actions on a particular day in her employment as a midwife. These matters have no public element at all except to the extent that nurses, like other [professions] whose practitioners act in a purely private capacity may be subject to a statutory scheme by which complaints may be made and their actions investigated. 62. I do not accept the correctness of the distinction sought to be made in the above-quoted passage. I do not consider there to be any doubt that the matter in issue relates to or arises from the midwife's employment by the Ipswich General Hospital as a midwife, and her performance of her duties as a midwife. In my decision in Re Pope and Queensland Health [1994] QICmr 16; (1994) 1 QAR 616, after reviewing relevant authorities (at pp.658-660), I expressed the following conclusion at p.660 (paragraph 116): 16 Based on the authorities to which I have referred, I consider that it should now be accepted in Queensland that information which merely concerns the performance by a government employee of his or her employment duties ... is ordinarily incapable of being properly characterised as information concerning the employee's "personal affairs" for the purposes of the FOI Act. 63. The general approach evident in this passage was endorsed by de Jersey J of the Supreme Court of Queensland in State of Queensland v Albietz [1996] 1 Qd R 215 at pp.221-222. 64. In reviewing relevant authorities in Re Pope, I specifically endorsed the following observations concerning s.33(1) (the personal affairs exemption) of the Freedom of Information Act 1982 Vic, made by Eames J of the Supreme Court of Victoria in University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177 at p.187: The reference to the "personal affairs of any person" suggests to me that a distinction has been drawn by the legislature between those aspects of an individual's life which might be said to be of a private character and those relating to or arising from any position, office or public activity with which the person occupies his or her time. 65. While the passage quoted in paragraph 62 above refers specifically to government employees (because of the particular context in which that case was decided), I did not intend the general point (that an individual's employment affairs cannot ordinarily be characterised as part of his/her personal affairs) to be confined to government employees as distinct from private sector employees, and I note that the comments by Eames J quoted immediately above are not confined to government employees. I consider that information concerning the performance by an individual of his/her business, professional or employment affairs does not concern the private aspects of his/her life, and hence cannot ordinarily be characterised as information concerning his/her personal affairs. Thus, while I do not consider that it is in any relevant sense accurate for the midwife's solicitors to assert that their client was acting in a "professional but purely private capacity" or that "these matters have no public element at all" (the midwife was clearly a public sector employee, employed by a public hospital and remunerated from public funds), my approach to the initial question of characterisation under s.44(1) would have been no different if the midwife had been employed by a private hospital. 66. In Re Stewart (at pp.261-264), I acknowledged that employment-related matters provide many instances of information that inhabits the rather substantial 'grey area' at the boundaries of what is encompassed within the phrase "personal affairs of a person" (and relevant variations thereof) as used in the context of the FOI Act. In Re Stewart (at p.261, paragraph 92), I said that there is a relevant distinction to be drawn in respect of matters that relate to an employee as an individual, rather than to an employee as an agent or representative of the employer, and that some matters in the former category may fall within the meaning of the phrase "personal affairs". Where an allegation of intentional misconduct in the course of employment becomes an issue, that grey area between personal affairs and employment affairs (discussed in Re Stewart at pp.261-264) is encountered: see Re "NHL" and The University of Queensland [1997] QICmr 1; (1997) 3 QAR 436 at paragraph 29. However, an allegation of negligent performance by an employee of his or her duties of employment clearly concerns that individual's employment affairs, rather than his/her personal affairs. 67. I do not accept that information concerns the personal affairs of an employee merely because it relates to the investigation of a complaint made against the employee arising out of the 17 performance of his/her duties of employment. In some cases, it may be that the conduct of the employee bears no relationship to the performance or misperformance of his or her employment duties, but can be said to concern the private aspects of his or her life, and thus to concern his or her personal affairs. However, where a disciplinary investigation relates to conduct which occurred in the performance of the employee's duties of employment, information relating to the incident and the subsequent investigation cannot generally be said to concern the personal affairs of the employee: see Re Griffith and Queensland Police Service [1997] QICmr 13; (1997) 4 QAR 110, where I said (at paragraphs 51-53): I consider that conduct of a public sector employee which occurs in the course of performing his or her employment duties is properly to be characterised as part of the employee's employment affairs rather than his or her personal affairs, even in respect of conduct alleged or proven to involve misconduct or a breach of discipline. For example, I consider that a police officer who arrests and interrogates a suspect is performing his or her duties of employment, and if that conduct is alleged or proven to have involved excessive force and therefore to have involved misconduct or a breach of discipline, I consider that the conduct nevertheless remains part of the police officer's employment affairs, not his or her personal affairs. Conduct which occurs in the workplace or through opportunities presented by a person's employment duties, but does not occur in the course of actually performing employment duties, raises more difficult questions of characterisation. For example, a person who engages in conduct amounting to sexual harassment, even though it occurs in the workplace, is not actually performing his or her duties of employment when engaged in such conduct. In a case which involved the difficult question of characterising conduct of that kind, I decided that an individual's sexual conduct, and relations with others, had a sufficiently strong element of the personal about it, that it was properly to be characterised as concerning the individual's "personal affairs": see Re "NHL" at paragraph 29. Other kinds of misconduct that take advantage of opportunities presented by a person's employment duties, but do not involve the actual performance of employment duties, also involve difficult questions of characterisation: for example, an employee who for personal gain (e.g., selling of information to a private investigator) conducts unauthorised computer searches to obtain personal information about others from his agency's information databases. Arguments could be mounted either way as to whether conduct of this kind should be properly characterised as part of the employee's personal affairs or employment affairs, though I tend to favour the latter. Of course, the disciplinary process itself is an incident of the employment relationship, and an employee's involvement in the disciplinary process must, in my opinion, be properly characterised as an aspect of his or her employment affairs, rather than his or her personal affairs. However, there would remain an issue as to whether mention of the employee's name in connection with some alleged or possible (but still unproven) wrongdoing is properly to be characterised as information concerning the employee's personal affairs. In my opinion, it cannot ordinarily be characterised in that way where the impugned conduct occurred in the course of the performance by the employee of his or her duties of employment. 18 68. In respect of the paragraph quoted immediately above, it appears from their submission dated 1 October 1998 that the midwife's solicitors contend that the QNC's investigation, under the Nursing Act, of the complaint made against the midwife is not an incident of the employment relationship between the midwife and the Ipswich General Hospital, because all nurses in Queensland, regardless of where they are employed, are subject to the provisions of the Nursing Act and to the jurisdiction of the QNC in the conduct of an investigation if a complaint is made against them. Hence, the midwife's solicitors argue that the complaint made to the QNC against the midwife, and the QNC's investigation of that complaint, do not arise as an incident of the midwife's employment by the Ipswich General Hospital, but rather by virtue of the fact that she is a member of the nursing profession, and that they therefore are matters concerning the midwife's personal affairs. 69. While I acknowledge that there is a distinction between the situation in Re Griffith (where the matter in issue related to an internal investigation by the Queensland Police Service of an officer's conduct) and the situation in the present case, where the investigation in question was conducted by a statutory body charged with regulating compliance by Queensland nurses with proper standards of professional conduct, I do not accept that the midwife's involvement in the investigation by the QNC is properly to be characterised as a matter concerning her personal affairs. In my view, it is the subject matter of the investigation and the nature of the information generated in respect of it, rather than the identity or constitution of the body conducting the investigation, which is of primary importance when characterising the nature of the matter in issue. I am satisfied that the QNC's investigation of the applicant's complaint against the midwife related to an incident which occurred during the course of the midwife's performance of her duties of employment. All of the documents in issue were created as part of the disciplinary procedures laid down by the Nursing Act, to which the midwife was subject as an incident of her employment in Queensland as a nurse. I consider that the complaint made against the midwife, and the QNC's investigation of that complaint (as discussed in the matter in issue) are properly to be characterised as information concerning the employment affairs of the midwife, rather than as information concerning her personal affairs. 70. Having said that, I consider that a small amount of the matter in issue in document 6 (the transcript of interview of the midwife), and in document 8, is properly to be characterised as information concerning the personal affairs of the midwife, rather than her employment affairs. I find that, in the final paragraph appearing on page 1 of document 6, the 26th-32nd words of that paragraph, which deal with aspects of the midwife's family relationships, comprise information which is properly to be characterised as information concerning the midwife's personal affairs, and which is therefore prima facie exempt from disclosure under s.44(1) of the FOI Act. Similarly, I find that the first full sentence appearing on page 2 of document 6 comprises information which is properly to be characterised as information concerning the midwife's personal affairs. In respect of the first paragraph appearing immediately under the first heading in document 8, I find that the 5th- 9th words of the fifth sentence, and the last eight words of the seventh sentence, comprise information which is properly to be characterised as information concerning the personal affairs of the midwife, rather than her employment affairs. With respect to the application of the public interest balancing test incorporated in s.44(1), in light of the personal nature of the information in question, and the fact that it has no relevance to the applicant's complaint against the midwife, I am unable to identify any public interest considerations weighing in favour of the disclosure of that matter to the applicant. I therefore find that that matter is exempt from disclosure to the applicant under s.44(1) of the FOI Act. 19 Public interest balancing test 71. I have found that the bulk of the matter in issue must be characterised as information concerning the midwife's employment affairs rather than her personal affairs, and that it therefore does not qualify for exemption from disclosure under s.44(1). Even if that matter was properly to be characterised as information concerning the personal affairs of the midwife, it would still be necessary to consider the application to that matter of the public interest balancing test incorporated in s.44(1). I will discuss the public interest balancing test in detail below, in the context of my discussion of the application to the matter in issue of s.46(1)(b) of the FOI Act. For reasons which I will explain, I consider that disclosure of the matter in issue to the applicant would, on balance, be in the public interest. 72. I find that, with the exception of the matter described in paragraph 70 above, the matter in issue does not qualify for exemption under s.44(1) of the FOI Act because it cannot properly be characterised as information concerning the midwife's personal affairs and because, in any event, its disclosure to the applicant would, on balance, be in the public interest. Application of s.46(1)(b) of the FOI Act 73. Section 46(1)(b) of the FOI Act provides: 46.(1) Matter is exempt if3/4 ... (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest. 74. The elements of the test for exemption under s.46(1)(b) of the FOI Act are considered in detail in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at pp.337-341 (paragraphs 144-162). In order to establish the prima facie ground of exemption under s.46(1)(b) of the FOI Act, three cumulative requirements must be satisfied: (a) the matter in issue must consist of information of a confidential nature; (b) that was communicated in confidence; (c) the disclosure of which could reasonably be expected to prejudice the future supply of such information. 75. If the prima facie ground of exemption is established, it must then be determined whether the prima facie ground is displaced by the weight of identifiable public interest considerations which favour the disclosure of the particular information in issue. 76. Each of the participants in this review who objects to the disclosure of the matter in issue which concerns them, contends that such information is exempt under s.46(1)(b) of the FOI Act. I will discuss in turn each of the requirements of s.46(1)(b), and the submissions of the various participants in relation to those requirements. 20 (a) matter of a confidential nature 77. I said in Re "B" that in order to satisfy the first requirement for exemption under s.46(1)(b), the matter in issue must consist of information of a confidential nature (i.e., which has the requisite degree of relative secrecy or inaccessibility: see Re "B" at pp.337-338, paragraph 148; and at pp.304-310, paragraphs 64-73). 78. I have noted above that some of the matter in issue in document 12 has already been disclosed to the applicant in document 13. Accordingly, I am not satisfied that all of the matter in issue is confidential information vis-à-vis the applicant. However, for the purposes of the following discussion, I will proceed on the basis that all of the matter in issue satisfies the first requirement for exemption under s.46(1)(b). (b) that was communicated in confidence 79. I discussed the meaning of the phrase "communicated in confidence" in paragraph 152 of Re "B" as follows: 152 I consider that the phrase "communicated in confidence" is used in this context to convey a requirement that there be mutual expectations that the information is to be treated in confidence. One is looking then for evidence of any express consensus between the confider and confidant as to preserving the confidentiality of the information imparted; or alternatively for evidence to be found in an analysis of all the relevant circumstances that would justify a finding that there was a common implicit understanding as to preserving the confidentiality of the information imparted. 80. The test inherent in the phrase "communicated in confidence" in s.46(1)(b) requires an authorised decision-maker under the FOI Act to be satisfied that a communication of confidential information has occurred in such a manner, and/or in such circumstances, that a need or desire, on the part of the supplier of the information, for confidential treatment (of the supplier's identity, or information supplied, or both) has been expressly or implicitly conveyed (or otherwise must have been apparent to the recipient) and has been understood and accepted by the recipient, thereby giving rise to an express or implicit mutual understanding that the relevant information would be treated in confidence (see Re McCann and Queensland Police Service [1997] QICmr 10; (1997) 4 QAR 30 at paragraph 34). 81. There is no clear evidence before me to suggest that Ms Harrison provided any of the relevant persons whom she contacted in the course of her investigation, and who are referred to in the matter in issue (e.g., the midwife, Ms Talbot, Dr Gordon, Dr Gilroy et cetera), with an express assurance that the information they provided would be treated in confidence as against the applicant (whose complaint Ms Harrison was investigating). There is a reference in the middle of page 13 of the transcript of interview between Ms Harrison and the midwife (document 6) to a discussion regarding the confidentiality of information provided to Ms Harrison, but its meaning and scope, or the question of what information it was intended to refer to, are unclear to me from a reading of the paragraphs immediately preceding the reference. Neither the QNC or the midwife has sought to clarify the scope of, or to rely upon, that reference as a ground for arguing that Ms Harrison provided the midwife with an express assurance of confidentiality. The QNC simply advised that Ms Harrison unfortunately could not recall discussing the issue of confidentiality with any of the persons 21 whom she interviewed during the course of her investigation. It stated, however, that it understood that the midwife intended making a submission to the effect that she understood the information she provided to Ms Harrison was communicated in confidence. 82. Accordingly, on the information before me, I am not satisfied that Ms Harrison gave an express assurance to any of the persons from whom she obtained information during the course of her investigation that the information would be treated in confidence as against the applicant. In the absence of evidence demonstrating the existence of such an express assurance of confidential treatment, it is necessary to consider whether, having regard to all of the relevant circumstances, an implicit mutual understanding existed that the information those persons provided to Ms Harrison would be treated in confidence by Ms Harrison and the QNC, and, if so, the scope or extent of the understanding of confidence. The assessment must be made according to what could reasonably have been understood and expected, in all the relevant circumstances, including the known purpose for which the information was supplied. 83. I will deal firstly with the submissions made by the midwife, the QNC and the QNU on this point. Submissions of the midwife, the QNC and the QNU 84. The QNU submitted that it was its understanding that during the investigation phase, all information gathered by the QNC was of a confidential nature (it did not state on what grounds it based that understanding) and that it was not until a charge was preferred against a nurse (which did not occur in this case) that such information entered the public forum. 85. The midwife submitted that the information she provided to Ms Harrison was communicated on the basis of an implied understanding of confidence. In support of that claim, the midwife's solicitors submitted that the statutory context in which an investigation is conducted under the Nursing Act, particularly with regard to the matters provided for in s.139, "is such as to constitute the information contained in the documents under consideration of a confidential nature". They further submitted: ... One should also take into account the fact that the details of the information relate to [the midwife's] work as a health professional. The disclosure of information with regard to patients is confined by ethical requirements applying to all health professionals [in] a very close and small sphere. Even though the applicant is the patient in the present circumstances, one is looking at the nature of the information and the circumstances of disclosure to the investigator and the Council. Such information with regard to the treatment of a patient would not normally be disclosed to a third party and it would be held to be confidential between the health professional and the patient. These are matters of very significant importance to be taken into account in considering first, whether the information is of a confidential nature and, second, whether the communication to the investigator and to the Council was a communication in confidence. It is submitted that no reasonable decision maker would fail to conclude that both aspects were satisfied in the present circumstances. 22 86. I accept that health professionals are under an obligation of confidence regarding information provided to them by their patients and are ordinarily prohibited from disclosing that information to third parties without the patient's consent. I accept that there would have been a mutual understanding that the information supplied by the midwife to Ms Harrison would be treated in confidence as against the world at large (because it is medical information about the applicant). But the issue for consideration here is whether it was implicitly understood that the information would be treated in confidence as against the applicant. As the midwife's solicitors themselves have acknowledged, in this case it is the patient herself who is seeking access to the information in question. It is not a question of disclosing the information to a third party, where I acknowledge that very different considerations would apply. 87. As to the midwife's solicitors' submission regarding the statutory context in which an investigation under the Nursing Act is conducted, and the matters provided for in s.139 of the Nursing Act, I do not accept (for the reasons explained at paragraph 33 above) that s.139 purports to regulate the maintenance of obligations or understandings of confidential treatment that are binding on the QNC in respect of information conveyed to the QNC. In its terms, s.139 binds officers of the QNC, and not the QNC itself, and binds them not to disclose "protected" information or documents (i.e., any information or documents provided to an officer, rather than merely confidential information) acquired through holding office with the QNC, otherwise than for the purposes of the Nursing Act. As I stated above, it is a secrecy provision of a type quite common in Queensland legislation. I do not accept that it was designed to restrict dissemination of information where that is necessary or appropriate in carrying out the functions of, or discharging legal duties and obligations imposed upon, the QNC or its officers. Whether particular information communicated to the QNC is exempt under s.46(1)(b) of the FOI Act will depend on whether, having regard to all of the relevant circumstances, the requirements for exemption under that provision are satisfied. 88. The issue which I must decide under this limb of s.46(1)(b) is whether, at the time the midwife communicated the information in question to the QNC, there existed an implicit mutual understanding that the information would be treated in confidence as against the applicant. Clearly, both parties to the communication now submit, in the face of the applicant's FOI access application, that such an implicit understanding existed. However, it is necessary for me to examine the relevant circumstances that existed at the time the communication took place and to decide whether those circumstances warrant a finding that such an understanding of confidence existed at the relevant time. 89. The midwife was being interviewed as part of a disciplinary investigation which was instigated as a result of a complaint made against her by the applicant. In my view, she ought reasonably to have appreciated the possibility that Ms Harrison might consider it appropriate, for example, to put to the applicant, for response, those parts of the midwife's account of events which were inconsistent, in material respects, with the applicant's account of events (see the discussion at paragraph 49 of Re Godwin and Queensland Police Service (1997) 4 QAR 70). That is an ordinary investigative technique commonly used by investigators to try to clarify factual disputes between material witnesses to an investigation. I do not think it is unreasonable to expect that the midwife ought to have anticipated that as a possibility. I also think that the midwife ought reasonably to have appreciated that the QNC might decide that the evidence gathered by Ms Harrison warranted the laying of disciplinary charges against her, in which case a hearing (potentially a public hearing) was 23 likely to be held, with Ms Harrison required to give evidence about her investigation, and with her final report, in all likelihood, comprising part of the evidence before the QNC's Professional Conduct Committee. 90. Even if the midwife anticipated that disciplinary charges would not be laid against her, I consider that she should reasonably have expected that the QNC would or may need to disclose details of the investigation in order to give a proper account to the applicant/complainant of the manner in which it carried out its statutory functions in relation to the complaint, the outcome of the investigation, and the reasons for that outcome. The QNU has argued that information gathered during an investigation should be kept confidential unless and until a charge is preferred against the person being investigated, at which time the information will enter the public forum. But if that were the case, in a situation where no charge is preferred (i.e., the complaint is, in effect, dismissed with no disclosure of the evidence/information relied upon in reaching that decision) how is the person who made the complaint to know whether or not the investigation was conducted fairly, whether or not the QNC took into account all relevant information during its investigation and interviewed all relevant witnesses, and whether the QNC's findings were reasonable in all the circumstances? 91. At paragraph 93 (page 319) of Re "B", I said: Thus, when a confider purports to impart confidential information to a government agency, account must be taken of the uses to which the government agency must reasonably be expected to put that information, in order to discharge its functions. Information conveyed to a regulatory authority for instance may require an investigation to be commenced in which particulars of the confidential information must be put to relevant witnesses, and in which confidential information must ultimately have to be exposed in a public report or perhaps in court proceedings. 92. I acknowledge that the applicant has been provided with partial access to the outline of Ms Harrison's final report (document 13) but I note that those parts of the report which have been withheld from the applicant basically comprise the direct evidence/submissions which the midwife or her solicitors provided to Ms Harrison regarding the events surrounding the birth of the applicant's baby. As I see it, the applicant has, in effect, been denied access to the midwife's version of the events which occurred that day. As it is clear that the QNC took such information into account in deciding to take no further action against the midwife, it is difficult to see how an adequate explanation of the QNC's decision could totally exclude such matter. 93. I accept that what is required to accord procedural fairness in any given case may vary according to the circumstances of the particular case. However, the line of authority established by the High Court in cases such as Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 indicates that the duty to accord procedural fairness is not confined to the subject of a disciplinary investigation. In my view, a complainant to a regulatory authority has a "right, interest or legitimate expectation" in having his/her complaint properly dealt with by the regulatory authority, which would ordinarily be sufficient to attract a duty to accord procedural fairness to the complainant (although the precise requirements of procedural fairness would have to be worked out according to the particular circumstances and exigencies of each individual case). The QNC's own published document, "Complaints Concerning Conduct" (November 1993), states (at paragraph 3.1): "The complaints function 24 of the Council includes the assurance of a person's rights through natural justice. This applies to the person who makes the complaint and to the person who is the subject of the complaint." The same document states that a complainant will be advised of the actions to be taken by the QNC in regard to the report of an investigator (paragraph 6.2), has the right to be advised of the QNC's decision in regard to the complaint (paragraph 3.3.2), is entitled to be represented by legal counsel or a nominated agent if a charge is referred to the Professional Conduct Committee (paragraph 8.5), and has the right to be advised of the outcome of a matter referred to the Professional Conduct Committee (paragraph 3.3.3). 94. I note the comments of Toohey J of the High Court of Australia in Goldberg v Ng (1995) [1995] HCA 39; 185 CLR 83 at pp.110-111, where His Honour said of the conduct of the New South Wales Law Society in purporting to accept responses to a complaint (which complaint it later dismissed) from the subject of the complaint, on the basis that the responses would be treated in confidence as against the complainant: Arguably, the Society did not afford natural justice to Mr Ng [the complainant] in dismissing the complaint without informing him of the material provided by Mr Goldberg [the subject of the complaint] and of the part (if any) it played in that dismissal. 95. In his judgment at first instance, Ng v Goldberg (Supreme Court of New South Wales, No. 5342 of 1989, No. 4995 of 1990, Powell J, 2 March 1993, unreported), Powell J said: With respect to those who hold another view, I cannot accept that it is necessary to the effective operation of the Law Society's complaints investigation system that it be conducted "under the constraints of strict confidence" - which seems as if it operates only in one direction anyway, for the complaint, of necessity, must be disclosed to the solicitor - and, still less am I persuaded that the practice which the Law Society apparently has adopted ensures that the system works effectively. The reasons for the doubts which I have just expressed are readily to be found in the facts of the present case. ... whatever be the truth of the matter, the fact that, without disclosing Mr Goldberg's reply to Mr Ng so that he might comment upon it, and, if it be possible, provide further material to demonstrate its falsity, if it be false, the Complaints Committee felt able to dismiss the complaint on the ground that "there is no evidence ..." leaves me with no great confidence in either the Complaints Committee's understanding of its role, or its ability to fulfil that role. 96. An appeal against Powell J's judgment was unanimously dismissed by the New South Wales Court of Appeal in Goldberg v Ng (1994) 33 NSWLR 639, with both Kirby P (at pp.647- 649) and Clarke JA (at pp.678-679) making comments supportive of the abovequoted remarks of Powell J. 97. I can see no obvious reason why the concerns expressed by Powell J at first instance, by Kirby P and Clarke AJ in the NSW Court of Appeal, and by Toohey J in the High Court of Australia, about the complaint-handling practices of the regulatory authority for the solicitors' profession in New South Wales do not readily transpose to the complaint-handling practices of the regulatory authority for the nursing profession in Queensland. 25 98. In its submission dated 7 July 1999, the QNC attempted to argue that it was not subject to the requirements of procedural fairness in the conduct of its investigations: With respect, you seem to be under a misapprehension that the Council is in some way beholden to a complainant as if the Council has a responsibility to demonstrate to a complainant that the Council has properly investigated a matter. There is no requirement under the Nursing Act for the Council to tell a complainant anything about its investigations or, indeed, of its decision whether or not to prefer a charge. ... In the next paragraph of your letter on page 6 [my 'preliminary views' letter to the QNC dated 29 June 1998] you say that it is "arguable" that there is a public interest on accountability grounds for the Council to disclose information concerning its investigation. I respectfully reject such a contention. ... Your suggestion of the Council having to justify its decision arising from an investigation would add an unnecessary, and indeed a totally unjustifiable, burden on the Council. ... 99. I consider that the QNC's comments above are not only inconsistent with its own published statement of procedures (see paragraph 93 above) but demonstrate the want of a full understanding of the public purposes for which it has been given a statutory function/duty of investigating complaints from members of the public about the conduct of registered nurses. The QNC has a duty to justify the decision which it reaches at the end of an investigation - such a duty is fundamental to all law enforcement/regulatory bodies charged by statute with the responsibility of maintaining, on behalf of the community and in the interests of public health and safety, sufficient standards of competence and professional conduct by the professionals which the body has been established to regulate. The QNC is accountable to both the public generally and to the complainant specifically, to demonstrate that it discharged its duty to conduct an adequate and fair investigation of the complaint made to it, and that the decision that it reached at the conclusion of the investigation was fair and reasonable in all the circumstances. 100. For the reasons given above, I am not satisfied, having regard to all of the relevant circumstances attending the communication of information by the midwife to the QNC, that those circumstances support a finding that there existed an implicit mutual understanding that the information would be treated in confidence as against the applicant. Accordingly, I find that the second requirement for exemption under s.46(1)(b) is not satisfied in respect of that information. Submissions of Ms Talbot 101. The matter in issue which concerns Ms Talbot is a draft statement (document 9) which Ms Harrison apparently prepared after speaking with Ms Talbot on the telephone. As I stated above, Ms Talbot was a student nurse who was present during the delivery of the applicant's baby. She has stated that she was not aware that the information she provided over the telephone to Ms Harrison would be incorporated into a statement; that, had she known that, she would have sought legal advice before speaking to the QNC; and that the draft statement was never forwarded to her by the QNC and that she was unaware of its existence until the applicant made her FOI access application. She stated as follows in her submission dated 12 March 1999: 26 It is my submission that the information I provided to Ms Harrison of the Queensland Nursing Council was communicated in confidence. I note that in order to satisfy this requirement there must be a mutual expectation that the information be treated in confidence. It is my understanding that the Nursing Act Qld 1992 makes no provision that the complainant be provided with a written report of findings and opinions. Therefore, there was no requirement for the Queensland Nursing Council to disclose to the complainant the confidential information provided by me. At the time I provided the information to the investigating officer I was not informed that it would be disclosed to the complainant. It was evident to me that the Queensland Nursing Council did not intend to disclose this information to the complainant and that the information would be used for the purpose of the investigation only and at no time did I ever expect that it would be released to the complainant. Furthermore, it is also my understanding that it is only when the Queensland Nursing Council is satisfied that there is substance to the complaint that they may prefer a charge against a nurse and refer the matter to the Professional Conduct Committee for hearing and determination. It is only then that the information is brought into the public arena. Prior to this the information is confidential. ... 102. In Re McCann at paragraph 48, I acknowledged that there exist factors which may, in a particular case, inhibit a witness from providing an investigatory body with information relevant to the investigation. I also discussed those factors at paragraph 50 of Re McEniery and Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349. I appreciate that, for example, for reasons of loyalty, persons may not wish to provide information to the investigator which may be adverse to the interests of a colleague under investigation; that they simply may not wish to get involved in the investigation and have their time taken up by that involvement; or that they may fear harassment, intimidation, retribution, or threats to, for example, their livelihood or personal safety, if they cooperate with the investigator. Factors of those kinds may be evident in a particular case, and may warrant a finding that there existed an implicit mutual understanding between a source of information, and the relevant regulatory or law enforcement agency, to the effect that the identity of the source, and/or the information supplied by the source, would be treated in confidence so far as practicable, consistent with the use of that information for the purposes of the agency's investigation and the prosecution of any charges stemming from the investigation. 103. However, as a material witness to the events in question, with no complaints made by the applicant about her conduct during the delivery of the baby, and apparently no other risk of detriment being suffered by Ms Talbot in the event that she decided to cooperate with Ms Harrison's investigation, I am satisfied that Ms Talbot's interests were not under threat as a result of the investigation. I note that s.103(2) of the Nursing Act provides that a person does not incur civil liability for the disclosure to an inspector of information or documents relating to the person the subject of the complaint. Further, there is nothing to suggest that the information which Ms Talbot provided could be considered adverse to the midwife's interests, or that she was reluctant to provide Ms Harrison with information because of that concern. Nor is there any evidence that Ms Talbot feared harassment, retribution et cetera were she to cooperate with Ms Harrison's investigation. I therefore am not satisfied that, in all of the relevant circumstances of this case, any of the inhibiting factors to which I referred in the preceding paragraph attended the communication of information from Ms Talbot to 27 Ms Harrison, such as to warrant a finding that that there existed a mutual, conditional understanding that that information would be treated in confidence so far as practicable. 104. Ms Talbot's submissions as set out above essentially mirror the submissions made by the midwife, the QNC and the QNU, which I have already analysed. It is clear that Ms Talbot was contacted by Ms Harrison to provide information as part of a disciplinary investigation into the midwife's actions. Ms Talbot was aware that the investigation had been initiated by a complaint made against the midwife by the applicant. I think Ms Talbot ought reasonably to have expected that the QNC would take into account the information she provided in deciding whether or not to take any further action against the midwife. Ms Talbot was present during the birth of the applicant's baby, and therefore had first hand knowledge of the events which took place that day. She was responsible for admitting the applicant and recording a number of admission observations. I think it was reasonable for her to expect that the information she provided might be of some value to Ms Harrison in corroborating the version of events given either by the midwife or the applicant. There is nothing before me to suggest that Ms Talbot disputes the accuracy of the contents of the draft statement. 105. Even if Ms Talbot did not reasonably anticipate that disciplinary charges would be laid against the midwife, I consider that she should have expected that the QNC would or may need to disclose to the applicant details of its investigation, and of the information it had gathered, in order to give the applicant a proper account of the manner in which it had carried out its statutory functions in relation to her complaint, including a statement of the outcome of the investigation, and information as to the reasons for that outcome. As I have said, the information she provided was obviously of some importance given that she was present during the events in question, and in a position to give an independent "eye witness" account of at least some of the matters central to the applicant's complaint against the midwife. The importance or relevance of the information Ms Talbot provided is demonstrated by the fact that Ms Harrison included that information in her final report to the QNC. As it appears that the QNC took such information into consideration in deciding to take no further action in respect of the applicant's complaint, it is again difficult to see how the QNC could totally exclude such matter in giving the applicant an adequate explanation of the QNC's decision. 106. For the reasons given above, I am not satisfied, having regard to all of the relevant circumstances attending the communication of information by Ms Talbot to the QNC, that those circumstances support a finding that there existed an implicit mutual understanding that the information would be treated in confidence as against the applicant. I can see no indications sufficient to support a finding that a need or desire, on the part of Ms Talbot, for the information she provided to be treated in confidence as against the applicant, must have been apparent, or implicitly conveyed, to Ms Harrison, and understood and accepted by Ms Harrison, so as to give rise to an implicit mutual understanding that the relevant information would be treated in confidence as against the applicant. Accordingly, I find that the second requirement for exemption under s.46(1)(b) is not satisfied in respect of that information, and hence that it is not exempt matter under s.46(1)(b) of the FOI Act. Submissions of Dr Gordon 107. The matter in issue which concerns Dr Gordon comprises a general reference (an enclosure to document 8) which he gave in support of the midwife's nursing skills and experience (which reference the midwife in turn submitted to the QNC in support of her case), and a statement which Dr Gordon provided to the QNC in which he gave his opinion regarding the 28 actions of the midwife in delivering the applicant's baby (document 11). In his submission dated 11 March 1999, Dr Gordon stated: In 1997 I volunteered to give a reference for [the midwife]. I was contacted by a member of the Nursing Council regarding giving opinions as well as a reference. ... I had misgivings about giving opinions because of the potential consequences. I was concerned however that a miscarriage of justice may have occurred. I made it clear to the Sister from the Nursing Council that I had not studied the case or seen the case notes but would only answer questions of management in general and not specifically in this case although realising that there was a case involved. I understood that the opinions would be used only for the enquiry and confidential to outside sources. At no time was I told that my report would be given to persons other than the Nursing Council. I would not have given my opinions if I knew they were to be given to the complainant. I do believe that a personal reference given to an enquiry is confidential. ... 108. I will deal briefly with the reference to which Dr Gordon refers above. It is the usual type of employment reference frequently prepared by a person's employer or work supervisor, testifying to the subject's work experience and skills. The reference which Dr Gordon prepared for the midwife is one of three which are in issue in this review. The midwife's solicitors provided such references to the QNC under cover of a letter dated 7 August 1997 (document 8) in support of the submission by the midwife's solicitors regarding their client's experience and reputation in the midwifery area. All three references are titled "To Whom It May Concern". 109. I do not accept that any of the three references were given by their authors to the midwife with an expectation that those references be kept confidential from the applicant or from anyone else. The purpose of such references, as evidenced by the fact that they are usually titled "To Whom It May Concern", is that they are provided to the subject of the reference on the understanding that that person may use them in any manner in which he or she chooses and disclose them to anyone he or she chooses (most commonly such references are disclosed to prospective employers in support of a job application, or where evidence of good character is required in support of a general application of some type et cetera). Although it appears that the QNC's investigation was the spur for the preparation of the references, I do not accept that any of the three references were written on the basis that they be used specifically for the QNC inquiry and for no other purpose. They are written in very general terms and could be used by the midwife for a number of purposes. 110. Nor do I accept that, in communicating the references to the QNC, the midwife could reasonably have understood or expected that the references would be kept confidential from the applicant. The midwife sought to rely on the references attesting to her nursing experience and reputation to persuade the QNC that, in light of her skills and experience, the judgment she exercised (in terms of the medical procedures performed on the applicant) was sound and reasonable in all the circumstances. The QNC took into account the midwife's experience in deciding that her actions were not unreasonable in the circumstances, and I do not see how the midwife or the QNC could reasonably have understood or expected that material attesting to the midwife's skills, experience and reputation ought to be treated in confidence as against the applicant. Accordingly, I find that the three references which are in issue were not communicated pursuant to an implied understanding of confidence, and that 29 they therefore do not satisfy the second requirement for exemption under s.46(1)(b) of the FOI Act. 111. As to the statement which Dr Gordon provided to the QNC, it does appear that he was approached by Ms Harrison to provide such information on the basis that he had provided a personal reference for the midwife. One might question the wisdom of an investigating body approaching, for the purposes of obtaining an independent expert opinion, a person who has provided a character reference in support of the subject of the investigation. Nevertheless, I am satisfied that in providing his statement to the QNC, Dr Gordon was acting as an expert witness. It is clear that he was contacted by Ms Harrison to provide information as part of a disciplinary investigation into the midwife's actions, and that he was aware that such investigation had been initiated by a complaint made against the midwife by the applicant. He gave his opinion as to whether he thought the actions of the midwife, in the circumstances surrounding the birth of the applicant's baby, were reasonable. Moreover, it is clear that he gave his opinion freely, with no condition or restriction sought to be put on its use by the QNC. The QNC therefore was free to do with the opinion what it wished. 112. In my view, medical specialists have a professional responsibility to the public to assist bodies like the QNC or the Medical Board of Queensland to properly investigate complaints against health care professionals. Nevertheless, there may be instances (particularly, perhaps, where the medical practitioner is not being paid for providing an expert opinion, as was the case with Dr Gordon) where a medical practitioner may not wish to become involved in an investigation because of the same type of inhibiting factors which I have referred to in paragraph 102 above. A medical practitioner may not, for example, wish to give evidence which may be adverse to the interests of a friend or colleague; he or she may not wish to give up the time necessary to write the requested opinion; or simply may not wish to become involved in the investigation because of the possibility that legal proceedings may result, in which case he/she may be called upon to give evidence before a court or tribunal (with the associated demands upon his/her time) were the matter to proceed to that stage. I accept that such factors may, in certain cases, act as disincentives to an expert witness becoming involved in an investigation. I also accept, in the case of expert witnesses, that an investigating body is reliant upon the cooperation of such persons in order to obtain the necessary opinion. I will discuss this issue further below, in relation to the third requirement for exemption under s.46(1)(b). 113. In this case, although Dr Gordon has said in his submission dated 11 March 1999 that he had misgivings about providing an opinion because of the "potential consequences" (he did not identify the consequences he had in mind) it does not appear from the evidence before me that, at the time he gave his opinion, Dr Gordon raised any concerns or inhibitions with the QNC regarding the communication of his opinion, such as to warrant a finding that the opinion was given subject to a conditional understanding that it would be treated in confidence. As I said, he apparently gave his opinion freely and without restriction. 114. Like the midwife and Ms Talbot, I consider that Dr Gordon ought reasonably to have expected that the QNC would or may need to disclose to the applicant, details of its investigation and of the information which it had gathered and relied upon in forming its conclusions, in order to give the applicant a proper account of the manner in which it had carried out its statutory functions in relation to her complaint, including a statement of the outcome of the investigation, and information as to the reasons for that outcome. I consider that it is reasonable to expect that Dr Gordon should have anticipated, or contemplated the 30 possibility, that the QNC would rely upon his opinion in deciding whether or not the complaint against the midwife was made out, and further, that the QNC might need, in discharging its public regulatory function under the Nursing Act, to disclose relevant details of that opinion to the applicant or to the midwife, in explaining its reasons for finding that the complaint did/did not warrant action being taken against the midwife. 115. Furthermore, it appears from Ms Harrison's final report that she did, in fact, take Dr Gordon's opinion into account in recommending to the QNC that the midwife not be charged. 116. For the reasons given above, I am not satisfied, having regard to all of the relevant circumstances attending the communication of information by Dr Gordon to the QNC, that those circumstances support a finding that there existed an implicit mutual understanding that the information would be treated in confidence as against the applicant. Accordingly, I find that the second requirement for exemption under s.46(1)(b) is not satisfied in respect of that information. 117. Given that I have found that the second requirement for exemption under s.46(1)(b) is not satisfied in respect of any of the matter in issue, it is not strictly necessary for me to consider the third requirement. However, I will take this opportunity to make some observations regarding the various parties' submissions in relation to this requirement. (c) the disclosure of which could reasonably be expected to prejudice the future supply of such information 118. In order to satisfy the third requirement for exemption under s.46(1)(b), it must be the case that disclosure of the information could reasonably be expected to prejudice the future supply of such information. (As to the meaning of the phrase "could reasonably be expected to", see Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 at p.515, paragraphs 62-63.) This requirement does not apply by reference to whether the particular confider, whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in the future, but by reference to whether disclosure could reasonably be expected to prejudice the future supply of such information from a substantial number of sources available, or likely to be available, to an agency: see Re "B" at p.341, paragraph 161. 119. The QNC, the midwife, the QNU and Ms Talbot all claim that disclosure of those parts of the matter in issue which were provided to the QNC by the midwife and Ms Talbot could reasonably be expected to prejudice the future supply of such information to the QNC by members of the nursing profession. Dr Gordon, the AMA and NASOG all claim that disclosure of those parts of the matter in issue which were provided to the QNC by Dr Gordon could reasonably be expected to prejudice the future supply of such information to the QNC by medical practitioners approached to assist the QNC with an investigation. Submissions of the midwife, the QNC and the QNU 120. I note that the QNC has no power under the Nursing Act to compel a nurse to provide information to the QNC for the purposes of an investigation. Unlike the Medical Board, for example, which has power under the Medical Act 1939 Qld to compel medical practitioners who are under investigation to provide the Board with information, the QNC is reliant upon the voluntary cooperation of nurses for the provision of information to its investigators. 31 Section 103(4) of the Nursing Act merely provides that the investigator must provide the person who is the subject of the complaint with an opportunity during the course of an investigation to make a formal submission to the investigator. Only if the QNC decides at the conclusion of its investigation to prefer a charge against the subject of the complaint, in which case the matter is referred to the Professional Conduct Committee for a formal hearing, does that Committee have the power to summons witnesses to appear before it and give evidence. 121. The fact that a nurse can choose whether or not to assist an investigation into his/her conduct by providing the investigator with information, is used as the basis for arguments by the QNC, the midwife and the QNU that disclosure in this review of the information voluntarily provided to Ms Harrison by the midwife, will prejudice future cooperation by nurses with QNC investigations, thereby prejudicing the future supply of information to the QNC. 122. In their submission dated 5 October 1998, the QNC's solicitors stated: We are instructed that the Council has been advised by the Queensland Nurses Union (which represents a large number of nurses whose conduct is investigated by the Council) that if a transcript of the interview between the investigator and [the midwife] [were] subject to disclosure under the FOI Act then the Union would advise its members not to submit to an interview. On that basis, the Council submits that the information provided by [the midwife] to the investigator should be exempted from disclosure under section 46(1)(b) of the FOI Act; namely, that the disclosure could reasonably be expected to prejudice the future supply of such information. The Council is concerned that those nurses who are represented by the Queensland Nurses Union (which represents about 50% of the nursing population in Queensland) will not make submissions to the Council's investigator during the course of investigations which will result in the Council having to consider an incomplete investigation report in determining whether or not to prefer a charge. ... 123. I note, however, that in his earlier submission dated 7 July 1998, Mr O'Dempsey of the QNC said: On page 6 of your letter [my letter to the QNC dated 29 June 1998] ... you say that a nurse would be motivated to explain matters to the investigator in order to avoid any disciplinary action being taken. I can assure you that with the benefit of the Council's experience this is not the case. A number of nurses have elected not to make any submissions to the Council during the course of investigations, as is their right. ... 124. According to Mr O'Dempsey therefore, the QNC has experienced difficulties generally in persuading nurses to cooperate with QNC investigations, even without the 'threat' of disclosure under the FOI Act. That fact could be seen as casting doubt on the proposition that disclosure under the FOI Act of itself, could reasonably be expected to prejudice the future supply of information to the QNC. 32 125. In its submission dated 23 February 1999, the QNU submitted: ... it has been our policy to encourage nurses to participate fully and cooperatively with the Queensland Nursing Council when under investigation. ... However, since becoming aware of the FOI application requesting release of information pertaining to our member we are now, unfortunately, recommending to all our members that they exercise extreme caution when dealing with the Queensland Nursing Council as any information provided by them to the Queensland Nursing Council, such as a response to a complaint, a reference in support of another nurse or merely a response to an enquiry about a nurse, may be information required to be released subject to an FOI application. The result is that our members are no longer willing to co-operate as fully personal and confidential information may be released to an FOI applicant. ... (I must say I find it disappointing that a body such as the QNU would react to the possibility of disclosure to a patient of information concerning that patient's health and the nursing attention she received, by advising its members not to assist investigations by the body charged with regulating the nursing profession in Queensland. The QNC has been conferred with regulatory powers in respect of the nursing profession for the benefit and protection of the Queensland public. One of the methods of discharging those functions is to properly investigate the merits of complaints received from members of the public. Complainants, too, ought to be accorded fair treatment in the discharge of the QNC's functions, in particular to the extent of being given sufficient information to be satisfied that their complaints have been properly investigated. If the stance taken by the QNU means that the QNC cannot perform its functions effectively, presumably it will have to seek coercive powers similar to those conferred on the Medical Board of Queensland.) 126. I consider it reasonable to assume that nurses under investigation by the QNC would be willing to cooperate with the investigation if they consider that they have nothing to fear and they wish to take the opportunity to exculpate themselves. The supply of information in such a case would be motivated by the wish to explain matters to the investigator and avoid disciplinary action. Equally, I think it is reasonable to assume that in cases where nurses fear that disciplinary action may result from an investigation, they will be inhibited from cooperating with the investigation in any event, quite apart from the added 'threat' of the possibility of disclosure under the FOI Act of the information they provide. However, in a situation where nurses think that they can demonstrate to an investigator that they did nothing wrong such that there is no warrant for disciplinary action being taken against them, but they also fear exposure to a civil suit by the complainant if the information they provide to the investigator can be accessed under the FOI Act by the complainant, I accept that, in those circumstances, nurses may choose, because of the potential for disclosure under the FOI Act of information adverse to their interests, not to provide the QNC with any information at all during the course of its investigation, thereby resulting in prejudice to the supply of information to the QNC. 127. In the present circumstances, I think it is clear that the midwife believed that she had done nothing wrong in relation to the delivery of the applicant's baby. She chose to cooperate with Ms Harrison's investigation so as to be in a position to provide her side of the story and to avoid disciplinary action being taken against her. As an employee of a public hospital, it 33 would not appear that the midwife herself needed to fear exposure to personal liability in a civil suit by the applicant if the information she provided to Ms Harrison were to be disclosed to the applicant. The general principle of employment law is that an employer is vicariously liable for any acts of negligence committed by an employee in the course of performing his/her duties of employment. Accordingly, regardless of the advice which the QNU may give to its members, I do not think it is reasonable to expect that, if the matter in issue in this review were to be disclosed, a significant number of nurses in the same situation as the midwife would refrain from seeking to exculpate themselves from possible disciplinary action by disclosing all relevant information available to them, merely because their explanation might later be disclosed to the patient. Submissions of Ms Talbot 128. The third requirement for exemption under s.46(1)(b) of the FOI Act will frequently be satisfied with respect to independent witnesses such as Ms Talbot when the witness has supplied information adverse to a person subject to investigation by a law enforcement agency or regulatory authority, and especially where the witness has some reasonable basis for expecting recrimination, harassment et cetera, as a result of disclosure. I have referred to those type of inhibiting factors above, in my discussion of the second requirement for exemption under s.46(1)(b). 129. I am not satisfied that the third requirement for exemption under s.46(1)(b) is satisfied with respect to the information provided by Ms Talbot. As I said above, Ms Talbot did not provide information which could be considered adverse to the midwife's interests. There was apparently no suggestion of any wrongdoing on Ms Talbot's part causing her to have had concerns about protecting her own interests were she to become involved in the investigation. It seems clear that Ms Talbot decided to provide Ms Harrison with information about the events on the day in question because she felt it might assist the midwife's case. In her submission dated 12 March 1999, Ms Talbot stated that "... at no time did I reasonably expect that charges would be preferred against [the midwife] given her level of expertise, the nature of the complaint and the nature of the information I provided in support of her". I do not think that disclosure of information of that kind could reasonably be expected to prejudice the future supply to the QNC of information from witnesses to an incident who believe that a friend or colleague has been wrongly or mistakenly accused of misconduct. Submissions of Dr Gordon 130. As to the position of medical practitioners who assist the QNC with its investigations by providing opinions et cetera, Dr Gordon submitted: ... Not only will I not co-operate with the Nurses Council if my exemption is overturned but I have demonstrated that the future supply of information to the Nurses Council would be prejudiced. I have spoken to the AMA, the National Association of Obstetricians and Gynaecologists and the Nursing Union. Each of those bodies will have provided you with a letter of support of my position. The Nursing Council have demonstrated difficulty in obtaining opinions. Indeed to obtain an opinion from one giving a reference would suggest a certain desperation. The above three groups are all integral to the proper working of the Nurses Council. In fact the Nursing Council 34 will not function in a meaningful way without the co-operation of the above three groups to give information. ... 131. The AMA submitted: ... Dr Gordon is a member of the AMA which has over 4,300 members across Queensland, and over 25,000 members nation-wide. Dr Gordon is concerned about being forced to allow a patient access to a document that he believes was written in confidence and designed for the Nursing Council, a group of professionals and not the patient. ... The AMAQ will stand by a carefully considered decision of a member to not supply information in a particular situation - and would advise all members in that situation accordingly. There are obvious concerns that any action may result in a defensive reaction by the community of doctors which may affect the information available. 132. NASOG's brief submission focussed on the reference which Dr Gordon provided in support of the midwife, rather than his statement. It did state, however: As a matter of principle I think it is important for the medical profession to be able to provide confidential information to act as expert assistance to various Government instrumentalities. 133. I have acknowledged above in my discussion of the second requirement for exemption under s.46(1)(b) that there may exist, in particular cases, factors which inhibit expert witnesses from becoming involved in an investigation by providing an opinion on the conduct of a friend or colleague. I have also acknowledged that whether or not an expert chooses to assist an investigation, by giving an opinion on the relevant issues, is entirely up to the individual. However, I am not satisfied that the third requirement for exemption under s.46(1)(b) is satisfied with respect to the information provided by Dr Gordon. As was the case with Ms Talbot, I consider that Dr Gordon provided the QNC with his opinion about the midwife's conduct because he felt it may assist the midwife. He stated in his submission that he gave his opinion because he was concerned that a miscarriage of justice had occurred as far as the midwife was concerned and that if he did not give his opinion, he feared that the midwife could have been "unrightfully given a period of suspension or limited registration". As in the case of Ms Talbot, I do not think that disclosure of information of the kind provided by Dr Gordon could reasonably be expected to prejudice the future supply to the QNC of information from expert witnesses who believe that a friend or colleague has been wrongly or mistakenly accused of misconduct, and who give their opinion in the hope that it will assist to exculpate that friend or colleague. 134. Quite apart from the fact that, in this case, Dr Gordon gave his expert opinion to the QNC in order to assist a colleague, I again find it surprising and disappointing to hear that some members of the medical profession would contemplate refraining from providing their expert opinion in order to assist an investigation of the kind in question here, simply because that opinion might be disclosed to the patient whose complaint is being investigated. In fact it seems reasonable to me to expect that, in the absence of any agreement to the contrary, the majority of medical practitioners approached to provide expert opinion or advice in their 35 professional capacities, for the purpose of assisting law enforcement/regulatory/disciplinary investigations or legal proceedings, would have no expectation of confidentiality with respect to that opinion or advice. Rather they would appreciate the distinct possibility that their opinion or advice may be relied upon, and communicated to the parties to the dispute, in support of a particular finding by the investigating body. Dr Gordon attached no conditions to the giving of his opinion to the QNC. The fact that he apparently did not contemplate the disclosure of his opinion to the applicant, and is upset by that prospect, is unfortunate, but I do not think that it in any way justifies a knee-jerk reaction from bodies such as the AMA and NASOG to the effect that they will give a blanket advice to their members not to provide such opinions in the future. 135. Dr Gordon has made much of the fact that he gave his opinion to the QNC free of charge. I readily acknowledge that it is no doubt becoming increasingly difficult for bodies such as the QNC to secure expert opinions unless they are prepared to pay for those opinions. However, while medical specialists are free to decline to provide expert opinion for the purposes of a law enforcement/regulatory/disciplinary investigation, or indeed criminal and civil proceedings, there does not seem to be any shortage of medical specialists willing to provide expert opinion to assist investigations and legal proceedings of the kind indicated, in return for payment for their time and effort. Even if the QNC were to experience a prejudice to the future supply of expert opinions from medical specialists willing to provide their opinions free of charge, that is not the relevant test under the third requirement for exemption under s.46(1)(b). 136. For the reasons given above, I am not satisfied that disclosure of any of the matter in issue in this review could reasonably be expected to prejudice the future supply of like information. Public interest balancing test 137. I have discussed above in some detail the principles of procedural fairness and my view that the QNC has a duty to justify, both to the applicant and the midwife, the decision it reached at the conclusion of its investigation, and to demonstrate that it discharged its duty to conduct an adequate and fair investigation of the complaint made to it. I do not consider, at least in respect of the applicant, that the QNC has discharged that duty, having regard to the information it has provided to the applicant to date. I appreciate that, during the course of this review, the QNC prepared and gave to the applicant a brief summary of the QNC's reasons for deciding not to take further action against the midwife. Nevertheless, having regard to the general information contained in that summary, and the fact that it does not disclose the evidence or submissions of the midwife regarding the events which occurred on the day in question, nor those of other persons who were interviewed by Ms Harrison during the course of her investigation, and bearing in mind that those submissions and evidence appear to have been taken into account by the QNC in reaching its decision, I consider that there is a strong public interest favouring disclosure of the matter in issue to the applicant. 138. There is a public interest in the accountability of the QNC for the discharge of its functions, that would be assisted by the disclosure of information concerning the actions of the QNC in conducting its investigation, and in deciding to take no further action against the midwife. The applicant, as the complainant against the midwife regarding the midwife's involvement in the birth of the applicant's baby, has a special interest in scrutinising the QNC's investigation and the information collected by the QNC during the investigation, upon which its findings were based. I recognised in Re Pemberton and The University of Queensland (1994) 2 QAR 293 at pp.376-377 (paragraph 190) that a particular applicant's interest in obtaining access to 36 particular documents is capable of being recognised as a facet of the public interest, which may justify giving a particular applicant access to documents: The kind of public interest consideration dealt with in the above cases is closely related to, but is potentially wider in scope than, the public interest consideration which I identified in Re Eccleston at paragraph 55, i.e., the public interest in individuals receiving fair treatment in accordance with the law in their dealings with government. This was based on the recognition by the courts that: "The public interest necessarily comprehends an element of justice to the individual" (per Mason C J in Attorney-General (NSW) v Quin (1989-90) 170 CLR 1 at 18; to similar effect see the remarks of Jacobs J from Sinclair v Mining Warden at Maryborough quoted at paragraph 178 above). It is also self-evident from the development by the courts of common law of a set of principles for judicial review of the legality and procedural fairness of administrative action taken by governments, that compliance with the law by those acting under statutory powers is itself a matter of public interest (see Ratepayers and Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746 at p.750). The public interest in the fair treatment of persons and corporations in accordance with the law in their dealings with government agencies is, in my opinion, a legitimate category of public interest. It is an interest common to all members of the community, and for their benefit. In an appropriate case, it means that a particular applicant's interest in obtaining access to particular documents is capable of being recognised as a facet of the public interest, which may justify giving a particular applicant access to documents that will enable the applicant to assess whether or not fair treatment has been received and, if not, to pursue any available means of redress, including any available legal remedy. 139. The public interest considerations weighing against disclosure of the matter in issue which have been identified by the various participants in this review are mostly subsumed within the prima facie ground of exemption under s.46(1)(b) of the FOI Act, i.e., they mostly relate to the third requirement for exemption - prejudice to the future supply of information to the QNC and the resulting detrimental effect which that could reasonably be expected to have on the QNC's investigative processes. I have discussed those submissions above. 140. I acknowledge that the QNC's investigative processes may suffer if persons are reluctant to provide it with information in a situation where there is no power to compel them to do so. However, I think that the issues that have arisen during the course of this review demonstrate a clear need for the QNC to review its investigative procedures. Had this investigation been handled differently, with an explanation given to each witness approached by the investigator to the effect that the information they supplied may need to be disclosed (including to the complainant) in certain circumstances (comparable, mutatis mutandis, to the three exceptions to understandings of confidentiality relevant in police investigations, which I identified in Re McCann at pp.53-54, paragraph 58), many of the problems encountered in this particular case could, in my view, have been avoided. However, there does not appear to have been any discussion of confidentiality, and it appears that no-one turned their minds to what the QNC might reasonably be expected to do with the information supplied to it. 141. It remains the case that the applicant's complaint against the midwife was, in effect, dismissed by the QNC, and that she has not been provided with a sufficient explanation as to why that decision was reached. The extent of the detail that is offered by way of explanation in such circumstances will necessarily vary from case to case, depending on the need to respect any 37 applicable obligations or understandings of confidence, or applicable privacy considerations. Subject to any such constraints, I consider that there is a legitimate public interest in a complainant being given sufficient information to be satisfied that the investigating body has conducted a thorough investigation and reached a fair and realistic decision about whether the available evidence was sufficient or insufficient to justify any formal action being taken in respect of the complaint. 142. In their submission, the midwife's solicitors discussed at length the other processes open to the applicant if she were dissatisfied with the QNC's decision, e.g., seeking a statement of reasons under the Judicial Review Act 1991 Qld. However, it is not relevant to the application of the FOI Act whether or not the applicant has explored all other avenues for obtaining access to the matter in issue (see my comments in Re Director-General, Department of Families, Youth and Community Care and Department of Education; Perriman (Third Party) [1997] QICmr 2; (1997) 3 QAR 459 at p.464). My function simply is to decide whether or not the matter in issue qualifies for exemption under the FOI Act. 143. For the reasons discussed above, I am satisfied that disclosure of the matter in issue to the applicant would, on balance, be in the public interest. Conclusion 144. For the foregoing reasons, I set aside the decision under review (being the decision made on behalf of the QNC by Mr J O'Dempsey on 2 April 1998). In substitution for it, I decide that, with the exception of the information described below, which I find qualifies for exemption under s.44(1) of the FOI Act, the matter in issue in this review does not qualify for exemption from disclosure to the applicant under the FOI Act - (a) the 26th-32nd words appearing in the final paragraph on page 1 of document 6; (b) the first full sentence appearing on page 2 of document 6; (c) the 5th-9th words of the fifth sentence, and the last eight words of the seventh sentence, as contained in the first paragraph appearing under the heading "Our client's nursing experience" in document 8. ............................. F N ALBIETZ INFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Noosa Shire Council and Department of Communication & Information, Local Government & Planning [2000] QICmr 5 (15 December 2000)

Noosa Shire Council and Department of Communication & Information, Local Government & Planning [2000] QICmr 5 (15 December 2000) Last Updated: 18 January 2006 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 05/2000 Application S 157/96 Participants: NOOSA SHIRE COUNCIL Applicant DEPARTMENT OF COMMUNICATION AND INFORMATION, LOCAL GOVERNMENT AND PLANNING Respondent T M BURKE ESTATES PTY LTD Third Party DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - 'reverse-FOI' application - legal opinion - whether disclosure to State government departments of a legal opinion obtained by a local council, and/or disclosure to the access applicant and to regional newspapers of the conclusions reached in the legal opinion, involved a waiver of legal professional privilege otherwise attaching to the legal opinion - implied waiver of legal professional privilege - application of s.43(1) of the Freedom of Information Act 1992 Qld. Freedom of Information Act 1992 Qld s.43(1), s.51 Evidence Act 1995 NSW s.122 Local Government (Planning and Environment) Act 1990 Qld s.1.3; s.2.18, s.2.19 Amalgamated Television Services Pty Limited v Marsden [2000] NSWCA 63 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] NSWSC 7; (1996) 40 NSWLR 12 Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475 Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770 Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 74 ALJR 339 Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 Hewitt and Queensland Law Society Inc, Re [1998] QICmr 23; (1998) 4 QAR 328 Mann v Carnell [1999] HCA 66; (1999) 74 ALJR 378 Queensland Law Society v Albietz and Hewitt (1998) 4 QAR 387; [2000] 1 Qd R 621 Weeks and Shire of Swan, Re (Information Commissioner WA, Decision No. D00595, 2 24 February 1995, unreported) DECISION I affirm the decision under review (which is identified in paragraph 5 of my accompanying reasons for decision) that the legal opinion of Mr Hampson QC dated 7 July 1994 is not exempt from disclosure to the applicant under s.43(1) of the Freedom of Information Act 1992 Qld. Date of decision: 15 December 2000 ............................................................ F N ALBIETZ INFORMATION COMMISSIONER TABLE OF CONTENTS Page Background .................................................................................................................... 1 External review process ................................................................................................ 2 Application of s.43(1) of the FOI Act ........................................................................... 3 Waiver of legal professional privilege - general principles .............................. 3 Instances of disclosure ......................................................................................... 5 Whether the intentional disclosure of the legal opinion to the Department involved a general waiver or a limited waiver ................................................ 7 Implied waiver ..................................................................................................... 9 Submissions and evidence of the participants ................................................... 13 Analysis 16 Conclusion ...................................................................................................................... 19 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 05/2000 Application S 157/96 Participants: NOOSA SHIRE COUNCIL Applicant DEPARTMENT OF COMMUNICATION AND INFORMATION, LOCAL GOVERNMENT AND PLANNING Respondent T M BURKE ESTATES PTY LTD Third Party REASONS FOR DECISION Background 1. This is a 'reverse FOI' application by the Noosa Shire Council (the Council), seeking review of the respondent's decision to give T M Burke Estates Pty Ltd (Burke) access, under the Freedom of Information Act 1992 Qld (the FOI Act), to a legal opinion dated 7 July 1994, prepared for the Council by Mr C E K Hampson QC. The Council contends that the document is exempt matter under s.43(1) of the FOI Act (the legal professional privilege exemption). The respondent decided that legal professional privilege in the opinion had been waived, and that the opinion no longer qualified for exemption under s.43(1). 2. The legal opinion was sought from Mr Hampson QC at a time when the Council had prepared a draft Development Control Plan (DCP) in relation to part of the Marcus Shores area in the Noosa Shire, held by Burke under a Special Lease from the government of the State of Queensland. The terms of the lease envisaged that land held under the lease would be developed and sold by Burke. At the time the legal opinion was given, Burke had already developed part of the land subject to the lease, and had made unsuccessful applications to the Council for permission to develop that part of the land which would later be subject to the DCP. The DCP, which was approved by the Governor in Council on 4 May 1995, significantly limited the ways in which Burke can use the subject land. This prompted Burke to commence legal proceedings against the Council claiming substantial compensation for the reduction in value of the land. The Council has strenuously contested that Burke has any legal entitlement to compensation. (For additional background, see T. M. Burke Estates Pty Ltd v Noosa Shire Council [1997] QCA 267; [1998] 2 Qd R 448; Noosa Shire Council v T. M. Burke Estates Pty Ltd [2000] 1 Qd R 398; T. M. Burke Estates Pty Ltd v Noosa Shire Council [2000] QPE 026. I note that, at the time of publication of these reasons for decision, judgment was reserved in an appeal to the Queensland Court of Appeal from the 2 last-mentioned decision). 3 3. One issue which arose in the regional political controversy over whether further development should be permitted at Marcus Shores was whether significant compensation was likely to be payable by the State of Queensland to Burke if Burke's rights to develop the land at Marcus Shores were altered. In this regard, the Council sought advice from Mr Hampson QC. The legal opinion given by Mr Hampson QC is the document in issue. As the DCP was made by the Governor in Council, it was necessary for State government departments to become involved in the planning approval process. The approach of the State government was co-ordinated through the Department of Local Government and Planning (the Department). The existence of Mr Hampson's legal opinion was mentioned in a telephone conversation between a solicitor employed by the Council and a senior officer of the Department. The latter asked if the Council would provide a copy of Mr Hampson's legal opinion, and the Council obliged, forwarding it under cover of a letter dated 21 July 1994. 4. By letter dated 12 June 1996, Burke applied to the Department under the FOI Act for access to the document in issue. In accordance with s.51 of the FOI Act, the Council was consulted. By letter dated 12 July 1996, the Shire Solicitor advised that he considered that the legal opinion had been provided to the Department to expedite consideration of the DCP and that, in his opinion, legal professional privilege had not been waived, nor did the Council wish to waive it. 5. The initial decision of the Department was made by Mr V Tumath, who determined that the legal opinion was exempt matter under s.43(1) of the FOI Act. Burke subsequently applied for internal review of Mr Tumath's decision, raising the issue of waiver. The internal review was conducted by Ms L Apelt, who, by letter dated 10 September 1996, advised the Council that she had decided that there had been an imputed waiver of legal professional privilege, and that the legal opinion was not exempt from disclosure to Burke under the FOI Act. 6. By letter dated 4 October 1996, the Council applied to me for review, under Part 5 of the FOI Act, of Ms Apelt's decision. External review process 7. A copy of the legal opinion by Mr Hampson QC was obtained from the Department and examined. It was clear, from my examination of it, that the opinion must have satisfied the legal tests to attract legal professional privilege at the time of its creation. No participant has disputed that the document attracted legal professional privilege upon its creation and communication to the Council, and I am satisfied that that is the case. The issue I have to determine is whether legal professional privilege has been waived, so that the legal opinion no longer qualifies for exemption under s.43(1) of the FOI Act. 8. Upon being notified of my review, Burke applied for, and was granted, status as a participant in the review. I invited the Council to lodge a written submission and/or evidence in support of its case that legal professional privilege had not been waived. There followed an exchange of submissions between the participants. In making my decision, I have taken into account: • correspondence between the participants preparatory to the making of the Department's initial and internal review decisions; • the application for external review by the Council dated 4 October 1996; • copies of the newspaper articles referred to at sub-paragraphs 18(c) to 18(e) below; • letters from the Shire Solicitor dated 12 November 1996, 5 June 1997, 13 November 1998, 24 November 1998 and 21 November 2000; • letter from the Department dated 8 April 1997; 4 • submissions on behalf of Burke dated 16 September 1998. 5 Application of s.43(1) of the FOI Act 9. Section 43(1) of the FOI Act provides: 43(1) Matter is exempt matter if it would be privileged from production in a legal proceeding on the ground of legal professional privilege. 10. Following the judgments of the High Court of Australia in Esso Australia Resources Ltd v Commission of Taxation [1999] HCA 67; (1999) 74 ALJR 339, the basic legal tests for whether a communication attracts legal professional privilege under Australian common law can be summarised as follows. Legal professional privilege attaches to confidential communications between a lawyer and client (including communications through their respective servants or agents) made for the dominant purpose of - (a) seeking or giving legal advice or professional legal assistance; or (b) use, or obtaining material for use, in legal proceedings that had commenced, or were reasonably anticipated, at the time of the relevant communication. Legal professional privilege also attaches to confidential communications between the client or the client's lawyers (including communications through their respective servants or agents) and third parties, provided the communications were made for the dominant purpose of use, or obtaining material for use, in legal proceedings that had commenced, or were reasonably anticipated, at the time of the relevant communication. 11. There are qualifications and exceptions to this statement of the basic tests, which may, in a particular case, affect the question of whether a document attracts the privilege, or remains subject to the privilege; for example, the principles with respect to waiver of privilege (see Re Hewitt and Queensland Law Society Inc [1998] QICmr 23; (1998) 4 QAR 328 at paragraphs 19-20 and 29), and the principle that communications otherwise answering the description above do not attract privilege if they are made in furtherance of an illegal or improper purpose (see Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501). 12. As stated above, there is no doubt that the legal opinion in issue attracted legal professional privilege at the time of its creation. The only issue is whether legal professional privilege has been waived by the Council. Waiver of legal professional privilege - general principles 13. The leading High Court authorities on waiver of legal professional privilege are Attorney- General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, and Mann v Carnell [1999] HCA 66; (1999) 74 ALJR 378. There are two kinds of waiver - express or intentional waiver, and waiver imputed by operation of law (also referred to in the cases as implied waiver). As to the former, I made the following observations in Re Hewitt at p.338 (paragraph 19): ... A person entitled to the benefit of legal professional privilege can waive the privilege through intentionally disclosing protected material (see Maurice at p.487, per Mason and Brennan JJ). If disclosure is incompatible with retention of the confidentiality which is necessary for maintenance of the privilege, there will ordinarily be a general waiver of privilege: see Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 per Deane, Dawson and Gaudron JJ at p.95, per Toohey J at p.106. However, the courts will allow an exception for 6 a limited intentional disclosure of privileged material, if the disclosure is compatible 7 with the retention of confidentiality. Thus, disclosure of privileged information by the beneficiary of the privilege to another person for a limited and specific purpose, on the clear understanding that the recipient is not to use or disclose the information for any other purpose, will not involve a general waiver of privilege, and, subject to questions of imputed waiver, may not disentitle the beneficiary of the privilege from asserting the privilege against other persons: see Goldberg v Ng per Deane, Dawson and Gaudron JJ at p.96, per Toohey J at pp.106-109, and per Gummow J at p.116. 14. In Re Hewitt (at pp.338-351; paragraphs 20-61), I examined the concept of imputed waiver in the context of s.43(1) of the FOI Act, and analysed relevant authorities at some length, concluding (at p.351, paragraph 61): ... Therefore, I have reached the view that Australian law with respect to legal professional privilege allows for the application of principles of imputed waiver of privilege in the context of an extra-curial dispute, by reference to some act or omission of the privilege holder which, though falling short of intentional waiver, is inconsistent with maintenance of the privilege, and by reference to what ordinary notions of fairness require having regard to all relevant circumstances attending the extra-curial dispute. 15. My decision in Re Hewitt on imputed waiver of privilege was upheld by the Supreme Court of Queensland in judicial review proceedings: see Queensland Law Society v Albietz and Hewitt (1998) 4 QAR 387; [2000] 1 Qd R 621. Since then, the High Court of Australia has published its decision in Mann v Carnell. In it, two of the judges of the High Court proposed a significant revision/simplification of the principles with respect to waiver of legal professional privilege. In his dissenting judgment, McHugh J was prepared to hold that Goldberg v Ng had been wrongly decided, if it were to be taken as deciding, as a matter of law, that questions of waiver always depend on notions of fairness. McHugh J proposed that the relevant rule of law should be (at p.401, paragraph 134): Once there is a voluntary disclosure of privileged material to a stranger to the privileged relationship (i.e., to a person who is not the lawyer or the client), privilege in that material is waived as against the world. Kirby J concurred with McHugh J on this issue (at p.403, paragraphs 147-148). 16. However, in their joint majority judgment, Gleeson CJ, Gaudron, Gummow and Callinan JJ were not prepared to overrule Goldberg v Ng. At p.385 (paragraph 30), they stated: "However, the reasoning of all members of the [High] Court [in Goldberg v Ng] was inconsistent with the proposition that any voluntary disclosure to a third party necessarily waives privilege." Therefore, the passage quoted at paragraph 13 above appears to correctly state current Australian law on that issue. 17. Perhaps influenced by the push from the minority judges for revision/simplification of the principles relating to waiver of privilege, the comments by the majority judges on implied waiver of privilege disclose a difference of emphasis from that which is apparent in the judgments of all judges in Maurice, and Goldberg v Ng. The majority judges in Goldberg v Ng observed (at p.96) that: "... it was accepted in all judgments [in Maurice] that the question of whether a limited disclosure gives rise to an implied or imputed waiver of legal professional privilege ultimately falls to be resolved by reference to the requirements of fairness in all the circumstances of the particular case." It was clear that the majority 8 judges in Goldberg v Ng endorsed and applied that view, as did the minority judges (Toohey J at p.109-110; Gummow J at pp.120-121). The comments of the majority judges in Mann v Carnell on implied waiver of privilege (set out below from pp.384-385) allow that fairness is still a relevant consideration, but do not give it emphasis as the determinative consideration bearing on implied waiver of privilege: [28] ... Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. ... [29] Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law". This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some over-riding principle of fairness operating at large. ... [34] ... Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency. The reasoning of the majority in Goldberg illustrates this. Instances of disclosure 18. The most common instance of conduct inconsistent with maintenance of the confidentiality of a privileged communication (thereby giving rise to questions of whether a waiver of privilege has occurred) is disclosure of the whole, a part, or a summary, of a privileged communication. Before considering the submissions and evidence of the parties, I will list the instances of disclosure that have been identified, with respect to the document 9 in issue: 10 (a) The whole of the legal opinion was disclosed to the Department under cover of a letter from the Shire Solicitor dated 21 July 1994. (b) Copies of the legal opinion were later passed on by the Department to the Office of the Crown Solicitor and the Department of the Premier and Cabinet. (c) The following reference appeared in the Noosa News on 26 July 1994: Marcus can be stopped: QC's report A Report from one of Queensland's top legal advisers has discounted claims the State Government is in a legal bind over the Marcus Shores development. Queen's Counsel Cedric Sampson [sic] has advised Noosa Council that the developer's lease could be revoked with compensation only payable for improvements done on the site. Noosa Mayor, Noel Playford released details of the QC's report, which counteracts the Government's argument that development may be unavoidable for legal reasons. He said the report showed the Government had the legal power to stop developers from building on the environmentally-acclaimed site at a minimal cost. (d) The following reference appeared in the Sunshine Coast News on 28 August 1994: The Council, however, has produced a report from one of Queensland's top legal advisers which states that the compensation payable would be minimal. Queen's Counsel Cedric Hampson advised the Council that the lease could be revoked with compensation only payable for improvements done on the site. Noosa Mayor Noel Playford has said that the report shows the government has the legal power to stop development on the prized site at a minimal cost. (e) A brief reference to the legal opinion appeared in the Noosa News on 30 August 1994. (f) The following reference appeared in a letter from the Shire Solicitor to the solicitors for Burke, dated 19 September 1994: Your client will also doubtless know that the Council has obtained an Opinion from Mr C.E.K. Hampson QC which supports the Council's assertion that the resumption clause should apply unless there are reasons, which are presently unknown, which would indicate to the contrary. (g) The following reference appeared in a letter from the Shire Solicitor to the Department dated 12 September 1994: On behalf of the Council, it has been asserted that the Crown has the contractual right to resume the subject land pursuant to the express terms of the Special Lease, and that the quantification of any compensation is to be assessed in accordance with those clearly expressed terms. That assertion 11 has been supported by an Opinion of Mr C.E.K. Hampson QC. 12 19. Copies of the letters referred to in (f) and (g) above were annexed to the written submission dated 16 September 1998 lodged on behalf of Burke. Whether the intentional disclosure of the legal opinion to the Department involved a general waiver or a limited waiver 20. At paragraph 29 of Re Hewitt, I observed that where a privilege holder has intentionally disclosed privileged material in such a manner as to result in a general waiver of privilege in that material, such material would not be privileged from production in any legal proceeding on the ground of legal professional privilege, and s.43(1) of the FOI Act could not apply. 21. The letter from the Shire Solicitor which forwarded the legal opinion to the Department did not contain any indication that the legal opinion was being provided under some understanding that it would be treated in confidence. There is no evidence that any express undertaking of confidential treatment was sought or given. In the absence of circumstances giving rise to an implicit mutual understanding that the legal opinion would be treated in confidence, I consider that disclosure of the opinion to the Department would have constituted a voluntary act inconsistent with continuation of privilege in the document. I consider that the Shire Solicitor had ostensible authority to waive privilege on behalf of the Council. I do not consider that the relationship of the Council and the Department was such that they could be regarded as the same party, or parties with a common interest. Councils and the Department have quite distinct roles to play in government in Queensland, and no doubt the two levels of government often find themselves at odds in relation to particular cases. Unless there was some understanding or obligation binding the Department to treat the legal opinion in confidence, it would have been free to further disseminate the legal opinion, a situation which is clearly inconsistent with maintenance of privilege in the legal opinion. 22. The Shire Solicitor has submitted that the disclosure of the legal opinion to the Department was for the limited purpose of assisting the Department's consideration of whether to recommend that the Governor in Council approve the draft DCP, stating: Of course there was no specific mention of reserving privilege because I did not then, or do I now, consider that any such reservation was necessary. Here is a case of the Crown, through one of its Departments, requesting a local government authority for a copy of a document to assist it to carry out its statutory duty. In the normal course of events, I do not regard the Crown as being in the same category as others. If a citizen, and more so a local authority, can not deal with the Crown in confidence, without placing some restriction on its publication, there is a public interest aspect at jeopardy. The Crown well knew of the litigation and potential for further litigation involving several millions of dollars. I feel sure that confidentiality was assumed by both the Department and by me. ..... Neither the Department nor the Council adverted to the prospect of the advice being made available to the Developer/Lessee, perhaps because it was assumed on both sides that it would not. Remember that the Developer/Lessee was litigating with Council and there was a very public political contest concerning the proposed development of the area. They were regarded as opponents. 13 23. In a letter dated 8 April 1997, Ms Apelt of the Department made the following response to my request for further information on the circumstances attending the provision of the legal opinion to the Department: (a) the purpose for which the opinion was requested or supplied: Telephone advice was received on 14 July 1994 from Mr Graham Rees- Jones (Solicitor, Noosa Shire) to the effect that Council had obtained an opinion from Cedric Hampson QC who was of the view that no compensation was payable to T M Burke Estates Pty Ltd by the Lands Department in the event that the development did not proceed. Mr Rees-Jones was asked by Mr Stan Wypych, Manager, South East Queensland Planning Division, if Council would provide the Department with a copy of the opinion for the purpose of expediting the Department's consideration of the Development Control Plan for Marcus Shores. (b) any understanding, express or implied, that the opinion was communicated in confidence; There existed an implied understanding that the opinion was released for a specific purpose to be used only by the Department as part of the symbiotic process between local government and the Local Government Department. The Departmental officers involved did not consider that communication of the document to Crown Law and to the Office of Cabinet would compromise any privilege attaching to the document. However, it was clearly understood by both parties that the opinion would not be disclosed to T M Burke Estates Pty Ltd. (c) any understanding that the opinion was supplied for a limited purpose only; It was understood by both parties that the opinion was provided to the Department for the sole purpose of expediting its consideration of the Development Control Plan for Marcus Shores. (d) any understanding limiting its use and/or distribution by the Department; Noosa Council apparently understood that the opinion was for Departmental purposes only. Noosa Council was not expressly made aware that copies of the document would be provided by the Department to Crown Law and to the Office of Cabinet. 24. It appears that circumstances relating to the dispute between the Council and Burke gave rise to an implicit understanding on the part of the Department, as well as on the part of the Council, that the legal opinion supplied by the Council to the Department was to be treated in confidence, certainly as against Burke, and to be used only for purposes relating to the State government's consideration of the proposed DCP for Marcus Shores. Burke has been given access to the above statements, and has not disputed that they accurately reflect the understanding between the Department and the Council. 14 25. I am satisfied that the legal opinion of Mr Hampson QC was disclosed by the Council to the Department for a limited and specific purpose, on the understanding that it would be treated in confidence. I consider that the further disclosure of the legal opinion by the Department to the Office of the Crown Solicitor, and the Department of the Premier and Cabinet, was consistent with the purpose for which the opinion was supplied. I am satisfied that disclosure of the legal opinion by the Council to the Department could not properly be seen as constituting an intentional general waiver of legal professional privilege, or as destroying the confidentiality which is necessary for maintenance of the privilege (cf. Goldberg v Ng at p.95). Implied Waiver 26. However, the reasoning and result in Goldberg v Ng indicate that a disclosure of this kind may nevertheless give rise to an issue of implied waiver. In that case, Mr Goldberg's privilege was held to have been waived by imputation of law, notwithstanding that his disclosure of privileged material to a third party occurred on the basis of an express undertaking by the third party that the privileged material would be treated in confidence. 27. In Goldberg v Ng, the Ngs were concerned that their solicitor Mr Goldberg, had taken improper action in relation to them, which had resulted in financial loss to them. They commenced Supreme Court proceedings, but also lodged a complaint with the New South Wales Law Society (the Law Society) foreshadowing a possible claim against the Solicitors' Fidelity Fund. In the context of the Law Society dealing with the Ngs' complaint, Mr Goldberg provided to the Law Society, on the basis of a strict undertaking as to confidentiality, copies of statements prepared by him for the purposes of the Supreme Court proceedings. The Ngs subsequently attempted to obtain copies of the statements in the Supreme Court proceedings, on the basis that legal professional privilege had been waived by Mr Goldberg providing copies of the statements to the Law Society. The majority of the High Court affirmed the decision that legal professional privilege had been waived. The following factors were relevant in the finding by the majority judges in the High Court that ordinary notions of fairness required that legal professional privilege was waived in the circumstances of the particular case: • the fact that Mr Goldberg had voluntarily used documents generated for use in the court proceedings to assist him in rebutting the Ngs' complaint to the Law Society; • the fact that the statements were provided for the calculated purpose of assisting Mr Goldberg to rebut the Ngs' complaint - for a purpose adverse to the Ngs - and that it probably assisted in doing so; • that the usual procedure adopted by the Law Society was to seek a written response from the practitioner and that, if the normal course had been followed, that response would not have been subject to legal professional privilege. 28. In that case, no part of the privileged statements, or information as to their contents, had previously been disclosed to the Ngs. In the present case, there have been the disclosures referred to in subparagraphs 18(c) to (g) above, which, in light of the passage from Mann v Carnell quoted at paragraph 17 above, appear to me to have more significance than the disclosure referred to in subparagraph 18(a) above, and indeed to have been inconsistent with the understanding that applied between the Council and the Department as at 21 July 1994 that the Council regarded Mr Hampson's legal opinion as a confidential document. 15 29. The Council's conduct in making public disclosures of the substance of Mr Hampson's legal advice is not too dissimilar from the conduct considered by the Western Australian Information Commissioner in Re Weeks and Shire of Swan (Information Commissioner WA, Decision No. D00595, 24 February 1995, unreported). In that case, an officer of the respondent Council had read aloud to the applicant "selected but relevant parts" of a four page legal advice (amounting to approximately 7 per cent thereof), which related to an application for a land use approval that had been made by the applicant to the respondent Council. The case involved an extra-curial dispute over access to an otherwise privileged document. The Western Australian Information Commissioner decided that there had been an intentional waiver of privilege in the parts of the legal advice that were read out to the applicant, and that the act of reading out parts of the legal advice to the applicant amounted to a waiver, by imputation, of privilege in the whole document. 30. At paragraph 64 of Re Hewitt, I observed: ... Although it may seem a fine distinction in practical terms, the difference between stating "I have received legal advice and I deny liability", and stating "I have received legal advice that I am not liable to compensate you", is nevertheless a real and material one, in that the former involves no conduct inconsistent with maintaining privilege in the legal advice, but the latter does. At least in extra-curial contexts, I tend to agree with the contention put by the QLS that a mere reference to the existence of legal advice, or a statement that a person or company was adopting a certain course of action (e.g., denying liability to compensate a claimant for damages) based on legal advice, should not ordinarily, of itself, involve an imputed waiver of privilege in the content of the legal advice. (In the context of litigation, even an implicit assertion, in pleadings or evidence, about the content of privileged material, may involve an imputed waiver of privilege if fairness requires it: see Bayliss v Cassidy & Ors (Supreme Court of Queensland - Court of Appeal, No. 1225 of 1998, Williams J, Davies and McPherson JJA, 11 March 1998, unreported) at p.3.) However, the reference in the passage from Goldberg v Ng quoted at paragraph 21 above to "a limited actual or purported disclosure of the contents of the privileged material" extends, in my opinion, to disclosure of a summary of the conclusions reached in legal advice. I consider that support for that view can be found in the following statement by Deane J in Maurice (at p.493): Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege. (my underlining). (See also Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) [1996] NSWSC 7; 40 NSWLR 12 at pp.14-15, and p.18. In that case, Ampolex sought declarations that the proper conversion ratio of certain convertible notes issued by it was one share for one note. In a report prepared by an independent valuer, which report had entered the public domain, it was stated that "Ampolex maintains that the correct ratio is 1:1 and has legal advice supporting this position." Rolfe J found that this statement had 16 voluntarily disclosed the substance of the legal advice, and held that 17 privilege in that legal advice had been waived. That issue was, however, decided under s.122 of the Evidence Act 1995 NSW, rather than under common law principles. See also the decision of Kirby J of the High Court of Australia dismissing an application for a stay of the decision that privilege in the relevant legal advice had been waived: Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd & Ors [1996] HCA 15; (1996) 137 ALR 28. A similar conclusion was reached, in similar circumstances, applying s.122 of the Evidence Act 1995 Cth, in BT Australasia Pty Ltd v State of New South Wales & Anor (No 7) [1998] FCA 294; (1998) 153 ALR 722 at pp.743-744.) 31. Although the Ampolex case, referred to in the passage quoted above, was decided under s.122 of the Evidence Act 1995 NSW, I note that in Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770 at paragraphs 15-19, Goldberg J of the Federal Court of Australia applied the same principles in deciding an issue as to waiver of legal professional privilege in circumstances where the common law was applicable: 15. I commence with the proposition that the legal advice which is referred to in the two exhibits was, in its inception, the subject of legal professional privilege. So much flows from the evidence of Mr O’Callaghan. In Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] NSWSC 7; (1996) 40 NSWLR 12, Rolfe J had to consider whether there had been a waiver of legal professional privilege in the legal advice which had been given to Ampolex by counsel. He drew a distinction between two statements which had been made in a Pt B statement issued by Ampolex on 8 May 1996. 16. In one part of the statement, it was stated: "Ampolex's views as to the likely outcome of the Convertible Note litigation. The views set out below have regard to the pleadings, the evidence available to Ampolex and the advice of the barristers and the solicitors engaged by Ampolex for the purposes of the litigation, as at 1 May 1996." Ampolex's views were then set out. Later in the Pt B statement, there was reference to a report which was incorporated in the Pt B statement. That report stated: "There is a dispute about the conversion ratio. Ampolex maintains that the correct ratio is 1:1 and has legal advice supporting this position." Rolfe J concluded that the statement that Ampolex's views had regard to the advice of the barristers and the solicitors was not a disclosure of the legal advice, whereas the statement that Ampolex has legal advice supporting the position of the ratio being 1:1 was a disclosure of the terms or the substance of that legal advice. 18 17. That decision was the subject of appeal to the Court of Appeal of New South Wales which was dismissed. An application was made to the High Court for a stay, pending the hearing of an application for special leave to appeal. In Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] HCA 15; (1996) 137 ALR 28, Kirby J refused a stay. At 34 his Honour said: "Ampolex stated that it had 'legal advice supporting its position'. Rolfe J concluded this statement was, within s.122, disclosure of the 'substance of the evidence'. The disclosure suggested, to reasonable inference, that the legal advice supported Ampolex's stated position. Ampolex drew attention to the limit of 'substance' suggested by such decisions as Derby and Co Ltd v Weldon No. 10 (1991) 1 WLR 660 at 668. I agree that a mere reference to the existence of legal advice would not amount to a waiver of its contents. Rolfe J appears to have acknowledged this distinction by later rulings to which I was taken during the course of argument. But at least in respect of the substance of the legal advice supporting Ampolex's assertion about the correct ratio, which is in contest here, it is strongly arguable that the public reference to the supporting legal advice, waived the privilege as to the precise content of the legal advice, on that point I cannot say that the ruling is attended by such doubt as to promise a substantial prospect of a grant of special leave to appeal to this court. On the contrary, on my present understanding of the facts and as a tentative view, the opinion expressed in the ruling seems arguably correct." That decision was given in the context of s.122 of the Evidence Act, which as I have indicated earlier is not relevant for present purposes. Nevertheless, I consider that it is of assistance by way of analogy in determining whether there has been either a disclosure of the legal advice or a waiver of privilege in the circumstances of this case. 18. I do not consider that the statement made in para 2.23 of the s.13 statement is a disclosure of the legal advice. It simply says that it is part of the evidence and other material on which the finding was based. Consistently with the reasoning of Rolfe J and Kirby J, I do not consider that is a disclosure of the contents of the advice or a waiver of legal professional privilege. However, I form a different view in relation to the recommendation where it is explicitly stated that legal advice supporting the respondent's view of Rule No 4 has been received. Again, I reach the conclusion by analogy with the reasoning of Rolfe J and Kirby J in the Ampolex cases (supra) above. It seems to me that by stating the respondents' view of the rule, and that legal advice supports that view, the existence of legal advice is being disclosed, the contents of which say that it supports the respondent's view of the rule. 19. Consistently with the reasoning of the High Court in Attorney-General Northern Territory v Maurice [1986] HCA 80; (1986) 161 CLR 475, and Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83, I am of the opinion that there is at the least an implied waiver of legal professional privilege, and at the most an actual 19 waiver of the legal advice because the contents of the advice are referred 20 to. So far as an implied waiver is concerned, it seems to me that it can be said that there is an implied or an imputed waiver because the recommendation sets out a justification for the policy and an explanation of it which is supported by legal advice. That recommendation is now before the Court and it seems to me that the fairness principle requires that that advice be disclosed. Submissions and evidence of the participants 32. In its submission dated 16 September 1998, Burke gave a history of its interactions with the Council in relation to the Marcus Shores site. In essence, following refusal of applications to rezone the site, the Council prepared a draft DCP which would have the effect of significantly limiting the development potential of the site. Burke was opposed to the making of the DCP. In the course of State government consideration of the draft DCP, concern was expressed about the potential for significant compensation payments to Burke. One potential option was the exercise by the State of a resumption clause in the Special Lease held by Burke. It was at this stage that advice was sought by the Council from Mr Hampson QC. The DCP was subsequently approved. The submission continued: 18. It is submitted that the compensation issue was a factor (and the Respondent says a significant factor) in whether the State Government approved the Development Control Plan prepared by the Applicant ... 19. Indeed, the Respondent submits that the Applicant has used the Opinion (which is apparently favourable to the Applicant) to persuade, or endeavour to persuade, the Department and the State Government that the approval of the Development Control Plan would not result in any significant compensation being payable to the Respondent. 20. As a result of the gazettal of the Development Control Plan, the Respondent contends that it has suffered significant loss and has brought proceedings against the Applicant in the Planning & Environment Court (Appeal No. 1193 of 1996) claiming compensation. The amount claimed was 4.53 million dollars together with interest and costs, although that amount is likely to significantly increase in light of subsequent land sales data. ... 24. Further, it is clear from [Re Hewitt] that the principle of imputed waiver of legal professional privilege is based on the notion of fairness. In assessing fairness, it is necessary to look at the place which the principle of legal professional privilege has in the administration of justice. 25. Relevant factors to consider in relation to the issue of fairness are as follows:- (a) The Department is exercising a regulatory function; in this case, to give advice to the State Government as to whether the State Government should approve the Development Control Plan promulgated by the Applicant which prohibited development on the Respondent's land. 21 (b) As part of its determinative process, the Department was required to look at the effect of the "resumption clause" in the Special Lease and consider whether the approval of the Development Control Plan could result in a significant claim for compensation on the part of the Respondent. (c) The Applicant provided the Opinion to the Department with a view to persuading the Department to recommend that the Development Control Plan be approved by the State Government. (d) The subsequent approval of the Development Control Plan by the State Government has caused significant loss to the Respondent and is now the subject of a claim for compensation in the Planning and Environment Court (Appeal No. 1193 of 1996). 26. The Respondent contends that it is entitled to know, as a matter of fairness, what information the Department had before it when considering the terms of the draft Development Control Plan. 33. In her internal review decision, Ms Apelt found that the Council's conduct in providing the legal advice to the Department, and disclosing information to the media, amounted to imputed waiver, finding that a copy of the advice was requested by an officer of the Department to assist Crown Law in the formulation of legal advice as to compensation payable and also to assist in expediting the approval of the DCP, and that the advice was provided voluntarily to the Department with an intention that it would assist in a decision regarding the DCP being made favourably to the Council. In relation to publication in the newspaper, Ms Apelt stated: "I consider that this would amount to an implied waiver as it would be unfair to allow the Council to rely on the privilege after the election by Council to use a portion of the opinion to its advantage." 34. I consider that the submissions of the Council are adequately set out in the following extracts from the letters of the Shire Solicitor: The Council contends that it has not used the opinion or referred to it in any way which would be unfair or misleading to the applicant. Secondly, the report in the Sunshine Coast Daily hardly amounts to anything other than a conclusion reached by Mr Hampson and does not disclose his reasoning - which is the important aspect of the document. It is further submitted that disclosure to a third-party - particularly as in this case, the Crown, in response to a request by an independent authority, should not render the document accessible. It would otherwise be contrary to public policy to deprive the Crown of relevant material through any fear of later disclosure to a litigious opponent. (letter dated 4 October 1996) ... Certainly, there was no intention by the Council to waive the privilege either by some mention in the local press - which is a very weak point - or by my having sent a copy to the Department of Local Government at its request. ... 22 Finally, I point out that legal professional privilege is a long established and important exemption to disclosure of documents, which is recognised by the Freedom of Information Act. In my submission, you should only find that there has been a waiver in the clearest of circumstances as outlined in the decided cases. Such circumstances do not exist concerning the release of a copy of the Opinion of Mr Hampson QC to the Crown. (letter dated 12 November 1996) ... ...[Burke's] solicitors knew or should be assumed to have known, suspected or guessed that Council had obtained a barrister's advice in a case of this type. Any press report was merely confirmation. Of course in [Re Hewitt], the publication of the existence of the Opinion or advice was quite different and is of no assistance. Again, I strongly assert that it would be contrary to public interest if legal professional privilege were to be lost by a Local Government when a document is supplied to the Crown at its request, in order to assist the Crown in determining some aspect which requires a Crown decision in the exercise of a Statutory function. I remind you that a Local Government is the creature of the Crown and that the Crown is under a fiduciary duty to act in the best interest of the Shire and its ratepayers. On that basis, it is important that the Council should be able to communicate freely with departments of the Crown and to inform them of legal opinions which support a particular position, without fear of losing legal professional privilege to the Council's litigious opponent or others. Finally, I suggest that no unfairness is occasioned to [Burke] by protection of Council's privilege, and that there are more substantial and compelling reasons of public interest to deny access to the document. (letter dated 13 November 1998) ... after reviewing [the newspaper articles] I repeat my assertion that there is no unfairness to TM Burke flowing from publication from any source because it already knew through its Solicitors of Council's assertions concerning the resumption clause in the Special Lease. I pose the question - if I write to the Solicitors and inform them that I have the advice of Counsel which confirms my assertions, what unfairness flows from my giving others similar information? The decided cases really do not assist TM Burke because the "unfairness" arises in different circumstances and are of a substantial nature. (letter dated 24 November 1998) ... In this particular case, the publication of [reports about] Council's advice was of general information, and did not state any detailed reasons. That may not be of importance in other cases, but here it is, I submit, little different from my having said to the solicitors for T.M. Burke - "Richard, I have advice from Cedric Hampson that the Special Lease is invalid". 23 Surely it would not be suggested that such a statement is a waiver of privilege. The fact that the statement is in a newspaper makes the maintenance of privilege no more "unfair". It may be different if some detailed reasons had been given. (letter dated 21 November 2000) Analysis 35. There is no public interest balancing test incorporated in the s.43(1) exemption. However, the Council's concerns do serve to reinforce the rationale of the principle of legal professional privilege and its importance under the general law. In Re Hewitt (at pp.354- 355, paragraph 68), I said that I found the following judicial statements most apposite: • An important part of the rationale of the principle of legal professional privilege is the protection and preservation of the rights, dignity and freedom of the ordinary citizen under the law... . Another aspect of the rationale ... is ... that the ready availability of confidential legal advice and of skilled and adequate legal representation is in the public interest in that it promotes both the observance of the law generally and the administration of justice in particular. That aspect of the rationale of the principle applies with as much force to a public official as it does to a private individual ... (per Deane J in Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 at p.82). • To our minds it is clearly in the public interest that those in government who bear the responsibility of making decisions should have free and ready confidential access to their legal advisers. ... The growing complexity of the legal framework in which government must be carried on renders the rationale of the privilege ... increasingly compelling when applied to decision-makers in the public sector. The wisdom of the centuries is that the existence of the privilege encourages resort to those skilled in the law and that this makes for a better legal system. Government officers need that encouragement, albeit, perhaps, for reasons different to those which might be expected to motivate the citizen (per Mason and Wilson JJ in Waterford at p.62, p.64). 36. I have already indicated at paragraph 21 above, that I do not think there is any basis for finding a special relationship between local authorities and the State which would justify a finding that there was a "common interest" between them. I do not regard local authorities as being in any different position, for present purposes, from other proponents of development or planning control measures, who may wish to provide information to the State government to advance the position they favour. Local authorities are certainly arms of government but they are distinct entities from the State and their aims will frequently vary from those of the State. I do not consider that public policy dictates that a Council should be treated differently under the law from any other person seeking to assert privilege. 37. I am also unable to see what benefit the Council can gain by asserting that Burke was already aware of the Council's position. The more the Council has disclosed to Burke about Mr Hampson's opinion, the stronger is Burke's case in respect of waiver. 38. The Council was in this case performing a statutory function under Part 2 of the Local Government (Planning and Environment) Act 1990 Qld (the LGP & E Act) as part of its obligation to facilitate orderly development and protect the environment (see s.1.3). Pursuant 24 to s.2.18 of the LGP & E Act, the Council was empowered to propose an amendment to a planning scheme including a DCP for a particular area. Burke had a right to view the draft DCP, to make submissions opposing it, and to have those submissions passed on to the Governor-in-Council when the Council forwarded the draft DCP for consideration (see ss.2.18 and 2.19 of the LGP & E Act). Burke did not have a right to appeal the approval of the DCP to the Planning and Environment Court. However, it clearly had a significant interest in the outcome of the DCP approval process. 39. In addition to disclosing the whole of Mr Hampson's legal opinion to the Department, on the understanding that it would be treated in confidence, the material before me establishes that the Council made numerous disclosures about the substance of the advice given in Mr Hampson's legal opinion. The Council made disclosures to newspapers, apparently in order to contradict public comments by the then Premier of Queensland that the State government might be subject to a significant compensation payout if Burke's development rights regarding Marcus Shores were altered. The Council's solicitors made a disclosure directly to the solicitors for Burke (see paragraph 18(f) above). 40. Following Mann v Carnell, the test for implied waiver of privilege has been formulated by the New South Wales Court of Appeal, in Amalgamated Television Services Pty Limited v Marsden [2000] NSWCA 63 (per Giles JA at paragraph 29, with Mason P and Handley JA agreeing), as follows: In Mann v Carnell at [28-9] it was said that it is the inconsistency between the conduct of the client and maintenance of the confidentiality protected by the privilege which effects a waiver of the privilege. What brings about the waiver is the inconsistency, informed by notions of fairness, not "some overriding principle of fairness operating at large". 41. I also find assistance from the following passage from the judgment of Gummow J (who was one of the majority judges in Mann v Carnell) in Goldberg v Ng (at p.120): ... in answer to the question what constitutes waiver by implication, [Wigmore] said: Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final. (I note that the same passage from Wigmore was endorsed in Maurice by Gibbs CJ at p.481, by Mason and Brennan JJ at p.488, and by Dawson J at p.498.) 25 42. I consider that the conduct of the Council exceeded that "certain point of disclosure" referred to by Wigmore. I am satisfied that the instances of disclosure of the substance or effect of the legal opinion of Mr Hampson QC that are particularised at subparagraphs 18(c) to (g) above involved voluntary conduct on the part of the Council, as client, that was inconsistent with maintenance of the confidentiality, in the legal opinion, which legal professional privilege exists to protect. I am satisfied that the conduct of the Council requires a finding that privilege in the relevant legal opinion has been waived, whether the Council intended that result or not. I consider that my finding in this regard can be supported without reference to any wider considerations of fairness to Burke, although I have referred to such considerations at paragraphs 44-45 below. 43. I do not consider that there is any substance in the Council's submission to the effect that it has disclosed only Mr Hampson's conclusions, and is still entitled to privilege in respect of the reasoning which supported those conclusions. All of the authorities of which I am aware are consistent with the principle stated by Mason and Brennan JJ in Maurice (albeit with a context of curial proceedings in mind) at p.488: The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. ... In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject matter: see Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529; [1981] 2 All ER 485. The cases referred to in paragraphs 29-31 above also illustrate this point. 44. The basis on which Burke has put its case that fairness requires a finding of imputed waiver of privilege (at least for its benefit) reflects an inaccurate assumption as to the use to which the Council was seeking to put the relevant legal opinion. Burke has submitted that the Council "... has used the Opinion ... to persuade, or endeavour to persuade, the Department and the State Government that the approval of the Development Control Plan would not result in any significant compensation being payable to [Burke]" and that Burke should be "... entitled to know, as a matter of fairness, what information the Department had before it when considering the terms of the draft Development Control Plan." On the material available to me, I consider that the Council's purpose in supplying a copy of the legal opinion was to interest the State government in a different course of action, i.e., resumption of the relevant parcel of land pursuant to a resumption clause in the Special Lease, with the State government's liability to compensation being limited to the value of improvements only. However, the State government did not wish to pursue that option, preferring to allow the DCP to be approved, and to leave the Council liable for any compensation that might be payable as a consequence. Since the legal opinion in issue deals only with an option which was not pursued, I do not consider it possible to say, at this point in time, that considerations of fairness require disclosure of the legal opinion to Burke in order to allow it to review the approval process in respect of the DCP. 45. Nevertheless, at the time of the Council's conduct in August-September 1994 that gave rise to an issue of implied waiver, the Council was urging on the State government a course of action that would have been detrimental to Burke's commercial interests, and for so long as that course of action was under consideration by the State Government, there were considerations of fairness telling in favour of disclosure to Burke, so as to enable Burke to put its views to the State government as to the legal validity, and fairness, of the State government pursuing that 26 course of action to the detriment of Burke's commercial interests. The implied waiver of 27 privilege in the legal opinion occurred as a result of the disclosures made by the Council in August-September 1994, and there were considerations of fairness to Burke that supported an implied waiver of privilege in favour of Burke, at that time, even though the same considerations appear to me to have no practical force today. 46. While I am not aware of any authority dealing with the issue, I consider that a waiver of privilege imputed by operation of law must logically be effective from the date of the conduct, on the part of a client, which is inconsistent with maintenance of the privilege (if necessary, in combination with the existence of circumstances in which requirements of fairness support the finding of implied waiver). Therefore, if a finding of implied waiver in this case had been dependent on wider considerations of fairness to Burke (and I have stated my view at paragraph 42 above that my finding is not), it would not avail the Council that, by the time a tribunal had come to rule on the issue of Burke's entitlement to disclosure, the passage of time had negated the considerations of fairness which previously supported the finding of implied waiver. I do not consider that the privilege would be revived on that account. 47. I find that the legal professional privilege which initially attached to the legal opinion of Mr Hampson QC dated 7 July 1994 has been waived by imputation of law. I therefore find that the legal opinion is not exempt from disclosure to Burke under s.43(1) of the FOI Act. Conclusion 48. For the foregoing reasons, I affirm the decision under review. ......................................... F N ALBIETZ INFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Price and Department of Police; (Decision currently under Judical Review) [2006] QICmr 21 (29 June 2007)

Price and Department of Police; (Decision currently under Judical Review) [2006] QICmr 21 (29 June 2007) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 2005 F0442 Applicant: Mr R Price Respondent: Queensland Police Service Decision Date: 29 June 2007 Catchwords: FREEDOM OF INFORMATION – section 77(1) of FOI Act – matter the subject of previous reviews – refusal to deal with part of application – vexatious. FREEDOM OF INFORMATION – section 42(1)(ca) of FOI Act – serious act of harassment or intimidation. FREEDOM OF INFORMATION – section 42(1A) of FOI Act – information given in the course of an investigation of a contravention or possible contravention of the law – information given under compulsion under an Act that abrogated the privilege against self-incrimination. Contents Background ................................................................................................................. 2 Steps taken in the external review process ................................................................ 3 Matter in issue ............................................................................................................. 6 Findings......................................................................................................................... 6 ...... Section 77 of the Freedom of Information Act 1992 6 ...... Section 42(1)(ca) of the Freedom of Information Act 1992 9 ...... Section 42(1A) of the Freedom of Information Act 1992 13 Decision ...................................................................................................................... 18 Reasons for Decision Background 1. By letter dated 13 May 2005, the applicant applied to the Queensland Police Service (the QPS) for access to documents under the Freedom of Information Act 1992 (the FOI Act) as follows: ...all documents related to my complaints/myself to police in Toowoomba regarding Const. Jim McDonald of the then Gatton Police, re letter etc from Toowoomba Assistant Commissioner Southern Region, CM McCallum, dated the 05.05.2005. I also request all documents and files and reports the police considered in these recent investigations. A copy of the transcript of interviews of all parties is requested also. This also includes a copy of all tapes of records of conversations with all parties related to these matters. This also includes a copy of all records of contact with the Queensland Nominal Defendant and documents obtained from this agency and the Gatton Shire Council etc. This includes a request of all intelligence reports etc, related to myself, and or my family and or my property etc. Nominal Defendant documents show the QPS have photographs of my property as an example. This includes all documents related to the traffic conviction in 1991. Nelson v Price etc. This includes all documents related to McDonald v Price. ETC. All documents related to myself and the Department of Veteran Affairs including staff of the Vietnam Veterans Counseling Service. All documents related to the so called Prohibition Order of 1991 signed by the then Inspector Gerry Stevens. This includes the complaints he acted on including all documents related to the Department of Veteran Affairs/Vietnam Veterans Counseling Service etc. You already have an authority to release same from this department. The Information Commissioner and the CMC have previously released documents under this authority. This application is to include all documents related to Assistant Commissioner McCallum’s letter to me dated the 05.05.2005. Reference numbers are SRC 2004/ ESC 2005/00284. Inspector Ron Van Saane stated he was looking at matters including the Driving Conviction 1991 and the Assault convictions 1993/94. I also request all documents related to the following letters from the QPS. Letter dated 09.02.1990, Regional Superintendent’s Office Southern Region Toowoomba. Reference numbers 90/238 – 9 FEB 1990. Other parties reference number to this letter is 90/1353. And letter dated the 05.03.1990, District Inspector’s office Toowoomba Reference number 90/1353. All documents related to these letters are requested. Const. Chris Nelson states in documents release to me, refers to orders he received to attend meetings with my neighbours etc to discuss me. Documents related to these meetings have not been discovered to me. I also request all documents related to me and parts of documents, not released including all references to mental health. An example are the documents related to the matter of Smith v Price etc. Medical reports stated by Const. Nelson on his report in January 1993 relating to Daniel Morgan are missing from the records. The search warrant used in the matter of Smith v Price has as yet not been disclosed. I also request the QPS produce all previously requested police diaries and or notebooks etc. This includes all diaries and notebooks Brennan states are not located at the Gatton Police Station etc. I also specifically request all diary entries of Const. Jim McDonald for the period between 1986 and now. Const. Jim McDonald would know when the entries were made. (Amended on second letter and faxed same day as well). Related to myself etc. 2. On 25 July 2005, having received no decision from the QPS, the applicant applied to this Office for external review of the deemed refusal of access by the QPS. Steps taken in the external review process 3. On 16 August 2005 Assistant Commissioner Barker of this Office wrote to the applicant confirming receipt of his application and the commencement of the external review. 4. By letter dated 16 August 2005 Assistant Commissioner Barker notified the QPS that this Office was to review the deemed refusal by the QPS to provide access to documents requested by the applicant. Assistant Commissioner Barker sought a copy of the documents in issue and submissions from the QPS as to which documents it claimed were exempt in full or in part and which documents it was willing to release to the applicant. 5. On 18 August 2005 the applicant faxed 40 pages of material to this Office, the majority of which related to another application on foot with this Office at the time. 6. By letter dated 26 April 2005 (which is assumed to be a typographical error), received in this Office on 30 August 2005, the QPS submitted that the applicant was again seeking access to material that he had sought access to in numerous previous FOI applications to the QPS, some of which had been the subject of decisions by this Office. 7. On 21 August 2006 Assistant Commissioner Barker wrote to the applicant setting out her preliminary view that: ...to the extent that [the applicant’s] application for external review seeks review of the QPS’ deemed refusal of access to documents which have been the subject of previous decisions and reviews by the QPS and this office, or to revisit issues of ‘sufficiency of search’ which have been determined in previous reviews, [Assistant Commissioner Barker] should refuse to deal further with it on the grounds provided by s.77(1) of the FOI Act. Assistant Commissioner Barker advised the applicant that therefore, she had written to the QPS: ....asking it to locate any relevant documents relating to [the applicant, his family] or property dated from 14 January 2004 to 13 May 2005 and to advise [her] which of those documents it is prepared to disclose to [the applicant], either in full or subject to the deletion of matter claimed to be exempt. Assistant Commissioner Barker stated that this was on the basis that documents created between those dates would not have been the subject of any of the applicant’s previous FOI access applications to the QPS. 8. Additionally, in her letter to the applicant dated 21 August 2006 Assistant Commissioner Barker invited the applicant to advise her whether he accepted her preliminary view in relation to the application of section 77 of the FOI Act and was prepared to withdraw his application for external review in relation to that part of his application that dealt with material previously requested, or if he did not accept her preliminary view, to make submissions in response on or before 13 September 2006. 9. On 30 August 2006 the applicant wrote to this Office rejecting Assistant Commissioner Barker’s preliminary view. 10. On 31 August 2006 Assistant Commissioner Barker wrote to the QPS outlining her preliminary view in relation to the application of section 77 of the FOI Act and advising that the applicant had not accepted this view and that accordingly it would be necessary to proceed to a formal decision on the issue. Additionally, Assistant Commissioner Barker required the QPS to undertake searches for any documents dated from 14 January 2004 (being the last FOI access application made by the applicant to the QPS) to 13 May 2005 (being the date of the application the subject of this review). 11. By facsimile letter dated 7 September 2006, received on 8 September 2006, the applicant again submitted that section 77 of the FOI Act should not be applied to exclude parts of his application. 12. On 6 November 2006 this Office received a letter from the QPS enclosing documents located in response to Assistant Commissioner Barker’s letter of 31 August 2006 (23 folios and two cassette tapes) and setting out exemptions claimed in relation to certain documents. 13. By letter dated 8 November 2006 the applicant was provided with a full copy of folios 1–9, 14–23 and 29 and parts of folios 10 and 13. He was also advised of the exemptions claimed in relation to parts of folios 10 and 13 and the whole of folios 11 and 12. 14. By letter dated 27 November 2006 Assistant Commissioner Moss advised the applicant of her preliminary view that parts of folios 10, 11 and 13, being a précis of a tape recorded interview between Inspector R. Van Saane and a third party witness, and the corresponding tape recording of the interview, were exempt pursuant to section 46(1)(b) of the FOI Act. The applicant was asked to advise Assistant Commissioner Moss by 21 December 2006, whether he accepted her preliminary view. If he did not accept her preliminary view he was invited to make submissions as to the application of section 46(1)(b). The applicant was advised that if he did not respond to Assistant Commissioner Moss by 21 December 2006, it would be assumed that he accepted her preliminary view in relation to folios 10, 11 and 13 in respect of matter concerning the interview between Inspector Van Saane and a third party witness. 15. On 4 December 2006 Assistant Commissioner Moss wrote to the QPS seeking submissions as to their claim for exemption in respect of sections 42(1)(ca) and 42(1A) in relation to folio 12 and parts of folios 11 and 13, being a precis of a tape recorded interview between Inspector R. Van Saane and Sergeant J McDonald (McDonald), and the corresponding tape recording of the interview. 16. On 7 December 2006 the applicant telephoned Assistant Commissioner Moss and indicated that he felt there were documents responsive to his application that had not been located by the QPS, namely, typed transcripts of the tape recorded interviews between Inspector Van Saane and the third party witness and McDonald, and also an interview with the applicant. 17. Assistant Commissioner Moss wrote to the QPS on 11 December 2006 and advised that the applicant had raised issue with the sufficiency of the searches conducted by the QPS. Assistant Commissioner Moss required the QPS to undertake searches to ascertain whether full transcripts of the three interviews were prepared. 18. On 22 January 2007 Assistant Commissioner Moss wrote to the applicant enclosing a copy of the QPS’ submissions in relation to the application of section 42(1)(ca) and section 42(1A) to the tape recording of the interview with McDonald and the typed summary of that interview and invited the applicant to provide submissions in response. 19. By letter dated 30 January 2007 QPS advised that no transcripts of the three interviews had been made. 20. In a telephone conversation with Assistant Commissioner Moss on 1 February 2007 the applicant contended generally that further documents responsive to his application should exist with the QPS that had not been located. 21. By letter dated 5 February 2007 Assistant Commissioner Moss notified the applicant of her preliminary view that no further documents existed within the possession or control of the QPS that were responsive to his application. The applicant was invited to advise Assistant Commissioner Moss whether he accepted her preliminary view in relation to this issue. Assistant Commissioner Moss invited the applicant to make submissions in response and advised him that if he did not respond by 23 February 2007 it would be assumed that he agreed with the preliminary view and withdrew on the issue. 22. In a telephone conversation with me on 13 February 2007 the applicant requested and I granted a further opportunity to make submissions in relation to the preliminary view of Assistant Commissioner Barker (21 August 2006) concerning the application of section 77 of the FOI Act. At that time it was agreed that the applicant’s responses to the preliminary views of Assistant Commissioner Moss set out in her letters dated 22 January 2007 and 5 February 2007 would be held in abeyance pending the receipt of his submissions concerning section 77 of the FOI Act. The applicant was allowed until 23 February 2007 to provide his submissions on the application of section 77 of the FOI Act. 23. By facsimile transmission dated 20 February 2007 the applicant sought an extension of time within which to make submissions concerning the application of section 77 of the FOI Act. 24. By letter dated 27 February 2007 I advised the applicant that no extension of time within which to make further submissions concerning section 77 of the FOI Act would be granted because the applicant had been afforded prior opportunities to make submissions on the issue and he had not provided any reasonable basis for seeking the extension of time. 25. Additionally, by letter dated 27 February 2007 I advised the applicant that his submissions in response to Assistant Commissioner Moss’s letters of 22 January 2007 and 5 February 2007 were now required by 20 March 2007. The applicant was advised that if no submissions were received by that date he would be taken to have accepted Assistant Commissioner Moss’s preliminary views on those matters and they would no longer be in issue in this review. 26. On 5 March 2007 the applicant advised that he would not provide a submission in response to the QPS’ claim that the record of interview of McDonald was exempt under sections 42(1)(ca) and 42(1A) (as per Assistant Commissioner Moss’s letter to the applicant of 22 January 2007) as a preliminary view had not been issued by this Office. 27. On 14 March 2007 the applicant wrote to the Information Commissioner with information about his service with the Australian Regular Army in the Vietnam War, a Peace and Good Behaviour Order issued by the Magistrates Court at Gatton in relation to an application made by the applicant against a Mr Wit, documents of the Criminal Justice Commission and the cover page of the Court of Appeal judgment in the matter of R v Price. However, the applicant did not make submissions as to the relevance of these documents to the issues in this review and the documents did not appear to have any relevance to the issues in this review. 28. The applicant sent two facsimiles on 19 March 2007, neither of which contained submissions concerning Assistant Commissioner Moss’s preliminary view of 5 February 2007 on the issue of the sufficiency of the QPS’s searches to locate documents responsive to the applicant’s application. 29. In making my decision in this matter I have taken the following into account: • The documents in issue • The applicant’s initial and external review applications dated 13 May 2005 and 25 July 2005 respectively • Correspondence from QPS dated 26 April 2005 (received 30 August 2005), 3 November 2006, 3 January 2007 and 30 January 2007 • Correspondence from the applicant dated 17 August 2006, 30 August 2006, 7 September 2006, 20 February 2007, 14 March 2007 and 19 March 2007 • Telephone conversations with the applicant dated 7 December 2006, 18 December 2006, 1 February 2007, 13 February 2007 and 5 March 2007 • All relevant case law Matter in issue 30. As the applicant did not respond to the matters set out in Assistant Commissioner Moss’s letters dated 27 November 2006 and 22 January 2007 concerning the application of section 46(1)(b) of the FOI Act to exempt parts of folios 10, 11 and 13 and the issue of the sufficiency of the QPS’ searches, respectively, the applicant is taken to have resiled from those issues. Accordingly, those parts of folios 10, 11 and 13 concerning the précis of a tape recorded interview between Inspector R. Van Saane and a third party witness and the corresponding tape recording of that interview and the issue of the sufficiency of the agency’s searches are no longer in issue in this review. 31. Thus the issues remaining for my consideration in this review are: a) The application of section 77 of the FOI Act to the applicant’s application; b) Whether matter contained on part of folio 11 and the whole of folio 13, consisting of a précis of the QPS interview with McDonald, and the corresponding tape recording of that interview, is exempt pursuant to sections 42(1)(ca) and 42(1A) of the FOI Act. Findings Section 77 32. The first issue for my consideration is whether section 77 of the FOI Act applies to exclude that part of the applicant’s application that has been addressed in previous external reviews before the Office of the Information Commissioner involving the applicant and the QPS. 33. Section 77 of the FOI Act relevantly provides: 77 Commissioner may decide not to review (1) The commissioner may decide not to deal with, or not to further deal with, all or part of an application for review if— (a) the commissioner is satisfied the application, or the part of the application, is frivolous, vexatious, misconceived or lacking substance; 34. In Price and Local Government Association of Queensland (S 111/01, 29 June 2001, unreported) Deputy Information Commissioner (DC) Sorensen found that: 13. ... Any responsive documents that were in the possession or control of the LGAQ prior to 10 April 2001 have been dealt with in finalised, or soon-to-be finalised, applications for review to my office. 14. There is a suggestion in the fourth paragraph of Mr Price's letter dated 18 June 2001 that, because he applied again for all documents of the LGAQ related to himself et cetera, he is entitled to have reconsidered, in this application for review, the issues that were resolved by my decision dated 17 May 2001 which finalised application for review no. S 52/00 (which stemmed from Mr Price's first FOI access application to the LGAQ, dated 11 February 2000). 15. Such an application by Mr Price would clearly be vexatious, and contrary to the principle that a decision by a court or tribunal resolves the issues in dispute between the parties. A litigant cannot seek multiple hearings of the same issues between parties - that is vexatious and oppressive to the other party and to the relevant court or tribunal, and unfair to other citizens waiting their turn to use the dispute resolution services, provided from public funds, by courts and tribunals. To the extent that Mr Price is seeking to re-open the issues that were dealt with in my decision dated 17 May 2001, which finalised application for review no. S 52/00, I decide, under s.77(1) of the FOI Act, not to review further those issues on the ground that the application is vexatious. 16. The LGAQ has (in my view, quite properly) treated each successive FOI access application lodged with it by Mr Price as one for responsive documents that came into the possession or control of the LGAQ in the intervening period since lodgment of Mr Price's most recent prior FOI access application. It is equally vexatious and oppressive to agencies to make repeated applications for the same documents, and, although agencies do not have a power similar to s.77(1) of the FOI Act enabling them to refuse to deal with a vexatious FOI access application, the agency is entitled to seek to persuade the Information Commissioner (or his delegate) to apply s.77(1) of the FOI Act if an actual or constructive refusal by an agency to process a vexatious part of an FOI access application becomes the subject of an application for review under Part 5 of the FOI Act. 35. In this case there have been 12 reviews in which decisions have been made by former Information Commissioners or their delegates on access to documents held by the QPS, including decisions on whether the QPS has made sufficient searches and inquiries for documents which the applicant contended should have been in its possession or control. Table 1 below sets out the various reviews conducted by this Office that predate the application the subject of this review and the documents sought by the applicant in those reviews: Table 1. Applications predating the matter currently under review Review no. Date of review decision Documents applied for S 188/95 18 Dec 2000 Summons and hearing in Gatton Magistrates Court in 1991; file in Smith v Price; file in McDonald v Price; prohibition order by Insp. Stevens (Toowoomba QPS) S 168/96S 183/96 29 Jun 2001 22 categories of documents relating to yourself S 132/97 27 Oct 2000 All documents relating to the applicant, his family and property S 174/97 29 Oct 2002 Various categories of documents relating to the applicant and other persons S 50/99S 193/99 30 Oct 2002 Various categories of documents relating to the applicant and other personsVarious categories of documents relating to the applicant S 260/99 31 Oct 2002 Documents relating to the applicant S 262/99 6 Feb 2003 Records of persons who have accessed QPS information concerning the applicant S 74/01S 75/01 13 Nov 2002 Various categories of documents relating to the applicant F 227/04 26 Jul 2004 All documents relating to the applicant, his family and property 36. It is apparent to me that the majority of the documents sought by the applicant in this review (excluding those created since 14 January 2004 [being the date of the applicant’s initial application to QPS in review 227/04] and before 13 May 2005 [the date of the applicant’s initial application in this review]) have clearly been dealt with in previous reviews by this office. In each of the matters listed in Table 1 a decision was issued by this office setting out a view as to either the appropriateness of the exemption claimed by the QPS or the adequacy of the QPS’s searches in locating documents responsive to the applicant’s application. 37. In bringing this application for external review the applicant has sought to initiate another ‘hearing’ of the issues previously addressed in the earlier external reviews of this Office. 38. Accordingly, I consider that, to the extent that the applicant’s application for external review seeks review of the QPS’ deemed refusal of access to documents which have been the subject of previous reviews by this office, or to revisit issues of ‘sufficiency of search’ which have been determined in previous reviews, it is vexatious. 39. I note that in communication with this office the applicant has submitted that Kirby J in the High Court, in the matter of his application for special leave to appeal against a judgment of the Court of Appeal of Queensland given on 25 October 1994 (Price v McDonald B50/1994 (27 June 2001)), found that he was not vexatious. 40. I gather from such submissions that he considers that this finding by Kirby J prevents a finding by this office that an aspect of the application under review is vexatious. 41. I have reviewed the case referred to by the applicant. In the context of a discussion about the respondent’s non-attendance before the Court, Kirby J, addressing the applicant, made the following statement: KIRBY J: The respondent might take the view that this is just the latest of your attempts to harass him by litigation and that he can trust the Court to protect him from that. 42. An exchange between his honour and the applicant ensued concerning whether the applicant had pursued litigation against the respondent. Which lead to the following dialogue: [Applicant]: I am entitled to appeal. That is not – you are not inferring I am vexatious. KIRBY J: I did not say vexatious. [Applicant]: I am not vexatious, your Honour. KIRBY J: No, I did not say vexatious. I said he might have taken the view that he has had enough, that he won before the magistrate and the Court of Appeal said there was ample material and he can rely on this Court to defend it. 43. Setting aside the issue of whether Kirby J’s dialogue with the applicant can be said to be a finding that the applicant is not vexatious (which I do not believe it can), I consider that the statements of Kirby J were clearly made in the context of the case in which he was presiding and do not have any bearing on the consideration of whether an aspect of the applicant’s application in this review is vexatious for the purpose of section 77(1) of the FOI Act. 44. Therefore, pursuant to section 77(1) of the FOI Act I have decided not to deal with that part of the applicant’s application that revisits matters that have previously been addressed in decisions of this Office (as set out in Table 1). 45. Thus this review encompasses only those documents responsive to the terms of the applicant’s application that came into existence from 14 January 2004 to 13 May 2005. Section 42(1)(ca) 46. The QPS submit that the matter in issue (the summary of the QPS’ interview with McDonald and the corresponding tape recording of that interview) is exempt under section 42(1)(ca) of the FOI Act. 47. I note that at the time when the applicant made his initial application for access to documents to the QPS (13 May 2005), section 42(1)(ca) did not exist. Section 42(1)(ca) was inserted into the FOI Act in 2005 and commenced operation on 31 May 2005 as a result of amendments to the FOI Act in the Freedom of Information and Other Legislation Amendment Act 2005. However, by virtue of section 114(2) of the FOI Act section 42(1)(ca) has retrospective operation. Thus it is open for the QPS to claim exemption pursuant to section 42(1)(ca). 48. I note that the Freedom of Information legislation in other Australian jurisdictions have no equivalent provision to section 42(1)(ca) of the Queensland Act. 49. Section 42(1)(ca) states as follows: 42 Matter relating to law enforcement or public safety (1) Matter is exempt matter if its disclosure could reasonably be expected to— ... (ca) result in a person being subjected to a serious act of harassment or intimidation; 50. The term ‘harassment’ has been considered by the courts in various contexts. In the Australian Capital Territory Supreme Court matter of Longfield v Glover [2005] ACTSC 25; (2005) 191 FLR 332 (at 335) Connolly J said: [10] It seems to me that the learned chief magistrate was quite correct to conclude that the persistent telephone calls and letters, after the complainant made it clear that she did not want contact with the appellant, amounted to harassment. Harassment is not defined in the Crimes Act, but the ordinary plain meaning of the word, as defined in the Macquarie Dictionary (2nd ed) is: to disturb persistently; torment as with troubles, cares etc. 51. This is consistent with a definition adopted by Hill J in Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 114 FCR 472 in the context of Trade Practices legislation where he said (at 485): The word “harassment’ in my view connotes conduct which can be less serious than conduct which amounts to coercion. The word “harassment” means in the present context persistent disturbance or torment. 52. In Minister for Immigration and Multicultural Affairs v Respondents (2004) CLR 1 at 25 – 26, para [72] McHugh J stated: In its ordinary meaning, persecution involves selective harassment or oppression of any kind. The terms “harassment” and “oppression”, particularly the former, imply repetitive, or the threat of repetitive, conduct. 53. In Murphy and Queensland Treasury [1995] QICmr 23; (1995) 2 QAR 744 (at paragraphs 53 and 90-91) (Murphy), the Information Commissioner noted that the term harassment was defined in the Collins English Dictionary, Third Australian Edition, to mean to trouble, torment or confuse by continual, persistent attacks. 54. The term ‘intimidation’ has also been considered in various contexts. In the matter of Ratanyake v Chief Executive Officer, Department of the Registrar, Western Australian Industrial Relations Commission (1998) 78 IR 335 at 338-339 Heenan J of the Western Australian Supreme Court stated: As the New Shorter Oxford English Dictionary (1993 reprint) shows, the word “intimidate” means “terrify, overawe, cow” and is used frequently these days in the context of interference with the free exercise of political or social rights. In the unreported case of Scales v Thorpe, delivered in the Industrial Magistrates Court at Perth on 12 June 1997, Mr P S Michelides SM considered the meaning of “intimidation” as the word is used in s.68. His Worship said: “The term, “intimidation”, in my view in normal parlance involves the creation of a fear in the mind of the subject that he or she will suffer a detriment either directly to him or herself or to some other person about whom the person the subject of the intimidation cares.” 55. In the matter of Meller v Low [2000] NSWSC 75; (2000) 48 NSWLR 517, Simpson J, when considering the term ‘intimidation’ in the context the Crimes Act, found: 9. ...it is, first, an ordinary English word, readily understood, with no technical or complex or concealed meaning. The Oxford English Dictionary, 2nd ed and the Macquarie Dictionary are in agreement that “intimidate” means to render timid, to inspire with fear, to overawe, to cow, or to force to or deter from some action by threats or violence or by inducing fear. 56. In the matter of Bottoms v Rogers [2006] QDC 80 (13 April 2006) the terms ‘intimidation’ and ‘harassment’ were considered in the context of domestic violence. In that matter the Court held that: Intimidation refers to a process where the person is made fearful or overawed, particularly with a view to influence that person’s conduct or behaviour.... Harassment on the other hand involves a repeated or persistent form of conduct which is annoying or distressing rather than something which could incite fear. 57. In light of the above cases and decisions, I consider that for the purpose of section 42(1)(ca) of the FOI Act, the ordinary meaning of the terms ‘intimidation’ and ‘harassment’ should be adopted. 58. The phrase ‘could reasonably be expected to’ has been considered by the Information Commissioner in the context of section 42 in the matter of B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279. In that case the Information Commissioner noted that the phrase ‘could reasonably be expected to’ requires a reasonably based expectation, namely, an expectation for which real and substantial grounds exist. A mere possibility, speculation or conjecture is not enough. The term ‘expect’ means to regard as likely to happen. 59. Thus for the purpose of section 42(1)(ca) of the FOI Act the question to be asked is whether there are real and substantial grounds to expect that disclosure of the matter in issue would result in a person being subjected to a serious act of harassment (repeated or persistent conduct which torments or disturbs) or intimidation (conduct designed to make a person fearful or overawed). 60. I consider that the matter of Murphy, while it deals with section 42(1)(c) of the FOI Act, affords useful guidance in the interpretation and application of section 42(1)(ca) (particularly in light of the fact that 42(1)(ca) was introduced in to the FOI Act to remedy the perceived shortcoming of section 42(1)(c)). 61. In Murphy the Information Commissioner found that whether disclosure could reasonably be expected to endanger a person’s life or physical safety is to be objectively judged in light of all relevant evidence, including any evidence obtained from or about the claimed source of danger. 62. The Information Commissioner observed that: 52. ... the relevant words require an evaluation of the expected consequences of disclosure in terms of endangering (i.e. putting in danger) a person's life or physical safety, rather than in terms of the actual occurrence of physical harm. ... The risk to be guarded against is that of a person's life or physical safety being endangered by disclosure of the information in issue. 63. In this case the risk to be guarded against is that of a person being subjected to a serious act of harassment or intimidation. I consider that, whether disclosure of the matter in issue in this case could reasonably be expected to result in a person (namely, Sergeant McDonald) being subjected to a serious act of intimidation or harassment should be objectively judged in the light of all relevant evidence, including any evidence obtained from or about the claimed source of intimidation or harassment. 64. In relation to its claim that section 42(1)(ca) applies to exempt the matter in issue the QPS have submitted that: With respect to the previous actions and behaviour of [the applicant] it is reasonable to expect that, such an act may be possible. 65. I have no evidence before me as to precisely what previous actions and behaviour of the applicant the QPS considers would result in a conclusion that ‘such an act may be possible’. 66. In order to ascertain what actions or conduct of the applicant might give rise to such a conclusion I have reviewed both the material already released to the applicant in this review and the matter in issue. Those documents reveal that the applicant made a complaint about McDonald arising out of an encounter between the two on a street footpath. The material before me suggests a certain amount of antagonism between the applicant and McDonald, resulting in insulting comments from the applicant about McDonald in the exchange the subject of the complaint by the applicant. 67. Additionally, I have reviewed the material provided by the applicant in the course of the review. The material discloses that the applicant sought special leave to appeal against a judgment of the Queensland Court of Appeal, given on 25 October 1994, which itself was an appeal against a magistrate’s decision that resulted in a criminal conviction against the applicant. It is evident from the material that McDonald was the arresting officer and that the applicant was of the view that McDonald committed perjury. 68. Certainly, it is clear from the material before me that there has been ongoing contact between the applicant and McDonald over a period of time. However, that contact appears to be in the context of McDonald’s actions in his official capacity (both as a Police Officer and an elected official in the Gatton Shire Council) and the applicant’s pursuit of legal remedies or redress of formal complaints. This is not to say that it is not possible to be subjected to harassment or intimidation when conducting official duties. I articulate the point to highlight that the actions of the applicant do not appear to have been overly unreasonable. 69. Certainly, there is nothing before me to suggest the applicant has engaged in serious acts of harassment or intimidation, such as for example, repeated telephone calls to McDonald at home and or work over an extended period of time, threatening letters to his home or work, following McDonald when engaged in his private pursuits or conducting his professional life. On the material before it would seem reasonable to conclude that the applicants conduct may have been a source of annoyance or inconvenience for McDonald. The applicant has made it know in public that he dislikes and/or distrusts McDonald and has made insulting remarks. While, such conduct might amount to harassment it is does not amount to intimidation and it certainly does not amount to a serious act of harassment or intimidation. 70. The question remaining to be addressed is whether it is reasonable to conclude that release of the matter in issue could reasonably be expected to result in McDonald being subjected to a serious act of harassment or intimidation following such release. As previously noted the matter in issue is a précis of the QPS interview with McDonald and the corresponding tape recording of that interview. I note that the matter in issue generally corroborates the version of the events leading to the complaint by the applicant to QPS about McDonald. As such, I fail to see how the disclosure of the information could reasonably be expected to result in the applicant subjecting McDonald to a serious act of harassment or intimidation. As discussed above, the applicant has pursued a course of action vis-à-vis McDonald over a number of years that while annoying and inconvenient for McDonald and which may amount to harassment, could not be considered to be serious harassment and certainly would not amount to intimidation. There is nothing in the submissions of the QPS or the material submitted by the applicant to suggest that his course of conduct would change such that his conduct would become seriously harassing or intimidatory. 71. Accordingly, I am of the view that disclosure of the matter in issue could not reasonably be expected to result in McDonald being subjected to a serious act of harassment or intimidation and thus it is not exempt pursuant to section 42(1)(ca). Section 42(1A 72. The QPS have submitted that the matter in issue is exempt under section 42(1A). 73. Section 42(1A) states: 42 Matter relating to law enforcement or public safety (1A) Matter is also exempt matter if— (a) it consists of information given in the course of an investigation of a contravention or possible contravention of the law (including revenue law); and (b) the information was given under compulsion under an Act that abrogated the privilege against self-incrimination. 74. The key issues regarding the application of section 42(1A) of the FOI Act are: • whether the information over which the exemption is claimed was given in the course of an investigation of a contravention or possible contravention of the law; • whether the information was given under compulsion; • whether a claim of privilege is available; and • whether the information was given under an Act that abrogated the privilege against self-incrimination. 75. The requirements of section 42(1A) of the FOI Act are not mutually exclusive. Consequently, each of the four limbs of the provision, set out above, must be established in order for matter to qualify for exemption under section 42(1A) of the FOI Act. In the course of an investigation of a contravention or possible contravention of the law 76. In relation to the first limb of the provision, I am satisfied that the investigation was of a contravention or possible contravention of the law. 77. In the matter of T and Queensland [1994] QICmr 4; (1994) 1 QAR 386 Commissioner Albietz considered the term ‘contravention or possible contravention of the law’ with reference to section 42(1)(e) of the FOI Act. In that matter Commissioner Albietz held that: ...contraventions or possible contraventions of the law need not be confined to the criminal law. There is no reason why the words [contravention or possible contravention of the law] should not be read as extending to any law which imposes an enforceable legal duty to do or refrain from doing some thing. I note in this regard that s.36 of the Acts Interpretation Act 1954 Qld provides that in an Act: ‘contravene includes: (a) breach; and (b) fail to comply with;’ A law may be contravened in circumstances where the breach does not attract a sanction of a penal nature. There are many instances of a statute imposing a legal duty of general or specific application but imposing no criminal penalty for a breach of the duty, usually because enforcement of the duty is intended to be achieved by other means, which are often specifically provided for in the statute itself. 78. Section 7.4 of the Police Service Administration Act 1990 (the PSAA) provides that officers are liable to disciplinary action in respect of conduct considered to be misconduct or a breach of discipline on such grounds as are prescribed by the regulations. Regulation 9(1) of the Police Service (Discipline) Regulations 1990 (the Regulations) provides as follows: 9. Grounds for disciplinary action (1) For the purposes of section 7.4 of the Act, the following are grounds for disciplinary action: (a) unfitness, incompetence or inefficiency in the discharge of the duties of an officers’ position; (b) negligence, carelessness or indolence in the discharge of the duties of an officers’ position; (c) a contravention of, or failure to comply with, a provision of a code of conduct, or any direction, instruction or order given by or caused to be issued by, the commissioner; (d) a contravention of, or failure to comply with, a direction, instruction or order given by any superior officer or any other person who has authority over the officer concerned; (e) absence from duty except- (i) upon leave duly granted; or (ii) with reasonable excuse; (f) misconduct (g) conviction in Queensland of an indictable offence, or outside Queensland of an offence which, if it had have been committed in Queensland would have been an indictable offence. 79. Breach of discipline is defined in section 1.4 of the PSAA as: a breach of this Act, the Police Powers and Responsibilities Act 2000 or a direction of the commissioner given under this Act, but does not include misconduct. 80. Misconduct is defined in section 1.4 of the PSAA as conduct that: (a) is disgraceful, improper or unbecoming an officer; or (b) shows unfitness to be or continue as an officer; or (c) does not meet the standard of conduct the community reasonably expects of a police officer. 81. Section 7.2 of the PSAA makes it clear that a breach of discipline or misconduct relate to conduct, wherever and whenever occurring, whether the officer is on or off duty. 82. The Queensland Parliament has passed legislation (the PSAA) to provide for the regulation in the public interest of the police service including prescribing requirements for continued service as a police officer. The effect of the above noted provisions of the PSAA is to impose a legal duty upon officers of the QPS to refrain from engaging in conduct that would amount to a breach of discipline or misconduct and to enforce that duty through disciplinary action. 83. On the material before I am satisfied that the investigation being conducted by QPS was an investigation of a breach of discipline. 84. I have listened to the tape recording of the QPS interview with McDonald. The tape recording makes it clear that the purpose of the interview was to determine if there were grounds for disciplinary action pursuant to the PSAA. 85. The nature of the allegations made by the applicant against McDonald is such as would amount to a breach of discipline or misconduct had they been proven. I consider that the first limb of section 42(1A) is satisfied. Under compulsion 86. The second limb of the provision requires that the information be given under compulsion. 87. The tape recording of the interview with McDonald confirms that McDonald was given a warning that he was required to answer questions pursuant to the direction of the Commissioner given under section 4.9(1) of the PSAA and contained in part 18.2.4.4.9 of the HRM Manual, and failure to do so would amount to grounds for disciplinary action. 88. Part 18.2.4.4.9 of the QPS Human Resources Management Manual (the HRM Manual) states in part: Pursuant to ss. 4.9(1) and 2.5 of the Police Service Administration Act 1990, all members of the Police Service (including police officers, police recruits and staff members), are instructed to truthfully, completely and promptly answer all questions directed to them by a member responsible for conducting an Inquiry or Investigation on behalf of the Commissioner. 89. The effect of the Commissioner’s direction is to require the officer to answer questions. Accordingly I consider that McDonald was compelled to give the information required of him and the second limb of section 42(1A) is satisfied. Can privilege be claimed 90. It should be noted that the law distinguishes between the privilege against self-incrimination (or exposure to criminal prosecution) and the penalty privilege (or privilege against exposure to a penalty or forfeiture). Penalty in the context of the penalty privilege includes a pecuniary penalty, dismissal from employment in the public service or disqualification from engaging in a professional activity. 91. The High Court case of Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 (Pyneboard) established the precedent that a provision which expressly abrogates the privilege against self-incrimination will also, by implication, abrogate the penalty privilege (at 345). 92. Until the recent High Court cases of Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 (Daniels) and Rich and Anor v Australian Securities and Investments Commission [2004] HCA 42; (2004) 209 ALR 271 (Rich) the High Court was of the view that the penalty privilege could be relied upon in non-judicial proceedings. 93. In the Pyneboard case Mason ACJ, Wilson and Dawson JJ said they were, ‘not prepared to hold that the privilege is inherently incapable of application in non-judicial proceedings’ (at 341). This case was subsequently interpreted to establish a precedent that the penalty privilege was available in non-judicial proceedings in the matter of Environmental Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 at 547 per McHugh J (Caltex). 94. However, in the more recent High Court decision of Daniels, the High Court rejected the Caltex interpretation of Pyneboard. In Daniels per Gleeson CJ, Gaudron, Gummow and Hayne JJ, the Majority noted that: ...[the statement in Pyneboard] does not amount to a holding that the privilege is available in non-judicial proceedings. [at 15] and in relation to the penalty privilege: ...there seems little, if any, reason why that privilege should be recognised outside judicial proceedings. Certainly, no decision of this court says it should be so recognised, much less that it is a substantive rule of law... [at 31] 95. The High Court has also recently cited the Daniels case with approval in Rich. 96. These recent High Court decisions indicate a narrower application of the penalty privilege than previously applied by the High Court. Therefore, it must be said that the penalty privilege is now not available to a person to claim in non-judicial matters. Section 42(1A) of the FOI Act can have no application where there is no valid claim of privilege. 97. Thus, for the purpose of determining whether section 42(1A) of the FOI Act applies to exempt information, the distinction between the privilege against self-incrimination and the penalty privilege is an important one in non-judicial proceedings. 98. The distinction between the penalty privilege and the privilege against self-incrimination is relevant to this matter when one considers that disciplinary investigations by the QPS are non-judicial proceedings and not all disciplinary investigations will result in the risk of exposing an officer to self-incrimination. An officer may only risk being exposed to a penalty. 99. The range of disciplinary actions that can be taken against an officer is outlined in section 7.4(3) of the PSAA. That section states that: (3 Without limiting the range of disciplines that may be imposed by the prescribed officer by way of disciplinary action, such disciplines may consist of— (a) dismissal; (b) demotion in rank; (c) reprimand; (d) reduction in an officer’s level of salary; (e) forfeiture or deferment of a salary increment or increase; (f) deduction from an officer’s salary payment of a sum equivalent to a fine or 2 penalty units. 100. I consider that the disciplinary action outlined in section 7.4(3) of the PSAA is punitive in nature and therefore falls within the scope of the penalty privilege. 101. Accordingly, as disciplinary interviews are non-judicial proceedings, in cases where the only risk to an officer is exposure to a penalty, the penalty privilege would not be available for an officer to claim and therefore section 42(1A) would have no application.In the present case McDonald was directed to answer questions put to him. 102. in relation to an allegation of misconduct. He was advised that failure to answer the questions would result in disciplinary action. The allegation against McDonald was not such as to potentially expose him to a risk of criminal sanction. Thus I do not consider that the privilege of self incrimination was available to him to claim. 103. Accordingly, I consider that the third limb of section 42(1A) has not been satisfied and thus the matter in issue is not exempt under that provision. Under an Act that abrogated the privilege against self-incrimination 104. The final limb of the provision that must be satisfied is that the information was given under an Act that abrogated the privilege against self-incrimination. 105. In light of the fact that the third limb of the provision has not been satisfied it is not strictly necessary to consider the final limb, however, for the sake of completeness I have considered the fourth limb below. 106. It is an accepted principle of law that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect (Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304 per O’Connor J). 107. The High Court in Pyneboard found that where there are no express words of abrogation, the question of whether the privilege has been abrogated by implication will depend upon ‘the language and character of the provision and the purpose which it is designed to achieve’ (at 341). 108. There are no provisions in the PSAA or the Regulations that expressly abrogate the privilege against self-incrimination. However, as noted above, section 4.9(1) of the PSAA and part 18.2.4.4.9 of the HRM Manual operate to require an officer to answer questions as directed, which may amount to an implied abrogation of the privilege. Legislation with similar operation was considered in the matter of Police Service Board and Another v Morris and Martin [1985] HCA 9; (1985) 58 ALR 1 (Morris). 109. The Morris case dealt with provisions of the Police Regulation Act 1958 (Vic) and the Police Regulations 1957 (Vic) that had a similar operation to the Queensland PSAA and the HRM Manual, in that refusal to answer questions when ordered to do so resulted in disciplinary action. In that case the High Court held that the character and object of the relevant legislative provisions and the nature of the police force provide a sufficient indication that it was not intended that the privilege against self-incrimination should apply. 110. Thus, in light of the Morris case and the operation of section 4.9(1) of the PSAA and part 18.2.4.4.9 of the HRM Manual, in circumstances where a Police Officer will be exposed to a risk of self-incrimination, I am of the view that it may be that a Police Officer’s right to claim privilege against self-incrimination is abrogated by implication. However, I make no specific finding on this issue as it is not necessary for the purpose of this review. Conclusion regarding the application of section 42(1A) of the FOI Act 111. I do not consider that the third limb of section 42(1A) FOI Act has been satisfied in this case and accordingly the matter in issue is not exempt under section 42(1A) of the FOI Act. Decision 112. I vary the decision under review (being the deemed decision of the QPS refusing access to documents sought in the applicant's FOI access application dated 13 May 2005), by deciding that: • pursuant to section 77(1) of the FOI Act, that part of the applicant’s application that revisits matters that have previously been addressed in decisions of this Office is vexatious and will not be dealt with in this review • part of folio 11 and the whole of folio 13, being the typed summary of the interview with Sergeant McDonald, and the corresponding taped record of interview, are not exempt pursuant to section 42(1)(ca) or section 42(1A) of the FOI Act 113. I have made this decision as a delegate of the Information Commissioner, under section 90 of the Freedom of Information Act 1992 (Qld). ________________________ V Corby Assistant Commissioner Date: 29 June 2007

queensland

court_judgement

Queensland Information Commissioner 1993-

Sanderson and Department of Justice and Attorney-General [2009] QICmr 5 (28 January 2009)

Sanderson and Department of Justice and Attorney-General [2009] QICmr 5 (28 January 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210507 Applicant: Mr B Sanderson Respondent: Department of Justice and Attorney-General Decision Date: 28 January 2009 Catchwords: FREEDOM OF INFORMATION – section 28A – section 44(1) – personal affairs – witness statements Contents REASONS FOR DECISION Summary 1. For the reasons set out below, I find that: • the Department is entitled to refuse access to some of the matter in issue under section 28A(2) of the Freedom of Information Act 1992 (FOI Act) • the remaining matter in issue does not qualify for exemption under section 44(1) of the FOI Act. Background 2. By application received by the Department of Corrective Services on 6 March 2008, and transferred to the Department of Justice and Attorney-General (Department) on 11 March 2008 (FOI Application), the applicant sought access to: 1. The Prosecutions Original Statement of [the principal witness] to Dect Patterson of Kingaroy Police and Dect White of Nambour Police. That said Detectives arrested me for the Murder of [the deceased] 2001. 2. [the principal witness] new statement to Det White of Nambour Police and Det Patterson of Kingaroy Police that resulted in [the principal witness] being charged with Accessory to Murder of [the deceased]. 3. [the principal witness] Psych Report tendered to the Court but refused by Justice Byrne. As it contains new Evidence. These articles are for my appeal to the Supreme Court. 3. By letter dated 30 April 2008, the Department advised the applicant that a decision was to have been made on the FOI Application by 25 April 2008, but as no decision had been made, the Department advised the applicant: • that a deemed decision refusing access to the documents the subject of the FOI Application had been made • of the applicant’s rights under the FOI Act to apply for an external review of that deemed decision • that it was continuing to process the FOI Application and requested an extension of time to do so until 16 May 2008. 4. By application dated 2 May 2008 (received 8 May 2008), the Applicant applied to the Office of the Information Commissioner (Office) for external review of the deemed decision of the Department (ER Application) and requested: 1. [the principal witness] Original Statement to Dect Patterson of Kingaroy Police & Dect White of Nambour Police March 2001. Which resulted in my Arrest for the Murder of [the deceased]. 2. [the principal witness] 2nd Statement to Dect Patterson of Kingaroy Police and Dect White of Nambour Police which resulted in [the principal witness] charged with Accessory to Murder May – June 2001 3. [the principal witness] Psych Report tendered by the Prosecutor but refused by Justice Byrne because it had word for word statements [the principal witness] had already admitted were false in Court ... This page only required as it is new evidence that Supreme Court should know about! and went on to say I have been asked to get these documents by Mr Tim Harland Head of Queensland Legal Aid Appeals Section ... 5. Following receipt of the ER Application, this Office made enquiries with the Department regarding the status of the FOI Application. Following these enquires, it was determined that the Department’s deemed decision to refuse access to the matter in issue would be externally reviewed by this Office. Decision under review 6. The decision under review is the deemed decision of the Department (under section 27(5) of the FOI Act), to refuse access to the matter in issue, deemed to have been made on 28 April 2008[1] (Deemed Decision). Steps taken in the external review process 7. This Office requested and reviewed copies of the documents which the Department identified as responsive to the FOI Application. 8. Following consideration of the folios supplied, this Office made enquires to: • the Brisbane Registry of the Supreme Court in order to ascertain whether any witness statements were accessible on the court record • the Department ○ to ascertain the Department’s views regarding the release of some documents to the applicant ○ to request the Department provide this Office with a copy of one of the documents which had not yet been located by the Department. 9. By letter dated 20 August 2008, the applicant provided further information regarding his reasons for seeking access to the matter in issue. 10. After obtaining the applicant’s consent, a staff member of this Office spoke with Ms Kylie Hilliard of Legal Aid Queensland (Legal Aid) on several occasions to clarify which documents were sought by the applicant and to ascertain whether there were any other avenues by which Legal Aid could access these documents on the applicant’s behalf. 11. By letter dated 23 September 2008, the Department provided written submissions in relation to the issues noted above, indicating that in the Department’s view, access to the Witness Statements should be refused under section 44(1) of the FOI Act. 12. Following receipt of a letter from Ms Hilliard which set out Legal Aid’s role in relation to the applicant, the specific documents requested, and that the applicant was prepared for the documents to be provided to Legal Aid (on Legal Aid’s undertaking not to provide copies of those documents to the applicant), I sought the Department’s response regarding: • the outcome of the Department’s further enquiries regarding the whereabouts of one of the documents in issue • whether the Department would agree to provide copies of documents to Legal Aid on Legal Aid’s undertaking not to provide copies of those documents to the applicant. 13. The Department provided me with further written submissions in relation to these issues by letter dated 21 November 2008, along with copies of documents which the Department identified as responsive to the applicant’s FOI Application. 14. By letter dated 22 December 2008, I communicated a preliminary view to the applicant that the Department had conducted reasonable searches to locate one of the documents requested in the FOI Application, but having been unable to locate the document, the Department was entitled to rely on section 28A(2) of the FOI Act to refuse access to that document. 15. This Office received submissions from the applicant in response to this preliminary view on 5 January 2009 and 7 January 2009. These submissions: • confirmed the witness statements to which the applicant sought access • suggested a number of other agencies which may have a copy of the document and/or the particular information sought from the document. 16. Having considered the applicant’s submissions, a staff member of this Office spoke with the Department on 13 January 2009 to confirm the searches undertaken for that document. 17. By letter dated 14 January 2009, I provided the Department with the preliminary view that the remaining documents requested by the applicant did not qualify for exemption under section 44(1) of the FOI Act. 18. By email dated 19 January 2009, the Department provided its response to the preliminary view. 19. In making this decision, I have taken the following into account: • the FOI Application • the ER Application • the Department’s submissions • the Applicant’s submissions and correspondence received from the applicant during the course of the review • information obtained from the Brisbane Registry of the Supreme Court, Legal Aid, and the website of the Supreme Court library • the matter in issue • relevant provisions of the FOI Act • relevant case law and previous decisions of this Office. Matter in issue 20. The matter in issue in this review consists of: • a psychiatric/psychological report of the principal witness (Report) and • the statement of the principal witness to Detective Whyte of Nambour CIB (and Detective Patterson of Kingaroy CIB) dated 26 March 2001 (consisting of 11 folios) (Statement A) • the statement of the principal witness to Detective Whyte of Nambour CIB (and Detective Patterson of Kingaroy CIB) dated 4 May 2001 (consisting of four folios) (Statement B) (collectively the Witness Statements). Findings 21. Pursuant to section 21 of the FOI Act, a person has a legally enforceable right to be given access under the FOI Act to documents of an agency and official documents of a Minister. This right of access is subject to other provisions of the FOI Act, in particular, section 28 of the FOI Act, which provides that an agency may refuse access to exempt matter or an exempt document. Under section 28A of the FOI Act, an agency may also refuse access to a document which does not exist or is not locatable. 22. I have set out my findings in relation to: • the application of section 28A(2) of the FOI Act to the Report • the application of section 44(1) of the FOI Act to the Witness Statements. 23. I have also considered whether the principal witness should be notified of the external review under section 78 of the FOI Act, to enable the principal witness to provide submissions regarding the disclosure of the matter in issue, or apply to become a participant in the review. Section 28A of the FOI Act 24. Section 28A of the FOI Act provides: 28A Refusal of access – document nonexistent or unlocatable (1) An agency or Minister may refuse access to a document if the agency or Minister is satisfied the document does not exist. Example – documents that have not been created (2) An agency or Minister may refuse access to a document if – (a) the agency or Minister is satisfied the document has been or should be in the agency’s or Minister’s possession; and (b) all reasonable steps have been taken to find the document but the document can not be found. Example – • documents that have been lost • documents that have been disposed of under an authority given by the State Archivist ... 25. The decision in Shepherd and Department of Housing, Local Government and Planning (Shepherd)[2] was made prior to the enactment of section 28A of the FOI Act. However, the principles in that decision, which addressed the issue of sufficiency of search, provide useful guidance in considering the basis for being ‘satisfied’ that a document sought does not exist or is not locatable. 26. Having regarding to the principles in Shepherd,[3] in order to establish whether the Department has taken all reasonable steps to locate the Report, I am required to consider whether the searches undertaken by the Department have been sufficient in the circumstances of this case, having regard to the following questions: • whether there are reasonable grounds to believe that the Report exists and is a document of the Department (Question One) • if so, whether the search efforts made by the Department to locate the Report have been reasonable in the circumstances of this particular case (Question Two). Question One 27. On the information available to me, I am satisfied that there are reasonable grounds to believe that the Report exists and should be a document of the Department.[4] In particular, the Department submits that comments in other documents of the agency indicate that such a report should exist. Question Two 28. The Department submits that access to the Report should be refused under section 28A of the FOI Act on the basis that the Report is unable to be located. In summary, the Department submits (in its correspondence of 23 September 2008 and 21 November 2008) that: • it has searched for, located and reviewed the relevant files relating to the FOI Application • there is evidence that the Report should exist (ie. comments in a document refer to a report) • the Report has not been found in the place in the Department’s records where it would usually be expected to be found • the Department has made further internal enquiries to the Office of the Director of Public Prosecutions to ascertain from persons involved in the relevant matter, the possible location of the Report. However, no further information is available to assist the FOI Unit to establish the location of the Report • the test is met for the Department to refuse access to the Report under section 28A of the FOI Act. 29. Following receipt of the applicant’s submissions in relation to the letter providing the preliminary view that the Department was entitled to refuse access to the Report under section 28A(2) of the FOI Act, a staff member of this Office made further enquiries with the Department and confirmed: • searches were conducted for the Report in all of the applicant’s DPP files relating to the relevant offence • searches were conducted for the Report in the DPP file of the principal witness, relating to the relevant offence • enquiries were made to persons involved in the relevant matter to ascertain whether they had any independent recollection of the possible location of the Report • the Department reviewed the relevant transcripts of proceedings and were unable to identify a reference to the Report • neither a psychiatric or psychological report of the principal witness was located as a result of those searches • the Department could not identify any further searches that could be undertaken to locate the Report. 30. On the information available to me, I find that: • there are reasonable grounds to believe that the Report exists and should be a document of the agency • the search efforts made by the Department to locate the Report have been reasonable in the circumstances • as the Department has been unable to locate a copy of the Report as a result of its reasonable search efforts, the Department is entitled to rely on section 28A(2) of the FOI Act to refuse access to the Report. 31. I note that the applicant’s submissions in response to my preliminary view letter suggest a number of other potential agencies where the Report and/or relevant information in the Report may be found. In this respect, I note that this Office has jurisdiction to conduct an external review of the Department’s deemed decision to refuse access to the documents. While this jurisdiction extends to a review of the Department’s efforts to locate relevant documents, it does not extend to undertaking enquiries and/or searches with other agencies. Application of section 44(1) of the FOI Act Section 44(1) of the FOI Act 32. Subsections 44(1) of the FOI Act provide: Matter affecting personal affairs (1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. (2) Matter is not exempt under subsection (1) merely because it relates to information concerning the personal affairs of the person by whom, or on whose behalf an application for access to a document containing the matter is being made. ... 33. Section 44(1) of the FOI Act therefore requires me to consider whether: • the matter in issue is information concerning the personal affairs of a person (other than the applicant) (Personal Affairs Question)? If so, a public interest consideration favouring non-disclosure of the matter in issue is established • the public interest considerations favouring disclosure of the matter in issue outweigh all public interest considerations favouring non-disclosure of the matter in issue (Public Interest Question)? Personal Affairs Question What are personal affairs of a person? 34. In Stewart and Department of Transport[5], the Information Commissioner discussed in detail the meaning of the phrase ‘personal affairs of a person’ as it appears in the FOI Act. In particular, the Information Commissioner found that information concerns the ‘personal affairs of a person’ if it concerns the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase ‘personal affairs’, that phrase has a well accepted core meaning which includes: • family and marital relationships • health or ill health • relationships and emotional ties with other people • domestic responsibilities or financial obligations. 35. Whether or not matter contained in a document comprises information concerning an individual's personal affairs is a question of fact, to be determined according to the proper characterisation of the information in question. Characterisation of the information in question 36. The Witness Statements were made by a person other than the applicant about events concerning that person, the applicant and others. 37. In Godwin and Queensland Police Service[6] (Godwin), where the matter in issue concerned a witness statement, the Information Commissioner said: I consider that, at least so far as concerns a member of the public acting in a personal capacity, the fact that a person has (or, indeed, has not) been prepared to co-operate with an investigation by a law enforcement agency is properly to be characterised as information concerning that person’s personal affairs ... Matter which would disclose the information that an identifiable individual, acting in a personal capacity, has or has not co-operated with an investigation by a law enforcement agency would therefore, in my opinion, be prima facie exempt from disclosure under section 44(1) of the FOI Act, subject to the application of the public interest balancing test incorporated in section 44(1) and went on to say I should add that, where information that an identifiable individual has or has not co-operated with an investigation by a law enforcement agency becomes a matter of public knowledge or public record (as would frequently occur when such information is disclosed through evidence given in court proceedings), the weight to be attributed to the privacy interest in protecting disclosure of that information would be significantly diminished, for the purposes of any balancing exercise that must be undertaken in the application of the public interest balancing test ... 38. Accordingly, I am satisfied that the fact of the principal witness making the Witness Statements, and the content of those Witness Statements, is matter concerning the personal affairs of the principal witness. Shared personal affairs 39. With respect to the content of the Witness Statements, I find that it is properly characterised as the personal affairs of the principal witness and the personal affairs of the applicant (and in some cases, others mentioned in the documents). 40. Applying the principles in B’ and Brisbane North Regional Health Authority[7] to the matter in issue, I am satisfied that the matter in issue concerning the applicant’s personal affairs is inextricably intertwined with information concerning the personal affairs of other persons, such that it is prima facie exempt from disclosure under section 44(1) of the FOI Act, subject to the application of the public interest balancing test. Public Interest Question 41. The way in which section 44(1) of the FOI Act is worded means that where matter concerns personal affairs of a person other than the applicant, the matter is, prima facie, exempt from disclosure. Only if disclosure of the information would, on balance, be in the public interest is the information not exempt under section 44(1) of the FOI Act. 42. I have carefully considered the public interest considerations favouring disclosure and non-disclosure of the matter in issue. My reasoning is set out below. Public interest considerations favouring non-disclosure 43. There is one principal public interest consideration favouring non-disclosure of the Witness Statements. This is the inherent public interest in protecting personal privacy if the information in issue concerns the personal affairs of someone other than the applicant. 44. I have also considered the public interest consideration in safeguarding the flow of information to law enforcement agencies. (1) Privacy Interest 45. As indicated above, there is an inherent public interest in protecting personal privacy if the information in issue concerns the personal affairs of someone other than the applicant. An appropriate weight must be allocated to that interest, having regard to the character and significance of the particular information in issue.[8] 46. In my view, the weight to be accorded the privacy interest in information relating to the identity of a witness, that witness’s willingness (or otherwise) to cooperate with the authorities and the testimony of that witness concerning the witness’s own personal affairs (particularly where there is evidence of wrongdoing on the part of the witness), would ordinarily be relatively high, unless that information has been treated in such a way as to reduce the weight of the privacy interest. Department’s submissions 47. The aspects of the Department’s submissions relevant to the question of the weight of the privacy interest are as follows: Enquiries were made with the Supreme Court Criminal registry in relation to exhibits tendered at trial. All tendered exhibits remain on the court file for a period of time before they are released back to either ODPP or to police. Any person is able to view the tendered exhibits of a particular trial except for those matters/trials involving children or by the order of a Judge to not release any tendered material on a court file. A person seeking to have access to tendered material/exhibits, on a court file, need not be a person who has a particular interest in a court proceeding and are able to sight the documents/exhibits upon the payment of a fee. They are, however, prohibited from making any copies of any documents or exhibits on the court file. ... Copies of these statements (upon perusal of the transcripts of Mr Sanderson’s trial) were tendered in court. Although tendered, the contents of the statements were not published in court and therefore not accessible to the public as such. They are no longer on the court file as they were returned to either the police or to the ODPP (this is also confirmed by ... OIC) Some of the events in the statements include information that concerns Mr Sanderson and his personal affairs and therefore comprises “shared personal affairs” information. This is in line with the relevant FOI principles in relation to “shared personal affairs” as explained by the Information Commissioner in Re “B” and Brisbane North regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at pp.343-345 (paras 172-178). Due to the fact that that the information concerning Mr Sanderson’s personal affairs is inextricably interwoven with the information concerning the personal affairs of other individuals (in this case [the principal witness] and the deceased and other witnesses), it is submitted that the information is exempt from disclosure to Mr Sanderson according to the terms of s.44(1). Taking into account the public interest balancing test, it is acknowledged that the identities of the persons are already known to Mr Sanderson. It is also acknowledged that large segments of the statements refer to events which are known to Mr Sanderson due to Mr Sanderson’s participation in them and that Mr Sanderson previously had access to these statements in full. Therefore, it is acknowledged that the strength of the privacy interest attaching to this information has been significantly diminished. 48. The Department’s submissions go on to balance that diminished privacy interest against the public interest arguments which favour disclosure (discussed in further detail below). Weight of privacy interest consideration 49. Having carefully considered the relevant evidence, I am satisfied that the privacy interests in the Witness Statements are significantly reduced on the following basis: • the Witness Statements were exhibited and read in open court during the proceedings against the applicant which commenced in August 2002 and those which commenced in January 2003. It is not material that the Witness Statements were not ‘published’ or set out in full in the transcripts of those proceedings. As the Witness Statements were read in open court, the applicant and others in the courtroom were made aware of the content of those statements • the principal witness was cross-examined on the Witness Statements and provided other evidence relating to the matters the subject of those statements in open court • the Witness Statements were exhibited to the court record and members of the public were able to view those statements for the period of time that physical copies remained on the Supreme Court file before they were returned in accordance with the Supreme Court registry’s administrative processes[9] • some of the substance of the Witness Statements is referred to in the judgment of the Court of Appeal, which remains publicly accessible on the Supreme Court of Queensland Library website • as acknowledged in the Department’s submissions, the applicant previously had access to the Witness Statements in full.[10] 50. Accordingly, I find that very little weight can be attributed to the relevant privacy interests in the circumstances. (2) Flow of information 51. In an appropriate case, there may be a public interest consideration in safeguarding the flow of information from members of the public to law enforcement agencies, by not deterring co-operation by members of the public.[11] Weight of ‘flow of information’ consideration 52. In light of the circumstances in which the Witness Statements were provided, and given that the issues have been dealt with in a public manner through the criminal process, there is no evidence before me to suggest that disclosure of the Witness Statements would have a detrimental affect on the flow of information from members of the public in similar circumstances. Accordingly, I am satisfied that no weight should be attributed to this public interest consideration. Public interest considerations favouring disclosure 53. In relation to the documents in issue, I consider that there are principally three public interest considerations favouring disclosure of the Witness Statements: • disclosure of information about how government functions are conducted can enhance the accountability of agencies in the performance of their functions • given the information concerns the applicant to such a degree, this may give rise to a justifiable ‘need to know’[12] • the applicant’s right to pursue a legal remedy. (1) Accountability of Government 54. Disclosure of information about how government functions are conducted can enhance the accountability of agencies in the performance of their functions. Ordinarily, this is a public interest argument which favours disclosure of information. Department’s Submissions 55. The Department submitted that: ... Balanced against this diminished privacy interest are public interest considerations favouring disclosure of the statements to Mr Sanderson, including enhancing the transparency of the criminal justice system and providing members of the community with access to information held by government in relation to their personal affairs. ... Weight of ‘accountability’ consideration 56. In the unreported decision of MN and QPS,[13] the Information Commissioner noted that while in cases involving law enforcement investigations there will generally be a public interest consideration favouring disclosure in the interests of furthering the accountability of the law enforcement agency, this public interest consideration favouring disclosure does not carry as much weight in cases where a relevant formal trial process has been undertaken (the investigations having already been subjected to a process of accountability), as it does in cases where there has been no relevant formal trial process. 57. In light of this, and the applicant’s stated reasons for seeking the information, I am satisfied that little weight should be attributed to this public interest consideration. (2) Justifiable ‘need to know’ 58. As previously stated by the Information Commissioner, in an appropriate case, there may be a public interest in an applicant having access to information which affects or concerns that applicant to such a degree, so as to give rise to a justifiable need to know which is more compelling than for other members of the public.[14] Department’s submissions 59. The Department submits in its letter of 23 September 2008 that: ... Balanced against this diminished privacy interest are public interest consideration favouring disclosure of the statements to Mr Sanderson, including enhancing the transparency of the criminal justice system and providing members of the community with access to information held by government in relation to their personal affairs. Section 6 of the FOI Act requires a decision maker to take into account the fact that much of the matter in issue contains information concerning Mr Sanderson in weighing competing public interest factors. (Mr Sanderson’s application suggests that he is pursuing access to these particular statements so as to pursue an appeal of his manslaughter conviction. I understand that his previous application for leave to appeal against his sentence was refused and his appeal against conviction was dismissed by the Court of Appeal in 2003.) In this regard, I acknowledge that his involvement in, and concern with, the particular information is of such a nature or degree as to give rise to a justifiable 'need to know'. However, it is submitted, that the key public interest considerations favouring disclosure of the statements to Mr Sanderson are themselves diminished in strength and therefore carry less weight in the circumstances of his case. The fact that Mr Sanderson already had access to the statements, while lessening the privacy interests as noted above also, operates to diminish the weight of the transparency and “need to know” considerations, in that these public interest considerations have already largely been satisfied as a consequence of this access. Regard should also be given to the fact that the FOI release is to the world at large and not just to Mr Sanderson, given the unconditional nature of the right of access contained in s.21 of the Act. It is submitted that the statements in issue, contain information about other people that is particularly personal or sensitive, and the privacy interests attaching to that information as against the world at large remains strong. It is acknowledged that the s.6 of the Act operated to relax this “world at large” principle in appropriate cases, the benefit of that provision is reduced in Mr Sanderson’s case as the relevant information concerns the “shared personal information” of Mr Sanderson and other individuals. Weight of ‘justifiable need to know’ consideration 60. While a public interest consideration is generally 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, section 4(2)(c) of the FOI Act recognises ‘that, in a free and democratic society ... members of the community should have access to information held by government in relation to their personal affairs’ ... [my emphasis]. 61. I note that disclosure of matter under the FOI Act has previously been considered to be ‘disclosure to the world at large’ rather than disclosure to the particular applicant. However, section 6 of the FOI Act[15] effectively relaxes that general principle, in that it requires that ‘the fact that the document contains matter relating to the personal affairs of the applicant’ be taken into account as a public interest consideration. 62. I am satisfied that: • in his correspondence to this Office, the applicant has expressed a strong desire to have the Witness Statements disclosed to him as well as the personal significance of disclosure of this information, in particular, that the Witness Statements provide evidence which is of value to an assessment of merit for a petition for pardon (discussed in greater detail below) • the applicant’s interest in obtaining access to the matter in issue is more compelling than for members of the general public • the applicant’s need to know the information or right to know constitutes a public interest consideration favouring disclosure of the matter in issue to the applicant. 63. Although section 6 of the FOI Act allows the fact that a document contains matter relating to the personal affairs of the applicant to be taken into account as a public interest consideration, this consideration carries less weight in circumstances where the information concerns ‘shared personal affairs’ rather than that person’s personal affairs alone.[16] 64. In this review, disclosure of the matter in issue to the applicant would disclose information concerning his personal affairs.[17] However, such disclosure would also necessarily disclose information concerning the personal affairs of others including the principal witness. Accordingly, the public interest in the applicant having access to matter constituting information concerning his personal affairs must be balanced against the public interest in the protection of personal privacy and therefore carries only some weight in the circumstances. (Also, as set out above, I note that the weight of the relevant privacy interests is significantly reduced in the circumstances). (3) Right to pursue a legal remedy 65. In an appropriate case, there may be a public interest in a person who has suffered an actionable wrong being permitted to access information which would assist them to pursue a remedy which the law affords in those circumstances. 66. The mere assertion by an applicant that information is required to enable pursuit of a legal remedy will not be sufficient to give rise to a public interest consideration that ought to be taken into account. As set out in Willsford and Brisbane City Council (Willsford),[18] it should be sufficient to establish this public interest consideration, if an applicant can demonstrate that: • loss or damage or some kind of wrong has been suffered, in respect of which a remedy is, or may be, available under the law • the applicant has a reasonable basis for seeking to pursue the remedy • disclosure of the information held by the agency would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available, or worth pursuing. 67. The existence of a public interest consideration of this kind represents one consideration to be taken into account in the weighing process along with any other relevant public interest considerations. Department submissions 68. The Department submits in its letter of 21 November 2008: ... The Department notified the Information Commissioner, on 23 September 2008, of its position that the statements concern [the principal witness] personal affairs and qualify for exemption under s44(1) of the FOI Act. At the time that view was formed, Mr Sanderson had submitted that he required the documents for use in an appeal to the Supreme Court. It is my understanding that when an appeal is lodged, an appellant will be provided with the necessary documents to conduct the appeal. In fact, Mr Sanderson had already appealed his conviction and sentence in 2002 and both appeals were dismissed. In these circumstances, this type of submission carries no weight against the privacy interest of the witness, particularly when the views of the witness have not been ascertained under s.51 of the FOI Act in the initial decision (because it was a deemed refusal). I do not know if [the principal witness] has been invited, or has agreed, to be a participant in the external review under s.78 of the FOI Act. We understand from Legal Aid’s letter that Mr Sanderson has applied for a grant of aid from Legal Aid to petition for a pardon. In the Department’s view, this recent action taken by Mr Sanderson carries greater weight in favour of disclosure than a mere assertion that he needed the documents for an appeal. However, the Department would not be inclined to withdraw an objection to disclosure of [the principal witness] statements without [the principal witness’] views being taken into account ... Application of Willsford test to the Witness Statements 69. On the basis of the information provided to me, the Willsford test applies in the following manner: • the ‘loss or damage’ suffered by the applicant in this case is imprisonment following a conviction of unlawful killing. The possible remedy available to the applicant under law is a petition for pardon[19] • the applicant seeks this information to assist in determining whether he has a reasonable basis to pursue this remedy[20] • disclosure of the Witness Statements would assist the applicant to pursue the remedy, or to evaluate whether a remedy is worth pursuing. In particular, I understand that the applicant seeks this information with the intention of providing it to Legal Aid, to enable Legal Aid to consider this evidence as part of its assessment of merit for a petition for pardon. Legal Aid confirms that it is in the process of assessing merit in respect of a petition for pardon. Weight of ‘right to pursue a legal remedy’ consideration 70. Having regard to the application of the test in Willsford, I am satisfied that in the circumstances of this case, significant weight should be attributed to this public interest consideration. Summary – weighing the public interest considerations 71. In its submissions dated 23 September 2008, the Department submitted: Accordingly it is submitted, that the public interest in protecting the privacy of the relevant witnesses, and the personal affairs of other individuals apart from Mr Sanderson identified in the statements while diminished, nevertheless outweighs the public interest factors weighing in favour of disclosure (themselves significantly diminished). The disclosure of the information in the statements will constitute release to the world at large and that personal information about these persons would be disclosed if released. Therefore, the disclosure of the statements would not, on balance, be in the public interest and that the statements qualify for exemption under s.44(1) of the FOI Act. 72. I have weighed the public interest considerations favouring non-disclosure against the public interest considerations favouring disclosure of the Witness Statements, and have done so having regard to the Department’s submissions. 73. While I acknowledge that in many cases, the weight to be accorded the privacy interest in information relating to the identity of a witness, that witness’s willingness (or otherwise) to cooperate with the authorities and the testimony of that witness concerning that witness’s personal affairs, may be relatively high, I am satisfied that the Witness Statement have been treated in such a way (as set out above) so as to significantly reduce the weight of the privacy interest in that information. Accordingly, little weight can be attributed to this public interest consideration favouring non-disclosure. As noted above, in the circumstances of this case, no weight should be attributed to the public interest in safeguarding the flow of information to law enforcement agencies. 74. Balanced against this are the public interest arguments favouring disclosure of the Witness Statements. In summary, I am satisfied that: • the public interest in the accountability of government attracts only a little weight • the weight of the applicant’s justifiable need to know (while ordinarily strong) is reduced somewhat in the circumstances by the fact that the Witness Statements contain personal affairs information about persons other than the applicant (although, as noted above, the privacy interest in this information is also significantly reduced) • significant weight should be attributed to the public interest in the applicant’s right to pursue a legal remedy. 75. Accordingly, having weighed the significantly reduced privacy interest favouring non-disclosure, against the public interest considerations of accountability of government, the applicant’s justifiable need to know, and the applicant’s right to pursue a legal remedy, I am satisfied that the public interest arguments which favour disclosure of the Witness Statements outweigh the public interest arguments which favour non-disclosure. Consultation 76. The Department’s letter dated 21 November 2008 states that: ... In these circumstances, this type of submission carries no weight against the privacy interest of the witness, particularly when the views of the witness have not been ascertained under s.51 of the FOI Act in the initial decision (because it was a deemed refusal). I do not know if [the principal witness] has been invited, or has agreed, to be a participant in the external review under s.78 of the FOI Act. We understand from Legal Aid’s letter that Mr Sanderson has applied for a grant of aid from Legal Aid to petition for a pardon. In the Department’s view, this recent action taken by Mr Sanderson carries greater weight in favour of disclosure than a mere assertion that he needed to the documents for an appeal. However, the Department would not be inclined to withdraw an objection to disclosure of [the principal witness] statements without [the principal witness] views being taken into account ... 77. In my letter to the Department dated 14 January 2009, I communicated the preliminary view that it was unnecessary to consult with the principal witness regarding the possible disclosure of the Witness Statements. 78. In its response dated 19 January 2009, the Department indicated that: • the issue of consultation with the principal witness remained of concern to the Department • it remained of the view that the Department would not consider disclosing documents of the type in issue without having given the principal witness an opportunity to present their views and participate in the review process. 79. I have carefully considered whether the principal witness should be notified of the external review under section 78 of the FOI Act,[21] to enable the principal witness to provide submissions regarding the disclosure of the Witness Statements, or apply to become a participant in the review. 80. As set out above, the Witness Statements have been treated in such a manner so as to significantly reduce the privacy interest in the personal affairs information of the principal witness: • the Witness Statements were exhibited and read in open court during the proceedings against the applicant which commenced in August 2002 and those which commenced in January 2003. It is not material that the Witness Statements were not ‘published’ or set out in full in the transcripts of those proceedings. As the Witness Statements were read in open court, the applicant and others in the courtroom were made aware of the content of those statements • the principal witness was cross-examined on the Witness Statements and provided other evidence relating to the matters the subject of those statements in open court • the Witness Statements were exhibited to the court record and members of the public were able to view those statements for the period of time that physical copies remained on the Supreme Court file before they were returned in accordance with the Supreme Court registry’s administrative processes • some of the substance of the Witness Statements is referred to in the judgment of the Court of Appeal, which remains publicly accessible on the Supreme Court of Queensland Library website • as acknowledged in the Department’s submissions, the applicant previously had access to the Witness Statements in full.[22] 81. Having participated as a witness at the applicant’s trials and given oral testimony, the principal witness would be aware that the applicant has knowledge of the substance of the Witness Statements. Accordingly, disclosure of the Witness Statements could not reasonably be expected to be of substantial concern to the principal witness, given the public treatment of those statements and the applicant’s existing knowledge of their content. 82. For the reasons set out above, I am satisfied that: • the Witness Statements do not qualify for exemption from disclosure under section 44(1) of the FOI Act • disclosure of those statements could not reasonably be expected to be of substantial concern to the principal witness such that the principal witness need be notified of the review to enable the principal witness to provide submissions or apply to become a participant in the review under section 78 of the FOI Act. DECISION 83. I set aside the decision of the Department and find that: • the Department is entitled to rely on section 28A(2) of the FOI Act to refuse access to the Report • the Witness Statements do not qualify for exemption from disclosure under section 44(1) of the FOI Act. 84. I have made this decision as a delegate of the Information Commissioner, under section 90 of the Freedom of Information Act 1992 (Qld). ________________________ Assistant Commissioner Henry Date: 28 January 2009 [1] On the basis of the information available to me, a decision on the FOI Application was to have been notified to the applicant by 25 April 2008. However, taking into account the public holiday which fell on 25 April 2008 and the weekend following, the Deemed Decision is taken to have been made on 28 April 2008.[2] [1994] QICmr 7; (1994) 1 QAR 464.[3] See paragraphs 18 – 19.[4] Section 7 of the FOI Act provides that: document of an agency or document of the agency means a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes – (a) a document to which the agency is entitled to access; and (b) a document in the possession or under the control of an officer of the agency in the officer’s official capacity. [5] [1993] QICmr 6; (1993) 1 QAR 227.[6] [1997] QICmr 11; (1997) 4 QAR 70 at paragraph 64 – 65.[7] [1994] QICmr 1; (1994) 1 QAR 279 at paragraph 176.[8] See Lower Burdekin Newspaper Company Pty Ltd and Burdekin Shire Council; Hansen, Covolo and Cross (Third Parties) [2004] QICmr 6; (2004) 6 QAR 328 at paragraph 23.[9] There was no evidence provided which suggested that the exhibits were treated differently due to the involvement of any children in the case, or by order of the court.[10] Presumably as they would have been served on the applicant and/or his legal representatives prior to the commencement of relevant proceedings.[11] See Godwin at paragraph 68.[12] See Pemberton and The University of Queensland (1994) 2 QAR 293, paragraphs 164 – 193. [13] (Unreported, 23 February 1998).[14] KBN and Department of Families, Youth and Community Care [1998] QICmr 8; (1998) 4 QAR 422 (KBN) at paragraph 56.[15] 6 Matter relating to personal affairs of applicant If an application for access to a document is made under this Act, the fact that the document contains matter relating to the personal affairs of the applicant is an element to be taken into account in deciding— (a) whether it is in the public interest to grant access to the applicant; and (b) the effect that the disclosure of the matter might have. [16] See KBN at paragraph 58.[17] Which is a factor to be taken into account in considering the effect that disclosure of the matter might have (section 6(b) of the FOI Act). [18] [1996] QICmr 17; (1996) 3 QAR 368 at paragraphs 16 – 18.[19] In Re Fritz [1995] 2 Qd R 580, McPherson JA said at page 596 ‘The power to pardon is an aspect of the royal prerogative of mercy forming part of the common law’.[20] Willsford, at paragraph 20[21] Section 78(2) of the FOI Act provides: ‘Any person affected by the decision the subject of the review (including, if the review concerns matter that is claimed to be exempt matter, a person whose views must be sought under section 51 in relation to the matter) may apply to the commissioner to participate in the review.’[22] Presumably as they would have been served on the applicant and/or his legal representatives prior to the commencement of relevant proceedings.

queensland

court_judgement

Queensland Information Commissioner 1993-

I7YL5P and Queensland Building and Construction Commission [2018] QICmr 17 (19 April 2018)

I7YL5P and Queensland Building and Construction Commission [2018] QICmr 17 (19 April 2018) Last Updated: 10 May 2018 Decision and Reasons for Decision Citation: I7YL5P and Queensland Building and Construction Commission [2018] QICmr 17 (19 April 2018) Application Number: 313389 Applicant: I7YL5P Respondent: Queensland Building and Construction Commission Decision Date: 19 April 2018 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - request for information about fees paid to adjudicators appointed under the Building and Construction Industry Payments Act 2004 (Qld) - whether identities of adjudicators can reasonably be ascertained from fee information cross-referenced with publicly available information - whether adjudicators fees constitute personal information ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - request for information about adjudicators and fees paid to adjudicators appointed under the Building and Construction Industry Payments Act 2004 (Qld) - accountability and transparency in process of referring applications to adjudicators - income details of private citizens - whether disclosure would, on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied under the Right to Information Act 2009 (Qld) (RTI Act) to the Queensland Building and Construction Commission (QBCC) for access to certain information about adjudicators appointed to determine payment dispute applications under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA).[1] QBCC located a 20 page spreadsheet titled ‘Adjudicators Appointed’ (Report), which presented the requested information as follows: Adjudicator Number Adjudicator Classification Adjudicator Acceptance Date Adjudicator Fees Claimed Amount Released Released Released Redacted Released QBCC released all of the information except that in the column titled ‘Adjudicator Fees’ representing the fees paid to the adjudicators for each decided application (Adjudicator Fees). QBCC decided that the disclosure of the Adjudicator Fees would, on balance, be contrary to the public interest.[2] The applicant applied to the Office of the Information Commissioner (OIC) for external review of QBCC’s decision.[3] The applicant submitted that the public interest favours disclosure of the Adjudicator Fees as it would promote transparency and accountability in the referral of matters by the Registrar of the QBCC Adjudication Registry (Registrar). The applicant also considers there can be no concerns about prejudice to the adjudicators’ business, financial or private affairs as the information sought is in a ‘deidentified’ format. For the reasons set out below, I affirm QBCC’s decision to refuse access to the Adjudicator Fees as disclosure would, on balance, be contrary to the public interest.[4] Background QBCC uses adjudication as a dispute resolution system to help resolve disagreements between homeowners and contractors over progress payments.[5] Under the BCIPA, the Registrar has the power to refer adjudication applications to adjudicators.[6] While the BCIPA does not prescribe specific criteria for the selection of adjudicators, QBCC’s Adjudicator Grading and Referral Policy (Referral Policy) provides guidance to the Registrar in making grading and referral decisions. The Referral Policy requires the Registrar to select adjudicators based on an analysis of each application and to ‘marry that analysis with a suitably graded adjudicator’.[7] Under the Referral Policy, when selecting an adjudicator for a matter, the Registrar considers maters including the claim amount, material issues in dispute, any specialist discipline or expertise held by the adjudicator and any voided decisions made by the adjudicator. Adjudicators are not paid by the QBCC nor are they paid out of public funds. The claimant and respondent to a dispute are jointly and severally liable to pay for adjudicator fees, and each are liable to contribute to the payment of the adjudicator in equal portions, or in the portions that the adjudicator decides.[8] The fees may be agreed upon by the parties and the adjudicator. However, the BCIPA provides that where no amount is agreed, the adjudicator is entitled to be paid an amount that is reasonable having regard to the work and expenses incurred by the adjudicator.[9] To provide guidance on what may constitute a reasonable amount, the Adjudication Registry has developed a schedule of recommended fees, which vary depending on the claim amount and how the adjudicator is graded.[10] Significant procedural steps relating to the external review are set out in the Appendix. Reviewable decision The decision under review is QBCC’s decision dated 1 June 2017. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). Information in issue As noted at paragraph 3 above, the information in issue in this review comprises the column of Adjudicator Fees in the 20 page Report identified by QBCC in response to the application. Issue for determination The issue to be determined is whether access to the Adjudicator Fees may be refused under section 47(3)(b) of the RTI Act on the basis that disclosure would, on balance, be contrary to the public interest. At the outset, I have also considered a preliminary issue with respect to deidentification, as both parties made submissions on this issue during the review, and it was the subject of an informal resolution proposal, which was ultimately unsuccessful. Deidentification As set out above, the applicant submits that the information sought does not include the names of adjudicators, and that the requested information is in a ‘deidentified’ format. The applicant argues this should negate any concerns about prejudice to the adjudicators’ business, financial or private affairs that may apply to disclosure of the Adjudicator Fees. QBCC has however, submitted that[11] while the Report does not contain the names of adjudicators, releasing the Adjudicator Fees would enable identification of adjudicators, through a process of cross-referencing the information already released in the Report, with the publicly available information on the BCIPA website. QBCC explained that the ‘decision search’ facility on the BCIPA website can be used as follows:[12] navigate to the ‘decision search’ function on the BCIPA website enter the relevant date range open a decision and note the payment claim amount; and cross-reference that figure with the information already released in the Report. QBCC submits that following the above steps would allow the Adjudicator Fees (if released) to be matched to the identity of an adjudicator (obtained through the cross-referencing process), thereby disclosing a component of an adjudicator’s personal income. OIC attempted to negotiate an informal resolution outcome between the parties to resolve the deidentification issue. OIC proposed that the Adjudicator Fees could be presented in a randomised format, i.e. not aligned with the other columns in the Report. While the applicant agreed to this proposal, QBCC was of the view that such an approach could still reasonably lead to identification of the adjudicators due to the value of claim amounts at the highest and lowest ends of the range, and the fact that some adjudicators only had one or two decisions. Therefore, QBCC did not consent to this informal resolution proposal.[13] During the course of the review, OIC explained to the applicant that a party to an external review is not under any obligation to accept a negotiated solution proposed by OIC,[14] and under the RTI Act, QBCC cannot be compelled to create a new document (i.e. the Adjudicator Fees in a randomised format) in order to provide deidentified (or less identifiable) information to the applicant.[15] Accordingly, given that QBCC did not accept the informal resolution proposal, the only issue that OIC is able to consider is whether access to the Adjudicator Fees (in their existing format) may be refused. Relevant law The RTI Act provides a right of access to information in the government’s possession or under its control.[16] The RTI Act operates with a ‘pro-disclosure bias’[17] meaning that it is Parliament’s intention for an agency to give access to information, unless the public interest favours nondisclosure.[18] Various factors may be relevant to deciding where the balance of the public interest lies[19] and a decision-maker is required to take specific steps in reaching a decision.[20]FindingsIrrelevant factors The applicant made submissions to OIC about previous dealings with QBCC and the Registrar.[21] The applicant’s personal experiences with QBCC are irrelevant to deciding where the balance of the public interest lies in this case and therefore, I have disregarded those submissions in reaching my decision.[22] Factors favouring disclosure The applicant considers that disclosure of the Adjudicator Fees is vital in order to ascertain whether the Referral Policy is being applied fairly and appropriately. In this regard, the applicant’s concerns are as follows: [23] An experienced person in the registrar’s position is well able to judge which matters will generate significant fees and which will not and, as such, is in a position to allocate the most valuable work preferentially to some adjudicators and not others, and also to disguise any such preferential practice by keeping tabs on the number and frequency of matters referred. That is to say, an adjudicator may be allocated an average number of matters at regular intervals, but still generate a fraction of the fee income of other adjudicators. Unless fee income is disclosed, it is impossible to tell whether the registrar is engaging in this practice or not, or even whether the entirely regular application of the policy is generating unfair outcomes. It is not to the point that the more valuable matters are more valuable because they require more work on the part of the adjudicator, or that his or her fees are not paid from government funds. The issue is whether and, if so, to what extent, the registrar is allocating more valuable work to some adjudicators and why this is occurring, whether the referral policy facilitates the practice and whether it should be addressed. I acknowledge that disclosing the Adjudicator Fees would reveal the value of applications that have been referred to each adjudicator, and the total value of referrals to the listed adjudicators, across the two year period. I consider there is a public interest in the community being able to scrutinise decisions of a government agency, such as QBCC, that have led, even where indirectly, to a monetary benefit being conferred on a private individual.[24] I am also satisfied that disclosing this information could, to a certain extent, reasonably be expected to promote open discussion of the Registrar’s role in allocating adjudication matters, and enhance QBCC’s accountability with respect to the appointment of adjudicators. The Adjudicator Fees are however, a list of monetary amounts only, and do not contain any reasons explaining the suitability of certain adjudicators for particular matters, nor reveal the Registrar’s grounds for selecting each adjudicator. Accordingly, I afford these factors moderate weight in favour of disclosure.[25] I also consider that disclosure of the Adjudicator Fees would allow a level of transparency into QBCC’s operations in terms of application of the Referral Policy, and what constitutes a ‘reasonable’ fee.[26] However, the level of insight into the latter is relatively limited given that a breakdown of the total fee paid is not included, only the total fee paid to the adjudicator. Further, as discussed above, the Adjudicator Fees do not reveal any qualitative aspects of the Registrar’s decision-making process and therefore, I consider disclosure would only give partial insight into how the Referral Policy is applied.[27] Accordingly, I afford this factor moderate weight in favour of disclosure. Adjudicators are not public servants, nor are they paid from the ‘public purse’. Therefore, I find that disclosure would not contribute to any oversight of expenditure of public funds.[28] I also do not consider that disclosure of the Adjudicator Fees could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest.[29] For this factor to apply, I consider the nature of the subject matter must be of broad community interest, e.g. a significant public infrastructure project or public health and safety issues.[30] I find that disclosure of the Adjudicator Fees would be of interest to only a narrow segment of the community and therefore, this factor does not apply. The applicant submits that disclosure of the Adjudicator Fees could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of QBCC and/or the Registrar.[31] For this factor to apply, it is only necessary for disclosure to ‘assist inquiry’ into ‘possible deficiencies’. This is a low threshold. I accept that for the applicant to further investigate concerns about whether ‘more valuable work’ is being allocated to particular adjudicators, disclosure of the Adjudicator Fees may somewhat assist in this line of inquiry. The application of this factor should not however, be taken to confirm the applicant’s suspicions in any way. In the circumstances, I afford this factor moderate weight in favour of disclosure. I find that disclosure of the Adjudicator Fees would not reveal any reasons, or background or contextual information that informed the appointment decisions made by the Registrar, under the Referral Policy[32] as the information is a list of monetary amounts only. As discussed above, there is no qualitative information included which could raise this public interest factor. Further, given the particular nature of the information, I find that disclosure could not reasonably be expected to reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper, or unlawful conduct, as submitted by the applicant.[33] I am satisfied that it would be improbable to establish conduct of that nature based solely on a list of monetary amounts which are, in many cases, subjectively determined by the parties to a dispute. Further, at the time of appointing an adjudicator, the Registrar, while aware of the claim amount, does not know exactly how much the adjudicator is going to be paid, as this will be determined in the future, either by agreement between the parties, and/or having regard to the schedule of recommended fees in the Referral Policy, and the principles set out in the BCIPA. The applicant also raised a number of additional public interest disclosure factors concerning fair treatment[34] and the administration of justice.[35] The applicant has previously worked as an adjudicator and is currently listed on the BCIPA website as an adjudicator. The applicant has not however, particularised any instances of unfair treatment, for example, in terms of insufficient allocation of adjudication matters, nor has the applicant provided evidence of loss/damage, or articulated any available remedy.[36] In the absence of any supporting evidence or submissions, I am unable to find that these public interest factors apply in this case. Factors favouring nondisclosure The RTI Act recognises that disclosure of another individual’s ‘personal information’ is a factor favouring nondisclosure which could reasonably be expected to lead to a public interest harm (Harm Factor).[37] The term ‘personal information’ is defined as follows: information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.[38] The Information Commissioner has previously established that the following questions are relevant in determining whether information is a particular individual’s personal information: [39] Can an individual be identified from the information sought? If so, is the information sought about that individual? Generally, information about an individual which includes their name will be identifying[40] and information such as a photograph, or a detailed identifying description may also identify an individual.[41] The Adjudicator Fees do not identify the adjudicators—names, photographs, adjudicator registration details or other detailed identifying information does not appear on the face of the Adjudicator Fees when viewed in isolation, or even when considered with the remainder of the Report. However, even where a person’s identity is not readily apparent, it may be possible with the assistance of additional information to identify a person.[42] In Mahoney,[43] the Right to Information Commissioner found that the question of whether an individual’s identity can reasonably be ascertained will depend on a number of factors: how available the additional information is how difficult it is to obtain how many steps are required to identify the individual how certain the identification will be whether it will identify one specific individual or a group of people; and whether the individual receiving the information can use it to identify the individual. As discussed at paragraphs 14-15 above, QBCC has submitted that the identities of the adjudicators can be ascertained through a process of cross-referencing the information released in the Report, with information that is publicly available on the BCIPA website. QBCC submits that if the Adjudicator Fees were released, the information could then be linked to the identity of the adjudicators through the cross-referencing process. Having followed the cross-referencing process set out by QBCC and having considered the facto[44] set out in Mahoney,44 I accept that: the information required to identify the adjudicators is readily available and simple to ascertain through the BCIPA website minimal steps[45] are required to identify the adjudicator, and the identification is relatively certain; and the process identifies each individual adjudicator (rather than a group of individuals) and the applicant will be in a position to use the information to identify these individuals. Accordingly, I find that the identities of individual adjudicators can reasonably be ascertained from the Adjudicator Fees and the cross-referencing process. In terms of whether the information is about the adjudicators, the Adjudicator Fees reflect a portion of the income received by the adjudicators within a two year period. I am satisfied that income information of an individual is ‘about’ that individual and therefore comprises the adjudicators’ personal information.[46] The concept of ‘disclosure’ as used in the Harm Factor apprehends the giving of information to a person or entity not otherwise possessed of knowledge of that information.[47] Where releasing personal information would involve conveying to any person or entity information that they already know, it cannot be said such release would ‘disclose’ personal information within the meaning of the Harm Factor, and therefore, that factor will not apply. In this case, the adjudicators are already aware of what they have been paid, as are the parties to the dispute (because they paid the fees), however, that is the extent to which the information has been disclosed. Accordingly, I find that releasing the Adjudicator Fees to the applicant would constitute a ‘disclosure’ of the personal information of the adjudicators listed in the Report, and therefore, the Harm Factor applies. I am satisfied that the extent of harm that could flow from disclosure of the Adjudicator Fees is relatively high as information about a private citizen’s financial situation is inherently sensitive. Accordingly, I afford the Harm Factor significant weight. The RTI Act also recognises that where disclosure of information could reasonably be expected to prejudice the protection of an individual’s right to privacy, the public interest will favour nondisclosure.[48] The concept of ‘privacy’ is not defined in the RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others.[49] Given the nature of the Adjudicator Fees, I am satisfied that disclosure would interfere with the adjudicators’ personal sphere, and that this factor favouring nondisclosure therefore applies. As set out above, the adjudicators are not public servants, nor are they contracted to perform a government service and are not paid from public funds.[50] In essence, the Adjudicator Fees represent a component of the gross income received by a group of private citizens within a two year period. For adjudicators with multiple matters, the total amount may represent a significant percentage of their annual income. While I acknowledge that the parties to each dispute will be aware of the fees paid to each adjudicator in a particular matter, the information relates only to individual matters and is not published more broadly. In contrast, the Adjudicator Fees disclose income information for individuals across BCIPA matters for a significant period of time. Accordingly, I afford significant weight to this factor in favour of nondisclosure. A factor favouring nondisclosure will also arise if disclosure could reasonably be expected to prejudice the business affairs of a person.[51] While I am satisfied that the Adjudicator Fees generally concern the income details of private citizens, I am not satisfied that adjudicators would suffer any adverse impacts to their business operations in terms of loss of income or competitive harm through disclosure of the Adjudicator Fees. Accordingly, I find that factor does not apply in the circumstances of this case.[52] Balancing the public interest In summary, I have found that there are several public interest factors which apply to favour disclosure of the Adjudicator Fees. I am satisfied that there is moderate weight to be afforded to the public interest in promoting QBCC’s accountability, open discussion of the Registrar’s referral role, and in providing a level of transparency in application of the Referral Policy. I have also recognised that there is moderate weight to be afforded to assisting inquiry into possible deficiencies in the conduct of an agency or official. Balanced against these however, are two key nondisclosure factors, namely the Harm Factor which is designed to protect the personal information of individuals, and the factor intended to safeguard a citizen’s right to privacy, which I have found applies in this case to protect the adjudicators’ income details. I am satisfied that these factors carry significant, and determinative weight in favour of nondisclosure. Accordingly I find that, on balance, disclosure of the Adjudicator Fees would be contrary to the public interest, and access may therefore be refused on that basis.DECISION For the reasons set out above, I affirm QBCC’s decision to refuse access to the Adjudicator Fees under section 47(3)(b) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.K ShepherdAssistant Information CommissionerDate: 19 April 2018 APPENDIX Significant procedural steps Date Event 30 June 2017 OIC received the external review application and requested relevant procedural documents from QBCC. 4 July 2017 OIC received the requested procedural documents and further information from QBCC. 10 July 2017 OIC notified the applicant and QBCC that the external review application had been accepted. OIC conveyed a preliminary view to QBCC. 24 July 2017 OIC received submissions from QBCC in response to the preliminary view. 21 September 2017 OIC obtained further submissions from QBCC. 24 November 2017 OIC conveyed a preliminary view to the applicant. 11 December 2017 OIC received submissions from the applicant in response to the preliminary view. 19 December 2017 OIC presented an informal resolution proposal to the applicant. 15 January 2018 The applicant notified OIC of agreement with the informal resolution proposal. 19 January 2018 OIC conveyed the informal resolution proposal to QBCC. 1 February 2018 QBCC requested an extension of time within which to respond to the informal resolution proposal. 2 February 2018 OIC granted QBCC the extension of time. QBCC provided oral submissions to OIC in relation to the informal resolution proposal. 6 February 2018 OIC received submissions from QBCC rejecting the informal resolution proposal. 22 February 2018 OIC advised the applicant that the informal resolution could not be negotiated with QBCC and as a result, the review would proceed to be finalised by a formal decision. The applicant raised certain concerns regarding OIC’s letter, including publication of the formal decision and the option of withdrawing the application. 27 February 2018 OIC addressed the applicants concerns, and asked to be notified if the applicant did not wish OIC to issue a formal decision in the matter. The applicant then requested clarification about the implications of withdrawing the application. 28 February 2018 OIC advised the applicant of the process and implications of resolving reviews informally under section 90(4) of the RTI Act. OIC confirmed that the next step, if the applicant did not elect to withdraw the application, would be a formal written decision to finalise the review. [1] Access application dated 30 January 2017. The application requested particular details about each adjudicator and matters referred to them, including the fee paid, amount claimed, adjudicator grade and the date of acceptance. The applicant agreed that the names of adjudicators were not required but asked that a ‘unique identifier’ be used instead to allow analysis of the information. The applicant also agreed to accept information in the form of an Excel spreadsheet. [2] Under sections 47(3)(b) and 49 of the RTI Act. Decision dated 1 June 2017.[3] External review application dated 30 June 2017.[4] Under sections 47(3)(b) and 49 of the RTI Act.[5] See <http://www.qbcc.qld.gov.au/get-help-getting-paid-bcipa/what-adjudication> , accessed on 8 February 2018.[6] The applicant has previously worked as an adjudicator and is currently listed as an adjudicator on the BCIPA website at <http://xweb.bcipa.qld.gov.au/ars_xweb/Pages/adj_search.aspx?Query=A> . Accessed on 12 April 2018. [7] See the Referral Policy at <www.qbcc.qld.gov.au/sites/default/files/Adjudicator_Grading_and_Referral_Policy_2015.pdf> Accessed on 12 April 2018.[8] Section 35(2) and (3) of the BCIPA.[9] Section 35(1) of the BCIPA. [10] Referral Policy, p. 9-10, accessed on 12 April 2018.[11] Submissions to OIC dated 24 July 2017. These submissions were made in response to OIC’s letter to QBCC dated 10 July 2017, which set out OIC’s initial view that adjudicators other than the applicant were not identified in the Report, and accordingly, the applicant was entitled to access the Adjudicator Fees. OIC changed its view after considering QBCC’s submissions.[12] Available at xweb.bcipa.qld.gov.au/ars_xweb/Pages/det_search.aspx. Accessed on 12 April 2018.[13] OIC has an obligation to identify opportunities for informal resolution and promote settlement of review applications under section 90 of the RTI Act. However, OIC does not have any power to direct parties to agree to the terms of an informal resolution proposal. Accordingly, where the agreement of both parties cannot be obtained, OIC must proceed to formally decide the matter under section 110 of the RTI Act. [14] OIC’s letter to the applicant dated 22 February 2018.[15] An agency is not obliged by the terms of the RTI Act to create a new document in response to an access application. Rather, an agency is only obliged to locate existing documents which it is entitled to access or which are in its possession or under its control: see Van Veenendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) at [27], citing Dimitrijev and Department of Education (Unreported, Queensland Information Commissioner, 23 February 1998) at [21].[16] Section 3 of the RTI Act. [17] Section 44 of the RTI Act. [18] Under section 47(3)(b) of the RTI Act, access to information may be refused where disclosure would, on balance, be contrary to the public interest. [19] See schedule 4 of the RTI Act. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. [20] Section 49 of the RTI Act. The steps include: disregarding any irrelevant factors, identifying relevant factors favouring disclosure and nondisclosure, and balancing the relevant factors. [21] Oral submissions made to OIC on 10 July 2017 and 18 August 2017.[22] I have also disregarded the irrelevant factors in schedule 4, part 1 of the RTI Act. [23] Applicant’s submissions to OIC dated 11 December 2017.[24] As explained above, the parties to the dispute pay the adjudicators’ fees. [25] Schedule 4, part 2, item 1 of the RTI Act.[26] Schedule 4, part 2, item 3 of the RTI Act. [27] The application of the Referral Policy can be subject to investigation by the Ombudsman and or the Crime and Corruption Commission. See paragraph 2.1.4 of the Referral Policy.[28] Accordingly, the factor at schedule 4, part 2, item 4 of the RTI Act does not apply. [29] Schedule 4, part 2, item 2 of the RTI Act. [30] For example, Straker and Sunshine Coast Regional Council; NBN Co Limited (Third Party) [2016] QICmr 44 (28 October 2016) at [74]-[75] and Nine Network Australia Pty Ltd and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 14 February 2012) at [50]-[53].[31] Schedule 4, part 2, item 5 of the RTI Act. [32] Accordingly, the factor at schedule 4, part 2, item 11 does not apply. [33] Schedule 4, part 2, item 6 of the RTI Act. Raised by the applicant in the external review application. [34] Schedule 4, part 2, item 10 of the RTI Act. [35] Schedule 4, part 2, items 16 and 17 of the RTI Act. [36] In Willsford and Brisbane City Council [1996] QICmr 17; (1993) 3 QAR 368 at [17], the Information Commissioner set out that there is recognisable public interest in the administration of justice where an applicant demonstrates that they have suffered loss or damage or some kind of wrong, in respect of which a remedy is, or may be, available under the law, and they have a reasonable basis for seeking to pursue the remedy and disclosing the information itself would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available or worth pursuing. [37] Schedule 4, part 4, section 6 of the RTI Act. [38] See schedule 5 of the RTI Act which adopts the definition in section 12 of the Information Privacy 2009 (Qld) (IP Act).[39] Mahoney and Ipswich City Council (Unreported, Queensland Information Commissioner, 17 June 2011) (Mahoney) at [19].[40] Mahoney at [20].[41] Ibid.[42] Mahoney at [21], cited with approval in Marchant and Queensland Police Service (Unreported, Queensland Information Commissioner, 10 September 2013) at [15]-[16] and Swiatek and The University of Southern Queensland [2017] QICmr 57 (8 December 2017) at [19]. These cases can be distinguished from this review as the identities of the subject individuals in those matters were found not to be reasonably ascertainable. [43] Ibid.[44] At paragraph 30 above.[45] Four brief ‘steps’ are required, if each step is defined as set out in paragraph 14 above, although I note that a level of ‘trial and error’ is required to find the correct decision within the relevant date range.[46] See Edmistone and Blackall-Tambo Regional Council [2016] QICmr 12 (15 April 2016) at [48], where it was accepted that an individual’s total remuneration comprises their personal information. See also Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 at [80], which noted that a person’s income and personal financial position fall within the meaning of the phrase ‘personal affairs’.[47] While ‘disclose’ as used in the Harm Factor is not defined in the RTI Act, the word is defined in section 23 of the IP Act as it relates to the application of the Information Privacy Principles – to ‘disclose personal information’ relevantly means to give that information to an entity who does not otherwise know the information and is not in a position to find it out. This accords with the ordinary dictionary definition of ‘disclose’: relevantly, to ‘make known; reveal’: Macquarie Dictionary Online (accessed 19 April 2018). [48] Schedule 4, part 3, item 3 of the RTI Act. [49] Paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 12 August 2008, at paragraph 1.56. Cited in Balzary and Redland City Council; Tidbold (Third Party) [2017] QICmr 41 (1 September 2017) at [28].[50] Compare to the analysis in Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 at [80], which noted the public interest in ‘seeing how the taxpayers' money is spent which is sufficient to justify the disclosure of the gross income payable from the public purse to the holder of a public office’ applied in Edmistone and Blackall-Tambo Regional Council [2016] QICmr 12 (15 April 2016) at [49].[51] Schedule 4, part 3, item 15 of the RTI Act.[52] I find that no other factors favouring nondisclosure, including those set out in schedule 4, parts 3 and 4 of the RTI Act, apply in the circumstances of this case.

queensland

court_judgement

Queensland Information Commissioner 1993-

Ensham Resources Pty Limited & Ors and Department of Environment and Science; Shaw (Third Party) [2020] QICmr 46 (11 August 2020)

Ensham Resources Pty Limited & Ors and Department of Environment and Science; Shaw (Third Party) [2020] QICmr 46 (11 August 2020) Last Updated: 26 October 2020 Decision and Reasons for Decision Citation: Ensham Resources Pty. Limited & Ors and Department of Environment and Science; Shaw (Third Party) [2020] QICmr 46 (11 August 2020) Application Number: 314814 and 314891 Applicant: Ensham Resources Pty. Limited (ACN 011 048 678) Respondent: Department of Environment and Science Third Party: Shaw Fourth Party: Idemitsu Australia Resources Pty Ltd (ACN 010 236 272) Fifth Party: Bligh Coal Limited (ACN 010 186 393) Sixth Party: Bowen Investment (Australia) Pty Ltd (ACN 002 806 831) Decision Date: 11 August 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - DISCLOSURE DECISION - CONTRARY TO PUBLIC INTEREST INFORMATION - documents relating to an environmental authority - accountability and transparency - prejudice to a deliberative process of government - public interest harm in disclosing deliberative process information - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary On 18 December 2018, the access applicant made two applications under the Right to Information Act 2009 (Qld) (RTI Act) to the Department of Environment and Science (Department) for access to all documents relating to the Rehabilitation Management Plan[1] (RMP) and Ensham Residual Void Project (ERVP) administered by the Department[2] pursuant to an Environmental Authority (EA).[3] The Department consulted Ensham Resources Pty. Limited (Ensham)[4] about disclosure of the information it located in response to both applications. Ensham objected to disclosure of some of the documents, submitting that disclosure would, on balance, be contrary to the public interest and that access should therefore be refused.[5] The Department decided to grant access to some information contrary to Ensham’s objections.[6] Ensham applied for internal review[7] and the Department affirmed its decisions relating to the RMP Application[8] and varied its decision relating to the ERVP Application.[9] Ensham then applied to the Information Commissioner (OIC) for external review of the Department’s disclosure decisions.[10] On external review three additional parties[11] were consulted. Those parties also objected to the disclosure of the information in issue and were joined as participants. The Objecting Parties are represented by the same lawyer and have made uniform submissions. The access applicant also applied and was added as a participant in the reviews. I affirm the Department’s decisions and find the Objecting Parties have not discharged the onus of demonstrating that: disclosure of the information in issue would, on balance, be contrary to the public interest; and that a decision not to disclose the information in issue is justified. Background The EA is the environmental authority approved by the Department setting out the conditions under which the Ensham Mine[12] can operate.[13] The information in issue in these reviews comprises Department communications about amendments to the EA. The Objecting Parties explained that the relevant EA is the subject of an amendment application, submitted to the Department on 26 March 2019, relating to the rehabilitation plan and criteria for final voids, and that the information in issue relates to the Department’s preliminary views on the rehabilitation criteria.[14] The Department indicated that it reached a decision on the EA amendment application on 24 July 2020.[15] During the external reviews, the Department agreed to disclose information to the access applicant which was not subject to any disclosure objections. Following this, the Objecting Parties confirmed to OIC their view that disclosure of the remaining information in issue, would, on balance, be contrary to the public interest. Significant procedural steps relating to these reviews are set out in the Appendix. Reviewable decisions The decisions under review are the Department’s internal review decisions to Ensham.[16] I have made this decision in relation to both reviewable decisions.[17] Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[18] particularly the right to seek and receive information as embodied in section 21 of the HR Act as it applies to the access applicant. Information in issue The information in issue in these reviews comprises Department communications about the: RMP Application which comprises parts of 46 pages; and ERVP Application which comprises parts of 10 pages. Issue for determination As the decisions under review are ‘disclosure decisions’, the Objecting Parties have the onus of establishing that a decision not to disclose the information in issue is justified, or that I should give a decision adverse to the access applicant.[19] The Objecting Parties claim that access to the information in issue can be refused under section 47(3)(b) of the RTI Act because disclosure of the information in issue would, on balance, be contrary to the public interest. This is therefore the issue I have considered in reaching a decision on whether the Objecting Parties have met the onus of establishing that a decision not to disclose the information in issue is justified. Relevant law The primary objective of the RTI Act is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give access.[20] Section 23 of the RTI Act establishes a right to be given access to documents, and accordingly a pro-disclosure basis.[21] This right is subject to the grounds on which access to information may be refused.[22] These grounds allow access to information to be refused, to the extent it comprises information the disclosure of which would, on balance, be contrary to the public interest.[23] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[24] and explains the steps a decision-maker must take, as follows:[25] identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Findings Irrelevant factors I have not taken any irrelevant factors into account in making my decision. Factors favouring disclosure In its disclosure decisions[26] the Department explained that the information in issue was created or collected by the Department in its role as an environmental regulator. As the information in issue relates to the environmental and rehabilitation conditions of the Ensham Mine, the Department considered several factors in favour of disclosure carried significant weight.[27] I note that the Mineral and Energy Resources (Financial Provisioning) Act 2018 (Qld), which took effect from 1 November 2019, amended a number of laws[28] to ensure that mining companies rehabilitate the land progressively as they mine,[29] and ensures the mining company cover the cost of the rehabilitation.[30] The Department has acknowledged the ‘significant public interest in the mine's rehabilitation – particularly of the voids on the site’ and commenced public consultation in December 2019 of the Major EA amendment application as ‘this amendment application proposes an alternative outcome from that detailed in Idemitsu's Environment Impact Statement for the rehabilitation of the voids...’.[31] I have also considered the access applicants contentions that: Given that the process is for a coal mine, it is our submission in the first instance, that the public interest in the proper administration of the regulation of a coal mine outweighs any prejudice to deliberative functions of Government... The access to the documents will confirm the process that has been implemented, the dialogue between the coal mine and the Department and assist the landholder to determine the future uses of their land.[32] Having considered the information in issue and the relevant background circumstances, I consider that disclosure of the information in issue could reasonably be expected to: promote open discussion of public affairs and enhance the government’s accountability[33] contribute to positive and informed debate on important issues or matters of serious interest[34] inform the community of the government’s operations, including, in particular, the policies, guidelines and codes of conduct followed by government in its dealings with members of the community;[35] and reveal the reason for a government decision and any background or contextual information that informed the decision.[36] In response to my preliminary assessment of the issues in the reviews,[37] the Objecting Parties submitted that:[38] the Ensham Mine and current EA Amendment Application to introduce rehabilitation criteria for final voids has been the subject of considerable public debate; and release of this information therefore has the clear potential to raise undue and unwarranted community concerns and public debate. However, the Objecting Parties also submitted that the public interest factors identified above were irrelevant, or carried very low weight.[39] Given the community interest in the Ensham Mine and associated EA, I do not agree with the proposition that these public interest factors carry only low weight.[40] I consider that the information in issue, while limited in nature, forms part of an important regulatory process to ensure that significant mining projects are undertaken in compliance with the relevant environment protection legislation and regulations. The information in issue squarely demonstrates how this process is conducted by the Department. As explained above, this process conducted by the Department forms part of crucial government oversight in relation to environmental and rehabilitation considerations associated with large scale mining projects, such as the Ensham Mine. Accordingly, I am satisfied that the above factors in favour of disclosure carry significant weight. Public interest factors favouring nondisclosure The Objecting Parties argue that disclosure of the information in issue could reasonably be expected to cause a public interest harm by disclosing deliberative process information (Deliberative Process Harm Factor);[41] and could reasonably be expected to prejudice the Department’s consideration of the Major amendment to the rehabilitation conditions of the EA (Deliberative Process Prejudice Factor).[42] Deliberative Process Harm Factor The RTI Act recognises that disclosure of ‘deliberative process’ documents can reasonably be expected to cause a public interest harm.[43] The Information Commissioner has consistently recognised that a deliberative process is considered to be any ‘thinking processes’ of the agency.[44] A document may be considered a deliberative process document, even where the relevant ‘thinking process’ has concluded. The RTI Act also specifies that this harm factor will not apply if the deliberative processes include public consultation and that public consultation has commenced.[45] The Information Commissioner has found that information that meets the requirements of the Deliberative Process Harm Factor[46] include: information prepared during consultations undertaken by the Treasurer in deliberating on and evaluating matters in relation to proposed mining projects;[47] and an agency’s determination of the amount of a financial assurance required in respect of a mining company's replacement plan of operations.[48] The Department noted that the information in issue ‘covers only purely procedural or administrative functions that occur when the department completes conditions for any EA’[49] and did not accept that it could be considered deliberative process information. On the other hand, the Objecting Parties contend that:[50] granting an EA amendment is a statutory decision ... DES retains the discretion to refuse an EA amendment application or to choose which conditions are imposed if it is approved. This process requires deliberation and is not merely procedural in nature... Having considered the information in issue, I acknowledge that it records the Department’s ‘thinking processes’ and that it can be considered deliberative process information. While I note that it reveals minimal information about the Department’s particular considerations and appears to discuss mainly administrative issues, I accept that it can be considered deliberative process information. The Objecting Parties also submitted that the Major amendment application was subject to public consultation, and over 800 responses were received.[51] Once public consultation starts in response to the deliberative process claimed by the applicant, the Deliberative Process Harm Factor no longer applies to the information in issue. In relation to this issue, the Objecting Parties submitted that:[52] ...the information in issue was created for the First EA Amendment dated 26 May 2017, which "was but one initial step in an ongoing deliberative process for the setting of rehabilitation criteria for final voids"... The information in issue is, however, essentially preliminary or precursory in nature with respect to the Second EA Amendment Application. Accordingly, the information in issue was not released as part of the public consultation process conducted in late 2019 for the ongoing deliberative process (or as part of any other public consultation process). A public consultation process was undertaken for the Second EA Amendment Application only. Therefore, the information in issue remains deliberative process information which indicates the Department's preliminary view and which has never been released to the public. I accept the Objecting Parties’ submissions that the deliberative process information was not released to the public or subject to a public consultation process and that as a result the Deliberative Process Harm Factor continues to apply. In assessing the weight that can be attributed to the Deliberative Process Harm Factor, I note that the Department maintains that the disclosure of the information in issue would not impact on its deliberative processes and also that it does not consider any deliberative processes are currently ongoing. I also note that some time has passed since the relevant information was communicated and its disclosure at this point in time, where the relevant EA has been subject to further amendment and public consultation, is likely to have minimal harm to any currently ongoing deliberative processes. Having considered the specific content of the information in issue, it is unclear to me how its disclosure could have any measurable harm on deliberative processes. On this basis, I have allocated low weight to this harm factor in favour of nondisclosure. Deliberative Process Prejudice Factor The Deliberative Process Prejudice Factor will apply where disclosure could reasonably be expected to prejudice a deliberative process of government.[53] The Department indicated that it reached a decision on 24 July 2020 in relation to the second EA amendment application and did not consider that disclosure of the information in issue would prejudice any ongoing deliberative process.[54] In response, the Objecting Parties submitted that:[55] We note that while notice of DES's draft decision has been given to our clients the deliberative process is not complete until the final EA is issued. Under the Environmental Protection Act 1994 (Qld) (EP Act), there is 20 business days from receipt of the s.181 notice for referral of the Application to the Land Court under s.183 of the EP Act. A final decision on the Application will not be made until the expiry of the period for referral or until the completion of the Land Court proceedings. In earlier submissions to OIC, the Objecting Parties also submitted that:[56] prejudice can be caused to a deliberative process where release of the document could cause disruptive public debate and require reallocation of resources to deal with the disruption;[57] and disclosure could also result in interference with the ability of an agency to objectively consider its options and reach a decision.[58] Further, the Objecting Parties explained that:[59] Specifically, the Documents in Issue are likely to have a detrimental impact on the government's ability to continue to consider its options and engage in open and frank negotiations with third parties... Further, the deliberative process relates directly to a change in the use of the land, which could cause community concern. The Ensham Mine and the current EA Amendment Application to introduce rehabilitation criteria for final voids has been the subject of considerable public debate. In considering whether the Deliberative Process Prejudice Factor applies in this case, I note that the words ‘could reasonably be expected to’ call for a decision-maker to discriminate between what is merely possible or merely speculative, and expectations that are reasonably based.[60] The Objecting Parties have argued that the threshold for establishing ‘could reasonably be expected to’ is satisfied, noting the decision in the Supreme Court of Western Australia of Department of State Development v Latro Lawyers[61] and other decisions establishing what constitutes a ‘reasonable expectation’.[62] Here, I must be satisfied that there is a reasonably based expectation (and not mere speculation or a mere possibility) that disclosure of the information in issue could reasonably be expected to result in the prejudice claimed by the Objecting Parties. The word ‘prejudice’ is not defined in the RTI Act or in the Acts Interpretation Act 1954 (Qld). Therefore, it is appropriate to consider the ordinary meaning of the word. The Macquarie Dictionary contains a number of definitions for the word ‘prejudice’. The most relevant are ‘resulting injury or detriment’ and ‘to affect disadvantageously or detrimentally’.[63] Given the Objecting Parties’ contentions that disclosure of the information in issue could reasonably be expected to prejudice a deliberative process of the Department, I wrote to the Department to establish its position on this issue. The Department confirmed that it did not consider any prejudice would result to its deliberative processes from disclosure of the information in issue.[64] The Objecting Parties submitted that previous decisions of the Information Commissioner have held that prejudice to a deliberative process may occur if disclosure of a document would result in disruptive public debate.[65] However, the Information Commissioner has also held that it is: likely to be a rare case where exposure of an individual agency's views on a policy proposal in development would lead to a degree of premature debate, and unnecessary concern and confusion in the community, sufficient to amount to an injury to the public interest.[66] The Information Commissioner has also previously held that the fact of an ongoing deliberative process does not, of itself, permit a conclusion that disclosure would, on balance, be contrary to the public interest.[67] Having considered the information in issue, and without being able to discuss it in any detail,[68] I generally note that the information that was communicated by the Objecting Parties is not of a particularly sensitive nature and relates to an approved, publicly available EA. Given the Objecting Parties were required to communicate with the Department as the regulatory agency, I do not accept that disclosure of the information in issue could reasonably be expected to[69] prejudice the Department’s ability to conduct future similar communications with third parties. The Objecting Parties have also not specified exactly how disclosure of the specific information in issue would prejudice any currently ongoing deliberations. The information in issue itself does not contain any details of any currently proposed amendments nor does it disclose issues that remain under active consideration by the Department. The Objecting Parties argue that the information in issue reveals the Department’s preliminary view with respect to the rehabilitation criteria. However, the Department has itself submitted that its deliberations are now complete.[70] I cannot identify the prejudice to any current or future deliberative process of the Department that could reasonably expected to result from disclosure of the information in issue. Accordingly, I am satisfied that the Deliberative Process Prejudice Factor does not apply to the information in issue. If I am incorrect in this conclusion, and it is necessary to consider this factor in balancing the public interest, I would give it minimal weight in view of the nature of the information in issue and the considerations summarised above. Other factors favouring nondisclosure The Objecting Parties bear the onus of establishing that disclosing the information in issue would, as they contend, be contrary to the public interest.[71] However, for completeness, I have considered all factors listed in schedule 4, parts 3 and 4 of the RTI Act, and I can identify no other public interest considerations favouring the nondisclosure of the information in issue[72] that can be supported in this case. On external review the Objecting Parties have not sought to advance any evidence or submissions in relation to the application of any other factors favouring nondisclosure.[73] Balancing the public interest factors The information in issue was created or communicated by the Department as part of its regulatory functions in relation to the EA for the Ensham Mine. The actual information in itself is limited in nature, however, it forms part of an important process within government to ensure compliance with environmental protections laws and regulations. I am satisfied that, in addition to the pro-disclosure bias, several factors favouring disclosure carry significant weight due to the potential significance of the EA process, and the level of community interest in the subject matter generally. The nondisclosure considerations advanced by the Objecting Parties with respect to the deliberative processes of the Department, are deserving of low weight. In this case, the Department, which bears responsibility for the relevant deliberative processes, has consistently maintained that disclosure of the information would not prejudice or harm those processes and that it is suitable for disclosure to the access applicant. Further, having considered the Objecting Parties’ submissions regarding any currently ongoing deliberations, I consider that the information in issue, which is now over three years old, bears little relevance or impact upon any currently ongoing processes. In the circumstances, I consider that the weight that can be attributed to these weak nondisclosure factors does not outweigh the significant weight that I have attributed to the public interest factors in favour of disclosure. For these reasons, I am not satisfied that the Objecting Parties have established that disclosure of the information in issue would, on balance, be contrary to the public interest.DECISION I affirm the Department’s decisions and find the Objecting Parties have not discharged the onus of demonstrating that: disclosure of the information in issue would, on balance, be contrary to the public interest; and that a decision not to disclose the information in issue is justified. I have made this decision in external reviews 314814 and 314891 as a delegate of the Information Commissioner, under section 145 of the RTI Act.S MartinAssistant Information Commissioner Date: 11 August 2020 APPENDIX Significant procedural steps Date Event 2 September 2019 OIC received the first application for external review. 5 September 2019 OIC requested preliminary documents from the Department relating to the first application. 23 September 2019 OIC received the preliminary documents from the Department relating to the first application. 3 October 2019 OIC received the second application for external review. 4 October 2019 OIC requested and received preliminary documents from the Department relating to the second application. 11 October 2019 OIC accepted the first application for external review and requested a copy of the information in issue for the first application from the Department. The Department provided a copy of the information in issue for the first application to OIC. 29 October 2019 The access applicant applied to be a participant in both external reviews. 30 October 2019 OIC accepted the second application for external review and requested a copy of the information in issue for the second application from the Department. 19 November 2019 OIC accepted the access applicant’s application to participate in both external reviews. 20 November 2019 OIC received the information in issue for the second application from the Department. 20 December 2019 OIC requested that the Department consult with three additional parties. 20 January 2020 OIC provided the applicant with an update. 14 February 2020 The Department responded to OIC’s request for further consultation. 19 February 2020 OIC requested that the Department release some documents to the access applicant. OIC wrote to the access applicant seeking to resolve the reviews based on the released documents, requesting a response by 9 March 2020. 9 March 2020 The access applicant confirmed they wished to proceed with the external reviews. 8 April 2020 OIC received a submission from the access applicant. 15 April 2020 OIC provided an update to the applicant and the Department. 20 May 2020 OIC conveyed a preliminary view to the Objecting Parties. OIC provided an update to the access applicant. 11 June 2020 OIC received a submission from the Objecting Parties. 19 June 2020 OIC requested a submission from the Department. 17 July 2020 OIC received a submission from the Department. 24 July 2020 OIC received a further submission from the Objecting Parties. 31 July 2020 OIC received a further submission from Objecting Parties. [1] (RMP Application), Department reference 18-258.[2] (ERVP Application), Department reference 18-259.[3] EA number EPML00732813. [4] Under section 37(1)(a) of the RTI Act.[5] Pursuant to sections 47(3)(b) and 49 of the RTI Act.[6] In relation to the RMP Application, Ensham was consulted about 102 pages of information, and the Department decided on 24 May 2019 to grant the access applicant access to 97 full pages and 5 part pages. In relation to the ERVP Application, Ensham was consulted about 205 pages of information, and the Department decided on 14 June 2019 to grant access to 169 full pages and 34 part pages.[7] Internal review applications dated 5 July and 7 August 2019.[8] Internal review decision dated 2 August 2019.[9] On 5 September 2019, deciding to grant the access applicant access to 168 full pages and 35 part pages, with the deletion of personal information of Ensham staff.[10] External review applications dated 2 September and 3 October 2019.[11] Those parties being Idemitsu Australia Resources Pty Ltd (Idemitsu), Bligh Coal Limited and Bowen Investment (Australia) Pty Ltd (Objecting Parties). Ensham requested that these parties also be consulted as it considered disclosure would also be of concern them.[12] I have considered information at: https://environment.des.qld.gov.au/__data/assets/pdf_file/0027/98280/epml00732813-part10.pdf > regarding the ownership and operation of the mine.[13] Published on the Department website at < https://apps.des.qld.gov.au/env-authorities/pdf/epml00732813.pdf >.[14] Submissions to OIC from the Objecting Parties dated 24 July 2020. In those submissions the Objecting Parties explained that the information in issue was created for the First EA Amendment dated 26 May 2017 but is precursory in nature to the second EA Amendment Application, made on 26 March 2019.[15] As confirmed in an email from the Department to OIC on 29 July 2020.[16] Dated 2 August 2019 and 5 September 2019.[17] Noting the similarities in submissions and the information in issue and the broad procedural discretion conferred on the Information Commissioner by section 95(1)(a) of the RTI Act.[18] Which came into force on 1 January 2020. [19] Section 87(2) of the RTI Act.[20] Section 3(1) of the RTI Act. The Act must be applied and interpreted to further this primary object: section 3(2) of the RTI Act.[21] Section 44(4) of the RTI Act.[22] Section 47(3) of the RTI Act. The grounds are to be interpreted narrowly (section 47(2)(a) of the RTI Act), and the Act is to be administered with a pro-disclosure bias (section 44(4) of the RTI Act).[23] Sections 47(3)(b) and 49 of the RTI Act. [24] Schedule 4 of the RTI Act – a non-exhaustive itemisation of potentially relevant considerations.[25] Section 49(3) of the RTI Act.[26] Specifically its internal review decisions dated 2 August 2019 and 5 September 2019.[27] The access applicant’s submissions of 8 April 2020 also raised a number of public interest factors in favour of disclosure.[28] The Environmental Protection Act 1994 (Qld) (EP Act), the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld), the Mineral Resources Act 1989 (Qld), the RTI Act and the Waste Reduction and Recycling Amendment Act 2017 (Qld).[29] The new requirement to submit a progressive rehabilitation and closure plan for mined land with a site-specific environmental authority is relevant to the issues in this review.[30] Then Deputy Premier Trad’s introductory speech in Parliament tabling the Bill <https://www.parliament.qld.gov.au/documents/tableOffice/BillMaterial/180215/MineralFinance.pdf>.[31] See <https://www.abc.net.au/radionational/programs/breakfast/ensham-mine-first-test-of-new-qld-mining-rehabilitation-laws/11795750>. The Department has classified this amendment as a Major amendment under the EP Act.[32] Applicant’s submissions to OIC dated 8 April 2020.[33] Schedule 4, part 2, item 1 of the RTI Act. [34] Schedule 4, part 2, item 2 of the RTI Act. [35] Schedule 4, part 2, item 3 of the RTI Act. [36] Schedule 4, part 2, item 11 of the RTI Act. [37] Dated 20 May 2020.[38] Submissions date 11 June 2020.[39] Submissions received on 11 June 2020.[40] The public consultation undertaken by the Department was reported in the media here <https://www.abc.net.au/radionational/programs/breakfast/ensham-mine-first-test-of-new-qld-mining-rehabilitation-laws/11795750>.[41] Schedule 4, part 4, section 4(1) of the RTI Act.[42] Schedule 4, part 3, item 20 of the RTI Act. The Objecting Parties did not seek to advance evidence in support of any other nondisclosure factors in this external review.[43] Schedule 4, part 4, section 4(1) of the RTI Act.[44] Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 (Eccleston) at [28]-[30], citing with approval the definition given in Re Waterford and Department of Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588 at 606. While Eccleston concerns section 41(1)(a) of the repealed FOI Act, it remains relevant to the public interest test under section 49 of the RTI Act and provides useful analysis of the wording still used in schedule 4, part 4, section 4(1) of the RTI Act.[45] Schedule 4, part 4, section 4(2) of the RTI Act.[46] Schedule 4, part 4, section 4(1) of the RTI Act.[47] North Queensland Conservation Council Incorporated and Queensland Treasury [2016] QICmr 9 (29 February 2016) at [51].[48] TerraCom Limited and Department of Environment and Science; Lock the Gate Alliance Limited (Third Party) (No.2) [2018] QICmr 53 (19 December 2018) at [92].[49] Department’s internal review decision dated 5 September 2019.[50] Submissions to OIC dated 11 June 2020.[51] The public consultation undertaken by the Department was also reported on by the media here <https://www.abc.net.au/radionational/programs/breakfast/ensham-mine-first-test-of-new-qld-mining-rehabilitation-laws/11795750>.[52] Objecting Parties’ submission dated 24 July 2020.[53] Schedule 4, part 3, item 20 of the RTI Act. It is important to note that this factor may apply in relation to any information – and not simply ‘deliberative process’ information – if it can be shown disclosure of that information could reasonably be expected to prejudice a deliberative process.[54] Department submissions to OIC dated 29 July 2020.[55] Submission dated 31 July 2020.[56] Submission dated 11 June 2020. [57] Citing Pallara Action Group Inc and Brisbane City Council (Unreported, Queensland Information Commissioner, 21 September 2012) at [42]-[43] (Pallara).[58] Citing Pallara at [42]-[43].[59] Submission dated 11 June 2020.[60] See Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 at paragraphs 62-63. See also B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at [160]. Other authorities note that the words ‘require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous to expect a disclosure of the information could have the prescribed consequences relied upon’: Smolenski v Commissioner of Police, NSW Police [2015] NSWCATAD 21 at [34], citing Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [28], McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] and Attorney-General’s Department v Cockroft [1986] FCA 35; (1986) 10 FCR 180 at 190. [61] [2016] WASC 108. [62] Providing examples of Manly v Ministry of Premier and Cabinet (1996) 14 WAR 550 at page 44; Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167, applying Attorney-General's Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180. [63] See Re Daw and Queensland Rail (Unreported, Queensland Information Commissioner, 24 November 2010) at [16]. [64] Department submissions dated 29 July 2020.[65] Pallara at [42]-[43], cited by the Objecting Parties in their submissions dated 11 June 2020.[66] Eccleston at [179]; see also Barling and Brisbane City Council [2017] QICmr 47 (15 September 2017) at [32] (Barling).[67] Barling at [32], citing Johnson and Department of Transport; Department of Public Works (2004) 6 QAR 307 at [39]. While Johnson was decided under the FOI Act, the comments remain relevant to the objects of the RTI Act. [68] As I am prohibited from doing so under section 108(3) of the RTI Act.[69] As explained in paragraph 40 above. [70] Department submissions to OIC dated 29 July 2020.[71] Section 87(2) of the RTI Act.[72] In the event that further relevant factors exist in favour of nondisclosure, I am satisfied that there is no evidence before me to suggest that any would carry sufficient weight to outweigh the significant weight that I have afforded to the public interest factors that favour the disclosure of the information in issue.[73] In earlier correspondence to the Department lodged while objecting to disclosure, Ensham sought to rely on public interest factors relevant to personal information and business affairs information. I note that these factors are not relevant to the information in issue in this review and the Objecting Parties have not sought to rely on these factors on external review. Specifically I have turned my mind to the following sections in Schedule 4 of the RTI Act: Part 3 item 15 and Part 4 section 7(1)(c) with respect to prejudice to business affairs, and Part 4, section 6(1) and Part 3, item 3 with respect to privacy and personal information.

queensland

court_judgement

Queensland Information Commissioner 1993-

North Queensland Conservation Council Inc and Queensland Treasury [2016] QICmr 21 (10 June 2016)

North Queensland Conservation Council Inc and Queensland Treasury [2016] QICmr 21 (10 June 2016) Last Updated: 20 January 2017 Decision and Reasons for Decision Citation: North Queensland Conservation Council Inc and Queensland Treasury [2016] QICmr 21 (10 June 2016) Application Number: 312534 Applicant: North Queensland Conservation Council Inc Respondent: Queensland Treasury Decision Date: 10 June 2016 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - CABINET INFORMATION - information relating to the economic viability of government support for proposed mining projects - whether information would reveal considerations of Cabinet or otherwise prejudice confidentiality of Cabinet considerations - whether information is exempt under section 48 and schedule 3, section 2(1)(b) of the Right to Information Act 2009 (Qld) - whether access may be refused under section 47(3)(a) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - CABINET INFORMATION - information relating to the economic viability of government support for proposed mining projects - documents created to inform Cabinet Budget Review Committee - whether information has been brought into existence in the course of the State’s budgetary processes - whether information is exempt under section 48 and schedule 3, section 2(1)(c) of the Right to Information Act 2009 (Qld) - whether access may be refused under section 47(3)(a) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - information relating to the economic viability of government support for proposed mining projects - accountability and transparency - prejudice to commercial affairs of an entity - prejudice to economy of the State, the Government’s ability to obtain confidential information and deliberative processes of government - whether disclosure would, on balance, be contrary to the public interest under section 49 of the Right to Information Act 2009 (Qld) - whether access may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary In December 2014, North Queensland Conservation Council Inc (NQCC) applied to Queensland Treasury (Treasury) under the Right to Information Act 2009 (Qld) (RTI Act) for access to all documents relating to the assessment of the economic viability of the ‘Adani projects in Queensland’, any payment and subsidy information and related communications between various government agencies, and with the Adani group of companies (Adani).[1] Treasury located 1363 pages and decided to release 68 full pages and 232 part pages. Treasury refused access to the remaining information on the basis that it was exempt, or contrary to the public interest to disclose under the RTI Act.[2] On internal review, Treasury affirmed its original decision. NQCC applied to OIC for external review of the internal review decision. On external review, NQCC has argued that the additional information should be ‘lawfully released in the public interest’ based on a narrow reading of the exemptions, applying the pro-disclosure bias and a more appropriate weighting of the factors favouring disclosure of the information. NQCC also emphasised the ‘significance and the widespread public controversy of the projects’ and the ‘appropriateness of a large expenditure of public funds’.[3] For the reasons set out below, I find that access to the information in issue on external review may be refused under the RTI Act. In part, my decision is based on different grounds to those relied on by Treasury and therefore, I have varied the internal review decision. In summary, I find that access may be refused on the following grounds: the information is exempt under schedule 3, section 2(1)(b) or (c) of the RTI Act;[4] or disclosure of the information would, on balance, be contrary to the public interest.[5] Background The information located by Treasury concerns Treasury’s assessment of the economic viability of the Adani’s proposed Carmichael Coal Mine and related infrastructure projects (Adani Projects) and considers various options for government assistance in relation to these projects. Documents available on Treasury’s Disclosure Log indicate that the Adani Projects will involve the largest coal mine in Australia and multibillion dollar investments in railway and port infrastructure.[6] This has been recognised as a major project by the Queensland Coordinator General[7] and the relevant mining leases were recently granted to Adani by the State Government.[8] During the timeframe of the access application, the former Deputy Premier announced that the Government was in negotiations with the Adani Group regarding direct investment in infrastructure to facilitate the Adani Projects.[9] The Queensland Government has not made any further public announcements on this particular issue. Significant procedural steps relating to the application and external review are set out in the Appendix to this decision. Reviewable decision The decision under review is Treasury’s internal review decision dated 29 June 2015.Material considered Evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and the Appendix).Information in issue The information to which NQCC seeks access comprises emails, correspondence and other internal records created and/or considered by Treasury staff in assessing the economic viability of the Adani Projects and the risks/benefits of the options available to the State Government, with respect to support for these projects. The information includes comprehensive financial, commercial and economic data and forecasts relevant to the Adani Projects.Issues to be considered In this decision, I have considered whether access to the information in issue may be refused on the basis that it is: exempt information, the disclosure of which would reveal a consideration of Cabinet (Cabinet Information)[10] exempt information brought into existence in course of the State’s budgetary processes (Budgetary Processes Information);[11] or information, the disclosure of which would, on balance, be contrary to the public interest (CTPI Information).[12] The applicant has confirmed to OIC that it is not seeking information identified by Treasury as commercially available, subject to legal professional privilege or comprising the personal information of third parties.[13] Therefore, such information is not dealt with in this decision. Cabinet Information Relevant law Under the RTI Act a person has a right to be given access to documents of an agency unless access would, on balance, be contrary to the public interest.[14] However, this right is subject to other provisions of the RTI Act, including the grounds on which access to information may be refused. Access may be refused to exempt information.[15] Relevantly, the RTI Act provides that information is exempt information if: it has been brought into existence for the consideration of Cabinet;[16] or its disclosure would reveal any consideration of Cabinet or would otherwise prejudice the confidentiality of Cabinet considerations or operations.[17] The term ‘consideration’ is defined as including ‘discussion, deliberation, noting (with or without discussion) or decision, and consideration for any purpose, including, for example, for information or to make a decision’.[18] The following types of Cabinet documents are taken to be comprised exclusively of exempt information[19] without any further consideration of their contents: (a) Cabinet submissions (b) Cabinet briefing notes (c) Cabinet agendas (d) notes of discussions in Cabinet (e) Cabinet minutes (f) Cabinet decisions (g) drafts of documents (a) to (f) above. There are three exceptions to this exemption: if it is more than 10 years after the information’s relevant date[20] if the information was brought into existence before 1 July 2009;[21] or if the information has been officially published by decision of Cabinet.[22] Findings I am satisfied that the exceptions to the exemption do not apply as the Cabinet Information was brought into existence after 1 July 2009 and has not been officially published. I acknowledge the applicant’s submission that there have been some public announcements regarding the subject matter of the Cabinet Information.[23] However, there is no evidence available to OIC that the Cabinet Information itself has been officially published. The Cabinet Information includes drafts of Cabinet Budget Review Committee (CBRC)[24] submissions, discussion papers, information prepared for the Treasurer and correspondence between relevant officers within Treasury, Queensland Treasury Corporation (QTC), Queensland Investment Corporation, the Department of Premier and Cabinet and the Department of State Development (DSD). To the extent that some documents are drafts of Cabinet submissions, I am satisfied that these documents comprise exclusively exempt information under schedule 3, section 2(3) of the RTI Act. These draft submissions include reports of a factual nature.[25] The applicant submits that reports of a factual or statistical nature are only exempt if the disclosure of these reports would reveal Cabinet considerations. I have carefully considered these documents and I am satisfied that while they may be factual in nature, the disclosure of this information is likely to reveal a consideration of Cabinet.[26] The remaining Cabinet Information includes briefing notes, discussion papers, emails (and attachments) sent to or from staff of Treasury. Many of these emails refer to specific Cabinet submissions. Generally this information discusses the economic viability of the Adani Projects and the options considered by the State at the time in relation to investment in or support of the Adani Projects. In considering whether this information is exempt, it is firstly relevant to consider whether its disclosure would reveal any consideration of Cabinet. If that question is answered in the negative, it is then relevant to consider whether disclosure would otherwise prejudice the confidentiality of Cabinet considerations or operations. The applicant refers to the Information Commissioner’s comments in Ryman and Department of Main Roads,[27] that were made in relation to similar provisions under the repealed Freedom of Information Act 1992 (Qld) (FOI Act), In Ryman, the Information Commissioner found that ordinarily, for a document to be exempt because its disclosure would reveal or prejudice a consideration of Cabinet, the document must be created contemporaneously with, or after, the relevant Cabinet consideration – for example, a document that records or minutes the consideration. The applicant considers this approach should be taken in applying the Cabinet exemption to the information in issue in this review.[28] Schedule 3, section 2(1)(b) of the RTI Act states that information is exempt if its ‘disclosure would reveal any consideration of Cabinet or would otherwise prejudice the confidentiality of Cabinet considerations or operations’.[29] In my view, the words of this section do not explicitly require the relevant information to be created contemporaneously or shortly after the relevant Cabinet meeting/discussion. Rather, as set out more recently in Quandamooka[30] and in the context of the RTI Act, I consider that the relevant question is whether, if a reasonable person viewed the information, a Cabinet consideration would be revealed to them, or the confidentiality of the Cabinet considerations or operations would be prejudiced. In my view, the answer to this largely depends on the particular nature of the information in question, the circumstances relating to creation of the information and the other information available to the decision maker, under the RTI Act. The applicant also refers to the decision in Sunshine Coast Environment Council Inc,[31] which indicated that there must be evidence on the face of the relevant document which reveals the information was considered by Cabinet or which otherwise connects the document to a Cabinet consideration.[32] In that decision, the Acting Assistant Information Commissioner was not satisfied that there was a sufficient nexus between the information in issue and any particular Cabinet consideration, in order for the information to be considered exempt. I am satisfied that the Cabinet Information, if disclosed to a reasonable person, would reveal the considerations of Cabinet to that person. This information directly discusses the contents of Cabinet submissions, the results of Cabinet considerations or other matters to be put before Cabinet.[33] I am satisfied that disclosure of this information could reasonably be expected to reveal Cabinet’s noting of some information, and the focus of its discussions, deliberations and decisions regarding other information. I am satisfied that the facts of SCECI can be distinguished from this case in the sense that the Cabinet Information details the very information that was taken into account or noted by Cabinet in its deliberations and therefore, a sufficient nexus is established. While this information does not comprise a draft or final submission, I am satisfied that this it discloses specific considerations and deliberations of Cabinet.[34] The applicant questions how internal Departmental emails could reveal considerations of Cabinet and contends that it is not apparent what specific confidential Cabinet operations would be prejudiced by disclosure of these emails.[35] I am satisfied that the content of the relevant emails disclose specific matters that were considered by Cabinet. This is clear either on the face of the emails themselves or due to the content of other information in issue.[36] For this reason, I consider that the relevant emails comprise exempt information. Given this finding, I consider it is unnecessary to consider the meaning of ‘Cabinet operations’ in the context of the second limb of schedule 3, section 2(1)(b) of the RTI Act. The applicant also contends that the Cabinet exemption should be applied narrowly in relation to information that is not exclusively exempt, such as the Departmental emails. I acknowledge that the grounds for refusal under the RTI Act are to be applied narrowly.[37] However, I am satisfied that the Departmental emails meet the requirements of the Cabinet exemption for the same reasons explained above. I am also satisfied that given the particular nature of the information in issue, it would not be practicable to partially release the documents containing Cabinet information, with the exempt information removed, as sought by the applicant.[38] Conclusion I am satisfied that the Cabinet Information comprises exclusively exempt information or its disclosure would reveal a consideration of Cabinet. Accordingly, I am satisfied that access may be refused to this information under section 47(3)(a) of the RTI Act. B. Budgetary Processes Information Relevant law The RTI Act provides that information is exempt if it has been brought into existence in the course of the State’s budgetary processes.[39] To determine whether information is exempt under this section it is necessary to consider the circumstances under which the information in issue was brought into existence. The exceptions set out in paragraph 18 above also apply in relation to this provision. Findings Firstly, I do not consider that any of the exceptions to this exemption apply as the relevant information was brought into existence in late 2014 and has not been officially published by decision of Cabinet. The RTI Act does not define the words ‘State’s budgetary processes’[40], however, I am satisfied that one of the processes contemplated by this section is the State’s annual budgetary process recognised on the Queensland Treasury website which lists 11 separate components that together make up the annual budget process.[41] The first and fourth of these components refer to the role of the CBRC in relation to: considering an overall strategy for the budget identifying key areas for resource allocation that respect the government priorities, fiscal principles and key budget decisions; and considering specific departmental budget submissions. The Queensland Government Cabinet Handbook further provides that CBRC generally works closely with the Treasury Department in relation to obtaining financial information in order to make informed decisions on financial and budgetary matters.[42] I am satisfied that information brought into existence by Treasury for the purposes of advising CBRC in performing its primary role in identifying key areas for resource allocation and making key budget decisions, would be captured by this provision. In this case, the following circumstances are particularly relevant:[43] Treasury has confirmed that its involvement in matters relating to the Adani Projects for the timeframe of the access application was for the specific purpose of providing the CBRC with detailed financial and economic data to consider prior to making investment decisions Treasury and QTC staff were involved in assessing the economic viability of the Adani Projects for the sole purpose of providing this information to CBRC; and the relevant CBRC considerations would have had a direct and significant impact on the State’s budget had the CBRC settled on a particular course of action. I am satisfied that information created by staff of Treasury or QTC in relation to the economic viability of the Adani Projects, for the timeframe of this application, was created specifically to inform CBRC deliberations. The applicant submits that not all considerations of the CBRC would have budgetary consequences[44] and that the State budgetary processes exemption should be interpreted narrowly in line with section 47(2) of the RTI Act. In this case, I am satisfied that the relevant CBRC considerations can be directly linked to the budgetary process as CBRC was considering the State’s potential allocation of significant financial resources and specifically requested information on the relevant financial issues from Treasury. The applicant also refers to the 2015-2016 annual Queensland Government budget documents to argue that the information in issue was not part of any agency’s specific budget submission.[45] I do not consider the exemption in schedule 3, section 2(1)(c) of the RTI Act requires such evidence. In my view, the connection between the creation of the relevant information in issue and the CBRC budgetary advisory process is clear on the face of the documents available to OIC in this review. Conclusion I am satisfied that the Budgetary Processes Information was created for the purpose of informing CBRC in relation to its specific budgetary advisory role, and that this forms part of the State’s budgetary processes. Therefore, I find that this information is exempt[46] and access to it may be refused under section 47(3)(a) of the RTI Act. C. CTPI Information Relevant law Access to information may also be refused where disclosure, would, on balance, be contrary to the public interest.[47] The RTI Act is to be administered with a pro-disclosure bias.[48] The RTI Act identifies various factors that may be relevant to deciding the balance of the public interest[49] and explains the steps that a decision-maker must take[50] in deciding the public interest as follows: (i) identify any irrelevant factors and disregard them (ii) identify relevant public interest factors favouring disclosure and nondisclosure (iii) balance the relevant factors favouring disclosure and nondisclosure; and (iv) decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Findings The CTPI Information consists of information in the following documents: Due Diligence Assessment of the Adani Projects completed by DSD staff Bank Feasibility Study commissioned by Adani; and 2013 report completed by Treasury staff in relation to coal mining, attached to an email sent within the timeframe of the access application. I am satisfied that these documents were brought into existence outside of Treasury for purposes other than informing CBRC deliberations and for this reason, do not fall within the budgetary processes exemption discussed above. In reaching my decision on this information I have carefully considered the extensive submissions made by the applicant throughout this external review, and in two related (current) external reviews.[51] Irrelevant factors I have not taken any irrelevant factors into account in reaching this decision. In particular, I have not considered whether the disclosure of the relevant information could reasonably be expected to embarrass or cause a loss of confidence in the current or former Governments.[52] Factors favouring disclosure Under section 44(1) of the RTI Act there is a pro-disclosure bias in deciding access to documents and this is the starting point for considering disclosure of the CTPI Information. I consider the following factors also favour the disclosure of information, as disclosure could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[53] contribute to positive and informed debate on important issues[54] inform the community of the Government’s operations;[55] and ensure effective oversight of expenditure of public funds.[56] The subject matter of the CTPI Information can be described as financial, commercial and economic advice and assessments made available to the Government in relation to the Adani Projects. These projects are expected to have a significant impact on the Queensland economy and community. The CTPI Information records the specific data and economic forecasts that were available to the former Government in making investment decisions about the Adani Projects. For these reasons, I am satisfied that disclosure of the CTPI Information could reasonably be expected to: promote open discussion about the Government’s considerations of the Adani Projects contribute to positive and informed debate within the community about the impact and economic merits of the Adani Projects provide the community with significant background and detailed contextual information in relation to the Adani Projects; and provide additional information about the economic outlook of the Adani Projects so as to ensure effective oversight of any future decisions made by Government on whether to expend public funds in relation to the Adani Projects. I am satisfied that the above factors in favour of disclosure carry significant weight. While there has been a change in Government since this information was initially communicated, I consider that this information is still relevant to the current Government’s considerations and related public debate. I am satisfied that it is in the public interest for matters such as the Adani Projects to be the subject of informed public debate and I consider that disclosure of the CTPI Information would assist in such debate. I am not however persuaded that any further weight should be attributed to the factors favouring disclosure on the basis of the applicant’s contentions regarding the poor economic outlook for the Adani Projects.[57] This is because, regardless of the economic outlook of each project, the fact that the Government has considered the expenditure of taxpayer funds in supporting these projects, in itself, warrants significant weight to be attributed to this factor. I have also considered whether disclosure of the CTPI Information could reasonably be expected to reveal the reason for a Government decision and any background or contextual information that informed the decision.[58] In considering this factor, I note that the former Government made public statements with respect to its intended approach to the Adani Projects.[59] However, before a final decision was reached, the Government changed. Given the change in Government and the timing of the CTPI Information, as well as the fact that the CTPI Information does not detail any particular decision made by Government, I have only given this factor low weight. The applicant also contends that disclosure could reasonably be expected to: allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official;[60] and advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies.[61] The CTPI Information does not discuss any specific actions taken by the Government in any detail nor does it discuss how individuals or entities will be treated in their dealings with agencies. I am satisfied the above factors do not apply to documents assessing the economic viability of the proposed Adani Projects. The applicant submits that disclosure of the CTPI Information could reasonably be expected to contribute to the protection of the environment.[62] I am satisfied that this factor does not apply as the CTPI Information focuses on commercial and financial matters and does not provide any information regarding environmental impacts. While I acknowledge that there is significant public debate regarding the environmental impacts of the Adani Projects, I am not satisfied that the disclosure of the particular CTPI Information would contribute to the protection of the environment. The applicant also contends that the disclosure of the information could reasonably be expected to reveal the information was out of date, misleading, gratuitous, unfairly subjective or irrelevant. The applicant refers to a recent decision of the Land Court[63] relating to financial and economic statements provided by Adani. I have considered the Land Court decision and while I am prevented from describing the CTPI Information in any significant detail,[64] on the evidence available to OIC, I am unable to identify how its disclosure could reasonably be expected to reveal that it was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[65] Accordingly, I consider that this factor does not apply. Factors favouring nondisclosure Prejudice the private, business, professional, commercial or financial affairs of entities[66] or the business affairs of a person[67] A significant portion of the CTPI Information details financial information and forecasts in relation to the proposed Adani Projects. I consider that disclosure of this information could reasonably be expected to prejudice the commercial and financial affairs of Adani as the information contained in the Due Diligence Assessment and Bank Feasibility Study outlines economic forecasts and profit expectations of the Adani Projects. I am satisfied that disclosure of this information could reasonably be expected to prejudice Adani’s commercial affairs by impeding its ability to negotiate with potential investors and future subcontractors. The applicant’s submissions refer to a range of publicly available information, Government announcements and media articles that indicate the Adani Projects have a poor economic outlook.[68] While I have considered this information, I am not satisfied that the availability of this information negates the likelihood of a further negative effect on Adani’s commercial and business affairs. The Due Diligence Assessment and Bank Feasibility Study detail the commercial strategies undertaken by Adani in Australia and its broader global business activities. I consider that disclosure of this information could reasonably be expected to negatively impact Adani’s ability to compete in the mining industry, particularly where its competitors can access its key strategic planning documents and key financial data. The applicant contends that disclosure of the CTPI Information could not reasonably prejudice the commercial affairs of entities, as Adani is a single entity and this factor refers to the plural, entities. I do not accept this submission for several reasons. Firstly, Adani is a group of companies and not a single entity at law.[69] I am also satisfied that in accordance with section 32C of the Acts Interpretation Act 1954 (Qld) (AI Act) a use of words in the plural in legislation, includes reference to the singular.[70] The applicant also contends[71] that the relevant public interest factor in this case, is whether disclosure of the information in issue could reasonably be expected to prejudice the business affairs of a person. Section 36 of the AI Act defines ‘person’ to include a ‘corporation’. I am satisfied that this public interest factor is also relevant with respect to the business affairs of each of the Adani companies that are invested in the Adani Projects. For the reasons I have already explained, I am satisfied that disclosure of the Bank Feasibility Study and Due Diligence Assessment would significantly impact on the business and commercial affairs of these corporations. Accordingly, I also attribute significant weight to this factor. I acknowledge the applicant’s submission that given the lapse of time since the creation of the relevant documents, recent developments with respect to the Adani Projects and the published information regarding the economic forecasts, that the weight to be attributed to these factors is reduced. Having carefully considered the CTPI Information, I am not satisfied that the information already available and the passage of time has necessarily reduced the likely prejudice to the commercial and business affairs of Adani that could reasonably be expected from disclosure of the CTPI Information. Accordingly, I do not consider that the weight to be attributed to these two factors is reduced and I have therefore attributed significant weight to these two factors in favour of nondisclosure. Prejudice the economy of the State I am satisfied that disclosure of the CTPI Information could reasonably be expected to prejudice the economy of the State[72] in being able to: obtain commercial investment advice without concern of broader disclosure; and negotiate on competitive commercial terms with third parties regarding State investment in large infrastructure projects. Treasury has explained that negotiations remain ongoing between the Government and Adani regarding infrastructure investment options.[73] Specifically the Due Diligence Assessment and 2013 Treasury Report into coal mining in Queensland includes internal advice provided to Government in relation to the various investment options available to it and the likely returns and risks of those investments. Disclosure of the Government’s internal investment advice to the general public, including the private sector entities which the Government seeks to conduct commercial negotiations with could reasonably be expected to have a significant adverse impact on the Government’s ability to conduct these negotiations on a commercial and competitive basis. For this reason I have attributed this factor in favour of nondisclosure significant weight. I acknowledge that there is a significant public interest in disclosing information provided to Government to inform its decision making processes, as discussed above. However, I also consider that it is important that the Government is able to protect the commercial interests of its constituents by ensuring that they are on equal footing with other private sector investors when considering large scale investment options such as the Adani Projects. With respect to the Adani Projects specifically, the Government is competing with private and public sector entities globally in considering the commercial returns of these projects. I consider that broader disclosure of the Government’s internal investment advice would put it at a significant disadvantage and could reasonably be expected to weaken its bargaining position in any future related or similar transactions. The applicant submits that ‘the evidence of the poor economic outlook of the projects... indicates a potential burden on the State’s economy that substantially undermines this factor’.[74] My findings on this public interest factor do not consider the specific merits of the State’s investment in the Adani Projects. Rather, it is my view that in general, the State should have the capacity to obtain internal commercial and investment advice in relation to the risks and benefits of its investment options without the general disclosure of this advice. In my view, if this type of information were to be routinely disclosed under the RTI Act, the State would be at a disadvantage in competitively negotiating with third parties to arrive at the best commercial result for the State, its constituents and the broader economy. Accordingly, I find that disclosure of this type of information could reasonably be expected to prejudice the economy of the State and I have attributed this factor significant weight. I do not however consider that the relevant public interest harm factor[75] applies as I am not satisfied that disclosure of the CTPI Information could reasonably be expected to ‘have a substantial adverse effect on the ability of government to manage the economy of the State’. Prejudice an agency’s ability to obtain confidential information Treasury’s decision indicates that the financial data contained in the Due Diligence Assessment and the Bank Feasibility Study was provided by Adani on the understanding that it would remain confidential. While OIC did not obtain submissions from Adani in this external review, Treasury consulted with Adani prior to making its decision. At that stage, Adani indicated that it only provided the Bank Feasibility Study and information contained in the Due Diligence Assessment to the State on the understanding that it would remain confidential and be used for the limited purpose of considering its investment options.[76] Having carefully considered the sensitive commercial nature of this information, I am of the view that its disclosure could reasonably be expected to prejudice the supply of this type of confidential information to the Government in the future. This is because Adani provided the Bank Feasibility Study, as well as the data relied upon by DSD staff in the Due Diligence Assessment, on the specific condition that this information remained confidential. In the circumstances, I am satisfied that the information provided by Adani was confidential in nature and that therefore, both the public interest factor in favour of nondisclosure as well as the harm factor in relation to the disclosure of confidential information both apply.[77] Adani provided this particular information in order to allow the Government to fully consider its investment options. There is no evidence before OIC to suggest that Adani was compelled to provide this information for any other reason but the limited purpose of negotiating possible investment by the State Government. I am satisfied that if this information were to be routinely disclosed under the RTI Act, it would impact on the willingness of third parties such as Adani to provide similar information to the Government in the future. While I am prevented from disclosing the specific content of the CTPI Information,[78] I can confirm that the information contained in the Due Diligence Assessment and Bank Feasibility Study is the type generally provided by entities seeking to attract investors and is provided on a confidential basis to allow investors to make an informed decision. While the Due Diligence Assessment was authored by DSD, the information in the document is based on the Bank Feasibility Study confidentially provided by Adani. For this reason, I consider the exception to the harm factor[79] does not apply as the information, while constituting deliberative process information[80], was communicated to Treasury by Adani. The applicant submits that any due diligence assessments should otherwise form part of the publicly available documents for large scale infrastructure projects.[81] The question of which documents should be made publicly available in relation to large scale infrastructure projects is a broader government policy matter and is beyond OIC’s jurisdiction on external review. In this case, I am satisfied that the relevant information was provided by Adani on the understanding that it would be confidential and its disclosure at this stage, particularly where no final decision has been reached on investment in the Adani Projects, would have the effect of deterring the provision of similar information by third parties in the future. Accordingly, I have given these factors significant weight in favour of nondisclosure. The applicant questioned the application of these factors given my view that the breach of confidence exemption in schedule 3, section 8 of the RTI Act is not made out.[82] I am satisfied that the circumstances required to establish the breach of confidence exemption can be more onerous than those required to give rise to the relevant public interest factors. It is not necessarily the case that if the exemption does not apply to certain information that the confidential information public interest factors will also not apply. The requirements of each provision are different and must be assessed separately.[83] Deliberative process The RTI Act recognises that a public interest factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice a deliberative process of government (Nondisclosure Factor).[84] The RTI Act also provides that disclosing information could reasonably be expected to cause a public interest harm through disclosure of an opinion, advice or recommendation that has been obtained, prepared or recorded or a consultation or deliberation that has taken place in the course of, or for, the deliberative processes involved in the functions of government (Harm Factor).[85] Once it is established that the information in issue is deliberative process information, the Harm Factor will apply. It is then relevant to consider the nature and extent of the public interest harm that may result through disclosure.[86] For the Nondisclosure Factor to apply, a reasonable expectation of prejudice to the relevant deliberative process must be established. In this case, I am satisfied that both factors apply to the CTPI Information. The Information Commissioner has previously referred with approval to the following comments in considering the meaning of ‘deliberative processes’ involved in the functions of an agency:[87] The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action ... In my view, the CTPI Information is deliberative process information as it was prepared or communicated in the course of deliberating on, and evaluating matters relating to, proposed mining projects. The applicant submits that some of the Government’s deliberations in relation to the relevant Adani Projects are complete. I have carefully considered the CTPI Information and Treasury’s submissions[88] and in my view, the specific Government deliberations discussed in the CTPI Information are ongoing. NQCC questions whether any of the exceptions to the Harm Factor apply in this case. Schedule 4, part 4, item 4(2) of the RTI Act provides that the deliberative processes considered in the Harm Factor apply only until public consultation starts. There is no evidence to suggest there has been any public consultation in relation to the CTPI Information and therefore this exception does not apply. The Harm Factor also does not apply to information that appears in an agency’s policy document, factual or statistical information, or expert opinion or analysis. I am satisfied that the CTPI Information does not comprise any of these categories of information. As it is my view that the CTPI Information is deliberative process information, and that the exceptions to the Harm Factor do not apply, I must now consider the level of harm that is likely to result from the disclosure of the CTPI Information. I am satisfied that the CTPI Information is not publicly available and its disclosure at this stage, when the Government is yet to make a final decision, could have a negative impact on the decision making and consultation process. The CTPI Information details financial information and forecasts in relation to the proposed Adani Projects and while I acknowledge it was obtained under the previous Government, I am satisfied that this information remains relevant to the current Government’s considerations. The applicant submits that press releases by the current Government indicate that it has made a decision ruling out investment in the proposed Adani projects.[89] It is not my role to interpret public media statements. In the context of this external review, Treasury has confirmed, and I accept that the Government has not reached a final decision in relation to the issue of support for the Adani Projects.[90] I am satisfied that the disclosure of the CTPI Information prior to the Government’s finalisation of its deliberative process on its investment in the Adani Projects is likely to have a detrimental impact on the Government’s ability to continue considering its options and engage in open and frank negotiations with third parties including Adani. I am therefore satisfied that disclosure of the CTPI Information is likely to prejudice the deliberative process of Government and cause significant public interest harm in prejudicing these processes. I have attributed both the Nondisclosure Factor and Harm Factor significant weight in favour of nondisclosure of the CTPI Information. Balancing the public interest factors The CTPI Information comprises three different documents that were created or communicated to the former Queensland Government in order to inform its decision making processes with respect to the Adani Projects. I am satisfied that, in addition to the general prodisclosure bias,[91] there are a number of public interest factors favouring disclosure of all of the CTPI Information which, for the reasons discussed above, deserve significant weight. With respect to the factors favouring nondisclosure, the 2013 Treasury Report does not address the Adani Projects specifically and is unlikely to cause any significant prejudice to Adani’s commercial affairs or the future ability of the Government to obtain confidential information from third parties. However, it was prepared by Treasury staff to provide commercial advice to the Government and I am satisfied that disclosure of this type of information could have an adverse impact on the State economy as well as prejudicing ongoing deliberative processes. I am satisfied that the weight of these factors exceeds that of the factors favouring disclosure with respect to the 2013 Treasury Report. In relation to the Bank Feasibility Study and Due Diligence Assessment, I am satisfied that disclosure is likely to cause a significant public interest harm by interfering in the Government’s deliberative process and prejudicing the Government’s ability to conduct this deliberative process. I also consider that disclosure of information in the Due Diligence Assessment and Bank Feasibility Study is likely to have a detrimental impact on the commercial affairs of Adani and prejudice the likelihood of the State obtaining similar information in the future. I am satisfied that the significant weight of these factors favouring nondisclosure outweighs the weight I have given to the factors favouring disclosure.Conclusion On the basis of the above, I find that disclosure of the CTPI Information would, on balance, be contrary to the public interest and access to it may therefore, be refused under section 47(3)(b) of the RTI Act.DECISION For the reasons set out above, I vary the decision under review and find that access to the information in issue may be refused under section 47(3)(a) or (b) of the RTI Act on the basis that it comprises: exclusively exempt Cabinet information or information the disclosure of which would reveal a consideration of Cabinet exempt information brought into existence in the course of the State’s budgetary processes; or information, the disclosure of which would, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. _______________________ Katie Shepherd Assistant Information Commissioner Date: 10 June 2016 APPENDIXSignificant procedural steps Date Event 17 December 2014 Treasury received the access application. 1 May 2015 Treasury issued its decision on the access application. 29 May 2015 Treasury received the application for internal review. 29 June 2015 Treasury issued its internal review decision. 27 July 2015 OIC received the external review application. 7 August 2015 OIC notified the applicant and Treasury that the external review application had been accepted for external review. OIC asked Treasury for copies of the information in issue and other procedural documents. 26 August 2015 Treasury provided OIC with the requested documents. 14 September 2015 OIC contacted the applicant’s representative by phone to confirm the issues in the external review. 6 October 2015 OIC requested further information from Treasury about third party consultation. 13 October 2015 Treasury provided OIC with the requested information. 29 October 2015 OIC requested a copy of the Confidentiality Deed from Treasury as referred to in its internal review decision. 12 November 2015 OIC received a copy of the Confidentiality Deed from Treasury. 15 December 2015 OIC telephoned the applicant’s representatives to provide an update on the external review and to confirm the issues being considered. 16 February 2016 OIC requested additional submissions from Treasury. 24 February 2016 OIC received submissions from Treasury. 4 March 2016 OIC conveyed a preliminary view to the applicant and invited the applicant to provide submissions in response. 1 April 2016 OIC received the applicant’s submissions in response to the preliminary view. 4 April 2016 OIC contacted the applicant by phone and confirmed the outstanding issues on external review. The applicant confirmed that it no longer sought external review of the information claimed to be subject to legal professional privilege. 12 April 2016 Treasury provided OIC with additional submissions by telephone. 14 April 2016 OIC provided the applicant with a further preliminary view. 4 May 2016 The applicant provided submissions in response to the further preliminary view. 16 May 2016 The applicant made additional submissions on two related external reviews raising matters relevant to public interest factors under consideration by OIC to in this external review. [1] Access application dated 17 December 2014. The Adani Group is a group of companies seeking to develop the largest coal mine in Australia, the Carmichael Coal Mine in Northern Queensland. The development of this mine will also involve the development of related rail and port infrastructure.[2] Treasury also relied on sections 47(3)(f) and 53 of the RTI Act to refuse access commercially available information. NQCC did not seek internal or external review of this aspect of the decision and therefore, those pages are not in issue in this review. [3] External review application dated 27 July 2015.[4] Under section 47(3)(a) of the RTI Act.[5] Under section 47(3)(b) of the RTI Act. [6] As published on Treasury’s Disclosure Log, Reference 577 J Tager available from: https://www.treasury.qld.gov.au/about-us/right-to-information/previous-disclosure-log.php (accessed on 19 May 2016). [7] Further details of this project appear on the Coordinator General’s website at http://www.statedevelopment.qld.gov.au/assessments-and-approvals/carmichael-coal-mine-and-rail-project.html (accessed on 25 February 2016).[8] Ministerial statement dated 13 April 2016 available at http://statements.qld.gov.au/Statement/2016/4/3/carmichael-mine-approvals-put-thousands-of-new-jobs-step-closer (accessed on 14 April 2016).[9] Media release dated 17 November 2014 available at: http://statements.qld.gov.au/Statement/2014/11/17/historic-agreements-bring-jobs-to-queensland.[10] 290 pages in full and 37 pages in part. Under sections 47(3)(a), 48 and schedule 3, section 2(1)(b) of the RTI Act.[11] 265 pages in full and 49 pages in part. Under sections 47(3)(a), 48 and schedule 3, section 2(1)(c) of the RTI Act.[12] 309 pages in full and two pages in part. Under sections 47(3)(b) and 49 of the RTI Act. This includes information which Treasury found to be exempt under schedule 3, section 8 of the RTI Act, on the basis of breach of confidence. On external review, OIC formed, and conveyed to participants, the preliminary view that the requirements of this exemption were not satisfied.[13] The issues to be considered on external review were confirmed by the applicant’s representative during a phone discussion with OIC on 14 September 2015. Subsequently, the applicant’s representatives also indicated that it did not seek information OIC considered to be subject to legal professional privilege, in response to OIC’s preliminary view letter dated 4 March 2016.[14] Section 44(1) of the RTI Act.[15] Sections 47(3)(a) and 48 of the RTI Act.[16] Schedule 3, section 2(1)(a) of the RTI Act.[17] Schedule 3, section 2(1)(b) of the RTI Act.[18] Schedule 3, section 2(5) of the RTI Act.[19] Schedule 3, section 2(3) of the RTI Act.[20] Schedule 3, section 2(1) of the RTI Act. For information considered by Cabinet, the ‘relevant date’ is the date the information was most recently considered by Cabinet; otherwise, ‘relevant date’ is the date the information was brought into existence, schedule 3, section 2(5) of the RTI Act.[21] Schedule 3, section 2(2)(a) of the RTI Act.[22] Schedule 3, section 2(2)(b) of the RTI Act.[23] Applicant’s submission to OIC dated 1 April 2016 which refers to a Cabinet publication from March 2015 concerning Adani and the Abbot Point Growth Gateway Project.[24] Schedule 3, section 2(5) of the RTI Act provides that ‘Cabinet’ includes a Cabinet committee or subcommittee. CBRC is a Cabinet committee for this purpose. [25] Under schedule 3, section 2(4) of the RTI Act a report of a factual or statistical information attached to a document identified in schedule 3, section 2(3) of the RTI Act is only exempt if it was brought into existence for the consideration of Cabinet or its disclosure would disclose a consideration of Cabinet.[26] Schedule 3, section 2(4)(a) of the RTI Act.[27] (1996) QAR 416 (Ryman) at [39]-[40]. See also Hudson, as agent for Fencray Pty Ltd, and the Department of the Premier, Economic and Trade Development [1993] QICmr 4; (1993) 1 QAR 123 at [39]- [44] [28] Applicant’s submission to OIC dated 1 April 2016.[29] Schedule 3, section 2(b) of the RTI Act.[30] Quandamooka Yoolooburrabee Aboriginal Corporation and Department of Natural Resources and Mines; Sibelco Australia Ltd (Third Party) [2014] QICmr [47] (19 November 2014) (Quandamooka) at [57]-[59]. [31] Sunshine Coast Environment Council Inc and Department of National Parks, Sport and Racing; Springborg MP (Third Party) [2016] QICmr 10 (4 March 2016) (SCECI).[32] SCECI at [48].[33] Given section 108(3) of the RTI Act, which provides that a decision must not include information that is claimed to be exempt information, I am prevented from disclosing any more details regarding the nature of this information.[34] In making this finding, I have also taken into account the content of a draft Cabinet submission concerning the subject matter of this application. [35] Applicant’s submissions dated 1 April 2016.[36] Which I am prevented from disclosing in these reasons due to section 108(3) of the RTI Act.[37] Under section 47(2) of the RTI Act.[38] Under section 74 of the RTI Act.[39] Under schedule 3, section 2(1)(c) of the RTI Act.[40] Also, this exempt information provision has not been considered in a published decision of the Information Commissioner and there was no equivalent provision in the repealed FOI Act.[41] Treasury website: https://treasury.qld.gov.au/budget-finance/budget-process/index.php accessed on 9 May 2016.[42] Cabinet Handbook: http://www.premiers.qld.gov.au/publications/categories/policies-and-codes/handbooks/cabinet-handbook/ committees/review-committee.aspx accessed on 11 April 2016.[43] This information was both evident on the face of the information in issue and also confirmed to OIC in a telephone discussion on 12 April 2016, by a Treasury officer closely involved in the creation of the information in issue.[44] Applicant’s submissions dated 4 May 2016.[45] Applicant’s submissions dated 4 May 2016.[46] Under schedule 3, section 2(1)(c) of the RTI Act[47] Sections 47(3)(b) and 49 of the RTI Act. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[48] Section 44 of the RTI Act. [49] Schedule 4 of the RTI Act sets out the factors relevant to deciding whether disclosure of information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive and therefore, other factors may also be relevant in a particular case.[50] Section 49(3) of the RTI Act. [51] Applicant’s submissions dated 27 July 2015, 1 April 2016, 4 May 2016 in this external review, and submissions dated 16 May 2016 in relation to external review numbers 312639 and 312645.[52] In response to the concerns raised by the applicant in its external review application dated 27 July 2015.[53] Schedule 4, part 2, item 1 of the RTI Act.[54] Schedule 4, part 2, item 2 of the RTI Act.[55] Schedule 4, part 2, item 3 of the RTI Act.[56] Schedule 4, part 2, item 4 of the RTI Act.[57] Applicant’s submissions dated 1 April 2016. [58] Schedule 4, part 2, item 11 of the RTI Act.[59] Applicant’s submissions dated 1 April 2016 refer to a media release by then Deputy Premier Seeney available from: http://statements.qld.gov.au/Statement/2014/11/17/historic-agreements-bring-jobs-to-queensland. [60] Schedule 4, part 2, item 5 of the RTI Act.[61] Schedule 4, part 2, item 10 of the RTI Act.[62] Schedule 4, part 2, item 13 of the RTI Act.[63] Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48, 15 December 2015.[64] Due to the operation of section 108 of the RTI Act.[65] Schedule 4, part 2, item 12 of the RTI Act.[66] Schedule 4, part 3, item 2 of the RTI Act.[67] Schedule 4, part 3, item 15 of the RTI Act.[68] Applicant’s submissions dated 1 April 2016.[69] As confirmed on Adani Australia’s website at http://www.adaniaustralia.com/about-us. [70] I do not accept the applicant’s submissions dated 16 May 2016 (made in related reviews, see note 51 above) that the RTI Act demonstrates a contrary intention.[71] Applicant’s submissions on two related external reviews dated 16 May 2016.[72] Schedule 4, part 3, item 12 of the RTI Act.[73] Treasury’s submissions dated 24 February 2016.[74] Applicant’s submissions dated 4 May 2016.[75] Schedule 4, part 4, item 9 of the RTI Act.[76] Letter dated 20 April 2015 from Adani to Treasury.[77] Schedule 4, part 3, item 16 and schedule 4, part 4, section 8 of the RTI Act. [78] Due to the operation of section 108(3) of the RTI Act.[79] Schedule 4, part 4, section 8(2) of the RTI Act.[80] See paragraph 73 below.[81] Applicant’s submissions dated 1 April 2016.[82] Applicant’s submissions dated 16 May 2016 (made in related reviews)[83] However, as stated above, this decision does not examine the breach of confidence exemption as both parties accepted my view that it did not apply to the information in issue.[84] Schedule 4, part 3, item 20 of the RTI Act. [85] Schedule 4, part 4, item 4 of the RTI Act. [86] In Trustees of the De La Salle Brothers and Queensland Corrective Services Commission [1996] QICmr 4; (1996) 3 QAR 206 at [34] the Information Commissioner considered, in the context of the provision relating to deliberative process information under the FOI Act that ‘specific and tangible harm to an identifiable public interest (or interests) would result from disclosure’. I consider that this is a relevant consideration when applying the Harm Factor under the RTI Act. [87] Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at paragraphs [28]-[30] citing with approval the definition given in Re Waterford and Department of Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588 at 606. The Information Commissioner’s decision involved the repealed FOI Act but I am satisfied the comments remain relevant under the RTI Act. [88] Dated 24 February 2016 and confirmed in a subsequent phone discussion with OIC on 12 April 2016.[89] Applicant’s submissions dated 1 April 2016. [90] Treasury’s submissions dated 12 April 2016.[91] Under section 44 of the RTI Act, as noted in the applicant’s submissions dated 15 January 2016.

queensland

court_judgement

Queensland Information Commissioner 1993-

Lusping Pty Ltd and Sunshine Coast Regional Council; Paul Golding (Third Party) [2023] QICmr 16 (30 March 2023)

Lusping Pty Ltd and Sunshine Coast Regional Council; Paul Golding (Third Party) [2023] QICmr 16 (30 March 2023) Last Updated: 14 April 2023 Decision and Reasons for Decision Citation: Lusping Pty Ltd and Sunshine Coast Regional Council; Paul Golding (Third Party) [2023] QICmr 16 (30 March 2023) Application Number: 316204 Applicant: Lusping Pty Ltd (ACN 147 724 070) Respondent: Sunshine Coast Regional Council Third Party: Paul Golding Decision Date: 30 March 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - request for documents regarding development approval and noncompliance investigation - accountability and transparency - business affairs, administration of justice and personal information and privacy - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - FORMS OF ACCESS - COPYRIGHT - engineering report - whether giving access to a copy of an engineering report would involve an infringement of the copyright of a person other than the State - access granted by way of inspection only - section 68(4)(c) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The access applicant made an application[1] under the Right to Information Act 2009 (Qld) (RTI Act) to Sunshine Coast Regional Council (Council) for a broad range of documents relating to a retirement village development. Lusping Pty Ltd (Lusping), the owner of the development, was consulted by Council about disclosure of certain information and objected to the release of that information. Council decided[2] to disclose the information contrary to Lusping’s objections. Lusping applied[3] to the Office of the Information Commissioner (OIC) for review of Council’s decision. The access applicant subsequently applied to the Information Commissioner to participate in the review. Following considerable correspondence between all parties on external review, some of the information the subject of Lusping’s objections was released to the access applicant or excluded from the scope of issues for consideration by the access applicant. The information remaining in issue on external review comprises parts of four pages of emails and a 26 page Engineering Report. For the reasons set out below, I vary Council’s decision granting access to the information remaining in issue and find that: access may be refused to parts of four pages of emails between Council and Lusping on the basis that disclosure would, on balance, be contrary to the public interest; and access by inspection only may be granted to a copy of the Engineering Report as it is subject to the copyright interests of third parties. Background By application dated 1 February 2021, the access applicant applied to Council seeking access to certain documents relating to an extension to the Laurel Springs Retirement Village.[4] Lusping was consulted by Council and objected to disclosure of information that Council decided may be released. On review, the access applicant applied to the Information Commissioner to participate in the review under section 89(2) of the RTI Act and is now a party to the review. Significant procedural steps in this external review are set out in the Appendix. Reviewable decision The decision under review is Council’s internal review decision dated 22 June 2021, to disclose information contrary to Lusping’s disclosure objections. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and the appendix). In making this decision I have had regard to the Human Rights Act 2019 (Qld) (HR Act), in particular the right of the applicant to seek and receive information.[5] I consider that a decision-maker will, when observing and applying the RTI Act, be ‘respecting and acting compatibly with’ these rights and others prescribed in the HR Act.[6] I further consider that, having done so when reaching my decision, I have acted compatibly with and given proper consideration to relevant human rights, as required under section 58(1) of the HR Act.[7] Remaining information in issue Following correspondence exchanged between parties on external review to narrow the issues on review, the remaining information in issue comprises parts of four pages of emails (Emails) and a 26 page Engineering Report (Report). The access applicant has agreed to exclude from further consideration: private telephone numbers and email addresses, of any individual; signatures; and duplicate documents;[8] and documents not within the date range of the access application.[9] In the access applicant’s final correspondence with OIC, the access applicant identified by specific page number the emails of interest to him in addition to accessing a copy of the Report. Lusping has also agreed to the disclosure of further information on external review and accordingly that information is no longer in issue. Issues for determination The issues for me to consider are: whether disclosure of the Emails would, on balance be contrary to the public interest and access may therefore be refused; and whether access to a copy of the Report may be given. Findings in relation to the Emails Public interest analysis Lusping contends that disclosure of the remaining parts of the Emails would, on balance be contrary to the public interest.[10] The Emails record information provided between Lusping and Council in relation to Lusping’s interactions and concerns with its contractors. Irrelevant factors In my view, no irrelevant factors arise in my consideration of the public interest factors here.Factors favouring disclosure I have considered the following public interest factors in favour of disclosure: disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability[11] disclosure of the information could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest[12] disclosure of the information could reasonably be expected to inform the community of the Government’s operations, including, in particular, the policies, guidelines and codes of conduct followed by the Government in its dealings with members of the community[13] disclosure of the information could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the decision[14] disclosure of the information could reasonably be expected to reveal environmental or health risks or measures relating to public health and safety;[15] and disclosure of the information could reasonably be expected to contribute to the administration of justice for a person.[16] The above factors have been raised by the access applicant and Council in submissions throughout the external review.[17] Council submits that it is ‘accountable to the public for the decisions it makes in approving decisions in relation to activities in accordance with the legislative restrictions and approvals’.[18] I also consider that Council is accountable to the public for the decisions that it makes concerning development applications and that private sector businesses working with, and seeking approvals from, Council must accept an appropriate level of scrutiny in their dealings with Council.[19] This is particularly the case in these circumstances, where Council actions are critical to ensure any possible danger to safety of the community is removed. Noting this, documents relevant to Council’s actions and interactions between Lusping and Council have been disclosed to the access applicant and/or are available to the general public. These include: a Show Cause Notice issued under the Planning Act 2016 (Qld); an Enforcement Notice issued under the Building Act 1975 (Qld); and documents and communications relevant to planning and development applications and approvals, and the compliance investigations. The disclosure of this information significantly advances the public interest factors favouring disclosure outlined above. On the other hand, I do not accept that disclosure of Emails would advance any of the above listed public interest factors significantly. This information is limited to the views of Lusping in relation to its interactions and anticipated legal proceedings with its contractors. Given the content of the Emails, I consider that the above noted public interest factors carry low, if any, weight in favour of disclosure. I have also considered the other public interest factors in schedule 4, part 2 of the RTI Act and am satisfied that no further factors favouring disclosure apply with respect to the Emails.Factors favouring nondisclosure The Emails disclose information about the interactions between Lusping and its contractors. They refer to anticipated legal actions and a civil dispute between these parties in relation to the compliance issues that are identified in the released information. Given the content of the Emails, the context of these Emails, and the particular submissions made by Lusping, I am satisfied that disclosure of the Emails could reasonably be expected to: prejudice the private, business, professional, commercial or financial affairs of entities[20] cause a public interest harm because disclosure of the information would disclose information concerning the business, commercial or financial affairs of an agency or another person and could reasonably be expected to have an adverse effect on those affairs;[21] and disclosure of the information could reasonably be expected to impede the administration of justice for a person.[22] The words ‘could reasonably be expected to’ call for a decision-maker to discriminate between what is merely possible or merely speculative, and expectations that are reasonably based.[23] I must therefore be satisfied that there is a reasonably based expectation (and not mere speculation or a mere possibility) that disclosure of the Emails could reasonably be expected to result in the harm anticipated by the above factors. Both Council[24] and the access applicant[25] essentially dispute that there is a reasonably based expectation of the connection between disclosure and the prejudice. While I am constrained as to the level of detail I can relay about the contents of the Emails,[26] having carefully reviewed the Emails, and Council’s and the access applicant’s submissions, I am satisfied that disclosure may obstruct options to remedial access for Lusping, thereby impeding the administration of justice, and significant weight may be afforded to this factor favouring nondisclosure to relevant information. I also consider that the Emails disclose untested contentions and speculation relating to a civil dispute between Lusping and third parties, that if disclosed, could reasonably be expected to prejudice the reputations and accordingly the business affairs of these parties. I also note that the Emails relate to the conduct of other third parties who were not consulted by Council at the time a disclosure decision was reached. Personal information and privacy The Emails identify third parties. With respect to this particular information, Council submits that: certain names of third parties have already been disclosed to the access applicant or would ordinarily be expected to become publicly accessible; [27] and ‘Certifying engineers and professionals are performing their functions as part of the regulatory framework intended for public safety, and are subject to their own professional standards and registration with peak and/or governing bodies which may investigate and penalise them for unsatisfactory conduct. Membership and registration with these bodies is normally publicly searchable on the internet.’[28] I have carefully considered Council’s submission that, in effect, indicates that the personal information of those parties associated with this matter through a professional connection, is or can be available outside of this process. While I accept that that may be the case, disclosure outside of this process, while relevant to weighting, is not determinative to disclosure through a formal application process under the RTI Act. Furthermore, I consider that the harm here results from the disclosure of the third-party personal information in the specific context of the Emails relating to a civil dispute. The relevant information is the personal information of other individuals who work for private sector entities involved in a dispute. Revealing personal information of third parties could reasonably be expected to prejudice the protection of their privacy.[29] The RTI Act also provides that disclosure of this type of information could reasonably be expected to cause a public interest harm, if the disclosure would disclose the personal information of a person, whether living or dead.[30] In my view these two factors favouring nondisclosure warrant significant weight. Balancing the public interest In addition to the pro-disclosure bias, [31] I have turned my mind to the public interest factors favouring disclosure of the Emails that I have identified above. I am satisfied that these factors carry minimal weight with respect to disclosure of the particular content in the Emails. This is because the content is focussed on the civil dispute between private sector entities and information has been disclosed that demonstrates Council’s actions and decision making processes. In relation to the factors favouring nondisclosure, I accept Lusping’s submissions in relation to the reasonable expectation of prejudice that disclosure may have on the commercial affairs of Lusping and other entities, the administration of justice for Lusping in anticipated civil legal proceedings, and I also consider that a public interest harm could reasonably be expected to result from the disclosure of personal information in the context of the Emails. I consider that each of these factors carry moderate to high weight, and outweigh any public interest factors in favour of disclosure. Having balanced the public interest factors for and against disclosure, I consider that access to the Emails can be refused on the basis that disclosure would, on balance, be contrary to the public interest.[32] Findings in relation to access to a copy of the ReportCopyright As Council’s decision was silent as to the form of access to the Report, and the access applicant insists on a copy of the Report, while Lusping objects to disclosure of a copy but agrees to inspection, I have determined the issue of form of access.[33] The issue for me to determine is one of form of access only, given inspection access remains available to the applicant. Section 68(4)(c) of the RTI Act provides that, if giving access in the form requested by the applicant would involve an infringement of the copyright of a person other than the State, access in that form may be refused and given in another form. Accordingly, I have considered whether giving the applicant a copy would involve an infringement of copyright.[34] Section 32(1) of the Copyright Act 1968 (Cth) (Copyright Act) provides that copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author was a qualified person at the time when the work was made. I am satisfied that the Report is a ‘literary work’ for the purposes of the Copyright Act.[35] The Report was prepared in accordance with a consultancy agreement between two parties—a contractor and a consultant engaged by the contractor. As the Report was created by a professional applying their special skill and knowledge[36] in their fields, and does not appear to have been copied from another source, I am satisfied that the Report is an original[37] work for the purpose of the Copyright Act. I am also satisfied that the persons who authored the Report are likely to have been Australian citizens or residents.[38] I find that copyright subsists in the Report and it is an original literary work that is unpublished and of which the authors were qualified people at the time when the work was made. Would providing copies infringe copyright? Copyright in relation to a literary work is an exclusive right to do various acts, including reproducing the work in a material form, unless the contrary intention appears.[39] The company whose staff authored the Report are the owners of the copyright subsisting in the Report.[40] Section 36(1) of the Copyright Act provides that copyright is infringed when a person who is not the owner of the copyright, and does not have the licence of the owner, does in Australia, or authorises the doing in Australia of, any act comprised in the copyright. The Report clearly states that this document is to remain the property of two separate entities. There is no evidence to suggest that the copyright owners provided any formal licence or authority, or an implied licence, for Council to copy the Report for the purpose of releasing it under the RTI Act. I am also satisfied that the Report does not appear to have been otherwise published.[41] I am satisfied that, if Council copied the Report to give to the access applicant under the RTI Act, this would constitute reproduction in a material form, which would infringe the exclusive copyright of the copyright owners. Having carefully considered the acts not constituting infringements of copyright in works, I am also satisfied none of the exceptions apply.[42] Therefore, I find that access to the Report in the form sought by the access applicant (being provided with a copy) may be refused and instead given in another form (by way of inspection) under section 68(4)(c) of the RTI Act.DECISION For the reasons explained above, I vary Council’s decision as I am satisfied that access can be refused to the Emails on the basis that disclosure would, on balance, be contrary to the public interest, and access may be granted to the Report by way of inspection only. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.S MartinAssistant Information Commissioner Date: 30 March 2023 APPENDIX Significant procedural steps Date Event 14 July 2021 OIC received Lusping’s external review application. 30 July 2021 OIC notified Council and Lusping it had accepted the application for external review and requested information from Council. 2 August 2021 OIC received the requested information from Council. 2 September 2021 OIC asked Council to provide copies of certain show cause and enforcement notices and received that information from Council. 25 November 2021 OIC asked the access applicant to confirm he still wished to access the deferred documents and if he consented to his identity being disclosed to Lusping. The access applicant confirmed that he still wished to access the information, and consented to the disclosure of his identity. 26 November 2021 OIC conveyed a preliminary view to Lusping, confirmed the access applicant’s identity, and invited Lusping to provide submissions by 10 December 2021 to support their disclosure objection. 6 January 2022 OIC received Lusping’s submissions. 16 February 2022 OIC invited Lusping to provide further submissions in support of its disclosure objections. OIC conveyed a preliminary assessment of the deferred documents to the access applicant and asked him to consider excluding certain information. 24 February 2022 OIC received the access applicant’s response, which agreed to the exclusion of certain information. 3 March 2022 OIC received further submissions from Lusping. 19 April 2022 OIC conveyed a further preliminary view to Lusping and invited Lusping to provide further submissions. OIC conveyed a preliminary view to the access applicant and invited him to provide submissions. 20 April 2022 OIC received submissions from the access applicant. 5 May 2022 OIC received Lusping’s further submissions. 3 June 2022 OIC conveyed a further preliminary view to Lusping and asked Lusping if it objected to inspection access being provided to the access applicant. 9 June 2022 OIC received Lusping’s further submissions. 13 June 2022 OIC wrote to the access applicant to convey a further preliminary view; notify that both Council and Lusping had agreed to inspection access being provided in the interest of informal resolution; and asked the access applicant if he was willing to resolve the review on that basis. 15 June 2022 OIC responded to questions raised by the access applicant. OIC received the access applicant’s notification that he would not accept inspection access as the basis for resolving the review. 6 July 2022 OIC conveyed a preliminary view to Council. OIC invited Lusping to provide submissions in support of its disclosure objections. 25 July 2022 OIC received Council’s submissions. 26 September 2022 OIC received submissions from Lusping’s representative. 19 October 2022 OIC wrote to Lusping’s representative, requesting clarification of the received submissions and information concerning Lusping’s disclosure objections. 21 October 2022 OIC received a further submission from Lusping’s representative. 13 January 2023 OIC conveyed a further preliminary view to Lusping’s representative and invited final submissions if Lusping maintained its disclosure objections. 20 January 2023 OIC received further submissions from Lusping’s representative. 31 January 2023 OIC provided a summary of the information remaining in issue to Lusping’s representative and requested further submissions. 10 February 2023 OIC received further submissions from Lusping. 13 February 2023 OIC provided a summary of the information remaining in issue to the access applicant and asked if was willing to resolve the review on the basis of inspection access being provided. 14 February 2023 The access applicant notified OIC that he did not wish to resolve the review and requested a formal decision. 1 March 2023 OIC conveyed preliminary views to Lusping, the access applicant and Council. 13 March 2022 OIC received the access applicant’s further submissions. 17 March 2023 OIC received further submissions from Lusping and Council. 20 March 2023 OIC notified the access applicant that some information would be released in accordance with the preliminary view and asked the access applicant whether he would accept a different form of access to the Report. 21 March 2023 OIC received confirmation from the access applicant that he did not accept inspection access to the Report. 23 March 2023 OIC asked Lusping to clarify its disclosure position in respect of the Report. OIC received Council’s submission regarding the form of access to the Report. 24 March 2023 OIC received the access applicant’s submissions, including about the form of access to the Report. OIC wrote to Lusping to confirm the information which remained in issue and asked Lusping to confirm whether it maintained its disclosure objections to that information. 28 March 2023 Lusping provided further submissions in a telephone conversation with OIC. [1] Access application dated 1 February 2021.[2] Decision dated 10 May 2021. Lusping then applied for internal review of Council’s decision and Council affirmed its original decision on internal review on 22 June 2021.[3] External review application dated 14 July 2021.[4] Other documents, not relevant to this external review were also requested in the access application. [5] Section 21 of the HR Act.[6] See XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; and Horrocks v Department of Justice(General) [2012] VCAT 241 (2 March 2012) at [111].[7] I note the observations by Bell J on the interaction between similar pieces of Victorian legislation in XYZ at [573]: ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’ I also note that OIC’s approach to the HR Act set out in this paragraph has recently been considered and endorsed by the Queensland Civil and Administrative Tribunal in Lawrence v Queensland Police Service [2022] QCATA 134 at [23] (noting that Judicial Member McGill saw ‘no reason to differ’ from our position).[8] By correspondence dated 24 February 2022.[9] By correspondence dated 20 April 2022. [10] By written submissions to OIC dated 6 January 2022, 3 March 2022, 5 May 2022, 26 September 2022, 20 January 2023, 10 February 2023 and telephone conversation with OIC on 28 March 2023.[11] Schedule 4, part 2, item 1 of the RTI Act.[12] Schedule 4, part 2, item 2 of the RTI Act.[13] Schedule 4, part 2, item 3 of the RTI Act.[14] Schedule 4, part 2, item 11 of the RTI Act.[15] Schedule 4, part 2, factor 14 of the RTI Act. [16] Schedule 4, part 2, factor 17 of the RTI Act. [17] Council written submissions to OIC dated 25 July 2022, 17 March 2023 and telephone conversation with OIC on 2 June 2022. Access applicant written submissions dated 24 February 2022, 20 April 2022, 14 June 2022, 13 March 2023 and 24 March 2023.[18] Internal review decision to external review applicant dated 22 June 2021.[19] Campbell and North Burnett Regional Council; Melior Resources Incorporated (Third Party) [2016] QICmr 4 (29 January 2016) at [37]. [20] Schedule 4, part 3, item 2 of the RTI Act.[21] Schedule 4, part 4, section 7(1)(c) of the RTI Act.[22] Schedule 4, part 3, item 9 of the RTI Act.[23] See Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 at paragraphs [62]-[63]. See also B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at [160]. Other authorities note that the words ‘require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous to expect a disclosure of the information could have the prescribed consequences relied upon’: Smolenski v Commissioner of Police, NSW Police [2015] NSWCATAD 21 at [34], citing Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [28], McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] and Attorney-General’s Department v Cockroft [1986] FCA 35; (1986) 10 FCR 180 at 190. [24] Council submissions dated 17 March 2023.[25] Access applicant submissions dated 13 March 2023.[26] Section 108 of the RTI Act.[27] Submissions to OIC dated 25 July 2022.[28] Council submissions dated 17 March 2023.[29] Schedule 4, part 3, item 3 of the RTI Act.[30] Schedule 4, part 4, section 6 of the RTI Act.[31] Section 44 of the RTI Act. [32] Under sections 47(3)(b) and 49 of the RTI Act.[33] The Information Commissioner has the power to decide any matter in relation to an access application that, under the RTI Act, could have been decided by the agency (section 105(1)(b) of the RTI Act).[34] For the application of the copyright provision, see V11 and Brisbane City Council [2021] QICmr 39 (6 August 2021). [35] Section 10 of the Copyright Act.[36] MacMillan and Co Ltd v Cooper (1923) 1B IPR 204 at 212-213; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 115 and IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 at 478-481 per French CJ, Crennan and Kiefel JJ.[37] Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16; 201 FCR 173 at [57]; University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 608-610 and Dixon J in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor & Ors [1937] HCA 45; (1937) 58 CLR 479 at 511.[38] Section 32(4) of the Copyright Act.[39] Section 31(1)(a)(i) of the Copyright Act.[40] Section 35(6) of the Copyright Act.[41] Section 29(1)(a) of the Copyright Act provides that a literary work shall be deemed to have been published only if reproductions of the work have been supplied to the public.[42] Part III, Division 3 of the Copyright Act – Acts not constituting infringements of copyright in works.

queensland

court_judgement

Queensland Information Commissioner 1993-

S36 and Office of the Director of Public Prosecutions [2023] QICmr 18 (17 May 2023)

S36 and Office of the Director of Public Prosecutions [2023] QICmr 18 (17 May 2023) Last Updated: 19 September 2023 Decision and Reasons for Decision Citation: S36 and Office of the Director of Public Prosecutions [2023] QICmr 18 (17 May 2023) Application Number: 316838 Applicant: S36 Respondent: Office of the Director of Public Prosecutions Decision Date 17 May 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - request for brief of evidence used in criminal proceedings against the applicant - accountability and transparency considerations - administration of justice and procedural fairness - personal information of other individuals - whether disclosure would, on balance, be contrary to the public interest - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Office of the Director of Public Prosecutions (ODPP) under the Information Privacy Act 2009 (Qld) (IP Act) for access to the full brief of evidence used in the prosecution of the applicant (Brief)[2] and an exit report from a rehabilitative program completed by the applicant at a correctional centre.[3] The ODPP located 473 pages of information responsive to the access application and decided[4] to grant full access to 51 pages, partial access to 221 pages and refuse access to 201 pages. The applicant then applied[5] to the Office of the Information Commissioner (OIC) for review of ODPP’s decision. For the reasons set out below, I affirm ODPP’s decision and find that access to the information in issue may be refused as disclosure would, on balance, be contrary to the public interest.[6] Reviewable decision The decision under review is ODPP’s decision dated 24 June 2022. Evidence considered The significant procedural steps taken during the external review are set out in the Appendix to this decision. The evidence, submissions, legislation and other material I have considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). In making this decision I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), in particular, the right of the applicant to seek and receive information.[7] I consider that a decision-maker will, when observing and applying the IP Act and RTI Act, be ‘respecting and acting compatibly with’ these rights and others prescribed in the HR Act.[8] I further consider that, having done so when reaching my decision, I have acted compatibly with and given proper consideration to relevant human rights, as required under section 58(1) of the HR Act.[9] Information in issue The information remaining in issue comprises 221 part-pages and 153 full pages contained in the Brief (Information in Issue). Following receipt of the applicant’s external review application, OIC advised the applicant that the issue to be addressed during the external review process was whether access may be refused to the information comprised in the Brief.[10] I conveyed a preliminary view to the applicant that some of the information in the Brief, comprises handwritten margin notes on various witness statements and that I did not consider that this was evidence that was put before the Court during the prosecution proceedings.[11] The applicant did not raise any objection to my view in this respect and accordingly the handwritten notes are not considered as part of this decision. I am constrained about the level of detail I can provide about the remaining Information in Issue,[12] however I can say that it comprises the personal information[13] of individuals other than the applicant and can generally be described as: names and other identifying information of individuals other than the applicant; and information (including observations and opinions) other individuals provided to Queensland Police Service (QPS). Issue for determination The issue for determination is whether access may be refused to the Information in Issue, on the ground that disclosure would, on balance, be contrary to the public interest.[14] Relevant law Under the IP Act, an individual has a right to be given access to documents of an agency to the extent they contain the individual’s personal information.[15] However, the right of access is subject to the provisions of the IP Act, including the grounds on which an agency may refuse assess to a document. In deciding whether disclosure of information would, on balance, be contrary to the public interest,[16] the RTI Act requires a decision-maker to:[17] 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 public interest lies in a particular case. I have considered these lists, together with all other relevant information, in reaching my decision. I have kept in mind the IP Act’s pro-disclosure bias[18] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly.[19] Findings In deciding whether disclosure of the Information in Issue would, on balance, be contrary to the public interest, I have taken no irrelevant factors into account in making my decision. Public interest factors favouring disclosure The RTI Act recognises that public interest factors favouring disclosure will arise where disclosing the information could reasonably be expected to: enhance the Government’s accountability and transparency;[20] and reveal the reason for a government decision and any background or contextual information that informed that decision.[21] Disclosing the Information in Issue would give the applicant a more complete picture of the information in the possession of ODPP at the time it prosecuted the applicant. ODPP has partially disclosed information from the Brief, which demonstrates the steps it has taken in prosecuting the applicant’s case. The information that has already been disclosed to the applicant has substantially advanced ODPP’s accountability and transparency and provided the applicant with the relevant background or contextual information that informed any decisions. Taking into account, the nature of the Information in Issue and the information which has already been disclosed to the applicant, I attribute moderate weight to these factors. There is a public interest in individuals being able to obtain access to their own personal information held by government. Having reviewed the Information in Issue, I am satisfied that to the extent that it relates to the applicant, it is the applicant’s personal information. Accordingly, this disclosure factor applies to the applicant’s personal information within the Information in Issue and I afford it significant weight. However, the information relating to the applicant is intertwined with the personal information of other individuals to such an extent that it cannot be disclosed without also disclosing the personal information of those other individuals (giving rise to the nondisclosure factors discussed below) in the sensitive context of criminal proceedings. The applicant submits that he is currently incarcerated and intends to appeal his convictions and sentence when he is out of prison.[22] The applicant states that he requires the Information in Issue as he will be self-represented. Given the applicant’s submissions, I have considered whether disclosure of the Information in Issue could reasonably be expected to: advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies[23] contribute to the administration of justice generally, including procedural fairness;[24] and contribute to the administration of justice for a person.[25] The fundamental requirements of procedural fairness[26] - that is, an unbiased decision-maker and a fair hearing, should be afforded to a person who is the subject of an investigation or decision.[27] There is no information before me to suggest that the applicant was not afforded an opportunity to respond to the charges against him during the criminal proceedings which I understand were finalised in 2017.[28] In these circumstances, I am not satisfied that there is a reasonable expectation that disclosure of the Information in Issue would, in any meaningful way, advance the applicant’s fair treatment or contribute to the administration of justice, including procedural fairness. On this basis, while these factors may apply,[29] I afford them only moderate weight. I have also considered whether the disclosure of the Information in Issue could reasonably be expected to contribute to the administration of justice for a person – namely, the applicant.[30] For this factor to apply, it must be established that the applicant has suffered some kind of wrong in respect of which a remedy is, or may be available under the law, that there is a reasonable basis for seeking to pursue any such remedy and that disclosure of the information held by the agency would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available or worth pursuing.[31] Following the decision of Bruce Dulley Family Lawyers v WorkCover Queensland,[32] I am not satisfied that the applicant’s intention to appeal his sentence and conviction, is the type of wrong contemplated by this factor favouring disclosure and accordingly I afford this factor no weight. I also note here that there are other processes for disclosure available to individuals seeking to appeal a criminal conviction. The applicant submits that there are several sections of the Criminal Code Act 1899 (Qld) (Code) which support disclosure of the Information in Issue,[33] and in particular section 590 ‘where it states disclosure of such information must be made’. Section 590 of the Code provides that when a person has been charged with an indictable offence and has been committed for trial, the Director of ODPP or a Crown prosecutor must present the indictment no later than six months. As the applicant has been tried, convicted and is serving a prison sentence, I do not consider that section 590 of the Code is relevant in the circumstances of this matter. In addition, I note that there is no information before me to suggest that the disclosure requirements of the Code were not followed during the proceedings against the applicant. Similarly, the applicant also submits that he has a right to a full copy of the Brief, in particular ‘what was used and not used against’ him in his trial, as provided in section 32 of the HR Act.[34] Section 32 of the HR Act provides rights for a person charged with a criminal offence, including for example, to be informed promptly and in detail of the nature and reason for a charge[35] and to be tried without unreasonable delay.[36] As noted above, as the applicant has been tried, convicted and is serving a prison sentence, I consider that with the exception of section 32(4) of the HR Act,[37] section 32 of the HR Act is not relevant in the circumstances of this matter. I also consider the Information Commissioner’s comments in Phyland v Department of Police are relevant:[38] The RTI Act was not ... designed to serve as an adjunct to court processes, but to comprise a stand-alone mechanism for enabling public access to government-held information. Obviously, the applicant is entitled to elect to pursue access under the right of access conferred by the RTI Act. In doing so, however, she must accept the qualifications upon and limitations to that right imposed by the Act itself: including refusal of access where ... disclosure would disclose personal information or infringe upon an individual’s right to privacy. In this regard, I note that it is reasonable to expect that the applicant may use the disclosure processes available to him when he makes his application for leave to appeal his conviction/s and/or sentence. I have carefully considered all factors listed in schedule 4, part 2 of the RTI Act and the applicant’s submissions. Having done so, I can identify no other public interest considerations favouring disclosure of the Information in Issue. Public interest factors favouring nondisclosure The RTI Act recognises that disclosing an individual’s personal information to someone else can reasonably be expected to cause a public interest harm[39] and that disclosing information which could reasonably be expected to prejudice the protection of an individual’s right to privacy gives rise to a public interest factor favouring nondisclosure.[40] As noted at paragraph 11, the Information in Issue broadly comprises information which identifies or is about individuals other than the applicant and information that was provided to QPS by other individuals. I am satisfied that it comprises the personal information of those other individuals. Most of the Information in Issue is of a highly sensitive and highly personal nature,[41] and as noted above, some of it is intertwined with the applicant’s personal information. Given the nature of the Information in Issue and the context in which it appears, I consider that disclosure would be a significant intrusion into the privacy of those other individuals. While I acknowledge that some of the information may be known to the applicant, as it comprises evidence that was provided or referenced in the applicant’s court process, I do not consider that this reduces the weight of these nondisclosure factors to any significant degree, as the IP Act does not have protections or controls on the dissemination of documents once released in this process. For these reasons, I afford these public interest harm and privacy factors significant weight. Finally, the release of third-party personal information which has been provided to and treated by QPS as confidential, could reasonably be expected to prejudice the future flow of information.[42] The routine disclosure of third-party personal information could reasonably be expected to discourage the public from providing information, negatively impacting QPS’s ability to obtain information required to perform its investigative functions. In the circumstances, of this matter I afford moderate weight to this factor favouring nondisclosure. Balancing the public interest factors I have taken into account the pro-disclosure bias in deciding access to the Information in Issue under the IP Act.[43] I have afforded significant weight to the factor favouring disclosure of the applicant’s personal information within the Information in Issue. In addition, and for the reasons outlined above, I have found that the factors relating to ODPP’s transparency and accountability, revealing the reason for a government decision and the fair treatment and administration of justice, including procedural fairness factors are deserving of moderate weight, taking into account the nature of the Information in Issue and the information which has been disclosed to the applicant. On the other hand, I have found that the nondisclosure factors which relate to protecting the personal information and right to privacy of other individuals, in a highly sensitive context, are deserving of significant weight. I have also afforded moderate weight to the nondisclosure factor relating to the prejudice of the flow of information to QPS. On balance, I am satisfied that the public interest factors favouring nondisclosure of the Information in Issue outweigh the factors favouring disclosure. Accordingly, I find that disclosure of the Information in Issue would, on balance, be contrary to the public interest and access may be refused on that basis.[44]DECISION For the reasons set out above, I affirm the ODPP’s decision that access to the Information in Issue may be refused as disclosure would, on balance, be contrary to the public interest.[45] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinAssistant Information Commissioner Date: 17 May 2023 APPENDIX Significant procedural steps Date Event 2 August 2022 OIC received the application for external review. OIC requested preliminary documents from ODPP. 3 August 2022 OIC received the preliminary documents from ODPP. 18 August 2022 OIC advised the applicant and ODPP that the application for external review had been accepted. OIC requested the Information in Issue from ODPP. 19 August 2022 OIC received the Information in Issue from ODPP. 1 December 2022 OIC conveyed a preliminary view to the applicant. 15 December 2022 OIC received submissions from the applicant contesting OIC’s preliminary view. 1 February 2023 OIC advised ODPP that the matter would proceed to formal decision. [1] Access application dated 20 May 2022. The access application was originally made to the Department of Justice and Attorney-General (DJAG) and was then transferred to ODPP. DJAG has delegated power to deal with applications made under the IP Act for access to documents in ODPP’s possession or control. [2] The search period for the Brief was 1 January 2016 to 31 December 2017.[3] In a letter to the applicant dated 31 May 2022, DJAG advised the applicant that any exit report and rehabilitative program completion documents would be held by Queensland Corrective Services. Accordingly, the exit report has not been considered as part of the external review.[4] Decision dated 24 June 2022. [5] External review application received 2 August 2022 and dated 9 July 2022. [6] Pursuant to section 67(1) of the IP Act and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) (RTI Act). Section 67(1) of the IP Act provides that an agency may refuse access to the document of an agency in the same way and to the same extent the agency could refuse access to the document under the RTI Act (section 47) were the document to be the subject of an access application under that Act.[7] Section 21 of the HR Act.[8] See XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; and Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[9] I note the observations by Bell J on the interaction between equivalent pieces of Victorian legislation in XYZ, [573]: ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’ I also note that OIC’s approach to the HR Act set out in this paragraph has recently been considered and endorsed by the Queensland Civil and Administrative Tribunal in Lawrence v Queensland Police Service [2022] QCATA 134 at [23] (noting that Judicial Member McGill saw ‘no reason to differ’ from our position). [10] Letter to the applicant dated 18 August 2022. Included in the 473 pages of information located by ODPP was some information that ODPP categorised as ‘traffic history’ and ‘criminal history’. ODPP refused access to this information pursuant to section 47(3)(f) of the RTI Act. OIC conveyed a view to the applicant, that ODPP’s decision in that respect appeared to be correct and accordingly OIC did not propose to consider those issues in the external review. [11] On this basis I consider that this information may be deleted under section 88 of the IP Act, as it does not form part of the Brief.[12] Section 121(3) of the IP Act.[13] Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[14] Pursuant to section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.[15] Under section 40(1)(a) of the IP Act. [16] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests, 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.[17] Section 49 of the RTI Act.[18] Section 64 of the IP Act.[19] Section 67(2) of the IP Act.[20] Schedule 4, part 2, item 1 of the RTI Act. [21] Schedule 4, part 2, item 11 of the RTI Act.[22] Letter from the applicant dated 9 July 2022.[23] Schedule 4, part 2, item 10 of the RTI Act.[24] Schedule 4, part 2, item 16 of the RTI Act.[25] Schedule 4, part 2, item 17 of the RTI Act.[26] Schedule 4, part 2, item 16 of the RTI Act.[27] The fair hearing aspect of procedural fairness requires that, before a decision that will deprive a person of some right, interest or legitimate expectation is made, the person is entitled to know the case against them and to be given the opportunity of replying to it (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at [584] per Mason J).[28] Page 1 of the information disclosed to the applicant.[29] Schedule 4, part 2, items 10 and 16 of the RTI Act.[30] Schedule 4, part 2, item 17 of the RTI Act.[31] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 at [17]; confirmed in 1OS3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011) at [16]). [32] (Unreported, Queensland Information Commissioner, 26 July 2012) at [31]. While I acknowledge that the findings in that matter related to a civil matter, I consider that the findings apply equally to a criminal matter.[33] Letter to OIC dated 9 December 2022.[34] Letter to OIC dated 9 December 2022.[35] Section 32(2)(a) of the HR Act.[36] Section 32(2)(c) of the HR Act.[37] Section 32(4) of the HR Act provides a person convicted of a criminal offence has the right to have the conviction and any sentence imposed in relation to it reviewed by a higher court in accordance with the law.[38] (Unreported, Queensland Information Commissioner, 31 August 2011) at [24], cited in Sedlar and Logan City Council [2017] QICmr 52 (& November 2017) at [59]. While I acknowledge that this case was in relation to an access application made under the RTI Act, I consider that the comment applies equally to an access application made under the IP Act.[39] Schedule 4, part 4, section 6 of the RTI Act.[40] Schedule 4, part 3, item 3 of the RTI Act. [41] Such as the information (including observations and opinions) other individuals provided to QPS.[42] Schedule 4, part 3, item 13 and schedule 4, part 4, section 8 of the RTI Act.[43] Section 64 of the IP Act.[44] Under section 47(3)(b) of the RTI Act.[45] Pursuant to section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Queensland Newspapers Pty Ltd and Ipswich City Council [2015] QICmr 30 (26 November 2015)

Queensland Newspapers Pty Ltd and Ipswich City Council [2015] QICmr 30 (26 November 2015) Last Updated: 20 January 2017 Decision and Reasons for Decision Citation: Queensland Newspapers Pty Ltd and Ipswich City Council [2015] QICmr 30 (26 November 2015) Application Numbers: 312354 and 312421 Applicant: Queensland Newspapers Pty Ltd Respondent: Ipswich City Council Decision Date: 26 November 2015 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – NONEXISTENT DOCUMENTS – DOCUMENTS OF AN AGENCY – refusal of access to a document because the document is nonexistent – whether agency has taken all reasonable steps to locate documents – sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) – whether requested documents are documents of an agency – section 12 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary By application dated 17 November 2014,[1] the applicant applied to the Ipswich City Council (the Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to documents concerning ‘[t]ravel arrangements for transport for trip involving Ipswich City Properties or council agents, for a trip to the US in September 2010. ...’ (First Application).[2] The applicant lodged a further RTI access application with the Council on 12 February 2015 (Second Application), [3] requesting documents: ...showing travel itineraries and any other documentation relating to travel taken by Ipswich City Properties and its directors to Europe and the Middle East in 2012, including accommodation bookings/reservations, and flights/other transport arrangements. This is to include searches of any other email accounts used for these arrangements external to official council email addresses, emails to/from [a nominated Council officer] and any travel arrangement details emailed either to or from [another named officer]. This should also include a search of diary entries relating to the trip in the diaries of Crs Paul Pisasale and Paul Tully. ... The Council located no information in relation to the First Application,[4] and a small amount[5] of relevant information in response to the Second. The Council: as regards the First Application, refused access to requested information under sections 47(3)(e) and 52(1)(a) of the RTI Act, on the grounds the information was nonexistent; and as regards the Second Application, decided to disclose the information located.[6] As noted, the Council only located a relatively limited number of documents in processing the applicant’s RTI access applications. The decision on the Second Application did, however, suggest that Ipswich City Properties Pty Ltd (ICP), a Council-owned company,[7] might hold further relevant documents, but that any such document would not be a ‘document of agency’[8] (ie, the Council) subject to the RTI Act. The applicant’s case on external review is that any potentially relevant documents that may be held by ICP should be regarded as documents of an agency – the Council – for the purposes of each of the applicant’s access applications. I agree with the Council’s view. Any documents that may be held by ICP are not documents of an agency for the purposes of the RTI Act and are therefore not subject to the Act. Accordingly, the Council is not required to undertake search inquiries of ICP for potentially relevant documents in relation to either application. It may therefore refuse access to any additional information in relation to both the First Application and the Second Application, on the basis that such information is, as regards the Council, nonexistent. Background Significant procedural steps relating to each of the applications and external reviews are set out in the appendix to this decision. Reviewable decisions The decisions under review are the Council’s decisions dated 9 January 2015 and 19 March 2015. 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 my determination in each of these reviews is whether any relevant documents that may be held by ICP can be regarded as Council documents for the purposes of the RTI Act – that is, are ICP documents ‘documents of an agency’ (ie, the Council) within the meaning of section 12 of the RTI Act? If the answer to this question is yes, then by not having made enquiries of ICP, Council will not have taken all reasonable steps to locate all relevant information,[9] and thus failed to have discharged the search obligations imposed on it by the RTI Act. The Council would not, therefore, be entitled to refuse access to ICP information on the basis of nonexistence as it did in relation to the First Application. The Council would, in relation to both access applications, need to carry out further searches; that is, by making enquiries of ICP. If the answer to the above question is no, then Council will only be obliged to search for and deal with records that the Council holds directly – which it appears to have done in this case. There will be no obligation to make any additional inquiries of ICP in either review. Relevant law A document of an agency: means a document, other than a document to which this Act does not apply, in the possession, or under the control, of the agency whether brought into existence or received in the agency, and includes— (a) a document to which the agency is entitled to access; and (b) a document in the possession, or under the control, of an officer of the agency in the officer's official capacity.[10] Mere physical possession of a document by an agency is sufficient to meet the above requirements and subject the document to the operation of the RTI Act.[11] Physical possession is not, however, the sole test as to whether a document is a document of an agency subject to the RTI Act. A document not in the physical possession of an agency will nevertheless be a ‘document of an agency’ for the purposes of the RTI Act, if it is ‘under the control’ of the relevant agency.[12] The Information Commissioner has previously explained that a document will be under the control of an agency[13] where the agency has a present legal entitlement to take physical possession of the document.[14] Discussion and findings Possession The Council has explained that searches for relevant documents in relation to each application involved various lines of enquiry, including interrogation of the Council’s electronic document management databases. I have summarised these below as regards each of the access applications. As regards the First Application, relevant searches were undertaken by both the Governance Branch and the Strategic Client Branch (Travel Requests) of the Council’s Finance and Corporate Services Department, and involved searching spreadsheets concerning travel purchase orders and querying the Council’s ‘ECM’ records management database – including by way of search terms such as ‘travel’ and the relevant traveller’s name.[15] The decision on the First Application explained that these searches were undertaken as ‘...the type of information requested...is all stored in the same location’.[16] The Council further explained on external review that the Ipswich City Mayor and a Councillor – both of whom, as I understand, participated in relevant travel – assisted in search efforts relevant to the First Application,[17] and that searches of the offices of the Chief Executive Officer and Chief Financial Officer were also undertaken.[18] All search efforts were fruitless.[19] On this basis, the Council decided, as noted, to refuse the applicant access to requested information on the basis of nonexistence. Similar searches were undertaken in processing the Second Application. The ECM was again interrogated,[20] and searches were also undertaken of an ‘Oracle’ electronic data management system and Council email systems – reflecting, as I understand, the particular terms of the Second Application. These searches were undertaken by Council units including the Mayor’s office, the Travel Requests unit, and personal assistants of those named in the Second Application.[21] Search efforts as regards the Second Application located, as I have noted, various pages, which were released to the applicant subject to deletion of certain segments of information. Additionally, the Council’s decision as regards the Second Application observed that: [a]s the travel [targeted by the applicant in the Second Application] was undertaken on behalf of Ipswich City Properties Pty Ltd, that entity may hold other information concerning this travel. That is a separate legal entity to the Council. It has separate premises and information systems as well as document storage. The documents of Ipswich City Properties Pty Ltd are not documents to which council has access and are therefore not documents of an agency...the information/documents of Ipswich City Properties Pty Ltd are not within the possession or control of Council. The Council elaborated on the physical division between the Council and ICP in submissions lodged during these reviews which, while relatively lengthy, merit setting out in full: The status of Ipswich City Properties, as a separate legal entity has several practical implications which are relevant in the current circumstances including: (a) Ipswich City Properties has its own separate licensed premises within the Council Building premises. This level of separation between Ipswich City Properties and the Council has been in operation for some time. The area which Ipswich City Properties occupies is specifically identified and the Council has granted a license to Ipswich City Properties for a nominated licence fee to use the premises. The rights and obligations of the parties have been agreed and include that Ipswich City Properties is entitled to occupy the licensed premises without unreasonable interference from the Council (other than access for inspection and maintenance related purposes). (b) Ipswich City Properties has its own separate information management and storage systems. In this regard: (i) Hardcopy documents of Ipswich City Properties are generated, stored and maintained within the licensed premises; (ii) Ipswich City Properties uses a separate information system, including document management and storage systems, a separate server for documents such as emails and separate photocopy systems. This level of separation is also reflected in the use of Ipswich City Properties email addresses; and (iii) Directors of Ipswich City Properties are responsible for ensuring that all documents, emails and other information that are generated in relation to Ipswich City Properties' business and operations are appropriately stored within the Ipswich City Property files. (c) While Council employees do provide select and discrete services to Ipswich City Properties, these services are provided under specific secondment arrangements. Ipswich City Properties and the Council are separate legal entities which do operate separately and independently of each other. Relevantly, the separate and independent nature of the Council and Ipswich City Properties extends to the separate management, handling, storage and use of information and documentation. Having carefully reviewed the Council’s accounts of its search efforts in relation to both applications, I am satisfied that those efforts were reasonable in the circumstances of each case. I consider that relevant searches and lines of enquiry were directed toward appropriate officers and information repositories within the Council, sufficient to locate any relevant documents the Council may hold. There is nothing before me to suggest that the Council is itself in possession of any further[22] relevant information. The applicant, however, is not so satisfied. While I do not understand the applicant to be querying the reasonableness or adequacy of the Council’s searches of its own records in relation to either application,[23] it does challenge the extent of the division between the Council and ICP, and seeks to ascertain whether requested information may ever have been in the Council’s possession. In its submissions dated 26 October 2015, the applicant argued that: Given the Information Commissioner has previously ruled “mere physical possession” of documents is sufficient to make records documents of an agency, we wish to understand more about council’s submission that refers to ICP having separate premises and systems. We submit that council needs to detail when this separation occurred and who actually has possession of the documents. Council in their submission has referred to separate servers and non-council emails, and we wish to address this issue to look at the idea of physical possession. Again, we point to instances where council staff handled queries via council email addresses. Any postal mail must presumably be handled at council given ICP’s official address on company documents is given as council. Council via Clayton Utz say the documents are kept on a separate email system and computer system. However, it appears from the email correspondence/press releases to date that the organisation is using the council email system/computer system/staff. All email responses to date regarding ICP inquiries have been sent from council email addresses, including Mr Lindsay's council email address. The critical issue is whether ICP is using/sharing the council email server, internet router, internet connection or any other council owned devices (computers, hard drives) for the sending/receiving of communications and storage of documents. It would also be pertinent if the ICP emails passed through any council mail servers or shared the council domain. This has two issues, first going to the concept that ICP is in reality an arm of council, and also to possession. To satisfy itself the documents were not in possession of the council, QN asks that the OIC request further information such as what email addresses were being used by ICP, details of the email server (such as was it council owned) and the use of any council IT equipment. If ICP used a council-owned email server/systems, then this would support the case that the documents were in council's possession, whether they had a legal entitlement to them or not, by way of the fact they were transmitted on council equipment. Also, Clayton Utz states that council staff members were being used on secondment and that ICP had a licenced room in council where ICP activities took place. We again seek clarification about this arrangement to address issues of ownership. Where was the room located, how long the lease has been in place, and how much does ICP pay for the room? Do council staff do ICP work "on secondment" in the ICP room only or at their council desks, and how does council determine when staff are performing council work and ICP work (for instance in handling media requests)? I acknowledge that if any ICP information is stored on Council-owned information infrastructure or within Council premises or repositories, then it will be in the physical possession of the Council and subject to the RTI Act. The Council’s position, however is that the circumstances canvassed in the preceding paragraph do not apply in this case. The Council’s account is clear: the Council and ICP operate ‘separately and independently of each other’, a division which ‘extends to the separate management, handling, storage and use of information and documentation.’ I accept that account,[24] and do not consider it necessary to descend further into the particulars of the physical, legal and operational arrangements the Council and ICP have in place so as to differentiate their business and affairs. To repeat what I stated in paragraph 22, there is nothing before me to suggest that the Council is itself in possession of any additional relevant information. I also accept that the applicant may have received emails from Council officers concerning ICP affairs. That does not, however, establish that specific documents of the kind requested by the applicant in either of its applications are currently in the physical possession of the Council. As canvassed in paragraph 23 above, the applicant further seeks to query as to whether requested information may at some point in time have been in the Council’s physical possession. The submissions excerpted in paragraph 23, for example, note that ICP and the Council share a postal address, the inference being, I assume, that post directed to the former must pass through the possession of the latter. More directly, the applicant queries whether ‘...ICP emails passed through any council mail servers...’, and goes on to request that OIC ‘...satisfy itself the documents were not in possession of the council...’, by seeking information as to whether requested documentation may have been transmitted through Council-owned IT infrastructure, on the basis that if this did occur, ‘...this would support the case that the documents were in council's possession’. The submissions summarised above appear intended to develop a line of argument initiated by the applicant in submissions dated 29 June 2015: We wish to clarify that whether any of the documents have ever been in Ipswich council offices, or communicated or paid for via council technology (email, phones, use of spreadsheets etc). ... ... we wish to test the idea that the documents might have been in council possession. If council facilities (email addresses etc) were used in preparing, sending or receiving invoices, or paying for travel expenses, or in preparation of paperwork, or printing of paperwork, or even storage of paperwork in offices etc, they should be deemed to have been in possession of council. If council has possessed the documents, then the Information Commissioner's reasoning, in Kalinga Wooloowin Residents Association Inc and Brisbane City Council; City North Infrastructure Pty Ltd (Third Party); Treasury Department (Fourth Party)..., is also critical. That is because the Information Commissioner found: "the correct interpretation of ‘possession’ is as I have stated in paragraph 14 above: mere physical possession by an agency is sufficient to render a document subject to the RTI Act".[25] In additional submissions dated 30 June 2015, the applicant stated: It is inconceivable that the mayor, deputy mayor and senior executives did not have possession of documents such as travel itineraries, hotel booking information and plane tickets when travelling around the US, Europe and the Middle East. Those documents must have been in the possession of those council representatives/staff, and by extension, the council. ... The fact that multiple council representatives/staff would have had possession of travel documentation...makes it difficult to argue council did not have possession of such documents. The above arguments are complemented by a further submission, received from the applicant on 27 October 2015: Section 27 (1) of the RTI Act states that "an access application is taken only to apply to documents that are, or may be, in existence on the day the application is received". We respectfully submit that given the wording of the act, the OIC determines not just the current situation, but if documents also had been in physical possession of council. There is nothing before me establishing that the Council has ever had any temporary possession of the kind the applicant speculates may have occurred in the submissions summarised in paragraph 28. While I accept that it is likely that the officials nominated in the submissions extracted in paragraph 30 were in possession of documents of the kind specified during the co[26]se of their travels,26 I have not pursued either this issue or the question of any temporary possession, for both are ultimately irrelevant. As I advised the applicant in my letter dated 13 October 2015, I am required to have regard to relevant facts and circumstan[27]s as they now stand.27 The test under section 12 of the RTI Act is not, relevantly, whether a document ever has been in the possession of an agency, but wh[28]her it is presently.28 There is no evidence that any documents of the kind requested by QN are presently in the Council’s possession. In this regard, the applicant’s reliance on section 27(1) of the RTI Act is misconceived. That section does not operate to qualify or extend the test imposed by section 12 of the RTI Act, but exists simply to establish a temporal limit to the right of access conferred by section 23 of the RTI Act; it confines the scope of that right to documents in existence on the day a valid application is fielded by a Minister or agency. This is to avoid any suggestion that an applicant might lodge an ‘open ended’ access application capturing not only requested documents in existence at the time of the application’s lodgment, but those that might subsequently come into an agency’s possession or under its control. On the basis of its search inquiries and explanations as canvassed above, I am satisfied that the Council is not itself in possession of any further[29] documents as requested by the applicant. Control As noted above,[30] a document not in the physical possession of an agency will nevertheless be a ‘document of an agency’ for the purposes of the RTI Act, if it is under the control of the relevant agency: if the agency has a present legal entitlement to take physical possession of the document. As the Information Commissioner stated in the key decision concerning this issue, ‘for a document to be one which is under the control of an agency (or one in respect of which an agency is entitled to access), the agency must have a present legal entitlement to take physical possession of the document.’[31] In this case, I am not satisfied that the Council enjoys a present legal entitlement to take physical possession of documents held by ICP. While the Council, as sole shareholder, essentially owns ICP,[32] as an incorporated entity, ICP has a separate legal existence[33] and any property – including records and documents it creates – belong to ICP.[34] I can identify nothing in ICP’s constitution[35] or the applicable law[36] that gives the Council a right of access to ICP documents of the kind requested by the applicant, and nothing that would amount to a present legal entitlement to possession of such documents. It may be that Council – as ICP’s sole shareholder – would be able to put itself in a position to take possession of any relevant ICP documents, by way of a shareholder resolution.[37] I do not, however, consider that this method of acquiring possession would be sufficiently immediate to amount to a present legal entitlement of the kind required under section 12 of the RTI Act. As the Information Commissioner has previously stated: I accept that it was the legislature's intention that an agency should take steps to bring into its physical possession, for the purpose of dealing with a valid FOI access application, any requested document in respect of which the agency has a present legal entitlement to possession. However, I do not accept that it was the legislature's intention that an agency should have to take some additional step in order to put itself into a position where it has a legal entitlement to take possession of a document, in order to respond to an FOI access application for that document.[38] (My emphasis.) Formulating an appropriate resolution and then securing its passage[39] would, in my view, comprise an ‘additional step’ of the kind the Information Commissioner has identified as being insufficient to amount to a present legal entitlement to possession. The applicant resists any conclusion that the Council does not have control of ICP documents. The applicant’s main line of argument in support of this contention is that the circumstances obtaining in these reviews are sufficient to justify a ‘lifting’ or ‘piercing’ of the corporate veil separating ICP from the Council. In the first of two sets of submissions emailed on 29 June 2015,[40] the applicant advised that it did not accept any: ...contention that ICP is a separate entity and the council is not in possession of the documents. We base this on several well-established legal principles in which the corporate veil can be pierced. If this argument is successful, any documentation with ICP is under control of council and therefore subject to the RTI Act. Insofar as the above submission comprises an argument that ICP is not a ‘separate entity’ from the Council, it cannot, as I advised the applicant in my letter dated 13 October 2015, be sustained. As an incorporated body it is clearly a separate legal entity distinct from the Council. In support of its more general argument that the circumstances in this case justify a lifting of the corporate veil, the applicant relies on an academic study quantifying decisions in which courts have done just so.[41] Relying on authorities cited in this paper, the applicant contends that I should ‘lift’ ICP’s corporate veil and conclude that the Council has a present legal entitlement to – and thus control of – any relevant documents that may be held by ICP. ICP as agent for/alter ego of the Council The applicant’s principal argument appears to be that ICP should be seen as indistinguishable from and/or agent for/‘alter ego’ of the Council.[42] The applicant points to the fact that the Council is the sole beneficial shareholder of ICP,[43] and that all of ICP’s directors are elected Council representatives or senior Council officials.[44] The applicant’s key contention is, as I understand, that the Council has ‘such a degree of effective control that the company is held to be an agent of the shareholder, and the acts of the company are deemed to be the acts of the shareholder.’[45] I have given the applicant’s submissions in this regard close consideration. I am not, however, persuaded that I should adopt them. As a starting point, I cannot see that the main authority relied on by the applicant in its initial submissions[46] on this issue – Taylor v Santos Ltd (Taylor v Santos)[47] – actually assists the applicant. The Full Court of the South Australian Supreme Court in that case found (in the context of a dispute as to disclosure obligations) that a parent company did not have an immediate right to inspect documents held by a subsidiary, and that the documents were not within the parent’s power. As noted in a later case which considered this issue in a similar context, and which arrived at the same conclusion:[48]Doyle CJ said [in Taylor v Santos] that documents of a subsidiary company are, prima facie, not in the power of the controlling company and that it will not usually be appropriate to engage in a lifting of the corporate veil. Nevertheless, the applicant’s initial submissions as summarised in paragraph 43 and its citation of Taylor v Santos did cause me to undertake a careful review of potentially relevant authorities derived from the law concerning disclosure/discovery, including: B v B[49] Lonrho Ltd v Shell Petroleum Co Ltd (Lonrho)[50] Marriage of Barro;[51] and Schweitzer v Schweitzer (Schweitzer).[52] I approached these cases with a degree of caution, in view of the fact that they concern questions of inspection, disclosure and production of documents in curial settings, and in the main involve consideration of whether documents could be said to have been in the ‘possession, custody or power’ of a person or entity (despite their being in the physical possession of another), rather than being ‘in the possession, or under the control’, as section 12 of RTI Act requires. Of particular interest, however, was O’Reilly J’s decision in Schweitzer, for the reason that the duty of disclosure prescribed in Rule 13.07 of the Family Law Rules 2004 is framed in very similar terms to the words used in section 12 of the RTI Act.[53] O’Reilly J was guided by older authorities dealing with questions of ‘power’ over documents, when contemplating what was meant by the phrase ‘in the possession or under the control’. Specifically, O’Reilly J gave consideration to the observations of Lord Diplock in Lonrho, where:...his Lordship left open the question whether in respect of "one-man" companies of which "a natural person and/or his nominees" are the sole shareholders and directors (alter ego companies) in effect, documents of the company may be held to be in the possession or power of such persons: ... In particular, I say nothing about one-man companies in which a natural person and/or his nominees are the sole shareholders and directors. It may be that, depending on their own facts, different considerations may apply to these. O’Reilly J was not satisfied that the relevant entities in Schweizer were, on the facts, the alter ego of the individual against whom disclosure was sought.[54] However, I did give considerable thought as to whether the judgment in that case may support ‘lifting the veil’ in these reviews, particularly given that the decision dealt with a statutory formulation substantially similar to that used in section 12 of the RTI Act, concerning questions of ‘control’, rather than ‘power’. In considering whether to ‘lift the veil’ in the present context, I also had regard to the Victorian Supreme Court decision in Linfa Pty Ltd v Citibank Ltd (Linfa).[55] In that case, Hedigan J looked through the distinction between subsidiary companies and a parent, finding that the subsidiaries were not acting as separate legal entities but on behalf of the parent. Documents in the possession of the subsidiaries were therefore held to be in the ‘power’ of the parent. The judgment in Linfa has been the subject of some doubt.[56] Nevertheless, for the purposes of my preliminary deliberations in these reviews, I was prepared to entertain the idea that Hedigan J’s judgment could be read as extending the comments of Lord Diplock in Lonrho;[57] that alter ego considerations might not necessarily be confined to situations involving ‘one-man’ companies acting on behalf of a natural person, but may be relevant as between related bodies corporate, when assessing whether one entity could be said to control documents in the possession of another. I wrote to the solicitors for the Council by letter dated 10 September 2015, setting out my thinking as outlined in paragraphs 44-51 and inviting its submissions in reply. The Counci[58]replied, relevantly,58 that: ... there is no settled "agency" or "alter ego" principle that can be applied in the present circumstances. It is a fundamental rule of law that Council and Ipswich City Properties are to be treated as separate legal entities, notwithstanding their shareholding relationship. The same fundamental rule applies with respect to directors of Ipswich City Properties. While isolated cases exist where limited exceptions to this rule have been recognised - some of which were described as "agency" or "alter ego" exceptions in [my letter dated 10 September 2015], there is no consistent line of authority or identifiable principle unifying those decisions. It has recently been stated that the various decisions lack "a firm basis in principle and policy" and that this area of law is beset by a "conceptual fog". The application of "agency" or "alter ego" principles with respect to disclosure obligations in Court proceedings is no exception. The decisions selected for reference in [my letter dated 10 September 2015, and listed in paragraph 45 above] are drawn from a variety of other jurisdictions and were made under wholly unrelated procedural regimes. They also reflect the doctrinal inconsistency that exists in this area of law. Furthermore the majority of the cases referred to did not involve a finding that documents held by a corporate entity related by shareholding or directorship to a party to the proceedings should be disclosed under the relevant procedural rules. Council notes that the only decision referred to in [my letter dated 10 September 2015] where an order for disclosure by a parent company of documents held by a subsidiary was made is Linfa Pty Ltd v Citibank Ltd. However, that case was doubted in another decision referred to in the Letter, Taylor v Santos Ltd. In that case, Olsson J, with whom Doyle CJ agreed, stated that Linfa was "the product of a very special set of facts", and was not intended to challenge the "core concepts" of the law in this area, which are that documents held by a subsidiary are not treated in law as documents held by the parent. To do otherwise, Olsson J remarked, would "turn long settled principles of corporate law, established by courts of the highest authority, on their head". 22. As the OIC is aware, obiter dicta comments have been made in some cases, such as Lornho Ltd v Shell Petroleum Co Ltd and Taylor v Santos Ltd, that the emphatic rejection of arguments that a parent company has documents of a subsidiary in its possession or under its control simply as a result of their shareholding relationship does not preclude the recognition of some exceptions in other, extreme cases. However, as discussed above, no generally accepted set of principles has emerged. Given the fragmented and inconsistent state of the law in this area, Council submits that there is no clearly defined "agency" or "alter ego" principle that could be applied in this matter. Attempting to discern some form of unifying principle from a small number of decisions from a variety of jurisdictions is simply inappropriate. (Footnotes and citations omitted.) For its part, the applicant now urges that I adopt the approach taken in Linfa, particularly in view of what it contends are various factual similarities between that case and the present, including a shared postal address,[59] allocation of ICP profit to the Council, and the ‘intertwining’ of Council/ICP roles by various personnel, the latter which in its view justifies ‘the conclusion that often people working at ICP are actually also working for council.’ In support of this latter assertion, the applicant points to: a Council officer and ICP director answering questions about ICP through his Council email account, a testimonial letter from the Mayor of New York City addressed to the Ipswich City Mayor, despite the latter having apparently met the former whilst travelling on ICP business, Council staff fielding ICP-related media queries, and the ‘handling’ by Council of phone charges incurred by a Councillor and ICP director during overseas travel.[60] The applicant submits that, taking all the above into account, ‘the ... factors in Linfa are significant and similar enough [in the present reviews] to conclude that ICP is not operating on its “own behalf but on behalf of the parent...[entity]”’.[61] As the foregoing discussion indicates, I have given the applicant’s submissions on these matters very careful consideration. While I think the issue is finely balanced, ultimately I agree with and accept the Council’s submissions as extracted in paragraph 52. The precise nature of the alter ego concept and the circumstances in which it may apply appear to be the subject of considerable judicial uncertainty. As noted, the cornerstone of the applicant’s alter ego argument – the judgment in Linfa – has been treated cautiously in later decisions, and I do not think that I would be justified in relying upon it as establishing some set of universal criteria or ‘factors’ satisfaction of which might permit a lifting of the corporate veil when considering questions of documentary control.[62] This is particularly so, given the dissimilar factual and legal contexts (adversarial litigation in Linfa as opposed to administrative review here, and involving interpretation of a rule of court framed differently to section 12 of the RTI Act), and the general reluctance of the courts[63] to ‘pierce the veil’ or regard separate entities as indistinguishable: particularly in cases where, as in the present, the controller of a purported alter ego company is an entity or body corporate. ‘Piercing’ or ‘lifting’ the corporate veil is a significant step that runs contrary to conventional legal principle. In the absence of a decision by a court of record or senior administrative tribunal lifting the veil in a sufficiently similar context to that I am considering in these reviews,[64] I am of the view that I am bound to observe the notion of corporate personhood – to have regard to ‘long settled principles of corporate law, established by courts of the highest authority...’.[65] ICP’s corporate personhood means that, in the present context, ICP documents are not documents in the possession or under the control of the Council. Fairness/justice considerations and miscellaneous submissions The applicant sought to complement the alter ego argument discussed above with a further contention that piercing the veil separating ICP from the Council would be justifiable in the circumstances of this case, on the basis that to do so would achieve a ‘fair and just’ result. The applicant submitted that ‘parties might seek to pierce the corporate veil on grounds that to do so would bring about a fair or just result. We argue this is relevant as the RTI Act takes into account factors favouring disclosure in the public interest.[66] Whether a finding that ICP documents are under the Council’s control would comprise a ‘fair or just result’ or otherwise, matters of the kind cited by the applicant do not allow me to simply set aside longstanding legal principle. Further, the enumeration of public interest factors in the RTI Act have no bearing on the threshold question I must decide in these reviews; i.e. whether a document actually is a ‘document of an agency’ subject to the RTI Act. Public interest factors and considerations[67] are only of relevance in determining whether disclosure of a document of an agency ought to be released. Similarly misconceived in this context is the applicant’s citation[68] of Kalinga Wooloowin Residents Association Inc. and Department of Employment, Economic Development and Innovation; City North Infrastructure Pty Ltd (Third Party) and Kalinga Wooloowin Residents Association Inc and Brisbane City Council; City North Infrastructure Pty Ltd (Third Party); Treasury Department (Fourth Party) (Kalinga Decisions),[69] two OIC decisions concerning documents of an agency said to comprise exempt information,[70] as information subject to an obligation of confidence owed to a government-owned company. The principles identified and applied in these decisions are only of relevance where a document can first be said to be a ‘document of an agency’ subject to the RTI Act. The Kalinga Decisions involved documents which, unlike here, were clearly in the physical possession of the respondent agency; the agency had then sought to claim that the documents were exempt, on the basis that the agency owed an obligation of confidence to a third party company fully owned and funded by government. 60. Critically, the Kalinga Decisions were not, as the applicant’s submissions appear to misapprehend,[71] cases in which OIC found that a government-owned company analogous to ICP was an agency subject to the operation of the RTI Act.[72] OIC’s decision was simply that more onerous requirements[73] for establishing exemption under schedule 3, section 8 of the RTI Act[74] obtain in relation to documents communicated by such companies, than would ordinarily be the case as regards information communicated by a third party entity genuinely independent of government. While not entirely clear to me, it may be that the applicant relies on the Kalinga Decisions because those cases involved considerations as to government ‘control’ of the company to which public agencies claimed they owed an obligation of confidence. This, however, is an issue distinct from that I am considering in this review – while the distinction may be fine, assessing whether an agency has control of a company (as the Council undoubtedly has over ICP)[75] is in my view to be distinguished from assessing whether an agency has a present legal entitlement to and thus control of documents, within the meaning of section 12 of the RTI Act. Further misplaced is the applicant’s reliance upon the state government’s position in relation to a recommendation by the FOI Independent Review Panel[76] that entities like ICP be subject to the RTI Act: The State Government-commission Right to Information review in June 2008 states the Government intended for corporations established by Government for public purposes should be subject to freedom of information legislation. It states: "The Government's intention is that generally, bodies established on Government initiative and for a public purpose should fall within the ambit of the FOI Act, unless expressly excluded by the Act." ICP fits this category, and this shows that the intent of the 2008 changes was for such organisations to be captured by RTI legislation. The problem with this submission is that, as noted above,[77] I am not in these reviews considering whether ICP is ‘captured’ by the RTI Act – that is, whether it comprises an ‘agency’ subject to the Act – but only whether documents it may hold can be said to be in the possession or under the control of the Council. It is therefore unnecessary to address this submission further.[78] ICP constitution and ‘beneficiary/trustee’ relationship The applicant further argues that: ... article 56 of ICP’s constitution creates a relationship akin to a beneficiary and trustee between council and ICP. The constitution states that: “If the company is wholly-owned by a local government entity, a director is authorised to act in the best interests of that local government entity provided that the director acts in good faith in the best interests of that local government entity and the company is not insolvent at the time the director acts and does not become insolvent because of the director’s act ”. ICP’s sole shareholder is council, thereby giving ICP directors authority to act in council’s best interests. This further indicates an obligation on directors to act in council’s best interests. Therefore we submit that this reinforces the argument that ICP is an agent of council, and thereby subject to RTI laws. Article 56 of IPC’s constitution is intended to do no more than permit ICP directors to avail themselves of the concession granted by section 187 of the Corporations Act 2001 (Cth) – to allow them to act in the interests of the ‘parent’ entity, the Council, when undertaking ICP business. Neither article 56 nor the statutory presumption of good faith it is purporting to enliven go any way, on my understanding, to establishing a relationship of principal and agent, and/or beneficiary and trustee as suggested by the applicant, but merely operate to modify the general obligations of good faith owed by directors in certain limited contexts. Article 56, then, has no bearing on the question as to whether ICP documents can be said to meet the requirements of section 12 of the RTI Act. Conclusion There is nothing before me to suggest the Council is in possession of ICP documents relevant to the First or Second Application. Further, for the reasons explained at paragraphs 35-66, the Council does not in my view have a present legal entitlement to possession of any such ICP documents. Accordingly, any relevant document that may be held by ICP is not under the control of the Council and is therefore not a ‘document of an agency’ for the purposes of the RTI Act. The Council otherwise appears to have discharged its obligation to search for and deal with all documents it does possess or control, and has therefore taken all reasonable steps to locate relevant documents in each review. The Council may therefore refuse access to any additional information in both reviews, on the basis that it is nonexistent. I acknowledge that this may on its face appear a somewhat incongruous conclusion, in light of the fact that Council is the sole shareholder of ICP, all of ICP’s directors are elected officials or Council employees, and the stated reasons for the company’s incorporation.[79] My findings, however, flow from ICP’s status as a separate legal entity possessed of distinct corporate personhood, a long-standing concept of the general law. I am bound to observe this concept. In the present context, its effect is that ICP documents are not documents in the possession or under the control of the Council. DECISIONS In review no. 312354, I affirm the Council’s decision dated 9 January 2015. Access to information requested in the First Application may be refused under section 47(3)(e) of the RTI Act, on the basis that it is nonexistent under section 52(1)(a) of the RTI Act. In review no. 312421, I vary the Council’s decision, by finding that access to any additional information may be refused under section 47(3)(e) of the RTI Act, on the basis that it is nonexistent under section 52(1) of the RTI Act. I have made these decisions as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Clare Smith Right to Information Commissioner Date: 26 November 2015 APPENDIX Significant procedural steps Date Event 17 November 2014 The Council received the First Application. 18 November 2014 The applicant requested a minor variation to the terms of the First Application, which was accepted by the Council. 9 January 2015 The Council issued a decision refusing access to information requested in the First Application, on the basis that the information was nonexistent. 16 January 2015 OIC received the applicant’s application for external review of the Council’s decision on the First Application. 19 January 2015 OIC advised the Council of the applicant’s application for external review of the decision on the First Application. OIC requested preliminary documentation from the Council. 28 January 2015 The Council supplied requested documentation. 6 February 2015 OIC informed the applicant and the Council that the application for external review of the Council’s decision on the First Application had been accepted (review no. 312354). OIC asked the Council to provide submissions on several issues, including details as to searches undertaken and the relationship between the Council and ICP. 12 February 2015 The Council received the Second Application. 4 March 2015 The Council (through its solicitors) lodged submissions in review no.312354, as requested by OIC on 6 February 2015. 19 March 2015 The Council issued a decision in response to the Second Application, granting access to 10 and partial access to three pages located. 30 March 2015 OIC received the applicant’s application for external review of the Council’s decision on the Second Application. 31 March 2015 OIC advised the Council of the applicant’s application for external review of the decision on the Second Application. OIC requested preliminary documentation from the Council. 2 April 2015 OIC requested additional submissions from the Council in review no. 312354. 9 April 2015 The Council supplied preliminary documentation concerning the Second Application, as requested by OIC on 31 March 2015. 17 April 2015 OIC informed the applicant and the Council that the application for external review of the Council’s decision on the Second Application had been accepted (review no. 312421). OIC asked the Council to provide additional information concerning searches undertaken. 1 May 2015 & 5 May 2015 The Council (through its solicitors) supplied the additional information requested in review no. 312421. 19 May 2015 The Council’s solicitors provided additional information in review no. 312354, as requested by OIC on 17 April 2015. 18 June 2015 OIC issued a preliminary view to the applicant in both reviews (312354 and 312421) that any information possessed or controlled by ICP was not a ‘document of an agency’ subject to the RTI Act. OIC invited the applicant to provide submissions in the event it did not accept that preliminary view. 29 June 2015 & 30 June 2015 The applicant provided submissions (by way of three emails) in response to OIC’s preliminary view. 4 August 2015 OIC forwarded the applicant’s submissions to solicitors for the Council, and invited submissions in reply. 18 August 2015 The Council’s solicitors provided submissions. 10 September 2015 OIC wrote to solicitors for the Council, raising various issues and requesting additional submissions as regards the relationship between the Council and ICP. 25 September 2015 The Council’s solicitors provided further submissions, as requested. 13 October 2015 OIC forwarded the Council’s submissions to the applicant and issued a further preliminary view, reiterating OIC’s initial preliminary view that documents of ICP were not documents of an agency for the purposes of the RTI Act. OIC again invited the applicant to provide submissions in support its case. 23 October 2015 OIC forwarded a copy of the constitution of ICP to the applicant. 26 October 2015 & 27 October 2015 The applicant provided submissions (by way of two emails) in response to OIC’s reiterated preliminary view. [1] The terms of which were subject to minor variation agreed between the participants on 18 November 2014.[2] The First Application is the application ultimately giving rise to external review no. 312354.[3] The application giving rise to external review no. 312421. [4] And therefore refused access to requested information under sections 47(3)(e) and 52(1) of the RTI Act, on the grounds the information was nonexistent: decision dated 9 January 2015. This 9 January 2015 decision refers to the Information Privacy Act 2009 (Qld); this appears to have been an administrative oversight. [5] 13 pages.[6] Subject to the deletion of information found to be personal information appearing on several pages, disclosure of which the Council decided would on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the RTI Act. The applicant does not seek review of the Council’s decision in this regard.[7] The Council’s 4 March 2015 submissions note that ICP ‘has one fully paid up ordinary share which is held beneficially by the Council.’[8] Under section 12 of the RTI Act.[9] As it is required to do in accordance with the principles explained in PDE and The University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009), concerning provisions in the repealed Freedom of Information Act 1992 (Qld) equivalent to sections 47(3)(e) and 52 of the RTI Act. [10] Section 12 of the RTI Act.[11] Kalinga Wooloowin Residents Association Inc. and Department of Employment, Economic Development and Innovation; City North Infrastructure Pty Ltd (Third Party) (Unreported, Queensland Information Commissioner, 21 December 2011) and Kalinga Wooloowin Residents Association Inc and Brisbane City Council and Ors (Unreported, Queensland Information Commissioner, 9 May 2012), each applying Holt and Reeves and Education Queensland and Ors [1998] QICmr 4; (1998) 4 QAR 310. As noted above, the Council was in physical possession of several documents relating to the Second Application.[12] Or under the control of an officer of the agency in the officer's official capacity, and includes documents to which the agency is entitled to access.[13] Or one which it is entitled to access.[14] Price and the Nominal Defendant [1999] QICmr 3; (1999) 5 QAR 80, at [18] (Price). The Information Commissioner went on in Price to explain that the ‘...ruling test imposed by the definition of “document of an agency” is comprised in the words “in the possession or under the control of an agency”. The remaining words of the definition illustrate, rather than extend, the ruling test.’ (At [33].)[15] Decision dated 9 January 2015, and Council’s submissions and enclosures dated 4 March 2015.[16] Decision dated 9 January 2015.[17] Submissions dated 19 May 2015, including enclosed emails dated 13 January 2015 relevantly advising of the lack of any responsive information. In this regard, in correspondence to solicitors for the Council dated 10 September 2015, I asked the Council to clarify whether any individual officers/ICP directors had possession of potentially responsive documents. I made this request on my own initiative, having inadvertently overlooked the material referred to in the preceding sentence (and the fact that, as regards the Second Application, the responsive documents located and released to the applicant were indeed documents of this very kind; ie email and calendar entries from the personal account of the Mayor).[18] See also email from the Council’s Chief Operating Officer to the applicant, annexed to the applicant’s application for external review of the Council’s decision on the First Application, stating that searches had been undertaken of the offices of relevant Council officials and/or personnel. [19] As above.[20] Using similar search terms, and/or involving inquiry of relevant travel management documents and spreadsheets stored in the ECM – see enclosures to correspondence from the solicitors for the Council dated 1 May 2015. [21] Decision dated 19 March 2015. See also Council’s submissions and enclosures dated 4 March 2015.[22] I.e., information beyond the 13 pages located in response to the Second Application.[23] Noting that in my letter dated 18 June 2015, I advised the applicant of my view that searches by the Council of its own records appear to have been appropriate, reasonable and sufficient in the circumstances of these reviews; the applicant has not contested that view. [24] Noting that it is an offence to knowingly give false or misleading information to OIC: section 177(1) of the RTI Act.[25] Email submissions dated 29 June 2015, received at 5:08PM.[26] Noting that this would not of itself bring such documents within section 12 of the RTI Act, as pursuant to section 12(b), it would also be necessary to show that such possession was in the officers’ official capacity (as opposed, say, to their capacity as a director of ICP, an issue on which it is unnecessary for me to make any finding). It should also be remembered that the Council did actually have in its possession some documents of this kind – itineraries – which were disclosed in response to the Second Application.[27] Woodyat and Minister for Corrective Services [1995] QICmr 1; (1995) 2 QAR 383, at [35]; Beanland and Department of Justice and Attorney-General [1995] QICmr 26; (1995) 3 QAR 26, at [58]. The applicant’s submission as extracted in paragraph 31 was made in direct response to this advice.[28] In this regard, see the discussion in Holt and Reeves of the nature of the materially equivalent right of access conferred by section 21 of the RTI Act’s predecessor, the Freedom of Information Act 1992 (Qld), at paragraphs [24]-[27]. The Information Commissioner in that case specifically noted that an applicant’s right to access a document in an agency’s physical possession might be legitimately defeated by a third party enforcing any superior proprietary interest in the document and compelling its return prior to a decision being made or access being granted: [24].[29] That is, beyond the 13 pages located and disclosed in response to the Second Application.[30] At [15].[31] Price, at [18].[32] As noted above, and see page 16 of the ‘City of Ipswich Annual Financial Statements for the Year Ended 30 June 2013,’ (2012-13 Financial Statements), where it is recorded that ‘Council has 100% ownership of ICP.’ [33] ‘The effect of incorporation is to establish that the company or association exists as a separate legal entity distinct in law from those persons who from time to time are its members’: Australian Corporations Law Principles and Practice (Australian Corporations Law), May 2015, [2.1.0140], citing Salomon v A Salomon and Co Ltd [1896] UKHL 1; [1897] AC 22; [1895–99] All ER Rep 33; Lee v Lee's Air Farming Ltd [1961] AC 12; Hobart Bridge Co Ltd v FCT [1951] HCA 33; (1951) 82 CLR 372 at 384–6; [1951] HCA 33; 25 ALJR 225. [34] ‘Company property belongs to the company as an entity and not to the shareholders individually. The shareholder has no legal interest in company property.’: Australian Corporations Law, [2.1.0155].[35] A copy of which was supplied by the Council, and provided to the applicant.[36] The Corporations Act 2001 confers on shareholders (and directors) limited rights of access to company information, many of which are themselves conditional or contingent (eg, shareholder right to apply for court order authorising inspection of company books: section 247A(1); shareholder’s right to minutes under section 251B; and a director’s right to inspect financial records: section 290), none of which, in any event, relate to documents requested by QN.[37] Power over a company’s affairs ‘[u]ltimately...rests with the shareholders’: Australian Corporations Law, [3.3.0005], citing O’Loughlin J in Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (1988) 52 SASR 22: ‘...shareholders...control the destiny of their company’. [38] Price, at [27].[39] In the case of a single-shareholder company such as ICP, a resolution may be passed without holding a meeting if the shareholder records the resolution, signs the resolution and records the resolution in the company’s minute books: sections 249B(1) and 251A of the Corporations Law 2001.[40] Received by OIC at 10:16AM.[41] Ian M Ramsey and David B Noakes, ‘Piercing the Corporate Veil in Australia’ (2001) 19 Company and Securities Law Journal 250. OIC accessed a digital version of this paper for the purposes of these reviews, available at SSRN: http://ssrn.com/abstract=299488. Page number references in these reasons refer to the numbering used in this digital version.[42] Concepts I have treated as one – Ramsey and Noakes note that ‘[a]gency has also been used interchangeably by the courts with the term “alter ego”’, citing Brewarrana v Commissioner for Highways (1973) 4 SASR 476 at 480 (‘Piercing the Corporate Veil’, p. 8). Another decision referred to in that paper and cited by the applicant – Heys and Barrow v CSR Ltd (Supreme Court of Western Australia, 4 August 1988, unreported) – also appears to lend support for the view that the concepts may be viewed singly. In finding that a parent company was liable for injuries suffered by individuals in the employee of a subsidiary, Rowland J stated that ‘[w]hether one defines all of the above in terms of agency, and in my view it is, or control, or whether one says that there was a proximity between CSR and the employees of ABA, or whether one talks in terms of lifting the corporate veil, the effect is, in my respectful submission, the same.’ It is perhaps relevant to note that OIC has previously found that documents held by a company the shares of which were owned by a state agency subject to the application of the RTI Act could be regarded as documents in the possession or under the control of that agency: Maurice Blackburn Lawyers and Department of Transport and Main Roads; City North Infrastructure Pty Ltd (Third Party) [2014] QICmr [6]. The distinguishing feature of that case, however, was the existence of an instrument expressly appointing the company’s CEO as the agent of the state.[43] Admitted by the Council: paragraph 20(a) of its submissions received 4 March 2015.[44] The applicant also points to the fact that ICP is a ‘controlled entity’ for the purposes of the Auditor-General Act 2009 (Qld) – a fact recorded at page 16 of the ‘City of Ipswich Annual Financial Statements for the Year Ended 30 June 2013’ (‘Notes to and Forming Part of the Financial Statements, Summary of Significant Accounting Policies’’, item 1(g)).[45] Ramsey and Noakes, ‘Piercing the Corporate Veil’, p. 8.[46] Email submissions dated 29 June 2015, received 10:16AM.[47] (1998) 71 SASR 434. The applicant raised this case under a heading ‘Group enterprises principle’; I am not certain there is such a principle; in any event, I am satisfied I have fairly divined and engaged with the applicant’s case as to ‘control’. I put my understanding of the applicant’s case to it during the course of this review (letter dated 13 October 2015, and enclosures); it has not sought to correct or contradict that understanding. [48] Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 8) [2014] FCA 376, per Besanko J (at [18]). [49] [1979] 1 All ER 801.[50] [1980] 1 WLR 627.[51] [1983] FamCA 14; (1983) 47 ALR 338.[52] [2012] FAMCA 445.[53] The rule relevantly provides that the duty of disclosure in Family Court proceedings ‘...applies to each document that is...in the possession, or under the control, of the party disclosing the document’.[54] At [55].[55] [1995] VicRp 40; [1995] 1 VR 643. [56] See Psalidis and Another v Norwich Union Life Australia Ltd [2009] VSC 417; (2009) 29 VR 123, Cavanough J observing that Linfa ‘needs to be read with caution’, before noting that the Full Court of the Supreme Court in Taylor v Santos had expressed ‘serious reservations about certain aspects of the reasoning’ in Linfa (at [31]).[57] Extracted in paragraph 48.[58] The Council also argued that it was, essentially, impermissible for me to even have regard to authorities such as Schweizer in seeking to ascertain the correct interpretation of section 12 of the RTI Act. I do not accept such submissions; I consider it to be not only appropriate, but incumbent upon me to consider judicial interpretations of identical or substantially similar words and phrases as those used in the RTI Act, notwithstanding they may appear in legislation intended to achieve purposes other than promoting access to government-held information.[59] And the fact that ICP’s registered office and principal place of business address is the Council’s: ASIC company search enclosed with the applicant’s 26 October 2015 submissions.[60] See generally the applicant’s submissions and enclosures dated 26 October 2015.[61] As above.[62] And for that reason, I do not think it necessary to pursue the precise nature of ICP’s staffing arrangements.[63] As evidenced by many of the cases discussed in the paper relied upon by the applicant, and identified earlier above.[64] For example, a decision finding that documents held by the subsidiary company of a body corporate or a government-owned company are documents ‘in the possession, or under the control’ of the parent company or government shareholder. In this regard, I am unable to see how another of the authorities relied upon by the applicant in its initial submissions – the decision in Bluecorp Pty Ltd vs ANZ Executors and Trustee Co Ltd (1995) 18 ACSR 566 – assists me in determining relevant issues. The court in that case was analysing the relationship between various interrelated companies, for the purposes of determining where proper title to a vessel should lie. It was decided upon matters specific to the circumstances of that case, which involved contemplation of complex factual and legal issues quite distinct from those I am called to decide in this external review. As I advised the applicant in my letter dated 13 October 2015, it is not clear to me that a decision concerning questions of property, corporations, bankruptcy and trust law is relevant to a determination as to whether the Council can be said to have a present legal entitlement to possession of ICP documents. The applicant has not sought to press any case as based upon Bluecorp.[65] Taylor v Santos, 449 (per Olsson J). [66] Raised in the first of the applicant’s email submissions dated 29 June 2015, received at 10:16AM.[67] Raised in both the first of the applicant’s 29 June 2015 email submissions (ie, the email received at 10:16AM), and email submissions dated 30 June 2015.[68] Second set of email submissions dated 29 June 2015 (received at 5:08PM), and email submissions dated 30 June 2015.[69] See note 11 for citations.[70] Under sections 47(3)(a) and 48 of the RTI Act. [71] The applicant arguing in the second of its 29 June 2015 email submissions that ‘ICP thereby features the exact same characteristics... [as the government-owned companies considered in relevant decisions] and thereby should be subject to the RTI Act.’ [72] Which, it must be remembered, is not the question I am actually called to determine in this case, the applicant not having lodged any RTI access application with ICP itself.[73] Of the kind identified by Mason J in Commonwealth of Australia v John Fairfax & Sons Limited and Others [1980] HCA 44; (1980) 147 CLR 39.[74] Which, in conjunction with section 48 of the RTI Act, provides that information is exempt information if its disclosure would found an action for a breach of confidence.[75] Reflected, not least, in the fact that it is a ‘controlled entity’ for the purposes of the Auditor-General Act 2009 (Qld) – note 42.[76] In its June 2008 report, The Right to Information: Reviewing Queensland’s Freedom of Information Act (commonly known as the ‘Solomon Report’). The relevant recommendation is Recommendation 24: ‘The definition of ‘public authority’ in s. 9 of the Act should be extended to include bodies established for a public purpose under an enactment of Queensland, the Commonwealth or another State or Territory’.[77] Note 72.[78] Noting that even if it were, the recommendation and government response on which this submission is premised are not reflected in the law enacted by Parliament. As Applegarth J noted in rejecting a substantially similar argument, ‘...the Queensland government‘s adoption of Recommendation 24 of the report of the FOI Independent Review Panel chaired by Dr Solomon AM did not find expression in the language of the statute [ie, the RTI Act]’: Davis v City North Infrastructure Pty Ltd [2011] QSC 285, at [26] (Footnote omitted).[79] The Council’s 2013-14 Annual Report recording that ICP was ‘...formed to provide a business vehicle to support the commercial activities of Council in generating revenue additional to traditional fees and charges including rates revenue’ (page 51). In passing, I note that as a ‘controlled entity’ within the meaning of the Auditor–General Act 2009 (Qld), ICP is directly subject to the mandate of the Auditor-General. The definition of ‘public authority’ as contained in section 16 of the RTI Act would not, however, presently appear sufficiently broad to encompass entities such as ICP (again bearing in mind that this is not an issue I am called to determine in these reviews).

queensland

court_judgement

Queensland Information Commissioner 1993-

Kos and Education Queensland [1998] QICmr 19 (21 May 1998)

Kos and Education Queensland [1998] QICmr 19 (21 May 1998) Kos and Education Queensland (S 43/95, 21 May 1998, Information Commissioner Albietz) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-4. These paragraphs deleted. REASONS FOR DECISION Background The applicant, Mrs Kos, seeks to amend, under Part 4 of the FOI Act, matter contained in a document held by Education Queensland (the Department) to which she had earlier obtained access under the FOI Act. The one document which remains in issue in this external review is a statement by Mr D Gould dated 17 November 1992. At that time, Mr Gould was the Principal of Capalaba State High School, and the relevant document is a report by Mr Gould on a claim made by Mrs Kos for worker's compensation. Mrs Kos had been working at the Capalaba State High School as a cleaner prior to November 1992. An initial decision in response to Mrs Kos' application for amendment (dated 9 November 1994) was made on behalf of the Department by Mr E Spring on 7 December 1994. Mr Spring refused to amend the document remaining in issue in the manner sought by Mrs Kos, but he was prepared to annotate that document in order to record the concerns raised by Mrs Kos. Mr Spring refused to amend one document nominated in Mrs Kos' application for amendment on the ground that it was a document that Mrs Kos had obtained from the former Workers' Compensation Board of Queensland, and not from the Department. (Section 53 of the FOI Act, which is reproduced at paragraph 9 below, permits an applicant seeking amendment of a document to apply for amendment only to the agency from which the document was obtained.) By letter dated 19 December 1994, Mrs Kos applied for internal review of Mr Spring's decision. The internal review decision dated 2 February 1995 was made by Mr P Parsons, Manager, Administrative Law and Legislative Operations Branch, of the Department. The effect of Mr Parsons' decision was to vary Mr Spring's decision in part, in the sense that some of the annotations which Mr Spring proposed to make were expanded upon, but otherwise Mr Spring's decision was affirmed. By application dated 22 February 1995, Mrs Kos applied to me for review, under Part 5 of the FOI Act, of Mr Parsons' decision. External review process As an initial question, it was necessary to determine whether I had jurisdiction to deal with a number of issues which Mrs Kos sought to raise by her application for review. Certain limitations on the right to seek amendment of information are inherent in the terms of s.53 of the FOI Act, which I have set out below, together with s.55 of the FOI Act: 53. If a person has had access to a document from an agency or Minister (whether or not under this Act) containing information relating to— (a) the person's personal affairs; or (b) the personal affairs of a deceased person to whom the person is next of kin; the person is entitled to apply to the agency or Minister for correction or amendment of any part of the information if it is inaccurate, incomplete, out-of-date or misleading. 55. If an agency or Minister to whom an application is made under section 53 decides to amend the information to which the application relates, the agency or Minister may make the amendment by— (a) altering the information; or (b) adding an appropriate notation to the information. In particular, some documents that Mrs Kos wished to amend were documents that she had obtained from the former Workers' Compensation Board. Under the terms of s.53 of the FOI Act, Mrs Kos was not entitled to apply to the Department for amendment of documents to which she had obtained access from an agency other than the Department, and I had no jurisdiction to consider her application for review in respect of those documents. The applicant would need to apply to WorkCover (as the successor to the former Workers' Compensation Board, the agency from which the applicant had obtained access) in order to seek amendment of those documents. Mrs Kos also attempted to pursue, on external review, certain amendments which had not been the subject of her amendment application dated 9 November 1994. In other words, the applicant was seeking to "tack on" applications for amendment which had not followed the process required under the FOI Act, before the Information Commissioner acquires jurisdiction to review an agency decision under Part 5 of the FOI Act. I have no jurisdiction to conduct a review in respect of applications for amendment which were not made in Mrs Kos' application to the Department dated 9 November 1994. In relation to the document remaining in issue in this external review, namely Mr Gould's statement dated 17 November 1992, most of the 20 items of information that Mrs Kos sought to amend comprise information that relates to her employment affairs rather than her personal affairs, and hence falls outside the scope of s.53 and Part 4 of the FOI Act. In my decision in Re Pope and Queensland Health [1994] QICmr 16; (1994) 1 QAR 616, after reviewing relevant authorities (at pp.658-660), I expressed the following conclusion at p.660 (paragraph 116): Based on the authorities to which I have referred, I consider that it should now be accepted in Queensland that information which merely concerns the performance by a government employee of his or her employment duties (i.e., which does not stray into the realm of personal affairs in the manner contemplated in the Dyrenfurth case) is ordinarily incapable of being properly characterised as information concerning the employee's "personal affairs" for the purposes of the FOI Act. The general approach evidenced in this passage was endorsed by de Jersey J (as he then was) of the Supreme Court of Queensland in State of Queensland v Albietz [1996] 1 Qd R 215 at pp.221-222. In reviewing relevant authorities in Re Pope, I had specifically endorsed the following observations, concerning s.33(1) (the personal affairs exemption) of the Freedom of Information Act 1982 Vic, made by Eames J of the Supreme Court of Victoria in University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177 at p.187: The reference to the "personal affairs of any person" suggests to me that a distinction has been drawn by the legislature between those aspects of an individual's life which might be said to be of a private character and those relating to or arising from any position, office or public activity with which the person occupies his or her time [emphasis added]. Of the 20 items of information which Mrs Kos sought to have amended in Mr Gould's statement dated 17 November 1992, 15 related to her employment affairs rather than her personal affairs, and Mrs Kos was therefore not entitled to seek amendment of those 15 items under s.53 and Part 4 of the FOI Act. That was explained to Mrs Kos in my letter to her dated 4 December 1995. Thus, only Mrs Kos' applications for amendment of items 1, 9, 10, 11 and 15 in Mr Gould's statement fell within my jurisdiction to conduct a review under Part 5 of the FOI Act. In March 1996, Assistant Information Commissioner Sammon convened a conference, attended by representatives of the Department, in order to attempt to resolve the questions remaining in issue. The applicant was invited to attend, but declined the invitation. As a result of that conference, the Department was asked to provide evidence in relation to some items in Mr Gould's statement. The Department was prepared to add additional annotations to other items. That concession was conveyed to Mrs Kos in the Deputy Information Commissioner's letter to her dated 20 March 1996. Specifically, concerning item 10, the Deputy Information Commissioner wrote: Further, the Department has been prepared to annotate this item in accordance with your comments. It is therefore my preliminary view that you have not set out any ground which particularises why you believe that the information in this item is inaccurate, incomplete, out-of-date or misleading. I will therefore take it that the Information Commissioner need not take any further action concerning this item, unless you notify me in writing to the contrary. Concerning item 15, the Deputy Information Commissioner wrote: I note that in your letter dated 18 January 1995, hand-delivered to the Department on 2 February 1995, you set out an annotation you wish to have made to this item. Unfortunately, Mr Parsons did not receive that letter in time to take that annotation into account whilst preparing his internal review decision, which was made the same day. The Department is prepared to make the annotation suggested, in respect of this item, in your letter dated 18 January 1995. I therefore take it that this outcome is satisfactory to you in relation to this item, and that the external review will be finalised in relation to this item. Mrs Kos did not indicate any dissent to the Department's proposals to annotate items 10 and 15, in a manner that Mrs Kos had previously indicated was acceptable to her. Accordingly, the Department was authorised to annotate items 10 and 15, which are no longer in issue in this review. Both participants were given the opportunity to lodge evidence and submissions in support of their respective cases in this external review, and the evidence and submissions were exchanged between the participants, for response. The evidence and submissions lodged on behalf of the applicant comprised the following: statutory declaration of Mrs Kos dated 31 May 1996 statutory declaration of [Mrs Kos' husband] dated 22 May 1996 statement by [Mrs Kos' son] dated 14 July 1994 letter by [a relative of Mrs Kos] dated 30 May 1994 letter by Dr Paul Komarowski dated 7 November 1991 letter by [Mrs Kos' husband] dated 30 June 1994 report signed by Mrs Kos dated 12 June 1990 concerning the National Injury Surveillance and Prevention Program histopathology report dated 29 July 1992 handwritten document by [Person 1] dated 4 March 1992 letter from [Person 2] dated 2 June 1994 handwritten report by Dr A Masjakin dated 18 May 1994 written submission dated 29 August 1996. In addition, during the course of the external review, the applicant referred to medical reports (in particular, reports by Dr M Pitney, Dermatologist) prepared for the purposes of litigation commenced by the applicant against the Department, copies of which had been provided to the Department. Mrs Kos provided my office with an authority to allow the Department to provide copies of those reports to me. The reports which I obtained from the Department and examined were: letter dated 19 January 1993 from Dr Pitney to the Workers' Compensation Board letter dated 2 November 1993 from Dr Pitney to the Workers' Compensation Board letter dated 27 January 1995 from Dr Pitney to the Department. For its part, the Department lodged: a statutory declaration of David Norman Gould dated 18 April 1996 a further statutory declaration by Mr Gould dated 18 April 1996 a schedule of leave and workers' compensation taken by the applicant between 5 October 1987 and 11 July 1994 a staff transfer form dated 7 March 1990 a workers' compensation medical certificate dated 8 July 1992 a statement by [Person 3] dated 9 August 1996. Application of Part 4 of the FOI Act I will consider in turn the three items remaining in issue. Item 1 Item 1 from Mr Gould's statement actually comprises only the second sentence reproduced below, but the sentence which precedes it is necessary for a proper understanding of the chronological context: Zofia began work at the school in March of 1990, not 1991. When winter began she developed a [medical condition ("the condition")] and also did this when winter approached the following year. Mr Gould's statement is a response by him to a claim by Mrs Kos for workers' compensation concerning an injury ------------ which she alleges was caused by chemicals used in her employment by the Department as a cleaner. The applicant seeks amendment of this item because she believes that it suggests that her [condition] was caused by the onset of winter, as opposed to her use of cleaning chemicals, in September 1991. The applicant has commenced litigation against the Department concerning the circumstances in which she sustained [the condition]. She has alleged that the Department was negligent in the handling and treating of cleaning chemicals, such that the chemicals caused the [condition]. A principle emerging from the decision of Watts v Hawke and David Syme & Co Ltd [1976] VicRp 77; [1976] VR 707 is that a contempt of court is committed if a non-curial tribunal were to investigate and make findings on matters the same as those in issue in a pending civil action, and if such investigations and findings would create a real and definite tendency to prejudice or to embarrass the fair trial of the action. In that case, Kay J of the Victorian Supreme Court issued an injunction to prevent the Judiciary Committee of the Australian Journalists' Association from conducting a disciplinary hearing which was also the subject of an action for defamation. Kay J found that the questions of fact which the Judiciary Committee would be required to investigate and determine would be the same as those in issue between the parties at the trial of the action, and the Judiciary Committee would thereby be pre-judging the same question of fact as those that were basic to the issues in the pending legal proceedings. In that case, there is an exception noted to this principle (at p.712 of Watts) in the decision of the High Court of Australia in Lockwood v Commonwealth [1954] HCA 31; (1954) 90 CLR 177 where Fullagar J denied an injunction to restrain a Royal Commission appointed under statute because the Royal Commission was required by statute to undertake the enquiry and what is expressly authorised by statute could not be a contempt. That principle may be relevant to the conduct of a review by the Information Commissioner under Part 5 of the FOI Act. The Queensland case of Burton v Harris [1979] Qd R 548 concerned an apprehended clash between disciplinary proceedings before the disputes tribunal of a political party, and an action in defamation. Kelly J of the Supreme Court of Queensland found that as the question ultimately to be determined in each proceeding differed, there could be no contempt of court. Watts v Hawke was distinguished in that case. It was also found that the defendant had failed to show that there was any real risk of prejudice to the defendant on the trial of the action if the disciplinary tribunal should proceed with its hearing on the charge. Applying Burton v Harris to the present case, I consider that there is no difficulty in my proceeding to determine whether item 1 should be amended under s.53 of the FOI Act, because the question that I must consider is different to the question which the relevant court has to determine in the action commenced by Mrs Kos, which is whether the Department's negligence caused Mrs Kos' condition. Furthermore, the outcome of my external review concerning this item will not embarrass any court. The real dispute in relation to item 1 concerns the timing of the onset of the [condition]. The applicant contends that the onset of the [condition] occurred in September 1991 during the school holidays, when there was a change of work procedure to commence "team cleaning". The version contended for by the Department is that set out in item 1. However, the wording of item 1 is ambiguous in not clearly stating the year in which Mrs Kos first developed [the condition] in winter. In its present form, it tends to suggest that the [condition] developed in winter 1990. Item 1 requires amendment at least for the purpose of removing the ambiguity. The Department contends that the winter in which Mrs Kos first developed the [condition] was the winter of 1991. The Department's evidence in relation to item 1 is as follows: a statutory declaration by Mr Gould dated 18 April 1996 which really does no more than put on oath his observation that Mrs Kos developed [the condition] in winter 1991, and again the following winter. Strictly speaking, the season of winter is regarded in Australia as falling within the months of June, July and August. However, on a less strict view, the term "winter 1991" could be regarded as extended to something which occurred in September 1991 (when Mrs Kos says the [condition] first developed), still being in the cooler months of the year. the Department also lodged a schedule of workers' compensation claims and sick leave taken by the applicant. This records the first workers' compensation leave, specifically in relation to [the condition], as having been taken between the period 8 July 1992 and 29 July 1992. This does not assist in establishing whether Mrs Kos first developed the [condition] in "winter 1991" or "September 1991". The applicant's evidence on this issue is as follows: the statutory declaration dated 22 May 1996 by the applicant's husband, ----, who says on oath that the applicant first complained of [the condition], from chemicals at the Capalaba State High School, on 19 September 1991. the handwritten statement of [Person 2], a workmate of Mrs Kos. The statement is not consistent with Mrs Kos' own case, since the statement indicates that Mrs Kos did not have any [such condition] during the years 1990 and 1991. Mrs Kos' case is that she developed the [condition] in September 1991. a statement by ---- (Mrs Kos' son) dated 14 July 1994, which says that Mrs Kos did not have any [such condition] until after 19 September 1991. a statement by ---- (apparently a relative of Mrs Kos) dated 30 May 1994 which says that Mrs Kos had no problems [of that type] from when [the relative] first knew her in January 1989, until September 1991, and that Mrs Kos first complained of [certain symptoms] in late September 1991. a number of medical reports, which in my view cannot be relied upon to independently demonstrate the onset of [the condition] in September 1991, since most of the reports merely recite the history given to the medical practitioners by Mrs Kos herself. Mrs Kos did not herself give any sworn evidence as to the timing of the onset of the [condition]. Item 1 certainly requires amendment. On its face, it could be construed as meaning that the [condition] commenced in winter 1990. There is no evidence that Mrs Kos developed [the condition] prior to winter 1991 (on Mr Gould's version, according to his statutory declaration dated 18 April 1996) or September 1991 (according to the witnesses for Mrs Kos). I consider that the following points emerge from an analysis of the available evidence: (a) Mrs Kos contends that the [condition] did not develop until September 1991 (she is supported by the evidence of her husband, her son and [a relative]). (b) Mr Gould has said on oath that Mrs Kos developed the [condition] in winter 1991, although he does not use a more precise term than "winter 1991" in his statutory declaration on this subject. (c) Mrs Kos' records of absences on workers compensation or sick leave do not record any absences attributed to anything connected with [the condition] until July 1992. (d) The report of Dr Masjakin dated 18 May 1994 reports that the applicant saw the doctor on several occasions from 21 November 1990 to 14 February 1991 and there was no evidence of [the condition] in that period. For the purposes of the issue presented to me for determination, Dr Masjakin's report is inconclusive, since on both competing versions, there was no evidence of [the condition] at that time. (e) It is certainly clear that the [condition] became chronic in 1992. That is clear from the record of workers' compensation absences, which indicates workers' compensation being taken on account of [the condition] from July 1992 onwards, and from the fact that Dr Pitney, Dermatologist, became Mrs Kos' treating specialist from that time. (f) Dr Pitney's reports, insofar as they concern objective medical observation, are equally consistent with [the condition] appearing in winter 1991 (Mr Gould's version) or September 1991 (Mrs Kos' version). In all the circumstances, I have decided that the proper course of action is to amend item 1 by deleting the sentence: "When winter began she developed a [medical condition] and also did this when winter approached the following year", and replacing it with the following: Mrs Kos developed a [medical condition] in either winter 1991 (according to Mr Gould) or September 1991 (according to Mrs Kos) which Mrs Kos attributes to a cleaning chemical used at Capalaba State High School. Item 9 Mrs Kos wishes to amend item 9 of Mr Gould's statement, which is as follows: [Person 3] commented that Zofia may have been [acting in a certain manner]. [Person 3] was also a cleaner at Capalaba State High School, and it has clearly emerged during the course of the external review that the relationship between Mrs Kos and [Person 3] was hostile. In her application to amend the information, Mrs Kos considered the comment contained in item 9 most insulting, and contended that at no stage did she [act in that manner]. Thus, Mrs Kos challenges the substantive truth of the statement attributed to [Person 3], rather than the fact that [Person 3] made the comment. In fact, Mrs Kos accepts that [Person 3] made the statement that Mrs Kos was [acting in a certain manner] (see Mrs Kos' statutory declaration dated 31 May 1996). Thus, it cannot be said that item 9 is inaccurate, incomplete, out-of-date or misleading. For that reason, I do not consider it appropriate to amend item 9. However, given Mrs Kos' concerns, it is appropriate that an annotation be made to item 9, in accordance with s.55(b) of the FOI Act, setting out Mrs Kos' version of events. At the conference convened at my office on 13 March 1996, an appropriate form of annotation was discussed with the Department and was subsequently put to Mrs Kos. I decide that an annotation in the following terms should be made to item 9: Mrs Kos says that the comment made by [Person 3] may infer that Mrs Kos was [acting in a certain manner]. Mrs Kos says that at no stage did she [act in that manner]. She said that she had to assist the carpet cleaners by opening up buildings et cetera, a task which should have been done by the janitor or Registrar, but neither was present. Mr Gould has no knowledge that Mrs Kos was [acting in a certain manner]. Item 11 Mrs Kos wishes to amend item 11 of Mr Gould's statement, which reads as follows: There was an incident where [Person 3 and the applicant engaged in certain behaviour]. In her application for amendment, Mrs Kos objected to this item on the basis that she had "[not acted as she is stated to have done]". During the course of the external review, the Department provided a statement by [Person 3] dated 9 August 1996. In that statement, [Person 3] recounts her version of the events which involved a confrontation between the two, but, significantly, [Person 3] says that during the course of the encounter she [Person 3] [acted in a certain way]. In other words, [Person 3] accepts that Mrs Kos did not [act in that way]. It is also common ground that there was some altercation which took place upon both Mrs Kos and [Person 3] commencing work. I have decided that the appropriate course of action is to amend item 11 by deleting the words [deleted from the quote in paragraph 38 above], and in their place inserting the words: where [Person 3] and Zofia Kos had an altercation at the commencement of work. DECISION I decide to vary the internal review decision made by Mr Parsons on 2 February 1995 by finding that - (a) item 1 of Mr Gould's statement should be amended in the manner stated in paragraph 34 above; (b) item 9 of Mr Gould's statement should be annotated in the manner stated in paragraph 37 above; (c) item 11 of Mr Gould's statement should be amended in the manner stated in paragraph 40 above.

queensland

court_judgement

Queensland Information Commissioner 1993-

Hughes and Department of Communities, Child Safety and Disability Services [2012] QICmr 37 (17 July 2012)

Hughes and Department of Communities, Child Safety and Disability Services [2012] QICmr 37 (17 July 2012) Hughes and Department of Communities, Child Safety and Disability Services [2012] QICmr 37 (17 July 2012) Last Updated: 10 September 2012 Decision and Reasons for Decision Application Number: 311031 Applicant: Hughes Respondent: Department of Communities, Child Safety and Disability Services Decision Date: 17 July 2012 Catchwords: ADMINISTRATIVE LAW – INFORMATION PRIVACY ACT – REFUSAL OF ACCESS – EXEMPT INFORMATION – applicant sought access to information held by agency about him – whether access is prohibited by an Act – whether access can be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) on the ground set out in schedule 3, section 12 of the Right to Information Act 2009 (Qld) and section 187 of the Child Protection Act 1999 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of Communities, Child Safety and Disability Services (Department)[2] for access to all documents relating to him held by the Department from 1 September 2009 to 19 January 2012, including any reference to himself as flatmate, carer or support person of a woman with whom he shared accommodation (Access Application). The Department decided to refuse the applicant access to information which it considered was either not relevant to the Access Application (Category A Information) or comprised the personal information of persons other than the applicant (Category B Information).[3] The applicant sought external review by the Office of the Information Commissioner (OIC) of the Department’s decision to refuse access. The Department’s decision is varied and access to both the Category A Information and the Category B Information is refused on the basis that the information is exempt from disclosure under section 67(1) of the Information Privacy Act 2009 (Qld) (IP Act) and sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) (RTI Act) on the ground that disclosure is prohibited by schedule 3, section 12 of the RTI Act and section 187 of the Child Protection Act 1999 (Qld) (CP Act). Background Significant procedural steps relating to the application are set out in Appendix A to this decision. Reviewable decision The decision under review is the Department’s Internal Review Decision dated 18 April 2012. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and appendices). Information in issue The information in issue comprises: 208 full pages and parts of 157 pages that the Department claimed were irrelevant to the Access Application, the Category A Information; and parts of 155 pages comprising information which the Department claimed was personal information of persons other than the applicant, the Category B Information. Disclosure Prohibited by Act Category A Information The terms of the access application seek all documents relating to the applicant from 1 September 2009 to 19 January 2012, including any reference to the applicant as flatmate, carer or support person of a woman with whom he shares accommodation. The Department decided that 208 full pages and parts of another 157 pages were not relevant to the access application. The IP Act provides that where giving access to a document will disclose to the applicant information that an Agency reasonably considers is not relevant to the access application, an Agency may give access to a copy of the document with the irrelevant information deleted.[4] An Agency may only give access in this way if it considers from the terms of the application, or after consultation with the applicant, that the applicant would accept the copy and it is reasonably practicable to give access to the copy.[5] I have carefully considered the 208 full pages and the parts of the additional 157 pages that the Department blacked out on the basis of irrelevance and I am satisfied that: while the deleted information is not relevant to the applicant’s access application–the information is predominantly to do with the applicant’s flatmate, her children and their father; not the applicant; the information is more appropriately categorised as information obtained under the CP Act, which Act makes it an offence to disclose such information. Accordingly, I am satisfied that it is more appropriate to consider the Category A Information in light of schedule 3, section 12 of the RTI Act.[6] Thus, the issue to be considered in relation to the Category A Information is whether access should be refused on the basis that it is exempt information. I will deal with the issue of whether access may be refused to the Category A Information in my consideration of the application of schedule 3, section 12 of the RTI Act to the Category B Information below. Category B Information The Department decided that access to the Category B Information should be refused on the grounds that release would, on balance, be contrary to the public interest. I have carefully reviewed the Category B Information, the relevant law, the Department’s decision and the applicant’s submission and I am satisfied that it is more appropriate to consider the application of schedule 3, section 12 of the RTI Act to the Category B Information. Additionally, as noted above, I will consider the application of schedule 3, section 12 of the RTI Act to the Category A Information here. Relevant law Access must be given to a document unless disclosure would, on balance, be contrary to the public interest.[7] Schedule 3 of the RTI Act sets out information which Parliament considers is exempt information on the basis that disclosure would, on balance, be contrary to the public interest.[8] Schedule 3, section 12 of the RTI Act provides that information is exempt if its disclosure is prohibited by a number of listed provisions, including section 187 of the CP Act.[9] Section 187 of the CP Act makes it an offence to disclose certain information obtained under the CP Act. If this provision applies to the Category B Information and the Category A Information, that information will be exempt from disclosure under the RTI Act. To be exempt from disclosure, the Category B Information and the Category A Information must: be information about a person’s affairs have been received by a listed person performing functions under or relating to the administration of the CP Act; and not be subject to an exception in section 187 of the CP Act. (a) Is the information about a person’s affairs? I have examined the Category A Information and the Category B Information and I am satisfied that it contains information about the personal affairs of the applicant’s flatmate, her children and their father. (b) Was the information received under the Child Protection Act? The Category A Information and the Category B Information is information received by Departmental officers (public service employees) under the CP Act. Section 187 of the CP Act lists a public service employee as a person to whom section 187 applies. I have examined the Category A Information and the Category B Information and am satisfied that it was received by Departmental officers in the course of performing functions under or relating to the CP Act. (c) Do any of the exceptions listed in section 187 of the Child Protection Act apply? Section 187 of the CP Act contains a number of exceptions where information received under the CP Act may be disclosed. In this case, section 187(4)(a) is relevant. It provides that a person may disclose the information or give access to the document to another person, to the extent that the information or document is about the other person. (the CP Act exception) The Category B Information and the Category A Information is predominantly about the applicant’s flatmate, her children and their father, not the applicant; some of the Category B Information and the Category A Information is about the applicant. However, where the Category B Information or the Category A Information is about the applicant, it is, in all instances, also about the flatmate, her children or their father. The CP Act exception only applies where the information is solely about the applicant. Thus where information is simultaneously about the applicant and others, the CP Act exception will not apply. I am satisfied that in this case the CP Act exception does not apply and therefore neither the Category A Information nor the Category B Information can be disclosed. In addition to the CP Act exception, section 12 of schedule 3 of the RTI Act also contains an exception to nondisclosure. Section 12(2) of schedule 3 of the RTI Act states that the exemption provided for in section 12 does not apply if the relevant information comprises only the applicant’s personal information (the RTI Act exception).[10] Like the CP Act exception, the RTI Act exception only applies if the information is the applicant’s personal information alone. That is not the case here as the personal information of the individuals other than the applicant cannot be separated from the personal information of the applicant. Accordingly, I am satisfied that the RTI Act exception does not apply to either the Category A Information or the Category B Information and therefore access to it should be refused. I note that in his submission dated 18 June 2012 the applicant provided the OIC with a a written consent to release the personal information of the applicant’s flatmate and her children, signed by his flatmate. The applicant argued that in light of such consent there was no longer any barrier to release of the Category B Information or the Category A Information. I consider that the terms of the RTI Act are not such that they can be overridden by consent. As previously noted, schedule 3, section 12 of the RTI Act sets out information which Parliament considers is exempt information. Thus it is Parliament’s intention that if information satisfies the criteria in schedule 3, section 12 of the RTI Act (as is the case here with the Category A Information and the Category B Information) then it is exempt information to which access is refused. I note that while the Department has some discretion to release documents that it considers are exempt, and therefore may have been at liberty to disclose the exempt matter had the applicant provided such a consent document to it, I do not have the same discretion. I am bound by the provisions of the IP Act and the RTI Act and can not exercise any discretion to release documents that I decide are exempt,[11] regardless of the existence of consent. I am satisfied that the Category A Information and the Category B Information is exempt information and that access to it must be refused. The consent purported to be given by the flatmate does not alter this outcome. DECISION I vary the Department’s Internal Review Decision by finding that the Department is entitled to refuse access to the Category A Information and the Category B Information pursuant to section 67(1) of the IP Act and sections 47(3)(a) and 48 of the RTI Act on the ground that disclosure is prohibited by schedule 3, section 12 of the RTI Act and section 187 of the CP Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________ Assistant Information Commissioner V Corby Date: 17 July 2012APPENDIX A Significant procedural steps Date Event 19 January 2012 The Department of Communities, Child Safety and Disability Services (Department) receives the applicant’s request for access (Access Application). 26 March 2012 The Department decides (Decision) to: omit 216 pages and parts of 157 pages which are not relevant to the scope of the Access Application partially release 145 pages; and give full access to 97 pages. 2 April 2012 The applicant seeks internal review of the Department’s Decision. 18 April 2012 The Department decides to vary the Decision by (Internal review Decision): giving full access to 95 pages omitting 208 pages and parts of 157 pages which contain information which is not relevant to the scope of the Access Application; and partially release 155 pages. 27 April 2012 The applicant seeks external review of the Department’s Internal Review Decision. 10 May 2012 OIC informs the applicant and the Department that the external review application has been accepted. 22 May 2012 OIC receives relevant documents from the Department. 6 June 2012 OIC conveys a preliminary view to the applicant and invites the applicant to provide a submission in support of his case by 21 June 2012 if the view is contested. 12 June 2012 The applicant seeks an extension to provide a written submission. 13 June 2012 OIC grants the applicant an extension until 28 June 2012 to provide a written submission. 18 June 2012 The applicant provides a written submission and signed consent to release information from the applicant’s flatmate. APPENDIX B Section 187 of the Child Protection Act relevantly provides: 187 Confidentiality of information obtained by persons involved in administration of Act (1) This section applies to a person who— (a) is or has been— (i) a public service employee; and ... (b) in that capacity acquired information about another person’s affairs or has access to, or custody of, a document about another person’s affairs. (2) The person must not use or disclose the information, or give access to the document, to anyone else.... (4) Also, the person may disclose the information or give access to the document— (a) to another person, to the extent that the information or document is about the other person; [1] By application dated 19 January 2012.[2] Machinery of government changes in April 2012 transferred relevant responsibility from the Department of Communities (Communities) to the Department of Communities, Child Safety and Disability Services. Accordingly, existing RTI applications and reviews involving certain applications made to Communities before the machinery of government changes now rest with the Department of Communities, Child Safety and Disability Services (here in after referred to as ‘the Department’), including this external review. [3] On internal review, the Department decided to release some additional information to the applicant.[4] Section 88 of the IP Act. [5] Section 88(3) of the IP Act.[6] Please note that section 67(1) of the IP Act provides that an agency (such as the Department) may refuse access to a document under that Act in the same way it would be entitled to do so under the RTI Act were the application made under the RTI Act.[7] Section 44(1) and 48(1) of the RTI Act. [8] See also, section 48 of the RTI Act. [9] See Appendix B for the text of the relevant parts of section 187 of the Child Protection Act. [10] Schedule 3 section 12(2) of the RTI Act. Personal information is defined in section 12 of the IP Act as information or an opinion 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.[11] Section 118(2) of the IP Act states: (2) If it is established that a document is an exempt document or a contrary to public interest document, or contains exempt information or contrary to public interest information, the commissioner does not have power to direct that access to the document, or the document to the extent of the information, is to be given. Section 105(2) of the RTI Act is stated in identical terms.

queensland

court_judgement

Queensland Information Commissioner 1993-

Murphy and Queensland Treasury [1998] QICmr 9; (1998) 4 QAR 446 (24 July 1998)

Murphy and Queensland Treasury [1998] QICmr 9; (1998) 4 QAR 446 (24 July 1998) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 98009Application S 140/96 Participants: JOHN PAUL MURPHY Applicant QUEENSLAND TREASURY Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - communications between the respondent and its legal advisers concerning a previous FOI access application by the applicant, subsequent external review by the Information Commissioner, and subsequent judicial review proceedings - whether communications made in furtherance of an illegal or improper purpose so as to preclude the communications from attracting legal professional privilege - whether bills of costs for legal services provided to the respondent attract legal professional privilege - application of s.43(1) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.27(4), s.28(1), s.32, s.33(1), s.34, s.40(c), s.42(1)(c), s.43(1), s.44(1), s.52(4), s.52(6), s.73(3), s.79(1), s.81Administrative Decisions (Judicial Review) Act 1977 CthFreedom of Information Act 1982 Cth s.22, s.42(1)Freedom of Information Act 1992 WAJudicial Review Act 1991 Qld s.20(2)(e), s.23(c), s.23(d), s.23(e)Allen, Allen & Hemsley v Deputy Commissioner of Taxation (1988) 81 ALR 617Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52Butler v Board of Trade [1970] 3 All ER 593Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 71 ALJR 327; 141 ALR 545Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 2 Qd R 138Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 ii Hewitt and Queensland Law Society Inc, Re (Information Commissioner Qld, Decision No. 98005, 24 June 1998, unreported)Johnson and State Government Insurance Commissioner, Re (Information Commissioner WA, D02896, 17 May 1996, unreported)Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58Murphy and Queensland Treasury & Others, Re [1995] QICmr 23; (1995) 2 QAR 744Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275Potter and Brisbane City Council, Re [1994] QICmr 18; (1994) 2 QAR 37R v Bell: ex parte Lees [1980] HCA 26; (1980) 146 CLR 141R v Cox and Railton (1884) 14 QBD 153Ricegrowers Co-operative Mills Ltd v Bannerman and Trade Practices Commission [1981] FCA 211; (1981) 38 ALR 535Skopalj and Transport Accident Commission, Re (1989) 4 VAR 16Smith and Administrative Services Department, Re [1993] QICmr 3; (1993) 1 QAR 22State of Queensland v Albietz [1996] 1 Qd R 215Sullivan and Department of Industry, Science and Technology, Re (Commonwealth Administrative Appeals Tribunal, Mr P Bayne (Senior Member), No. A95/197, 6 June 1997, unreported)Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54Woodyatt and Minister for Corrective Services, Re [1995] QICmr 1; (1995) 2 QAR 383Z and Australian Taxation Office, Re (1984) 6 ALD 673 DECISION 1. I decide to vary the decision under review (which is identified in paragraph 4 of my accompanying reasons for decision) by finding that the matter in issue which is identified in paragraph 26 of my accompanying reasons for decision is not exempt matter under the Freedom of Information Act 1992 Qld.2. I affirm those parts of the decision under review which found that the balance of the matter in issue (which is identified in sub-paragraphs 5(b), (c), (d) and (e) of my accompanying reasons for decision) is exempt matter under s.43(1) of the Freedom of Information Act 1992 Qld.Date of decision: 24 July 1998.........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background 1External review process 2Application of s.43(1) of the FOI Act 3 Correspondence attaching legal accounts 4 Remaining matter in issue, and the application of the 'improper purpose exception' 9 Principles with respect to the 'improper purpose exception' 9 Knowledge of wrongdoing necessary 12 Submissions and evidence of the applicant 14 Mr Sarquis' decision 21 Subsequent events 25Conclusion 26 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 98009Application S 140/96 Participants: JOHN PAUL MURPHY Applicant QUEENSLAND TREASURY Respondent REASONS FOR DECISION Background1. The applicant seeks review of the respondent's decision to refuse him access, under the Freedom of Information Act 1992 Qld (the FOI Act), to documents recording communications between the respondent and its legal advisers relating to the processing of FOI access applications made by the applicant to the respondent, and relating to the conduct of the respondent's case in an external review under Part 5 of the FOI Act, and in subsequent judicial review proceedings. The respondent contends that the documents in issue would be privileged from production in a legal proceeding on the ground of legal professional privilege, and are therefore exempt under s.43(1) of the FOI Act. The applicant contends that the communications were made in furtherance of an illegal or improper purpose, and so would not be protected from disclosure on the ground of legal professional privilege. The applicant also questions whether some documents, relating to legal fees for services provided to the respondent, qualify for legal professional privilege.2. On 24 June 1993, Mr Murphy made an FOI access application for documents held by the respondent relating to the land tax affairs of his Family Trust. (I will refer to that application as the 1993 access application.) He obtained access to all matter falling within the terms of the 1993 access application, subject to the deletion of the names of a number of officers of the respondent. Mr Murphy sought internal review of the decision to refuse him access to those names, but was again refused access. Both of those decisions were subsequently revoked, and a fresh decision was made by the Under Treasurer, who also decided to refuse access to the names of the officers. (The detail of those decisions is more fully explained in Re Murphy and Queensland Treasury & Others [1995] QICmr 23; (1995) 2 QAR 744, at p.749, paragraphs 3-7. See also paragraph 44 below.) Mr Murphy then applied to me for external review of the Under Treasurer's decision. My review resulted in a decision that Mr Murphy wasentitled to access to the names of the officers (see Re Murphy cited above). My decision was challenged, unsuccessfully, by the respondent in the Supreme Court of Queensland (see State of Queensland v Albietz [1996] 1 Qd R 215). Mr Murphy thereafter obtained access to the names of the officers. 3. By letter dated 18 March 1996, Mr Murphy applied to the respondent for access, under the FOI Act, to numerous documents, including documents relating to the 1993 access application and the ensuing proceedings. By letter dated 15 May 1996, Ms F Smith, on behalf of the respondent, decided that Mr Murphy should be granted access to a large number of documents falling within the terms of his access application. However, she decided that some documents or parts of documents were exempt matter under s.43(1) (the legal professional privilege exemption), and that parts of other documents were exempt matter under s.44(1) (the personal affairs exemption) of the FOI Act.4. By letter dated 19 June 1996, Mr Murphy made an application for internal review of Ms Smith's decision (see s.52 of the FOI Act), which application was confined to Ms Smith's decision to invoke the s.43(1) exemption for certain documents and parts of documents.Mr Murphy argued that legal professional privilege did not apply, because the relevant communications were made in furtherance of an illegal or improper purpose. The internal review was conducted on behalf of the respondent by Mr G G Poole who, by letter dated 1 July 1996, affirmed Ms Smith's initial decision. Mr Murphy then challenged the adequacy of the reasons for decision given by Mr Poole, and was provided with further reasons for decision dated 31 July 1996. By letter dated 31 August 1996, Mr Murphy applied to me for review, under Part 5 of the FOI Act, of Mr Poole's decision.External review process5. The documents in issue were obtained and examined. They comprise:(a) correspondence attaching legal accounts (parts of documents H8, H9 and I7);(b) correspondence between the respondent and the Crown Solicitor, seeking or giving legal advice or prepared for the purpose of legal proceedings (documents A6, A7, A20, F7-F9, F30, F32, H1-H3, H5-H7, H12, H21, H22, H24, H26-H28, I57, K83, O1-O3, O8, P11, P13, P17 and P49, and part of document P34);(c) records of communications between officers of the respondent and the Crown Solicitor, appearing in file notes or internal memoranda (documents A5, A6, F30, H23, H25 and I58(a), and parts of documents A64, I69, K85, K88, K91, K96, K99, K104 and O9);(d) written legal advice given by an in-house legal adviser employed by the respondent (documents H10, H11 and H20); and(e) an opinion of counsel (document I58).6. In the course of this review and other related external reviews, Mr Murphy has provided me with a number of written submissions. He has also provided me with an undated and unsigned copy of an affidavit by himself, the original of which he has informed me was sworn and filed in the course of Supreme Court proceedings he initiated against the Department of Justice. I have no reason to doubt that, and I have accepted the copy affidavit on that basis.7. By letter dated 27 February 1997, I wrote to the respondent questioning whether a small number of the documents in issue qualified for exemption under s.43(1). The respondent, by letter dated 3 April 1997, agreed to withdraw its objection to disclosure of some of that matter, but maintained its claim for exemption in respect of the correspondence attaching legal accounts, and made a brief submission in that regard.8. With my letter to the respondent dated 27 February 1997, I also forwarded copies of a number of Mr Murphy's submissions (dated, or received by me on, 23 April, 19 June, 9 July and 16 September 1996) and the affidavit furnished by Mr Murphy, and raised a number of issues concerning the application of the 'improper purpose exception' to legal professional privilege. I invited the respondent to lodge written submissions and/or evidence in support of its case that the matter in issue is exempt matter under s.43(1) of the FOI Act.The Under Treasurer responded by letter dated 3 April 1997, in which he stated:... There is really nothing new in the material which has not been raised by Mr Murphy previously in various forums. However, I think it is important to focus on the review which is presently in issue.Full consideration of the nominated documents had been given by Mr Poole on the internal review and the decision of 1 July 1996 was duly made.Mr Murphy by letter dated 4 July 1996 then sought a Statement of Reasons in relation to that decision and a Statement of Reasons dated 31 July 1996 was provided to him. A copy of this statement of reasons has previously been provided to you.I reiterate what was set out in the Statement of Reasons. There is no improper or illegal purpose which would defeat the applicability of the doctrine of legal professional privilege in relation to the subject documents.The officers concerned carried out their duties appropriately and honestly.Mr Murphy has made various claims. It is a matter for Mr Murphy to prove these claims in the Court.I provided Mr Murphy with a copy of the Under Treasurer's letter, and Mr Murphy made a brief reply dated 14 April 1997.Application of s.43(1) of the FOI Act 9. Section 43(1) of the FOI Act provides: 43.(1) Matter is exempt matter if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.10. The s.43(1) exemption turns on the application of those principles of Australian common law which determine whether a document, or matter in a document, is subject to legal professional privilege. The grounds on which a document can attract legal professional privilege are fairly well settled in Australian common law. In brief terms, legal professional privilege attaches to confidential communications between lawyer and client for the sole purpose of seeking or giving legal advice or professional legal assistance, and to confidential communications made for the sole purpose of use, or obtaining material for use, in pending or anticipated legal proceedings (see Re Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 at pp.51-52 (paragraph 82), which sets out a summary of the principles established by the High Court authorities of Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500, Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, and Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54). There are qualifications and exceptions to that broad statement of principle, which may, in a particular case, affect the question of whether a document attracts the privilege, or remains subject to the privilege; for example, the principles with respect to waiver of privilege (see Re Hewitt and Queensland Law Society Inc (Information Commissioner Qld, Decision No. 98005, 24 June 1998, unreported) at paragraphs 19-20 and 29), and the principle that communications otherwise answering the description above do not attract privilege if they are made in furtherance of an illegal or improper purpose (see Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 71 ALJR 327).Correspondence attaching legal accounts11. Documents H8 and H9 each comprise a covering letter dated 14 February 1996, a notional invoice for services from the Crown Solicitor, and a standard form questionnaire entitled "Review of Notional Bill". Document I7 comprises a covering letter dated 8 March 1996, a notional invoice from the Crown Solicitor and a memorandum of fees from Counsel. (The documents date from a period when the Crown Solicitor was trialling a system for charging government agencies for legal services.) I can see no basis on which the respondent can sustain a claim for exemption of the standard form questionnaire under s.43(1) of the FOI Act. It clearly relates to matters of administration, and was not communicated for the purpose of seeking or giving legal advice or professional legal assistance, or for use in legal proceedings. I find that it is not exempt matter under s.43(1) of the FOI Act.12. In his letter dated 3 April 1997, the Under Treasurer (responding to a preliminary view I had conveyed in my letter dated 27 February 1997) stated:... You have indicated that as those accounts do not disclose any detail of legal advice sought or given, it appears that they do not qualify for exemption under s.43(1).However, with respect, s.43(1) provides that matter will be exempt if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.Legal professional privilege attaches to accounts from a lawyer to the client.It is an inherent part of obtaining legal advice that the client receives an account. Those accounts usually contain details of the amount of work done as this is reflected in the quantum of the account.Accounts are not required to be produced in proceedings by a person who has received advice except in circumstances where a person seeks to recover their costs from another party.In circumstances where an award of costs has been made to a party and taxation is required, it is up to that party to voluntarily provide their costs for the taxation. There is no compulsion on them to provide the account if they do not want to recover their costs.13. In Packer v Deputy Commissioner of Taxation [1985] 1 Qd R 275, the members of a Full Court of the Supreme Court of Queensland made some incidental remarks about legal professional privilege and solicitors' accounts. The documents in issue in that case were trust account ledgers, but in the course of considering the position of such documents, members of the Court referred to older authorities concerning privilege attaching to solicitors' bills of account. Andrews SPJ said (at pp.281-282):We were referred to a number of decisions touching upon bills of costs, for example. Speaking generally I would accede to a contention that if disclosure of material under consideration could be said to expose material by way of communication whether documentary or otherwise between solicitor and client for the relevant purposes discussed herein legal professional privilege should exclude it from a requirement of disclosure. ...... In my view there is nothing in particular to set aside a bill of costs as forming some special category of record of privileged information. Even bills of costs may on careful scrutiny in particular cases be shown not to contain privileged information. Consideration of individual cases demonstrates that bills of costs frequently contain a history of matters in respect of which solicitors have been consulted by clients which discloses the nature of advice sought or given.In "Daily Express" (1908) Ltd v Mountain (1916) 32 TLR 592, for example Swinfen Eady LJ at p.593 expressed the view that a bill of costs came within the rule as to privilege; that it contained the history of the transactions to which it related and was valuable because it recorded the events in chronological order. It had been common ground between the parties there that this was so. In Chant v Brown [1852] EngR 605; 9 Hare 791; 68 ER 735 Turner VC made it plain that a bill of costs was privileged as a history of matters dealt with by the solicitor. I would hold the material under consideration here to be quite different from a detailed bill of costs. In any event I am of the opinion that if a bill of costs does not contain such details it is not per se protected by legal professional privilege.14. On the other hand, both McPherson J (at pp.286-287) and Shepherdson J (at pp.295-296), referred with apparent approval to those older, predominantly English, cases which suggest that a solicitor's bill of costs in detailed form would prima facie attract the cloak of legal professional privilege, on the basis that a bill of costs will ordinarily disclose instructions given by a client to a solicitor, and refer to work done and disbursements made by the solicitor in a professional capacity.15. In Allen, Allen & Hemsley v Deputy Commissioner of Taxation (1988) 81 ALR 617, another case dealing with a claim of legal professional privilege in respect of solicitors' trust account ledgers, Pincus J (then of the Federal Court of Australia) was implicitly critical of that approach (his specific reference was to the judgment of Shepherdson J at p.295), saying (at p.626):One approach to the problem of defining the scope of privilege is to proceed from the assumption that, except in so far as the High Court has expressly rejected older statements as to the scope of the privilege, such statements continue to be authoritative: cf. Packer v DCT (Qld) [1985] 1 Qd R 275 at295, where that technique is used. I incline, on the other hand, to the course of assuming that the High Court's recent analyses of the topic must constitute the main source of the relevant principles.16. All of the cases concerning legal professional privilege and solicitors' bills of costs that were referred to by McPherson J and Shepherdson J predated the High Court's insistence (commencing from Grant v Downs in 1976) that relevant communications must satisfy the 'sole purpose' test to attract legal professional privilege. Packer v DCT itself predated the High Court decision in Waterford's case, which dealt with the application of the 'sole purpose' test to documents containing legal advice and other "extraneous matter", and the circumstances in which such "extraneous matter" may be severed (and disclosed) from a document which, considered as a whole, attracts legal professional privilege. (The treatment of those issues in Waterford's case was analysed in detail in my decision in Re Hewitt at paragraphs 97-129.)17. Waterford's case involved a decision on the application of a statutory provision (s.42(1) of the Freedom of Information Act 1982 Cth - the legal professional privilege exemption) very similar in its terms, and its intended operation, to s.43(1) of the Queensland FOI Act. Mason and Wilson JJ (who, with Brennan J, formed a majority in dismissing Mr Waterford's appeal) said (at p.66):The appellant's submission fails to appreciate that the sole purpose test is a test that looks to the reason why the document was brought into existence. If its sole purpose was to seek or to give legal advice in relation to a matter, then the fact that it contains extraneous matter will not deny to it the protection of the privilege. The presence of matter other than legal advice may raise a question as to the purpose for which it was brought into existence but that is simply a question of fact to be determined by the Tribunal and its decision on such a question is final. It may also be appropriate in a particular case for the Tribunal to require those parts of the document which do not bear the necessary relation to legal advice to be disclosed. The doctrine of legal professional privilege allows room for questions of fact and degree such as these to fall for decision. Moreover the [Freedom of Information Act 1982 Cth] contemplates that where an exempt document contains material which, standing alone, would not render the document exempt, the agency or Minister should, if it is reasonably practicable to do so, delete the privileged material and grant access to the remainder: s.22.[I note that s.32 of the Queensland FOI Act is similar, in purpose and effect, to s.22 of the Freedom of Information Act 1982 Cth.]18. In the High Court's recent consideration of aspects of legal professional privilege in Propend Finance, Kirby J said (at p.375): "... it is now settled that the privilege, at common law, extends only to communications brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings. ..." (my underlining). Dawson J also used language indicating a similar confinement of the scope of the privilege in his comment (at p.335) that: "... the preferred view is that a communication constituted by a document will only be protected by privilege if the document is brought into existence for the sole purpose of seeking or giving legal advice or for use in legal proceedings." Brennan CJ made comments to the same effect at p.330 (the relevant passage is quoted in Re Hewitt at paragraph 112).19. I have difficulty in accepting that solicitors' bills of costs are brought into existence for the sole purpose of providing legal advice or professional legal assistance, or for the sole purpose of use in pending or anticipated legal proceedings. They are ordinarily brought into existence for the purpose of rendering an account for legal services performed. Although a solicitor's bill of costs may (and in the case of a detailed bill of costs inevitably will) refer to communications between solicitor and client, or with third parties, (e.g., instructions received, and advice or professional legal assistance given, by the solicitor) which are prima facie privileged communications, those references are included as a record of instructions received and services performed, for the purpose of rendering an account for payment.20. A strict application of the 'sole purpose' test as stated in paragraphs 17 and 18 above would, in my view, ordinarily have the result that a solicitor's bill of costs does not attract legal professional privilege because it would not ordinarily have been brought into existence solely for a privileged purpose. However, any segments of a solicitor's bill of costs which comprise a record of prior privileged communications would, in my view, attract legal professional privilege (cf. Lockhart J's category (d) of material to which legal professional privilege extends, as stated in Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 at p.246: "Notes, memoranda, minutes or other documents made by the client, or officers of the client, or the legal adviser of the client, of communications which are themselves privileged, or containing a record of those communications, ..."). I consider that the common law principles of legal professional privilege must permit severance from a solicitor's bill of costs (and continued protection from compulsory disclosure) of those segments of the bill which record prior privileged communications. That seems to me to be necessary to preserve the efficacy of the doctrine of legal professional privilege (cf. Re Hewitt at paragraphs 119-120, and the cases there discussed), given the frequent necessity to include in a solicitor's bill of costs records of prior privileged communications, albeit not for the sole purpose which attracted legal professional privilege to those prior communications. In my view, the rationale for legal professional privilege requires that protection from compulsory disclosure be extended only to any record, contained in a solicitor's bill of costs, of a communication which itself satisfies the requirements to attract legal professional privilege. The balance of a solicitor's bill of costs would not ordinarily, in my opinion, attract legal professional privilege under the prevailing High Court authorities.21. The views I have expressed are similar, in essence, to the views expressed in Packer v DCT by Andrews SPJ (see paragraph 13 above), whose views were accepted and applied, in an FOI context, in the two Tribunal decisions referred to in paragraphs 22 and 23 below. My views also accord with the approach adopted by Tamberlin J of the Federal Court of Australia in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (1994) 126 ALR 58 at p.68:Disclosure of the memoranda of fees and other documents does not in any way disclose the nature or contents of the advice or communications between the applicants and their legal advisers. The memoranda of fees simply set out the dates and refer to the action taken in respect of which a charge is made. The memoranda of fees were brought into existence, on their face, not solely for the purpose of obtaining legal advice or for use in legal proceedings but for the purpose of recording and raising charges in respect of work which had been already completed. It is evident that the documents were made or brought into existence for a purpose different from, or beyond, the obtaining of legal advice or use in legal proceedings....In the present case, I have perused the memoranda of costs which have been provided by the applicants and I do not consider that they disclose the nature or content of privileged material. ... The memoranda and the other documents are simply recording, in outline form, the work which has been undertaken by the solicitors and in respect of which the charges are raised and do not disclose the content of the communications, advices, briefs or conferences.22. In Re Skopalj and Transport Accident Commission (1989) 4 VAR 16, Deputy President Galvin of the Victorian Administrative Appeals Tribunal analysed a number of documents on the basis of the comments of Andrews SPJ in Packer v DCT. Deputy President Galvin found that a bill of costs disclosing no particulars of the matter, save for the names of the parties, and an accompanying letter simply enclosing an account, would not be protected by legal professional privilege (see pp.28 and 29).23. The Western Australian Information Commissioner considered the status of solicitors' bills of costs in Re Johnson and State Government Insurance Commissioner (Information Commissioner WA, D02896, 17 May 1996, unreported). After an analysis of the decided cases on the point, including Packer v DCT, Lake Cumbeline and Re Skopalj, the Western Australian Information Commissioner determined that the amount alone of the solicitors' bill did not indicate the nature of instructions given by the client, nor could it in any way reveal the advice or assistance given by legal advisers. The Information Commissioner determined that, subject to deletion of certain matter, the bills of costs in issue were not exempt matter under the exemption provision of the Freedom of Information Act 1992 WA which corresponds to s.43(1) of the Queensland FOI Act.24. Even if, contrary to my views, the principles applied in the older cases referred to with apparent approval by McPherson J and Shepherdson J in Packer v DCT (see paragraph 14 above) remain applicable in Australian law, I consider that the result I have described in the last two sentences of paragraph 20 above would ordinarily be arrived at by the application of the provisions of the FOI Act to a solicitor's bill of costs. That result would, in my view, be required by the application, in conjunction with s.32 of the FOI Act, of the principle stated in the final sentence of the passage from Waterford's case quoted at paragraph 17 above. Thus, in my view, even if it be correct that privilege usually attaches to solicitors' bills of costs, because they record or refer to privileged communications, an authorised decision-maker under the FOI Act should, where it is practicable to do so, grant access to any matter in a bill of costs which, standing alone, would not be privileged from production in a legal proceeding on the ground of legal professional privilege.25. Turning to the covering letter, the notional invoices, and the memorandum of counsel's fees which are in issue in this review, the only matter in any of those documents which could be said to record anything regarding the legal services provided is the heading to each document. The letters dated 14 February 1996 describe, in general terms, the type of work carried out, e.g., "discussions between Crown Law officers and the Office of State Revenue" and "all necessary perusal of material". Descriptions of that kind convey nothing about the nature or content of privileged communications, and they do not, in my opinion, constitute information of a kind that attracts the protection of legal professional privilege. The headings themselves give only the broadest idea of the subject of the legal advice and services provided, and do not give any detail of particular advice provided. (It must already be obvious to Mr Murphy, given the nature of his FOI access application dated 18 March 1996 and the fact that the respondent has identified the documents now under consideration asfalling within its terms, that the legal advices obtained by the respondent related in some way to his FOI access applications, or to the review proceedings arising from the 1993 access application.) I have significant reservations as to whether those headings attract legal professional privilege but, in any event, Mr Murphy has indicated that he does not seek access to them. The headings, therefore, are not in issue in this external review. It is practicable to give Mr Murphy access to the documents with the headings deleted. 26. I find that documents H8, H9 and I7 (subject to deletion of the headings to the covering letters, notional invoices and memorandum of counsel's fees) are not exempt matter under s.43(1) of the FOI Act.Remaining matter in issue, and the application of the 'improper purpose exception'27. I have described the other documents in issue in sub-paragraphs 5(b), (c), (d) and (e) above.Those documents fall into categories which are well recognised as being subject to legal professional privilege. 28. In Re Potter and Brisbane City Council [1994] QICmr 18; (1994) 2 QAR 37 at pp.45-47 (paragraphs 19-27), I discussed the application of legal professional privilege to communications to or from in-house legal advisers. In summary, the authorities establish that legal professional privilege may apply with respect to employee legal advisers of a government Department or statutory authority, provided there is a professional relationship of solicitor (or barrister) and client, which secures to the advice an independent character notwithstanding the employment.Important indicia are whether the legal adviser has been admitted to practice as a barrister or solicitor, and remains subject to the duty to observe professional standards and the liability to professional discipline. Possession of a current practising certificate is not necessary for establishing the requisite degree of independence, but will carry some weight in assisting to establish the requisite degree of independence. 29. I have previously indicated that the Crown Solicitor is in a position to give independent legal advice which attracts legal professional privilege (see Re Smith and Administrative Services Department, at p.54, paragraphs 88-90). I also consider that the author of the documents listed in sub-paragraph 5(d) was in a position to provide independent legal advice of a kind which would attract legal professional privilege. 30. Having examined each document containing or comprising matter in issue, it is my view that, subject to consideration of the 'improper purpose exception', the matter listed in sub-paragraphs 5(b), (c), (d) and (e) above, was created solely for a purpose which attracts legal professional privilege, and hence would qualify for exemption under s.43(1) of the FOI Act.Principles with respect to the 'improper purpose exception'31. Detailed analyses of the 'improper purpose exception' to legal professional privilege can be found in the judgments of the High Court of Australia in Attorney-General (NT) v Kearney and in Propend Finance. In the latter case, McHugh J said (at p.358): "Communications in furtherance of a fraud or crime are not protected by legal professional privilege because the privilege never attaches to them in the first place. While such communications are often described as 'exceptions' to legal professional privilege, they are not exceptions at all. Their illegal object prevents them becoming the subject of privilege." However, for the sake of convenience, when I have needed to refer to the relevant principles in a short-hand way, I have described them, in these reasons for decision, as the 'improper purpose exception'.32. In Propend Finance, Gaudron J said (at p.352): Communications made in furtherance of future wrongdoing fall outside legal professional privilege, although there is no particularly precise statement as to the nature of the wrongdoing that produces that result. (As to the different formulations of the nature of the wrongdoing which 'displaces' legal professional privilege, see Attorney-General (NT) v Kearney (1985) [1985] HCA 60; 158 CLR 500 at pp.528-529 per Dawson J and the cases there cited.)However, legal professional privilege clearly extends to the situation in which a person seeks advice with respect to past misdeeds. 33. The passage from Dawson J's judgment in Kearney, to which Gaudron J referred, is the following (at pp.528-529):It is true that different expressions are to be found in the cases to explain what is meant by crime or fraud in the present context: "any unlawful or wicked act" (Annesley v Anglesea (1743) 17 St. Tr. 1139 at p.1229); "a criminal or unlawful proceeding", "fraudulent contrivance, or ... any illegal proceeding", "an improper or an illegal act", "illegality or fraud or trickery" (Bullivant v Attorney-General (Vict) [1901] AC 196 at pp.201, 203, 205, 206), "crime or civil fraud", "wrong-doing", "illegal object" (Varawa v Howard Smith & Co Ltd (1910) 10 CLR at pp.386, 387, 390); "any illegal or improper purpose", "to frustrate the processes of law", "taint of illegality" (Reg v Bell; Ex parte Lees (1980) 146 CLR at pp.145, 156, 162), "crime or fraud or civil offence" (Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at p.86).(See also per Gibbs CJ in Kearney at pp.511-515.)34. Having regard to the nature of the case put forward by Mr Murphy, perhaps the most apposite statement for present purposes is that made by Gibbs CJ in Kearney at p.515:It would be contrary to the public interest which [legal professional] privilege is designed to secure - the better administration of justice - to allow it to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law.35. Gibbs CJ also stated the evidentiary requirements for a finding that legal professional privilege had been displaced in such circumstances (at p.516):The privilege is of course not displaced by making a mere charge of crime or fraud or, as in the present case, a charge that powers have been exercised for an ulterior purpose. This was made clear in Bullivant v Attorney-General (Vict) and in O'Rourke v Darbishire. As Viscount Finlay said in the latter case, "there must be something to give colour to the charge". His Lordship continued:"The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact ... The Court will exercise its discretion, not merely as to the terms in which the allegation is made, but also as to the surrounding circumstances, for the purpose of seeing whether thecharge is made honestly and with sufficient probability of its truth to make it right to disallow the privilege of professional communications."[footnotes omitted]36. Similarly, in Propend Finance, Brennan CJ said (at p.334):In determining whether a claim of legal professional privilege can be upheld, it is open to the party resisting the claim to show reasonable grounds for believing that the communication effected by the document for which legal professional privilege is claimed was made for some illegal or improper purpose, that is, some purpose that is contrary to the public interest. I state the criterion as "reasonable grounds for believing" because (a) the test is objective and (b) it is not necessary to prove the ulterior purpose but there has to be something "to give colour to the charge", a "prima facie case" that the communication is made for an ulterior purpose. [footnotes omitted]37. Discussing the evidence necessary to displace legal professional privilege, Gaudron J said in Propend Finance (at p.353):... there must be evidence to raise a sufficient doubt as to a claim of privilege, to cast a further evidentiary onus on the person making the claim to show that, in truth, the privilege attaches.Inevitably, what will be sufficient to cast a further evidentiary burden on a person claiming legal professional privilege will vary according to the facts of each case. However, the presumption of innocence is not lightly displaced.Thus, for example, it was said by Lord Wrenbury in O'Rourke v Darbishire, a case involving an allegation of fraud, that there must be material which shows "good ground for saying that prima facie a state of things exists which, if not displaced at the trial, will support a charge of fraud". Similarly in Buttes Gas and Oil, Lord Denning MR said that it was necessary for there to be "strong evidence".Bearing in mind the purpose served by legal professional privilege and the importance of the presumption of innocence, a further evidentiary burden is, in my view, cast upon a person claiming legal professional privilege only if there is evidence which, if accepted, raises a prima facie case of illegal or other purpose falling outside the privilege. Evidence of that nature need not be led by the person resisting the claim of privilege. It might emerge, for example, from documents for which the claim is made.[footnotes omitted]38. I consider that the following principles can be drawn from the decided cases: To displace legal professional privilege, there must be prima facie evidence (sufficient to afford reasonable grounds for believing) that the relevant communication was made in preparation for, or furtherance of, some illegal or improper purpose. Only communications made in preparation for, or furtherance of, the illegal or improper purpose are denied protection, not those that are merely relevant to it (see Butler v Board of Trade [1970] 3 All ER 593 at pp.596-597). In other words, it is not sufficient to find prima facie evidence of an illegal or improper purpose. One must find prima facie evidence that the particular communication was made in preparation for, or furtherance of, an illegal or improper purpose. Knowledge, on the part of the legal adviser, that a particular communication was made in preparation for, or furtherance of, an illegal or improper purpose is not a necessary element (see R v Cox and Railton (1884) 14 QBD 153 at p.165; R v Bell: ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at p.145); however, such knowledge or intention on the part of the client, or the client's agent, is a necessary element (see paragraphs 39-40 and 42 below).Knowledge of wrongdoing necessary39. In Kearney (at p.515), Gibbs CJ said that there must be a "deliberate abuse of statutory power". This point was considered at some length by Wilson J in Kearney (at pp.524-525):The principle may be expressed by saying that, generally speaking, the public interest in the protection of alleged confidential professional communications will not be outweighed by the public interest in ensuring that all relevant evidence is admissible save when the professional relation is abused in a manner involving dishonesty that goes to the heart of the relationship. The presence of such dishonesty is enough to cause the privilege to "take flight", to use the words of Cardozo J in Clark v United States, because it precludes a true professional relationship from arising: see the remarks of Stephen J in Cox and Railton. A passage from the judgment of Isaacs J in Varawa v Howard Smith & Co Ltd is in point. His Honour said:"The words 'for the perfect administration of justice' are all important, because, as was pointed out by Turner VC in Russell v Jackson, the privilege which protects any confidential disclosure between solicitor and client is not intended simply to protect that confidence, but it rests upon the necessity of carrying it out.Otherwise justice could not be administered, as the Courts would not have the proper opportunity and means of administering the law between the litigants. That being the foundation of the rule, says the learned Vice-Chancellor, the Court must, of course, have regard to the foundation on which it rests, and not extend it to cases which do not fall within the mischief which it is designed to protect."I turn now to consider whether the conclusion I have expressed with respect to the privilege of the citizen is entirely apposite in the case of a claim of privilege by a government in respect of legal advice sought in connexion with the making of regulations. Woodward and Neaves JJ, in the passage I have cited, express the view that any exercise of the regulation-making power for an ulterior purpose would displace the privilege. With all respect, I think that is too wide. Where legal advice is sought with reference to the making of regulations for a purpose which is believed to be consistent with the scope and objects of the enabling legislation, in my opinion the privilege shouldattach to those communications notwithstanding that it is alleged that the regulations are beyond power and notwithstanding that some secondary motive unrelated to the statutory power is also present. The purpose which the privilege is designed to serve is in no way denied when legal advice is taken in those circumstances. In my view, the implications for the privilege would be serious if an allegation of ultra vires, based on a genuine but mistaken view of the scope of the power, were sufficient to expose a government to discovery of confidential professional communications. It must be remembered that whatever rule is found to apply to government law making will find a close parallel in the case of the exercise of a local government's power to make by laws. Conversely, if the advice is sought in the deliberate pursuit of a purpose which is known to be beyond power, then in those circumstances the public interest cannot concede to a government any right to withhold relevant material from scrutiny in the courts. The distinction between a deliberate and a mistaken misuse of power is to my mind of crucial significance.Counsel for the appellant argues against the drawing of such a distinction on the ground that there is a single category by reference to which regulations will be held invalid because made for an ulterior purpose. The test is an objective one. That may be so when testing regulations for validity but the question is a different one when the issue is whether legal professional privilege may be claimed in respect of certain communications. The test goes to the professional quality of the relationship. That quality depends on the good faith, the integrity that the client brings to the consultation, not upon the correctness or otherwise of the advice that may be given.[footnotes omitted]40. In this case, Mr Murphy has made allegations which, if established, would mean that certain decisions made by the respondent in dealing with Mr Murphy's 1993 access application were made contrary to law, in the sense that grounds would have existed for overturning those decisions in proceedings brought under the Judicial Review Act 1991 Qld. The Judicial Review Act lists numerous errors of law into which a decision-maker might fall, and which (subject to the exercise of the court's discretion to grant, or decline to grant, a remedy to an aggrieved applicant) might result in the overturning of an administrative decision. For example, a decision-maker may take into account irrelevant considerations or may make an error in interpreting the law. I do not consider that prima facie evidence that a communication was made in furtherance of the purpose of making an administrative decision, which decision can be shown to have been based on a flawed understanding of the legal requirements attending the making of that administrative decision, will necessarily lead to the establishment of the 'improper purpose exception' to legal professional privilege. A mere mistake as to legal requirements will usually be insufficient. Consistently with the observations by Wilson J in the second last paragraph of the above-quoted passage, in order to displace legal professional privilege, there would ordinarily need to be prima facie evidence that the impugned communications were made in furtherance of a purpose of making (and, in the context of this case, defending) an administrative decision known to be contrary to the law.41. Legal professional privilege plays a very significant part in the proper functioning of the legal system. In Re Hewitt at paragraph 68, I quoted passages from Waterford's case (per Mason and Wilson JJ at p.62 and p.64; per Deane J at p.82) which acknowledged that the public interest rationale for the principles of legal professional privilege extends to benefiting thepublic interest through encouraging public officials to consult professional legal advisers, with the same protection for confidential communications between legal adviser and client as is afforded to the ordinary citizen In Kearney, Gibbs CJ made a similar point (at p.511):The reasons justifying the privilege apply when a public authority preparing regulations which will have the force of law seeks legal advice from its legal advisers. It is in the interest of the public as well as that of the authority that the latter should make full and candid disclosure to its advisers so that it may obtain sound legal advice.42. In my view, in order to establish the 'improper purpose exception', it will be necessary for me to find prima facie evidence that the client, or an agent of the client, had embarked on a deliberate course of action knowing that the proposed actions were contrary to law, and had made the relevant communications in furtherance of that illegal or improper purpose. 43. By virtue of s.81 of the FOI Act, the onus is on the Department to satisfy me that the requirements for exemption under s.43(1) have been met. This extends to showing that the documents in issue are not excluded from eligibility for legal professional privilege under the 'improper purpose exception'. Mr Murphy's evidence and submissions were directed to showing a prima facie case that the documents in issue did not attract legal professional privilege because they were brought into existence in furtherance of an illegal or improper purpose. An agency in the position of the respondent should carefully consider its position before deciding (as the respondent did in this case) not to provide evidence to establish its case for exemption on the ground of legal professional privilege, in the face of an attempt by an applicant to show grounds for the application of the 'improper purpose exception'.Nevertheless, if I am to find that the 'improper purpose exception' applies in respect of the matter in issue, I must be satisfied that I have before me prima facie evidence that the matter in issue was communicated in preparation for, or furtherance of, an illegal or improper purpose.Submissions and evidence of the applicant44. In her original decision on Mr Murphy's 1993 access application, Ms Natalie Barber of the Department decided that the names of a number of officers of the Department were exempt matter under s.44(1) of the FOI Act. An internal review was undertaken by Mr M Sarquis, who, in his written decision dated 20 September 1993, affirmed Ms Barber's decision that the names of officers were exempt matter under s.44(1), and also determined that they were exempt matter under s.42(1)(c) of the FOI Act. The decisions of Ms Barber and Mr Sarquis were subsequently revoked, and a decision was made by Mr H Smerdon, the then Under Treasurer (and the principal officer of the respondent agency in terms of s.33 of the FOI Act), that the names were exempt matter under s.40(c) and s.44(1) of the FOI Act. On external review, I set aside Mr Smerdon's decision, finding that the names of the officers concerned were not exempt matter under the FOI Act. The respondent's challenge to my decision under the Judicial Review Act was dismissed.45. Mr Murphy set out his allegations relating to his claim of improper purpose at paragraph 2 of his submission received by me on 16 September 1996, as follows:(a) The Queensland Treasury's duly authorised delegate (Michael Sarquis) decided on or before 13 September 1993 that the Applicant was entitled without exemption to certain documents.(b) The Queensland Treasury determined that it did not want to allow the Applicant to exercise his right to have access to the documents as required by the FOI Act and wished to delay access as long as possible, if it could not finally prevent his gaining access.(c) The Queensland Treasury decided not to comply with the legal obligations binding it consequent upon Sarquis' decision.(d) The Queensland Treasury, by means of fraud, unlawful directions and abuse of power on the part of its employees concealed its delegate's true decision, knowing that the Applicant would continue to attempt to exercise his right of access to the documents in issue.(e) The Queensland Treasury, knowing full well that the Applicant had an unrestricted right of access, thereby committed itself to carrying out the unlawful purpose of obstructing the Applicant's subsequent attempts to exercise his right of access.(f) To assist in that unlawful purpose, the Queensland Treasury sought and obtained legal advice and assistance from the Crown Law Office and counsel in:- (i) composing a fraudulent letter to the Applicant from Sarquis; (ii) formulating the reasons for decision of Henry Smerdon, its Principal Officer; (iii) opposing the Applicant before the Information Commissioner; and(iv) conducting an Application for Review to the Supreme Court (Application 696 of 1995).(g) In formulating its case before the Supreme Court, the Queensland Treasury acted unlawfully in that it sought to pervert the operation of section 98 of the FOI Act and thereby abuse the process of the Supreme Court. To assist it in that purpose, the Queensland Treasury sought and obtained legal advice and assistance from the Crown Law Office and counsel.Mr Murphy added that he did not allege that Crown Law officers, or counsel, were aware of the "true purpose and unlawful conduct of Queensland Treasury".46. Mr Murphy alleged that prior to making his written decision, Mr Sarquis had made up his mind to disclose the names of officers appearing on the documents to which Mr Murphy had requested access. Mr Murphy alleged that Mr Sarquis was subsequently instructed to find that the names were exempt matter. In support of this allegation, Mr Murphy referred to a number of documents, including a memorandum dated 13 September 1993 to the Under Treasurer from Ms J Macdonnell, who was then the Director of the Office of State Revenue, and which stated:A freedom of information application was lodged by Mr John Murphy on behalf of Milglade Pty Ltd on 24 June 1993 seeking access to a land tax file.It could be inferred from the wording of the application that one of the purposes of the request was to access the names of Office of State Revenue staff who had dealt with the company's file.Mr Murphy, on behalf of his company, has had ongoing dealings with the office and was investigated in relation to a land tax principal place of residence concession, which was subsequently disallowed. He has been aggressive and abusive in his conversations with staff and has threatened to place various staff members on a "list" for reprisal action. I have personally spoken to Mr Murphy on one occasion and was threatened with having my name put on the list when I did not agree to negate the land tax assessment.On this basis and in reliance on exemptions available in the FOI Act, exemption of material disclosing officers' names was recommended to the FOI Co-ordinator. Access to the file was granted on this basis. Mr Murphy has now lodged a request for internal review of the decision to exempt this material and I am advised it is the internal reviewer's intention to reverse the original exemption decision. I am concerned at the preparedness to reverse this decision as it may effectively establish a precedent, making it difficult to support any future recommendation for exemption of officers' names. While such exemption is not generally sought by the Office of State Revenue, certain instances are considered to warrant a more cautious approach, particularly where there is an indication of officers being targeted for undesirable attention.A similar issue was considered by the Administrative Appeals Tribunal in respect of the Commonwealth FOI Act in Re Z and Australian Taxation Office (1984) 2 AAR 190. In that case it was held the names of ATO staff were exempt from disclosure under section 40(1)(c) or (d) of the Commonwealth FOI Act, because there was a strong possibility that the revelation of the names of officers who had dealt, even in a routine way, with the taxpayers' affairs would undermine public confidence in the strict confidentiality which surrounds the ATO's operations. The AAT considered this confidentiality was respected by both the public and the agency's officers and it, therefore, was not in the public interest to breach that confidence.Section 40(1)(c) of the Commonwealth FOI Act corresponds with section 40(1)(c) of the Queensland FOI Act. There is no section directly comparable with section 40(1)(d) in the Queensland Act.While the matter is untested in relation to the Queensland FOI Act, a similar approach should be adopted - particularly where there is evidence that the taxpayer would seek to intimidate the officers concerned. It is, therefore, my strong view the original exemption decision should be confirmed on internal review and the matter be determined by the Information Commissioner should the applicant pursue the matter to external review (- it is expected he will). Any decision prior to such external review would, in my opinion, be premature.Your thoughts on the matter would be appreciated.47. Appearing on the memorandum are two handwritten notes. The first appears to be a response from the Under Treasurer to Ms Macdonnell, which states:If Mr Murphy's behaviour has been as you say it has, then I agree we should take all reasonable steps to protect the names of staff involved.This should be conveyed to the Internal reviewer.It would then be a matter for the Information Commissioner to determine, if necessary.48. The second handwritten note appears to have been made by Ms M Haley, a staff member of the respondent, and states: "Advised Mike Sarquis 16/9/93. He requested background info in writing re applicant and reason for exemption." It appears that a memorandum dated 17 September 1993 was then sent to Mr Sarquis by Ms Macdonnell, outlining her concerns about disclosure of the names and pointing out the possible relevance of s.40(c).Ms Macdonnell concluded by saying:While the matter is untested in relation to the Queensland FOI Act, a similar approach [to the approach in Re Z] should be adopted - particularly where there is evidence that the taxpayer would seek to intimidate the officers concerned. It is my strong view the matter should be considered by the Information Commissioner if the applicant pursues the matter to external review as this will provide guidance in future similar cases. Any decision prior to such external review would, in my opinion, be premature.49. At paragraphs 83-88 of his affidavit, Mr Murphy deposed to a conversation he had with Ms Haley as follows:83. I discovered Haley's part in the matter early in 1996, and I contacted her by phone on 4 April 1996.84. I put to her that she knew that Sarquis had decided that the material was not exempt but that she had nevertheless relayed what she knew to be an unlawful direction from her superior.85. Without hesitation, Haley admitted to me that she knew the nature of the communication. She admitted readily that she knew that Sarquis had decided I was to have unrestricted access.86. She readily admitted that she knew the instruction she relayed was intended to cause Sarquis to notify me that he had reached a decision to exempt the documents when, in fact, he had not.87. She justified herself by saying that she was entitled to so instruct Sarquis because she was following an order from her superior officer (Macdonnell).88. I was unable to persuade her that she was obliged not to obey an instruction which was unlawful to her knowledge.50. Mr Murphy also deposed to the fact that he had had a discussion with Mr Sarquis, and that Mr Sarquis had failed to deny that he had previously decided that the names of the staff were not exempt, or that he had acted under direction. Mr Murphy contended that this lack of a denial supported a finding of those facts.51. Mr Murphy contended that once Mr Sarquis had made up his mind that the matter in issue was not exempt matter, then Mr Murphy became entitled to have access to the matter unless Mr Sarquis changed his mind. Mr Murphy says Mr Sarquis at no stage changed his mind but was rather directed to make a finding contrary to his original conclusion. Mr Murphy contended that from the time Mr Sarquis made up his mind that the matter in issue was not exempt matter, Mr Murphy was entitled to the names of the officers, and from that time there was a conscious intention on the part of officers of the respondent to deny him access to matter which he had a right to obtain.52. At paragraph 26 of his submission received on 16 September 1996, Mr Murphy listed some 19 circumstances which he contended lend support to his allegation of a continuing intention on the part of staff of the respondent to deny him access to what was lawfully his. The listed circumstances were:(a) the general behaviour of Treasury employees - (i) they have refused to recognise the purport of the judgment of the Supreme Court in Application 696 of 1995 and remove the offending material from their files; (ii) they have repeatedly refused to confirm the untruth of the assault allegations by the simple expedient of phoning the Director of Legal Services of the B.C.C. (Ms. Robyn Chapman).Ms. Chapman conducted an internal investigation in 1995 and subsequently admitted to the Applicant and his solicitor that the allegations were a "malicious and vindictive fabrication by Council employees." The Applicant has informed a number of OSR employees of her admission;(iii) the quite obviously contrived "reasons" advanced by Siddle (the OSR decision maker) to suppress documents under section 41 - those very documents which evidence the unlawful directions given to Sarquis and which ought to have been produced to the Applicant under two previous requests under the FOI Act (MPL56 and MPL58), tendered to the Information Commissioner in application MPL46, and disclosed to the Supreme Court under RSC Order 35 in Application 696 of 1995.(b) the fact that certain Treasury employees had personal motives to cause the documents to be suppressed - (i) certain of the material is defamatory of the Applicant - the Information Commissioner has the Applicant's affidavit and exhibits in application MPL46 which demonstrate this. Whether or not the Applicant might ultimately succeed in a suit againstthem and to what extent, it was obviously in the employees' interests that he not have the names of the persons responsible for the creation and dissemination of that material (see also sub-paragraph (1), below);(ii) some of the documents now in the Applicant's possession (including those mentioned in this application) demonstrate prima facie that Treasury employees committed criminal offences;(c) the extremely deficient nature of the purported "Reasons for Decision" given by Kevin Martin (the Department of Justice internal reviewer). Mr. Martin failed to give adequate reasons at his first attempt. He failed again when prompted by the Applicant. In our submission, he again failed to comply with the law and the order of the Supreme Court on his third attempt.It is open to the Information Commissioner to take cognisance of the fact that Mr. Martin is a very experienced lawyer who should be taken to know his duty and the law on this subject.It is further open to the Information Commissioner to recognise, it is submitted, that Mr. Martin's refusal to do his duty (despite prompting by the Applicant, and by the Court) is consistent with a course of conduct which is designed to obstruct and frustrate the Applicant at every turn;(d) the otherwise inexplicable omission by Sarquis to mention in his affidavit before the Information Commissioner that he had formed the opinion that section 42(1)(c) did not apply to the Applicant when he well knew that section 42(1)(c) was being claimed as a ground for exemption. Indeed, his statutory declaration was, it is submitted, misleading in this important sense and deliberately so;(e) Barber's otherwise inexplicable failure to depose to her personal knowledge of the Applicant and her judgment (which she recorded in writing) that the Applicant was not a dangerous person;(f) the failure of the Treasury to disclose certain very relevant documents (inimical to its case before the Information Commissioner) to the Commissioner and the Supreme Court in Application 696 of 1995;(g) the obvious intention of the Treasury to release the documents only if its employees had no objection.Sarquis made his decision on 13 September 1993 at the latest as is evidenced by Macdonnell's letters (documents 294 and 296 in the bundle "JPM-11"). [There is no document 296 in my copy of exhibit "JPM-11" but document 268 is a memorandum from Ms Macdonnell.] Therefore, it is submitted, Sarquis was functus officio possibly as early as that date and certainly on 20 September 1993 when he notified the Applicant (falsely, it is submitted) of his alleged decision.Nevertheless, Treasury employees were making enquiries on 20 September 1993 and 14 October 1993 plainly directed to determining the desires of certain OSR employees. The Applicant reminds the Information Commissioner that Sarquis did not allegedly "revoke" his decision formally until 4 October 1993 at the earliest - even if that was a valid revocation, which, we submit, it was not, since the decision he allegedly revoked (that the documents were exempt) was never made, in fact or in law.In this regard, the Information Commissioner might have regard to document 186 and consider that that document, coupled with the enquiries mentioned in the last sub-paragraph are further evidence that the alleged revocation was fraudulent and for an ulterior purpose;(h) the coincidence of the simultaneous destruction of the computer copy, the OSR copy and the Minister's copy of each of two faxes which were directed towards preventing the Applicant complaining to Members of Parliament (probably in contempt of the Parliament), and which must, it is submitted, both have been in a similar vein - i.e. defamatory of the Applicant;(i) document 186 addressed to a person named "Mark" - alleged by the Applicant to be Mark Viglan, a Treasury solicitor. In our submission, this is plainly both a recognition at the time by Sarquis that no proper grounds existed for the section 42(1)(c) exemption he claimed and a plan to keep the Applicant at bay until some evidence could be gathered;(j) the dishonest and fraudulent behaviour of Sarquis and Barber prior to and at the meeting on 15 October 1993 where they contrived to deceive the Applicant by purporting to revoke their decisions on the grounds that, having met the Applicant, they realised in effect that they had made a mistake;(k) Sarquis' enquiries of the wishes of the OSR employees on the very day (20 September 1993) he wrote his letter conveying his alleged decision to the Applicant - four days after he was apprised of the Under-Treasurer's comments agreeing with Macdonnell's wish that the Applicant not have the documents; (l) the comment by the Under-Treasurer on 21 September 1993 that the alleged exemption decision was "wise" in the circumstances of the Applicant's threat to sue Sarquis - as was his legal right. The Applicant submits that this comment confirms the true purpose of the Treasury - to protect its employees from civil suit.There was no suggestion in that document that Smerdon thought the decision "wise" because he regarded the Applicant as dangerous - consistently with Smerdon's failure to raise section 42(1)(c) when he made his decision. On the contrary, the decision was seen as "wise"because the Applicant had asserted that he was willing to sue Sarquis and therefore could be assumed to be willing to sue other employees whose names he was unable to obtain because of Sarquis' "wise" decision;(m) the fact that Sarquis told the Applicant that section 42(1)(c) would not be used again; that Barber recorded her opinion that the Applicant was not dangerous; that Smerdon did not raise section 42(1)(c); that the Treasury did raise the section on external review - these are all consistent with Macdonnell's express wish that the Applicant not have access unless it was granted by the Information Commissioner;(n) the behaviour of the Crown Law solicitor, Lisa Fleming, who, given the very serious nature of the allegations, had a plain professional duty to take reasonable steps to check the accuracy of what she had been told by the two B.C.C. employees (Quin and Corrie) before she swore the statutory declaration she tendered to the Commissioner;(o) the "manure incident", in our submission, is consistent with the vindictive and high-handed behaviour of the Treasury's employees from the beginning of this matter in 1991;(p) the plain threat to the Information Commissioner by the employees' trade union - the State Public Services Federation (Queensland) - in its submission in the external review of request MPL46;(q) that the Treasury's use of the natural person Bradley as its "Applicant" in Application 696 of 1995 to circumvent section 98 of the FOI Act was, it is submitted, an abuse of the process of the Supreme Court;(r) further, it is submitted, the circumstances of that application, particularly the attempt to circumvent section 98 of the FOI Act, point to an ulterior motive on the part of the Treasury. In our submission, that motive could have been none other than to frighten the Applicant away from defending his rights by the threat of an adverse costs order in the Treasury's own application - a situation which the Parliament had deliberately intended to avoid when it enacted section 98;(s) Macdonnell's letter to the SPSF(Q) rejecting the very argument she instructed her agency's solicitors to put to the Information Commissioner and the Supreme Court against the Applicant.Mr Sarquis' decision53. Much of Mr Murphy's evidence is aimed at establishing that Mr Sarquis had already made a decision prior to formulating his written reasons for decision, but changed it at the direction of a superior officer or officers. 54. In her memorandum dated 13 September 1993, Ms Macdonnell stated, "I am advised it is the internal reviewer's intention to reverse the original exemption provision." However, the written decision of Mr Sarquis was dated 20 September 1993 and differed markedly from that "intention". Mr Murphy argued that a distinction can be drawn between the formulation of a decision and committing the decision and reasons for decision to writing. 55. A useful discussion of what constitutes a decision, made in the exercise of a statutory decision-making power, can be found in the judgment of Northrop J in Ricegrowers Co-operative Mills Ltd v Bannerman and Trade Practices Commission [1981] FCA 211; (1981) 38 ALR 535, at pp.542-544 (see also Re Sullivan and Department of Industry, Science and Technology (Commonwealth Administrative Appeals Tribunal, Mr P Bayne (Senior Member), No. A95/197, 6 June 1997, unreported), at paragraphs 84-89). In considering what constitutes a "decision" under the Administrative Decisions (Judicial Review) Act 1977 Cth, Northrop J stated (at p.544):... The mere thought processes taking place in the mind of the person when considering whether or how to exercise a power or to perform a duty of an administrative character under an enactment do not, in my opinion, constitute a decision. In addition to thought processes, there must be some overt act by which the conclusions reached as a result of those thought processes are manifested. The manifestation may take many different forms.It may take the form of a verbal or written communication of the conclusion to the person affected. It may take the form of no action being taken when otherwise a definite action would have been taken.56. Also relevant are the observations of Ambrose J in Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 2 Qd R 138, at pp.144-145. At p.144, Ambrose J stated:Indeed there is strong authority in my view for the proposition that until at least some notification of a decision is given to an interested party or until some formal public record is effected, no final decision can be said to have been made. Until the decision maker notifies an applicant of the decision made upon his application either personally or by a form of public notification, he has a locus poenitentiae to alter or vary that decision.57. I do not consider that the evidence before me can be described as prima facie evidence that Mr Sarquis had reached a final decision in relation to Mr Murphy's internal review application prior to the time at which Mr Sarquis signed and posted his notice of decision addressed to Mr Murphy, dated 20 September 1993. In the process of developing a final decision, a decision-maker will often develop views on particular aspects of the case. Some of those views will be more strongly held than others. A decision-maker generally should take care in expressing such views to other persons (e.g., by cautioning that they represent the official's present thinking, rather than a final decision), but the expression of such views will often be a valuable tool in drawing out responses which may shed further light on the issues, and may well lead to a change of view on the part of the decision-maker.58. Section 34 of the FOI Act sets out the requirements for a notice of decision given in response to an FOI access application, or an application for internal review (see s.52(4) of the FOI Act). Leaving aside those provisions which deem an agency to have made a negative decision when statutory response times have been exceeded (see s.27(4), s.52(6), and s.79(1) of the FOI Act), I have difficulty conceiving of a case in which it might be proper to find thata decision refusing access had been made on behalf of an agency under the FOI Act, prior to the decision-maker despatching a signed notice of decision in response to a relevant application under the FOI Act. On the evidence before me, I consider that the decision of Mr Sarquis in response to Mr Murphy's internal review application was expressed in his letter to Mr Murphy dated 20 September 1993, and that any earlier comments made by Mr Sarquis to officers of the respondent did not constitute a decision in response to Mr Murphy's relevant application for internal review under s.52 the FOI Act.59. There was therefore no earlier decision to grant access, which agency officers acted in disregard of, to defeat Mr Murphy's rights. But there are still allegations made by Mr Murphy which call into question the propriety of Mr Sarquis' decision, as recorded in the letter dated 20 September 1993.60. The Judicial Review Act contains three grounds for challenge to a decision which reflect the allegations of impropriety made by Mr Murphy. Under s.20(2)(e) of the Judicial Review Act, a decision may be challenged on the basis that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made.Section 23 of the Judicial Review Act lists instances of improper exercise of power, including, the exercise of a personal discretionary power at the direction or behest of another person (s.23(e)), the exercise of a power for a purpose other than a purpose for which the power is conferred (s.23(c)), and the exercise of a discretionary power in bad faith (s.23(d)).61. Under s.28(1) of the FOI Act, an agency has a discretionary power to refuse access to exempt matter. An authorised decision-maker at agency level who, in responding to a valid FOI access application, proposes to exercise the power conferred by s.28(1) of the FOI Act, is ordinarily faced with two decisions:(a) whether particular matter satisfies the test for exemption under at least one of the exemption provisions in the FOI Act; and(b) whether he or she should exercise the discretion conferred by s.28(1) of the FOI Act (which is the only source of power to refuse access to exempt matter) so as to refuse access to the matter in question.62. Strict logic would suggest that decision (a) should always come first. If the matter in issue does not qualify for exemption, the applicant for access has a legally enforceable right to be given access under the FOI Act (see Re Woodyatt and Minister for Corrective Services [1995] QICmr 1; (1995) 2 QAR 383 at p.403, paragraph 48) and no occasion arises for the exercise of the discretion conferred by s.28(1). However, in practical terms, it is not strictly necessary that decision (a) should be the first one considered by an authorised decision-maker under the FOI Act. For example, it may well be that a decision-maker need not give detailed consideration to whether the matter in issue technically qualifies for exemption, if he or she decides (assuming the matter in issue to be exempt) that the matter should be disclosed in any event, on the basis that no essential private or public interests would be prejudiced by disclosure. Considerations relevant to the proper exercise of the discretion conferred by s.28(1) may well be more extensive than the material facts and considerations which afford a basis for exemption. In many cases, the gathering of information and consideration of issues involved in both decisions will probably proceed simultaneously (although a decision-maker should always be careful to clearly distinguish between the material facts and relevant considerations which affect each decision).63. Ms Macdonnell's memorandum dated 13 September 1993 raised with the Under Treasurer concerns about staff problems which might arise if the names of officers were released in the particular case. She also raised the possible application of an exemption provision relating to staff management (s.40(c) of the FOI Act) and referred to a decision of the Commonwealth Administrative Appeals Tribunal on a similar issue (Re Z and Australian Taxation Office (1984) 6 ALD 673) which, at face value, tended to support the application of the s.40(c) exemption. She sought the Under Treasurer's thoughts on the matter. 64. It may be that the Under Treasurer's response to Ms Macdonnell's memorandum (see paragraph 47 above) was taken as a direction by Ms Haley and communicated as such to Mr Sarquis (although, in my view, it was not framed in the terms of a direction). However, the evidence I have of Mr Sarquis' actions does not suggest that he immediately followed any direction which may have been passed on by Ms Haley. Ms Haley's note records that his response was to ask for background information in writing and seek reasons for exemption.He then received Ms Macdonnell's memorandum dated 17 September 1993, which raised the possible application of s.40(c). But, in his written decision, he determined that the names of the officers were exempt under s.42(1)(c) and s.44(1) of the FOI Act. If he was directed to find matter exempt under s.40(c), he failed to act in accordance with such a direction. 65. Mr Sarquis was dealing with Mr Murphy's internal review application "on behalf of the [respondent] agency" (see s.33(1) of the FOI Act). I consider that Mr Smerdon and Ms McDonnell were entitled to make known to Mr Sarquis their views that officers' names qualified for exemption under the FOI Act. There would have been no impropriety in Mr Sarquis taking their views into account, and being persuaded to make a decision which accorded with their views, provided his decision was not made at the direction or behest of Mr Smerdon or Ms McDonnell. I am not satisfied that the material before me raises a prima facie case that Mr Sarquis made his decision at the direction or behest of another.66. I have also referred to the contention that Mr Sarquis' decision was made in bad faith or for an ulterior purpose. In this case, the evidence of internal departmental communications displays information which would be relevant to whether the names of the officers were exempt matter, and information which would be relevant to the exercise of the s.28(1) discretion. The evidence itself goes to what representations were made to Mr Sarquis, rather than directly to the matters Mr Sarquis considered in making his decision. I do not consider that the material before me can be characterised as prima facie evidence that Mr Sarquis' decision was made in bad faith or for an ulterior purpose. As explained at paragraph 40 above, simply falling into an error of law or procedure is not sufficient grounds for the application of the 'improper purpose exception'. I consider that what must be shown is prima facie evidence of a course of action adopted with knowledge of wrongdoing. I could not make such a finding based on the material before me.67. Finally, I note that even if I were mistaken, and the actions of officers of the respondent overall constituted an improper purpose capable of displacing legal professional privilege, the fact of the matter is that none of the documents in issue was created for the purpose of Mr Sarquis making his internal review decision. In fact, none of them was prepared prior to Mr Sarquis' decision being revoked. Therefore, none of the communications in issue could be said to have been made in preparation for, or in furtherance of, any improper purpose with respect to the making of Mr Sarquis' decision.Subsequent events68. Mr Murphy also complained about the subsequent revocation of Mr Sarquis' and Ms Barber's decisions. However, in a letter dated 22 September 1993 to the respondent, Mr Murphy actually suggested that "to save time and trouble for all concerned, and to facilitate my access to the documents, that the whole process be restarted and done according to law".That course was adopted by the respondent. 69. After the revocation of Mr Sarquis' and Ms Barber's decisions, a new decision in respect of the 1993 access application was made by Mr Smerdon, in his capacity as principal officer of the respondent agency. The respondent explained that the principal officer made the decision so as to permit Mr Murphy to proceed directly to external review by the Information Commissioner (see s.73(3) of the FOI Act). Before making his decision, Mr Smerdon obtained legal advice (which is in issue in this external review). After considering the legal advice, Mr Smerdon decided that the names of the officers were exempt matter under s.40(c) and s.44(1) of the FOI Act. While it is true that Mr Smerdon's decision was overturned on external review, I am not satisfied that the material before me raises a prima facie case that Mr Smerdon sought legal advice, and made his decision, knowing that a decision to exempt the officers' names would be contrary to law. In light of the result arrived at on similar issues in cases heard by the Commonwealth Administrative Appeals Tribunal (the cases are analysed in Re Murphy at pp.781-787; paragraphs 109-134), I do not think it could be seriously maintained that there were no grounds to support an honest belief on the part of Mr Smerdon (or other officers of the respondent) that the names of officers were exempt matter under the FOI Act.70. Turning to the proceedings for review, under Part 5 of the FOI Act, of Mr Smerdon's decision, the case on behalf of the respondent was conducted by the Crown Solicitor. The Crown Solicitor lodged written submissions (supported by sworn evidence), contending that the names of the officers were exempt matter under s.40(c), s.42(1)(c) and s.44(1) of the FOI Act. I do not consider that there is before me prima facie evidence that relevant officers of the respondent (or of the Crown Solicitor's office) had formed a concluded view that those exemption provisions did not apply to the matter in issue, but that nevertheless the respondent would continue to refuse access to the officers' names. While I ultimately found that the names were not exempt matter, I do not consider that there was any impropriety in the respondent, through its legal representatives, seeking to argue a case for exemption. The law relating to freedom of information in Queensland was, at the time of my decision, still in its developmental stages. I consider it reasonable that agencies should, from time to time, consider it necessary to raise issues for consideration by the Information Commissioner, where the law is not clear. (In saying this, I consider that it is incumbent on agencies, when making decisions to pursue objections to disclosure of matter in issue in an FOI access application, to consider carefully the commitment of their own resources, the resources of the Information Commissioner, and perhaps ultimately the Supreme Court. It would be unfortunate if public resources were to be wasted on objections to disclosure of matter which is most unlikely to be found to be exempt matter.)71. My comments in the preceding two paragraphs apply equally to the conduct of the Supreme Court proceedings. Further, I should note that there is no prima facie evidence before me to suggest that any of the matter in issue was communicated in furtherance of an abuse of the processes of the Supreme Court in terms of paragraph (g) of Mr Murphy's submission set out at paragraph 45 above.72. Mr Smerdon's decision, the participation of the respondent in my external review, and the subsequent Supreme Court challenge, were all undertaken with the input of legal advisers.The documents in issue record that legal advice. I have examined that advice in the course of this external review. I have also considered the evidence and submissions of Mr Murphy, including the list of circumstances set out at paragraph 52 above. Mr Murphy is clearly very dissatisfied with the conduct of the respondent in its dealings with him. He has asserted that his evidence and submissions constitute prima facie evidence of an improper purpose which underlay and tainted all communications with the respondent's legal advisers.73. Whatever the merit of the conduct of the respondent's officers with respect to Mr Murphy in particular instances, I do not agree with Mr Murphy on that point. I am not satisfied that there is prima facie evidence before me that any of the matter in issue was created in preparation for, or furtherance of, an illegal or improper purpose so as to displace the legal professional privilege which (as I have explained at paragraphs 27 and 30 above) otherwise attaches to the matter in issue.74. I therefore find that the matter in issue listed in sub-paragraphs 5(b), (c), (d) and (e) above, is exempt matter under s.43(1) of the FOI Act.Conclusion75. I vary the decision under review (being the decision made on behalf of the respondent on 1 July 1996 by Mr G Poole) by finding that documents H8, H9 and I7 (subject to deletion of the headings to the covering letters, notional invoices and memorandum of counsel's fees, which headings are not in issue) are not exempt matter under s.43(1) of the FOI Act.76. I affirm those parts of the decision under review which found that the balance of the matter in issue (described in sub-paragraphs 5(b), (c), (d) and (e) above) is exempt matter under s.43(1) of the FOI Act..........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Cullen and Department of Public Works [2011] QICmr 12 (21 January 2011)

Cullen and Department of Public Works [2011] QICmr 12 (21 January 2011) Last Updated: 7 June 2011 Decision and Reasons for Decision Application Number: 310218 Applicant: Cullen Respondent: Department of Public Works Decision Date: 21 January 2011 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION – REFUSAL OF ACCESS – NON-EXISTENT DOCUMENTS – applicant seeks access to documents concerning his transfer – applicant contended additional information should exist – whether there are reasonable grounds for agency to be satisfied that documents exist to the extent they should be in the agency’s possession – whether agency has taken all reasonable steps to locate the documents – whether access to documents can be refused under sections 47(3)(e) of the Right to Information Act 2009 (Qld) on the ground set out in section 52(1)(b) of the Right to Information Act 2009 (Qld) – whether search of backup system required by section 29 of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary The applicant applied to the Department of Public Works (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to particular documents about his transfer from the Education Portfolio to the Business Development Portfolio in about mid 2000 and a later attempt to transfer him to the Housing Portfolio.[1] He requested that the date range for the Department’s searches cover the period of ‘01 January 2000 to present’. In its decision, the Department advised that it had not located any responsive documents. During the course of this external review, as a result of further searches requested by this Office, the Department located 43 pages related to the applicant, one of which is responsive to the applicant’s access application. The Department has agreed to release this page to the applicant in full. The applicant submits that the Department should conduct further searches of its ‘electronic records’ for the documents—namely searches of its backup system. After carefully considering all the submissions and evidence before me, I am satisfied that: the documents sought by the applicant should be in the Department’s possession the Department has taken all reasonable steps to find the documents but they cannot be found and on this basis, the Department may refuse access to the documents[2] because they are unlocatable.[3] Reviewable decision The decision under review is the Department’s decision dated 14 April 2010. Background Relevant steps taken in the Department’s and this Office’s consideration of the applicant’s access application are set out in the Appendix to this decision. For the purpose of this decision, three persons[4] referred to in the applicant’s application, Departments’ decision and both parties submissions are referred to as Officers 1, 2 and 3. Relevant evidence In making this decision, I have taken the following into account: the applicant’s access application and supporting material the applicant’s application for external review and supporting material the Department’s decision submissions provided by the applicant submissions provided by the Department file notes of telephone conversations between OIC staff and the applicant file notes of telephone conversations between OIC staff and Department staff relevant provisions of the RTI Act and previous decisions of the Information Commissioner of Queensland and other relevant case law as identified in this decision. Relevant law Under section 23 of the RTI Act, a person has a right to be given access to documents of an agency. However, this right is subject to a number of exclusions and limitations, including grounds for refusal of access.[5] Section 47(3)(e) of the RTI Act sets out the following grounds for refusal of access: 47 Grounds on which access may be refused (3) On an application, an agency may refuse access to a document of the agency and a Minister may refuse access to a document of the Minister–– ... (e) because the document is nonexistent or unlocatable as mentioned in section 52 ... . Section 52 of the RTI Act Section 52(1) of the RTI Act provides: 52 Document nonexistent or unlocatable (1) For section 47(3)(e), a document is nonexistent or unlocatable if— (a) the agency or Minister dealing with the application for access is satisfied the document does not exist; or Example— a document that has not been created (b) the agency or Minister dealing with the application for access is satisfied— (i) the document has been or should be in the agency’s or Minister’s possession; and (ii) all reasonable steps have been taken to find the document but the document can not be found. The Information Commissioner considered the grounds for refusal of access set out in section 52 in PDE and the University of Queensland[6] (PDE). In PDE, the Information Commissioner said that:[7] ... [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. In PDE,[8] the Information Commissioner found that to be satisfied that a document does not exist, it is necessary for the agency to rely upon its particular knowledge and experience with respect to various key factors including: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach) other factors reasonably inferred from information supplied by the applicant including: ○ the nature and age of the requested document/s ○ the nature of the government activity the request relates to. For an agency to be entitled to refuse access under section 47(3)(e) of the RTI Act on the ground set out in section 52(1)(b) of that Act, it is necessary to ask the following questions: are there reasonable grounds for the agency to be satisfied that additional documents exist, to the extent that they have been or should be in its possession and has the agency taken all reasonable steps to find the additional documents sought. In answering these questions, regard should be had to the circumstances of the case and the factors set out at paragraph 14 above. Are there reasonable grounds for the Department to be satisfied that the documents should be in its possession? On careful consideration of all of the information before me, I am satisfied that the answer to the first question is ‘yes’ and is not an issue in contention in this external review. In this regard, I have paid particular regard to: the applicant’s applications and submissions and the Department’s decision, which stated that ‘the relevant documents may have been or should be in the [D]epartment’s possession however after thorough and extensive searches the documents could not be located’ and submissions. Has the Department taken all reasonable steps to find the documents? The Department’s decision sets out the nature of the searches that it conducted to locate documents responsive to the terms of the applicant’s access application prior to issuing the decision: hardcopy files held by Officer 1 Officer 1’s emails hardcopy files held by Officer 2 Officer 2’s emails personal hardcopy files of Officer 3 Project Services Corporate Human Resources hardcopy files personal archived emails of Officer 3 Project Services Human Resources G drive the applicant’s personnel file in Project Services Project Services General Manager’s hardcopy files Project Services General Manager’s Tracking Database Project Services General Manager’s saved email folder Project Services Housing Portfolio’s hardcopy files Project Services Housing Portfolio’s G drive Aurion establishment records and Document Management System (DMS). During the course of this review, at the request of this Office, the Department conducted further searches. The searches were conducted within the following business groups: Project Services—because the applicant had worked there Human Resources (HR)— because Officer 3 worked in HR, specifically dealing with Project Services HR QBuild—because Officer 1 and Officer 2, who previously worked within Project Services now worked in QBuild. The Project Services searches examined all on-line electronic documentation stored on the network drives for Project Services in Brisbane and the Sunshine Coast Regional Office and file stores for the DMS, including documents with restricted access. The search term used for electronic searches was “cullen”. The HR searches reviewed documents controlled by the HR Directorate. The QBuild searches involved a search of the archived email folders for Officer 1 and Officer 2. As a result of the searches, the Department located 43 pages in Project Services related to the applicant, one of which is responsive to the applicant’s access application. The Department has agreed to release this page to the applicant in full. No responsive documents were located in HR or QBuild. The Department submits that no further responsive documents can be located for the following reasons: ... [W]hen the events occurred in [the applicant’s] application, the DMS records management system did not exist. The records management system that was in use at the time only had functionality to record files and did not register individual documents or folios against each file. Therefore, it is not possible to ascertain whether the requested documents have been registered and subsequently placed on a file. However, reviews of physical hardcopy files have failed to locate any relevant documents. As such, it appears that the documents requested by [the applicant] may not have been placed on a file. Alternatively, the documents may have been misfiled or placed on another file and due to the limited functionality of the records management system it is impossible to determine which files the documents were placed on. In respect to email correspondence requested by [the applicant], reviews of physical hardcopy files have failed to locate any relevant documents. As such, it appears that the emails may not have been printed and placed on hardcopy files. Checks of current staff email accounts have also failed to locate any relevant documents. Backup tapes would need to be searched in order to retrieve emails. The Department submits that it is not necessary, nor appropriate, to search its backup tapes for the requested documents. However, the applicant submits that: the Department should search its backup system and in failing to do so, the Department has ‘opted not to exercise due diligence’. In these circumstances, it is necessary to consider the RTI Act provisions relating to backup systems. Searches of backup systems The RTI Act defines “backup system” to mean ‘a system that has, for disaster recovery purposes, copied electronic data onto a separate data storage medium, for example, onto a backup tape’.[9] Section 29 of the RTI Act provides: Application not for backup system documents (1) An access application, however expressed, for a document does not require an agency or Minister to search for the document from a backup system. (2) However, subsection (1) does not prevent an agency or Minister searching for a document from a backup system if the agency or Minister considers the search appropriate. Note— While a search for a document from a backup system is not generally required before refusing access on the ground that the document is nonexistent or unlocatable, a search is required in the particular circumstances mentioned in section 52(2). Accordingly, the RTI Act requires a search of a backup system only in the circumstances set out in section 52(2) of the RTI Act.[10] Section 52(2) provides: 52 Document nonexistent or unlocatable ... (2) Before an agency or Minister may be satisfied under subsection (1)(a) that a prescribed document does not exist, a search for the document from a backup system is required, but only if the agency or Minister considers the document has been kept in, and is retrievable from, the backup system. That is, section 52(2) requires that a backup system be searched only with respect to documents that may not exist—not documents that exist but cannot be found. Otherwise, according to section 29(2) of the RTI Act, a backup system search occurs only if the relevant agency considers the search “appropriate”. In considering whether or not a backup system search is appropriate, an agency may take into account factors including: the nature and age of the requested document the length of time it would take to undertake the search and any costs that may be incurred by the agency as a result of undertaking a search of the backup system. In relation to these factors, the Department submits that:[11] As the request spans 10 years, technology (hardware/software) has changed several times and any need to access data from tapes stored prior to our current technology environment will require technology from that period in which the backup was completed. Costs unknown. In order for the [Department] to search for data and email [sic] for the period specified we would need to create an environment including legacy tape readers and identify enough disk space. An approximate cost would involve around 600 individual restores and searches from tapes each consisting of approximately four hours. An absolute minimum cost would be approximately $108,000. Given the inapplicability of section 52(2) of the RTI Act to documents that cannot be found, and on careful consideration of the technological difficulties, time and cost involved in searching backup tapes specified by the Department in the particular circumstances of this review, I am satisfied that: the RTI Act does not require that the Department undertake a search of its backup system and such a search is not appropriate in the circumstances. However, I acknowledge the applicant’s frustration with the search processes undertaken by the Department. It is noted that the Department’s failure to locate documents responsive to the applicant’s application indicates that the Department did not maintain adequate hardcopy files at the relevant time. In this regard, it is hoped and expected that the Department is utilising its current DMS so as to ensure that, in future, documents of a similar nature can be searched for and located both physically and electronically. Conclusion As set out above, I am satisfied that a search of the Department’s backup system is neither required nor appropriate. On careful consideration of the searches that the Department has conducted, set out at paragraphs 19 to 21 above, and all evidence before me, I am satisfied that the Department has used its knowledge of factors such as organisational structure, the functions and responsibilities of its business groups, its internal practices and procedures and the nature and age of the documents sought[12] to appropriately identify all relevant business groups to search and persons with whom to make enquiries. In doing so, I am satisfied that: the Department has conducted comprehensive searches for the documents sought by the applicant and such searches comprise all reasonable steps to locate them. Findings Taking into account all of the information set out above, I am satisfied that: the documents sought by the applicant should be in its possession the Department is not required to search its backup system for the documents and such a search is not appropriate in the circumstances the Department has taken all reasonable steps to locate the documents and they cannot be found the documents are unlocatable for the purpose of section 52(1)(b) of the RTI Act the Department can refuse access to the documents under section 47(3)(e) of the RTI Act. DECISION I affirm the decision under review and find that the Department can refuse access to the documents sought under section 47(3)(e) of the RTI Act on the ground set out in 52(1)(b) of the RTI Act I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ Jenny Mead Right to Information Commissioner Date: 21 January 2011 Appendix By application dated 18 February 2010, the applicant sought access to documents as follows: [The applicant]... was transferred from management duties (in the Education Portfolio to the Business Development Portfolio about mid-2000) to provide advice and assistance on the Integrated Planning Act within Project Services and a later attempt was made by [Officer 1] to contrive a transfer of [the applicant] from there to the Housing Portfolio, aborted after [the applicant’s] objection to [Officer 2]. A condition of [the applicant’s] acceptance of the initial transfer was the reclassification [of] his position from PO4 grade (at least) to PO5 grade. letters, memos, emails, etc – particularly between [the applicant] and [Officer 1]; and creation of Housing Portfolio PO4 Town Planner Position (2002/03); and memo (12/08/2003) from [the applicant] to [Officer 1], copied to [Officer 2] & [Officer 3]? and subsequently. The applicant requested that the Department’s searches cover the period of ‘01 January 2000 to present’. By letter dated 14 April 2010, the Department: set out the nature of the searches that it conducted to locate documents responsive to the terms of the applicant’s access application advised that it had not located any responsive documents and decided to refuse access on the basis that ‘the relevant documents may have been or should be in the [D]epartment’s possession however after thorough and extensive searches the documents could not be located’. In his application for external review dated 13 May 2010 and submissions dated 26 July and 9 August 2010, the applicant submitted that: Information independently provided to him is that the documents should exist. In particular, there should be email communications between himself and Officer 1 which occurred prior to, and discussed matters mentioned in, a ‘missing’ memorandum (a copy of which he has provided to the Department). The Department should search ‘electronic records’—that is, its backup system. The Department ‘has opted not to exercise due diligence in searching the electronic records as requested’. On 4 June 2010, this Office requested that the Department conduct further searches for documents responsive to the terms of the applicant’s access application and provide submissions and certified record sheets in relation to the searches conducted. By correspondence dated 28 June 2010, the Department complied with this request. In its response, the Department advised that searches of its network drive and current DMS resulted in location of 19 documents (comprising a total of 43 pages) related to the applicant. The Department submitted that the first 42 pages were outside the scope of the access application. The applicant was provided with a copy of the Department’s submissions and did not make any submissions in response regarding this issue. The Department accepted that page 43 was within the scope of the access application and did not object to the release of this page to the applicant. On 31 October 2010, this Office requested further submissions from the Department regarding the technology necessary to search backup tapes and the time and cost involved in doing so. By correspondence dated 31 October 2010, the Department responded to this request. [1] Paragraph 1 of the Appendix sets out the terms of the application.[2] Under sections 47(3)(e) of the RTI Act.[3] As mentioned in section 52(1)(b) of the RTI Act.[4] Who were, at the relevant time, employees of Project Services within the Department.[5] As set out in section 47(3) of the RTI Act.[6] 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. [7] At paragraph 34.[8] At paragraph 37. [9] Schedule 6 of the RTI Act.[10] ‘Before an agency or Minister may be satisfied under subsection (1)(a) that a prescribed document does not exist, a search for the document from a backup system is required, but only if the agency or Minister considers the document has been kept in, and is retrievable from, the backup system.’[11] The information that comprises these submissions was obtained by the Department from its advice from its Information Services Directorate.[12] As noted at paragraph 37 of PDE.

queensland

court_judgement

Queensland Information Commissioner 1993-

Seven Network (Operations) Limited and Department of Justice and Attorney-General; Department of Child Safety, Youth and Women (Third Party) [2018] QICmr 48 (29 November 2018)

Seven Network (Operations) Limited and Department of Justice and Attorney-General; Department of Child Safety, Youth and Women (Third Party) [2018] QICmr 48 (29 November 2018) Last Updated: 20 December 2018 Decision and Reasons for Decision Citation: Seven Network (Operations) Limited and Department of Justice and Attorney-General; Department of Child Safety, Youth and Women (Third Party) [2018] QICmr 48 (29 November 2018) Application Number: 313657 Applicant: Seven Network (Operations) Limited (ACN 052 845 262) Respondent: Department of Justice and Attorney-General Third Party: Department of Child Safety, Youth and Women Decision Date: 29 November 2018 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION REFUSAL OF ACCESS – EXEMPT INFORMATION – INFORMATION THE DISCLOSURE OF WHICH IS PROHIBITED BY AN ACT – pixelated CCTV footage concerning incidents occurring in a youth detention centre – whether information is confidential information under section 288 of the Youth Justice Act 1992 (Qld) – whether disclosure is prohibited by an Act – whether access to information may be refused under section 47(3)(a) and section 48 and schedule 3, section 12(1) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION REFUSAL OF ACCESS – CONTRARY TO PUBLIC INTEREST INFORMATION – pixelated CCTV footage concerning incidents occurring in a youth detention centre – whether disclosure would, on balance, be contrary to the public interest – section 47(3)(b) and section 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of Justice and Attorney-General (DJAG) under the Right to Information Act 2009 (Qld) (RTI Act) for information, including photographs and CCTV/body-worn camera and video footage relating to security breaches at Queensland’s correctional and youth detention centres since 1 January 2015. In its application, the applicant advised that it was agreeable to receiving access to documents and photos etc, with personal information redacted or pixelated. DJAG located 173 pages and three pieces of CCTV footage. It decided that 19 pages fell outside the scope of the application. It decided to give the applicant full access to 21 pages, partial access to 113 pages, and to refuse access in full to 20 pages and to the three pieces of CCTV footage. It decided that the CCTV footage was exempt information under schedule 3, section 12(1) of the RTI Act. It decided that disclosure of other information would, on balance, be contrary to the public interest. The applicant applied[2] to the Office of the Information Commissioner (OIC) for review of DJAG’s decision to refuse it access to the three pieces of CCTV footage, which concerned escape attempts from a youth detention centre. The applicant stated that it did not seek access to information that would identify a young person in detention and was agreeable to receiving access to the footage with the faces of the young people involved pixelated or blurred, so as to remove identifying information. During the course of the review, Machinery of Government changes occurred which resulted in responsibility for the youth justice portfolio being transferred from DJAG to Department of Child Safety, Youth and Women (DCSYW).[3] As the only information that remained in issue on external review was CCTV footage taken at a youth detention centre over which DCSYW now had control, DCSYW applied to OIC to participate in the review as a third party under section 89(2) of the RTI Act on the basis that it now had an interest in the information in issue and the decision under review. Participant status was granted on 18 April 2018. The practical effect of this was that, while DJAG technically remained the respondent agency, it played no further role in the review.[4] DCSYW assumed responsibility for providing submissions in support of the nondisclosure of the information in issue, and OIC dealt only with DCSYW for the remainder of the review. As the central issues for determination were the same as those raised in an application for external review that had been lodged earlier in time by another media organisation and that also involved CCTV footage taken inside a youth detention centre, I advised the applicant at an early stage that this review would be unable to finalised until a decision had been issued by OIC in the earlier review. A decision in the earlier review was published on 21 November 2018. In making my decision in this review, I have applied and rely upon the same principles and reasoning explained in detail in that earlier decision. A copy of that decision is attached as Appendix 2 to these reasons for decision.[5] For the reasons set out below, I set aside the decision under review. I find that there are no grounds upon which access to the pixelated CCTV footage to which the applicant seeks access may be refused under the RTI Act, and that the applicant is therefore entitled to access it. Reviewable decision The decision under review is DJAG’s decision dated 1 December 2017. While DCSYW also claims that the pixelated CCTV footage is exempt information under schedule 3, section 12(1) of the RTI Act, it additionally argues that disclosure of the footage would, on balance, be contrary to the public interest. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and the appendices). Significant procedural steps are set out in Appendix 1 to these reasons. Information in issue The information in issue is contained in three pieces of pixelated CCTV footage. The footage contains images of young people involved in escape attempts from a youth detention centre (Information in Issue). Two pieces of footage show the same incident from different angles. OIC has applied pixelation/blurring to the top half of the young persons’ bodies so as to redact identifying information to which the applicant does not seek access. I will provide DCSYW with a copy of the Information in Issue in this format. Issues for determination The central issues for determination are: (a) whether the Information in Issue is exempt information under schedule 3, section 12(1) of the RTI Act because its disclosure is prohibited under section 288 of the Youth Justice Act (1992) (Qld) (YJ Act); and (b) whether disclosure of the Information in Issue would be, on balance, contrary to the public interest. Exempt information – disclosure is prohibited by an Act Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[6] However, this right is subject to limitations, including grounds on which access may be refused.[7] An agency may refuse access to a document to the extent it comprises exempt information.[8] Schedule 3 of the RTI Act specifies the type of information the disclosure of which Parliament has determined is exempt because its release would be contrary to the public interest. Relevantly, under schedule 3, section 12(1) of the RTI Act, information is exempt under the RTI Act if its disclosure is prohibited under specified legislative provisions, one of which is section 288 of the YJ Act. DCSYW submits that disclosure of the Information in Issue is prohibited by section 288 of the YJ Act, and that the Information in Issue is therefore exempt information under schedule 3, section 12(1) of the RTI Act. Application of relevant provisions of the YJ Act Section 283(1) of the YJ Act provides that part 9 (Confidentiality) applies to confidential information relating to a child who is being, or has been, dealt with under the YJ Act. Section 283(2) provides that one of the ways that a child may be dealt with under the YJ Act is being detained. ‘Confidential information’ is relevantly defined in section 284 of the YJ Act: confidential information, relating to a child, includes – (a) identifying information about the child; ...[9] ‘Identifying information about a child’ is defined in schedule 4 to the YJ Act as meaning: ‘information that identifies the child, or is likely to lead to the identification of the child, as a child who is being, or has been, dealt with under this Act’. Example – Each of the following is identifying information about a child if it identifies the child, or is likely to lead to the identification of a child, as a child who is being or has been dealt with under this Act – (a) the child’s name, address, school or place of employment; (b) a photograph, picture, videotape or other visual representation of the child or someone else. Division 2 of the YJ Act is titled ‘Preservation of confidentiality generally’. Section 287 provides that this division applies to a person who has gained, gains, or has access to, confidential information relating to a child through involvement in the administration of the YJ Act. Section 288 of the YJ Act provides that such a person must not: (a) record or use the [confidential] information, or intentionally disclose it to anyone, other than under division 2; or (b) recklessly disclose the [confidential] information to anyone. Section 286 of the YJ Act provides that a person ‘discloses’ confidential information to someone else if the person: (a) orally discloses the information to the other person; or (b) produces to the other person, or gives the other person access to, a document containing the information; or (c) discloses the information to the other person in another way. Submissions of DCSYW/DJAG In its decision, DJAG simply stated that disclosure of the Information in Issue was prohibited under section 288 of the YJ Act, and that no exception to that prohibition applied in the circumstances. While DCSYW initially advised that it would rely on the same submissions it had lodged in ABC and DCSYW, it later decided to provide a fresh set of submissions specifically relating to this review.[10] Those submissions are essentially the same as made by DCSYW in ABC and DCSYW and which are set out in detail at paragraphs 23-32 of that decision (see Appendix 2). I have given careful consideration to all of the submissions made by DCSYW. In the interests of brevity, given that they are dealt with fully in ABC and DCSYW, the central points relied upon by DCSYW can be summarised as follows: the CCTV footage cannot be de-identified so as to remove confidential information within the meaning of the YJ Act because it is likely that there would be numerous people who are familiar with the young persons in question (including friends, family, detention centre workers and other detainees) and who, despite pixilation of the footage, would still be able to identify the young persons as children who are being, or have been, dealt with under the YJ Act a ‘disclosure’ for the purposes of section 286 of the YJ Act simply requires the production of ‘confidential information’ to another person: it does not require that the recipient of the confidential information not know the information Parliament’s object in enacting section 288 of the YJ Act was to protect the privacy of young persons being dealt with under the YJ Act and a sense of violation of privacy is likely to be felt by young persons even if the information is disclosed in a form where only those who already know of the young persons’ identity and the fact that they are/have been held in youth detention are able to recognise them a person tasked with pixelating the footage would not be familiar with the individual and would be exercising their own subjective view to decide what measures are necessary to de-identify the individual which may not be sufficient the small population of youth detention centres, together with young persons possibly coming from a small community, increases the likelihood of identification, even by those who may not already be aware that the young person is being dealt with under the YJ Act it is reasonable to expect that media organisations will use their ‘skill and experience in investigative journalism’ to identify the young persons in the footage; and consultation with the young persons shown in the footage should take place if disclosure is being contemplated. In support of its argument that pixelation may not be enough to protect a person’s identity, DCSYW relied upon a case which it did not raise in its submissions in ABC and DCSYW. In this case, which related to an alleged sexual offence against a minor in the United Kingdom, The Sun newspaper published a photograph of the 15 year old alleged victim with the alleged offender (a well-known football player whose identity was publicly known) that was posted on the victim’s Facebook account. The Court found that extensive efforts had been made by The Sun to de-identify the victim in the photograph. However, despite those efforts, the original photograph was still available on Facebook and social media users, who were familiar with the victim’s Facebook profile, recognised the photograph. Applicant’s submissions The applicant provided brief submissions[11] in which it argued that DCSYW’s arguments were ‘clearly flawed and untenable’ and stated that it disagreed that children could be identified if their identifying features were obscured: Nothing would ever be released under FOI legislation across the country if the basis of personal information was more than just names, addresses, numberplates, faces and other distinctive features like a birthmark or tattoo. Discussion I repeat and rely on my detailed discussion of DCSYW’s submissions in favour of nondisclosure as contained at paragraphs 34-67 of ABC and DCSYW. I am satisfied that the intention of the relevant confidentiality provisions contained in the YJ Act is to protect the identity of a young person in connection with their status as someone who is being, or has been, dealt with under the YJ Act. It is reasonable to conclude that the reason for the protection of a young person’s identity in connection with their status under the YJ Act is to avoid prejudicing the rehabilitation, reintegration and acceptance of young persons into society upon their release from detention. I therefore do not accept that the provisions were intended to operate to prevent the disclosure of information about identity and status to those who already know of the young person and their status under the YJ Act, i.e., those with ‘special knowledge’. The correct test for whether information qualifies as ‘confidential information about a child’ for the purposes of the YJ Act is whether it will identify a child, or will likely lead to the identification of a child, as a child who is being or has been dealt with under the YJ Act, to a person who has no special knowledge. Having carefully reviewed the Information in Issue, I do not accept that it is identifying information about a child for the purposes of section 284(a) of the YJ Act. I do not consider it likely that a person who does not already know of the incident(s) in question and the young persons’ involvement in them would be able to view the pixelated CCTV footage and identify the young persons, thereby learning of their status as young persons being dealt with under the YJ Act. The footage is taken at night and parts of it are blurred and of poor quality. This, together with the pixelation that has been applied, is sufficient, in my view, to remove any identifying information about a child from those with no special knowledge. In assessing whether the Information in Issue is confidential information for the purposes of the YJ Act, I have given regard to the factors identified at paragraph 53 of ABC and DCSYW, namely: the length and quality/clarity of video footage the event that is depicted and any other ancillary information that is depicted/described, including the circumstances in which the incident took place and the setting whether the incident/information has received public attention or notoriety, or whether there is ancillary information in the public domain that, when linked, is likely to lead to the identification of the child in question; and the manner in which the young person is depicted, including the presence of any distinctive clothing, or distinctive physical traits or characteristics, such as tattoos or other identifying marks, an unusual gait, a distinctive body shape, etc. On the information before me, I am not aware that the incidents have received public attention or notoriety, nor that there is ancillary information in the public domain that, when linked, is likely to lead to the identification of a young person to someone with no special knowledge. I accept that the likelihood of identification should not be considered in a vacuum and regard must be given to whether a person can be identified or is likely to be identified through reference to external sources (see the discussion at paragraphs 57 to 62 of ABC and DCSYW). However, there is nothing before me to suggest that that is likely in the circumstances of this case. I do not accept that the circumstances of the UK case relied upon by DCSYW and discussed above at paragraph 23) have any relevance or application in the present case. Identification of the victim there was possible not because insufficient measures had been taken to de-identify her, but because the alleged offender’s identity was publicly known and social media users were familiar with the original, unedited photograph of the victim with the offender that was still available on Facebook. I can find no similarities between that case and the circumstances that arise for my consideration in this review. In response to DCSYW’s contention that the young persons in question ought to be consulted about disclosure of the pixelated footage, I refer to and rely upon my reasoning in paragraphs 31 and 32 of ABC and DCSYW in rejecting that submission. Finding For the reasons set out above and explained in further detail in ABC and DCSYW, I find that the Information in Issue does not satisfy the definition of ‘confidential information’ in section 284(a) of the YJ Act and that its disclosure is therefore not prohibited by section 288 of the YJ Act. Accordingly, it is not exempt information under schedule 3, section 12(1) of the YJ Act. Application of the public interest balancing test Relevant law Another ground for refusing access is where disclosure would, on balance, be contrary to the public interest.[12] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[13] The RTI Act list factors which may be relevant to deciding the balance of the public interest[14] and sets out the following steps[15] to decide where the public interest lies in relation to disclosure of information: • identify any irrelevant factors and disregard them • identify relevant public interest factors favouring disclosure and nondisclosure • balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure would, on balance, be contrary to the public interest. No irrelevant factors, including those in schedule 4, part 1 of the RTI Act, arise for consideration in this case. Factors favouring disclosure DCSYW recognised the following public interest factors favouring disclosure of the Information in Issue: (i) disclosure could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability;[16] and (ii) disclosure could reasonably be expected to ensure effective oversight of public funds.[17] It did not discuss the application of these factors to the Information in Issue, but simply submitted that the factors should be given only moderate weight when balancing the public interest because release of the footage would not significantly advance the public interest. I do not consider that factor (ii) raised by DCSYW has any application to the Information in Issue. I cannot identify any reasonable basis for expecting that disclosure of pixelated CCTV footage showing unsuccessful escape attempts from a youth detention centre could enable effective oversight of public funds. In addition to factor (i) above, I consider that the following factors apply in favour of disclosure: (iii) disclosure could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest;[18] and (iv) disclosure could reasonably be expected to inform the community of the Government’s operations.[19] I am satisfied that disclosure of the Information in Issue would enhance DCSYW’s accountability for the management of youth detention centres and the security measures that exist at the centres. Disclosure could reasonably be expected to contribute to positive and informed debate about management and security of the centres, which are important issues of public interest, particularly given recent security incidents that have occurred at the centres and the resultant cost to the taxpayer. As I have noted, the escape attempts were unsuccessful and I consider disclosure would enable assessment of the security measures in place at the centre and how they could be improved so as to prevent other attempts, and improve security generally. For these reasons, I am also satisfied that disclosure could reasonably be expected to inform the community of the government’s operations in terms of the way in which it manages youth detention centres and the security of young persons who are detained there. Having regard to the nature of the Information in Issue and what it depicts, as well as its length and clarity, I afford moderate weight to factors (i), (iii) and (iv). Factors favouring nondisclosure DCSYW relied upon the following public interest factors favouring nondisclosure: (i) disclosure could reasonably be expected to cause a public interest harm, as disclosure would disclose personal information of a person other than the applicant[20] (ii) disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy;[21] and (iii) disclosure could reasonably be expected to prejudice the security of the youth detention centres.[22] I will refer to factor (i) as the ‘Personal Information Harm Factor’. I discussed the application of this factor at paragraphs 101 to 108 of ABC and DCSYW and I repeat and rely on the reasoning contained in that decision in finding that this factor does not apply to the Information in Issue. I am not satisfied that it is possible for those without special knowledge to identify an individual from the pixelated Information in Issue. Nor am I satisfied that the special knowledge that would allow identification is generally or easily available such as to demonstrate that identity could reasonably be ascertained by others. As discussed at paragraph 107 of ABC and DCSYW, even if I were to be satisfied that the Information in Issue should properly be characterised as personal information, the harm to the public interest contemplated by this factor only arises through the disclosure of such information. The concept of disclosure as used in the Personal Information Harm Factor apprehends the giving of information to a person or entity not otherwise possessed of knowledge of that information. While ‘disclose’ as used in the Personal Information Harm Factor is not defined in the RTI Act, the word is defined in section 23 of the IP Act as it relates to the application of the Information Privacy Principles – to ‘disclose personal information’ relevantly means to give that information to an entity who does not otherwise know the information and is not in a position to find it out. Where releasing personal information would not involve conveying to any person or entity information not already known to them, it cannot be said such release would ‘disclose’ personal information within the meaning of the Personal Information Harm Factor, and that factor will therefore not apply. I therefore find that the Personal Information Harm Factor does not apply to the Information in Issue. As regards factor (ii), DCSYW simply submitted that disclosure of information which could reasonably be expected to prejudice the protection of an individual’s right to privacy is a public interest factor favouring nondisclosure that should be afforded significant weight in the public interest balancing test. The concept of ‘privacy’ is not defined in the RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere free from interference by others’.[23] I acknowledge that protecting the privacy of young persons held in detention is one of the youth justice principles upon which the YJ Act is based. I have explained above why I accept that the young persons involved in the escape attempts may be able to be recognised by a very small cohort of people with special knowledge, despite the de-identification/pixelation of the Information in Issue. To that extent, I am satisfied that disclosure of the Information in Issue could reasonably be expected to prejudice the protection of the young persons’ right to privacy. In considering the weight that should be attributed to this factor, I take account of the following: the brief nature and sometimes poor quality of the pixelated CCTV footage; and the fact that only a very small cohort of persons who already have knowledge of the incidents may be able to recognise the young persons concerned. In these circumstances, I afford factor (ii) low weight in balancing the public interest. In relation to the application of factor (iii), DCSYW submitted that protecting the security of a detention centre is of the utmost importance and a security failure may result in harm to young persons and staff and, potentially, others. It argued that this factor should be afforded the highest weight and that it outweighs the public interest in disclosure. It also raised comments I had made in another review where young persons had gained access, through an internal point, to the roof of a detention centre and where I accepted that photographs that showed how that access was gained could reasonably be expected to prejudice the security of the centre. DCSYW submitted that: If the information were to be released to the applicant and subsequently broadcast, the children and young people in the youth detention centres will be able to view the footage and it has been the experience of youth detention centres nationally that seeing footage of misbehaviour in detention emboldens children and young people to imitate the actions and involve themselves in high risk behaviours that can put the security of the centre at risk. I accept that protecting the security of youth detention centres is extremely important, for the safety of young persons, staff and the community. In determining the weight to be afforded to this factor, I must assess to what extent disclosure of the particular Information in Issue could reasonably be expected to prejudice the security of the centre. I note that the two escape attempts do not involve covert or secretive techniques or methods. Rather, they were conspicuous and opportunistic attempts made in clear view of security cameras and that were quickly stopped by staff. Moreover, while I am constrained in being able to describe what the footage depicts,[24] I am satisfied that the ability to make attempts of the same nature could be avoided relatively easily, thus limiting the risk of imitation. To that extent, the Information in Issue is distinguishable from the photographs referred to in paragraph 52 above. In that other review, I was persuaded by the agency’s submissions that the internal point used by young persons to gain access to the roof and stage a long and destructive rooftop riot remained vulnerable to future access attempts were photographs of it to be disclosed. I also consider that the opportunity to make the kind of escape attempts depicted in the Information in Issue in this review would present itself very rarely, given the obvious and somewhat brazen nature of the attempts, such that I am not satisfied that disclosure of the Information in Issue would result in a significant increase in escape attempts of the same type or otherwise prejudice the security of the centre. For these reasons, I afford factor (iii) low weight in the public interest balancing test. Balancing the public interest test Having carefully considered the nature of the Information in Issue and what it depicts, and for the reasons explained above, I give moderate weight to each of the three public interest factors that weigh in favour of disclosure of the Information in Issue. I afford low weight to the public interest in protecting the privacy of the young persons concerned, and low weight to the public interest in protecting the security of a youth detention centre. I also take account of the RTI Act’s pro-disclosure bias as set out in section 44 of the RTI Act. After balancing those competing factors, I find that disclosure of the Information in Issue would not be, on balance, contrary to the public interest. DECISION I set aside the decision under review. In substitution for it, I decide there are no grounds upon which access to the Information in Issue may be refused under the RTI Act. I have made this decision under section 110 of the RTI Act as a delegate of the Information Commissioner, under section 145 of the RTI Act.Louisa LynchRight to Information CommissionerDate: 29 November 2018 APPENDIX 1 Significant procedural steps Date Event 12 December 2017 Office of the Information Commissioner (OIC) received an application for external review of the decision made by Department of Justice and Attorney-General (DJAG). 5 January 2018 OIC advised the applicant that its application for external review had been accepted. 12 January 2018 DJAG provided a copy of the Information in Issue. 22 March 2018 OIC wrote to the applicant to confirm that the applicant did not wish to pursue access to any information that would identify a child in detention and that OIC therefore had requested that DJAG advise whether it was prepared to grant access to a pixelated copy of the Information in Issue. OIC wrote to DJAG to express the preliminary view that the pixelated Information in Issue was not exempt information under schedule 3, section 12 of the RTI Act and to request that DJAG advise whether it was prepared to release it to the applicant in its pixelated form. 18 April 2018 DJAG advised that it had forwarded OIC’s letter to Department of Child Safety, Youth and Women (DCSYW) for response as DCSYW now had responsibility for youth justice information following Machinery of Government changes. DCSYW requested to be joined as a party to the external review. OIC granted the request. OIC updated the applicant. 26 April 2018 OIC requested that DCSYW provide its response to OIC’s letter dated 22 March 2018 by 11 May 2018. 17 May 2018 OIC advised DCSYW that it unless it advised to the contrary by 21 May 2018, OIC would proceed on the basis that DCSYW relied on the submissions it had made in external review 313486 that raised the same issues for determination, and OIC would provide those submissions to the applicant for response. 24 May 2018 OIC communicated to the applicant the submissions made by DCSYW in external review 313486. 28 May 2018 The applicant provided a brief submission in response. 31 May 2018 OIC advised the applicant that there would be a delay in finalising this review as it would be necessary to finalise review 313486 before steps could be taken to progress this review. 30 July 2018 DCSYW informed OIC that it had decided that it preferred to lodge separate submissions for this review rather than relying on the submissions lodged in external review 313486. 7 August 2018 DCSYW provided written submissions. 22 August 2018 OIC provided the applicant with DCSYW’s submissions and invited a response. 21 November 2018 OIC published its decision in external review 313486. APPENDIX 2Australian Broadcasting Corporation and Department of Child Safety, Youth and Women [2018] QICmr 47 (21 November 2018) [1] Access application dated 14 September 2017. [2] External review application dated 12 December 2017.[3] Administrative Arrangements Order (No.3) 2017. [4] DCSYW and DJAG advised that it was necessary for DJAG to retain administrative control of the relevant file as the respondent agency rather than transferring it to DCSYW because the access application had requested access to correctional centre information, for which DJAG retained responsibility. OIC confirmed with DJAG again on 19 November 2018 that it retained administrative control over the external review and remained the correct respondent agency. [5] Australian Broadcasting Corporation and Department of Child Safety, Youth and Women [2018] QICmr 47 (21 November 2018) (ABC and DCSYW).[6] Section 23 of the RTI Act. [7] As set out in section 47 of the RTI Act. [8] See section 47(3)(a), section 48 and schedule 3 of the RTI Act. [9] DCSYW does not rely upon any of the other subsections of section 284 of the YJ Act.[10] Dated 7 August 2018.[11] Dated 28 May 2018.[12] Sections 47(3)(b) and 49 of the RTI Act. [13] For example, where disclosure of the information could reasonably be expected to contribute to the administration of justice for a person (schedule 4, part 2, item 17 of the RTI Act). [14] In schedule 4 of the RTI Act. However, this list is not exhaustive and factors not listed may be relevant in a particular case. [15] In section 49(3) of the RTI Act.[16] Schedule 4, part 2, item 1 of the RTI Act.[17] Schedule 4, part 2, item 4 of the RTI Act.[18] Schedule 4, part 2, item 2 of the RTI Act. [19] Schedule4, part 2, item 3 of the RTI Act. [20] Schedule 4, part 4, item 6 of the RTI Act.[21] Schedule 4, part 3, item 3 of the RTI Act.[22] This is similar to schedule 4, part 3, item 10 of the RTI Act which concerns prejudice to the security or good order of a corrective services facility under the Corrective Services Act 2006 (Qld). [23] Paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’, Australian Law Reform Commission Report No.108, released 12 August 2008, at [1.56]. Cited in Balzary and Redland City Council; Tidbold (Third Party) [2017] QICmr 41 (1 September 2017) at [28].[24] Section 108(3) of the RTI Act prohibits the inclusion by OIC in its reasons for a decision of information that is claimed to be exempt information or contrary to public interest information.

queensland

court_judgement

Queensland Information Commissioner 1993-

Gilmour-Walsh and Caloundra City Council [2006] QICmr 7 (8 February 2007)

Gilmour-Walsh and Caloundra City Council [2006] QICmr 7 (8 February 2007) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Numbers: 2006 F0072, 2006 F0114, 2006 F0224, 2006 F0235, 2006 F0241 Applicants: 2006 F0072 – Caloundra City News 2006 F0114 – J Smith 2006 F0224 – A Farrand-Collins 2006 F0235 – J Wildman 2006 F0241 – P Gilmour-Walsh Respondent: Caloundra City Council Decision Date: 8 February 2007 Catchwords: FREEDOM OF INFORMATION – application of section 43(1) of the Freedom of Information Act 1992 – whether matter in issue qualifies for legal professional privilege – whether legal professional privilege waived – whether communications were made for an improper purpose Contents Background ............................................................................................................. 2 Steps taken in the external review process ............................................................. 3 Matter in issue ......................................................................................................... 6 Application of section 43(1) of the FOI Act to the matter in issue............................. 6 Submissions by the applicants..................................................................... 8 Conclusion ............................................................................................. 18 Decision ................................................................................................................... 19 Reasons for Decision Background 1. The five applicants reside in or near Maleny on Queensland’s Sunshine Coast. Each applied to the Caloundra City Council (‘the Council’) for access, under the Freedom of Information Act 1992 Qld (the FOI Act), to the ‘Maleny Community Precinct Probity Audit Report’ (the ‘Probity Report’). In 2001, the Council identified parcels of land to the east of the Maleny township as a proposed site to develop a Maleny Community Precinct including a residential development, golf course and other facilities. The Council’s proposal for the Precinct was the subject of widespread debate, controversy and criticism within the local community, with allegations of improper conduct being made against Council officers in connection with aspects of the proposal, including financial expenditure. In 2005, in response to the community criticism and unrest, the Council commissioned financial consultants, KPMG, ‘to conduct a probity audit with respect to the ...Project ... and report on whether the Council has conducted itself in compliance with all relevant aspects of the law, the Local Government Act, regulations, Council’s policies and procedures and prudent commercial practice’ (see page 1 of the Probity Report). The Probity Report examines specific issues in connection with the Project, including property issues, procurement and financial issues, governance issues and planning, joint venture and community consultation issues. It examines various aspects of the Council’s development of an effluent disposal plant on land owned by the Council (‘the CalAqua land’), as well as the Council’s purchase of farm land for the proposed golf course and residential development. 2. Given the similarity of issues arising in each of the review applications, it is appropriate to deal with them together in this decision. 3. As noted, in their initial FOI access applications, each applicant sought access to the Probity Report. Messrs Wildman, Farrand-Collins and Gilmour-Walsh also sought access to all addenda and papers accompanying the Probity Report, while Caloundra City News also sought access to: ‘the review by Council’s legal advisors, Allens Arthur Robinson; the covering letter as completed by KPMG; the Chief Executive Officer’s response; the legal advice from Allens Arthur Robinson dated 17/11/05 reference GNR:405612555; and the legal advice from Allens Arthur Robinson dated 16/11/05 reference GNR:RLM:000000.’ 4. The table below sets out the history of each application prior to external review: External Review Application No. Date of Access Application Date of Initial Decision Date of Internal Review Application Date of Internal Review decision Date of External Review application Caloundra City News 53696 21.11.05 23.12.05 9.1.06 2.2.06 7.2.06 Smith 53738 8.12.05 23.12.05 19.1.06 2.2.06 22.2.06 Farrand-Collins 53848 10.3.06 20.3.06 5.4.06 18.4.06 4.5.06 Wildman 53859 8.3.06 9.3.06 20.3.06 18.4.06 6.5.06 Gilmour-Walsh 53865 8.3.06 9.3.06 4.4.06 18.4.06 13.5.06 5. By identically worded letters dated 23 December 2005, 9 March 2006 and 20 March 2006, the Council’s Director (Governance and Strategy), Mr Terry Scanlan, informed the applicants of his decision to grant access to the Probity Report and associated documentation, subject to the deletion of some matter that Mr Scanlan decided was exempt from disclosure under the FOI Act. Mr Scanlan did not identify the relevant exemption provisions upon which he relied in deciding that some matter was exempt from disclosure. 6. Each applicant sought internal review of Mr Scanlan’s decision. By identically worded letters dated 2 February 2006 and 18 April 2006, Ms Dawn Maddern, Director (City Services), decided to affirm Mr Scanlan’s decision, indicating in the schedule attached to her decision that the deleted matter was exempt from disclosure under section 45(1) and section 49 of the FOI Act. 7. Each applicant applied to the Office of the Information Commissioner, on the dates shown in the table above, for external review under Part 5 of the FOI Act, of Ms Maddern’s decision to refuse them access to parts of the various documents. Steps taken in the external review process 8. Copies of the documents in issue were obtained and examined. Caloundra City News raised a ‘sufficiency of search’ issue regarding the existence of another document referred to in the material disclosed by the Council, and apparently responsive to the terms of Caloundra City News’ access application. The Council subsequently produced a copy of the document, comprising a letter dated 15 November 2005 from Allens Arthur Robinson to the Council with enclosures. Accordingly, the matter in issue in the external review initiated by Caloundra City News (review 53696) comprised: • document 1 - part 4.1 of KPMG’s covering letter to the Council dated 27 October 2005; • document 2 - various sections of the Probity Report; • document 3 - various sections of the Chief Executive Officer’s ‘Without Prejudice’ response to the Probity Report; and • document 4 - a letter dated 16 November 2005 from Allens Arthur Robinson to the Council with enclosures. 9. The matter in issue in the other four reviews comprised only documents 1-3 as described above. 10. By letter dated 6 July 2006, Assistant Information Commissioner (AC) Barker informed Caloundra City News of her preliminary view that document 4 qualified for exemption from disclosure under section 43(1) of the FOI Act. In the event that Caloundra City News did not accept her preliminary view, AC Barker invited it to lodge written submissions and/or evidence in support of its case, and advised that if she did not hear from it to the contrary by 24 July 2006, she would proceed on the basis that Caloundra City News accepted her preliminary view and withdrew its application for access to document 4. Caloundra City News did not respond within the time frame stipulated by AC Barker. Accordingly, document 4 is no longer in issue in review 53696. 11. By letter dated 7 July 2006, AC Barker informed the Council of her preliminary view that there was insufficient material before her to be satisfied that the matter in issue qualified for exemption under sections 45(1)(a), 45(1)(b), 45(1)(c), 45(3) or 49 of the FOI Act, and invited the Council to supply written submissions and/or evidence in support of its claims for exemption. 12. By telephone on 26 July 2006, Ms R Morrison of Allens Arthur Robinson advised that her firm had been instructed to act on behalf of the Council in connection with the reviews, and sought a meeting with AC Barker to discuss the nature of the material required in order to provide the Council’s response to AC Barker’s letter dated 7 July 2006. A meeting was held on 27 July 2006, at which Ms Morrison advised that the Council abandoned any claim for exemption under sections 45(1)(a), 45(1)(b) and 45(3) of the FOI Act, but maintained a claim for exemption under sections 45(1)(c) and 49 of the FOI Act. In addition, the Council advised that it also relied upon section 43(1) of the FOI Act in claiming exemption over some segments of matter. 13. By letter dated 7 August 2006, Allens Arthur Robinson provided the following material in support of the Council’s claim for exemption: • a submission from the Council dated 7 August 2006; • a statutory declaration by the Council’s Chief Executive Officer (Mr Garry Storch) dated 7 August 2006 with exhibits ‘GSO1’ to ‘GSO11’. 14. Copies of the submission, statutory declaration and exhibits (edited so as to remove references to the matter in issue) were provided to the applicants, who were invited to lodge responses. Responses were lodged by Caloundra City News, and Messrs Smith, Farrand-Collins, Wildman and Gilmour-Walsh on 2 September 2006, 30 August 2006, 7 September 2006, 10 September 2006 and 10 September 2006, respectively. 15. The applicants raised a number of issues of concern in their responses. Caloundra City News challenged the authority of Allens Arthur Robinson and Mr Storch to represent the Council’s position in the reviews (I will discuss that issue further below). Furthermore, Caloundra City News together with Messrs Farrand-Collins, Wildman and Gilmour-Walsh made additional submissions to the effect that paragraph 17 and exhibit GSO5 to Mr Storch’s statutory declaration were inaccurate and misleading. Paragraph 17 referred to the tabling, at a general meeting of the Council on 5 August 2004, of a financial feasibility report dated 23 July 2004 prepared by the Council’s Property Manager and which indicated that the Maleny Community Precinct Project could expect to provide a profit of nearly $8 million. Exhibit GSO5 purported to be that report. However, the applicants contended that the exhibit was not in fact the report that was tabled at the meeting, and that paragraph 17 could not be relied upon. 16. The Council was given an opportunity to respond to the applicants’ various submissions. By letter dated 28 September 2006, the Council’s solicitors provided a response, which included a copy of the financial feasibility report that had, in fact, been tabled at the Council’s general meeting on 5 August 2004, and which differed from exhibit GSO5 to Ms Storch’s declaration. 17. By telephone to the Council’s solicitors on 28 September 2006, a member of staff of my office sought clarification as the interpretation that was now to be placed on paragraph 17 of Mr Storch’s statutory declaration in light of the two differing reports concerning the Precinct Project’s profitability. 18. In response, the Council’s solicitors provided a supplementary statutory declaration of Mr Storch dated 29 September 2006, together with exhibits GSO12 and GSO13. Copies of that material were provided to the applicants. 19. By letter dated 13 November 2006, the Council advised that, in view of the recent resolution of legal difficulties concerning the contract to purchase the farm land, it was prepared to withdraw its claims for exemption under sections 45(1)(c) and 49 of the FOI Act. However, it maintained its claim for exemption under section 43(1) in respect of some segments of matter. 20. By letter dated 27 November 2006, I authorised the Council to give the applicants access to the matter which previously had been subject to exemption claims under sections 45(1)(c) and 49 of the FOI Act. I also informed the applicants that the sole matter remaining in issue comprised segments of matter that the Council claimed were exempt under section 43(1) of the FOI Act. 21. By letter dated 4 December 2006, I informed the applicants that, having now had an opportunity to review the matter remaining in issue, I had formed the preliminary view that it qualified for exemption from disclosure under section 43(1) of the FOI Act. In the event that the applicants did not accept my preliminary view, I invited them to provide written submissions and/or evidence in support of their respective cases for disclosure of the relevant matter. 22. The Council then advised that, due to confusion regarding the highlighting of matter which it claimed qualified for exemption under section 43(1), there were, in fact, additional segments of matter that the Council claimed qualified for exemption under section 43(1) of the FOI Act, and which I had not dealt with in my letter to the applicants dated 4 December 2006. I reviewed that additional matter (which had not been disclosed to the applicants) and advised the applicants by letter dated 14 December 2006 of my preliminary view that that matter also qualified for exemption under section 43(1) of the FOI Act. 23. By letters dated 8 December 2006, 21 December 2006, 1 January 2007, 7 January 2007 and 12 January 2007, the various applicants advised that they did not accept my preliminary view, and lodged submissions in support of their respective positions. 24. In making my decision in this review, I have taken account of the following material: • the matter remaining in issue; • the applicants’ FOI access applications dated 21 November 2005, 8 December 2005, 8 March 2006 and 10 March 2006; applications for internal review dated 9 January 2006, 19 January 2006, 20 March 2006, 4 April 2006 and 5 April 2006; and applications for external review dated 7 February 2006, 22 February 2006, 4 May 2006, 6 May 2006 and 13 May 2006; • the Council’s initial decisions dated 23 December 2005, 9 March 2006 and 20 March 2006; and internal review decisions dated 2 February 2006 and 18 April 2006; • Caloundra City News’ submissions dated 2 September 2006 and 21 December 2006; • Mr Smith’s submissions dated 30 August 2006 and 8 December 2006; • Mr Farrand-Collins’ submissions dated 7 September 2006 and 1 January 2007; • Mr Wildman’s submissions dated 10 September 2006 and 7 January 2007; • Mr Gilmour-Walsh’s submissions dated 10 September 2006 and 12 January 2007; • the Council’s submissions dated 7 August 2006 and letters dated 13 November 2006 and 12 December 2006; • Allens Arthur Robinson’s letters/emails dated 28 September 2006, 5 October 2006, 2 November 2006, and 13 December 2006; and • the statutory declarations of Mr Garry Storch dated 7 August 2006 and 29 September 2006, and exhibits GSO1 to GSO13 to those statutory declarations. Matter in issue 25. The matter remaining in issue in this review comprises: • segments of matter contained on pages 4, 35-38, 45, 46, 95, 101 and 109 of document 2 (the Probity Report); and • segments of matter contained on pages 12, 14, 15, 19, 22 and 23 of document 3 (the Chief Executive Officer’s ‘Without Prejudice’ response to the Probity Report). Application of section 43(1) of the FOI Act to the matter in issue 26. Section 43(1) of the FOI Act provides: 43(1) Matter is exempt matter if it would be privileged from production in a legal proceeding on the ground of legal professional privilege. 27. Following the judgments of the High Court of Australia in Esso Australia Resources Ltd v Commission of Taxation [1999] HCA 67; (1999) 74 ALJR 339, the basic legal tests for whether a communication attracts legal professional privilege under Australian common law can be summarised as follows: Legal professional privilege attaches to confidential communications between a lawyer and client (including communications through their respective servants or agents) made for the dominant purpose of – (a) seeking or giving legal advice or professional legal assistance; or (b) use, or obtaining material for use, in legal proceedings that had commenced, or were reasonably anticipated, at the time of the relevant communication. 28. Legal professional privilege also attaches to confidential communications between the client or the client's lawyers (including communications through their respective servants or agents) and third parties, provided the communications were made for the dominant purpose of use, or obtaining material for use, in legal proceedings that had commenced, or were reasonably anticipated, at the time of the relevant communication. 29. There are qualifications and exceptions to this statement of the basic tests, which may, in a particular case, affect the question of whether a document attracts the privilege, or remains subject to the privilege; for example, the principles with respect to waiver of privilege (see Re Hewitt and Queensland Law Society Inc [1998] QICmr 23; (1998) 4 QAR 328 at paragraphs 19-20 and 29), and the principle that communications otherwise answering the description above do not attract privilege if they are made in furtherance of an illegal or improper purpose (see Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501). 30. The matter in issue in this review is contained in non-privileged communications between the Council and KPMG (the Probity Report) or in an internal Council document prepared to respond to aspects of the Probity Report (document 3). However, the segments of matter in issue all comprise repetitions or summaries of the substance of professional legal advice provided to the Council by its legal advisers. It has been established in several cases that matter (contained in an otherwise non-privileged communication) which repeats, verbatim or in substance, the contents of a privileged communication, is itself privileged from production on the grounds of legal professional privilege. In Re Hewitt at paragraphs 119-120, Information Commissioner Albietz referred to the principle that a body corporate must be permitted to inform its servants or agents (who are responsible for taking some action in connection with, or to comply with, privileged legal advice which the body corporate has obtained) of the contents, or the substance, of privileged legal advice which the body corporate has obtained, without losing the benefit of the privilege. At paragraph 119 of Re Hewitt, Information Commissioner Albietz referred to the case of Brambles Holdings Ltd v Trade Practices Commission (No. 3) [1981] FCA 81; (1981) 58 FLR 452, in which Franki J of the Federal Court of Australia said (at pp.458-459 and p.462): [The disputed claim of legal professional privilege] is not limited to an internal memorandum merely setting out legal advice which has been obtained and which would be the subject of legal professional privilege if it was a record of a communication of advice from a legal adviser in the litigation. [The disputed claim of legal professional privilege] in its terms is applicable to an internal memorandum setting out legal advice together with comment on that advice by other persons in the Commission. In such a case that part of the memorandum which set out the legal advice would be privileged but not that part which set out the comment on the advice. I agree with the unreported views in this regard of Rath J in Komacha v Orange City Council [Supreme Court of New South Wales, Rath J, 30 August 1979, unreported]: The privilege attaching to a document will be accorded to copies made of it, provided confidentiality is maintained. If for example counsel's advice is circulated among officers of a corporation obtaining the advice, then privilege is preserved, whether the circulation is of the original or of copies. If in such a case an officer of the corporation were to report to another officer setting out portions of the advice, privilege would attach to the report in respect of those portions. ... ... My decision in relation to any document which I have held not to be privileged is subject to the qualification that any part of any such document which does no more than reproduce legal advice obtained in relation to the proceedings need not be made available for inspection. 31. A similar principle was applied by Lehane J of the Federal Court of Australia in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2000] FCA 593. 32. Based upon my review of the matter in issue in documents 2 and 3, I am satisfied that each segment of matter repeats, verbatim or in substance, the contents of a privileged communication between the Council and its legal advisers (i.e., a communication that, of itself, was made for the dominant purpose of providing professional legal advice). I am therefore satisfied that the matter in issue attracts legal professional privilege, and is prima facie exempt from production under section 43(1) of the FOI Act, subject to the operation of any relevant qualification or exception to the doctrine of legal professional privilege (which I will discuss below). 33. Mr Stevenson, owner/editor of Caloundra City News, argued in his submission dated 21 December 2006 that the matter in issue could not attract legal professional privilege because it had not been created for the dominant purpose of use in existing or anticipated legal proceedings. However, as stated above, the Esso Australia case confirmed that legal professional privilege may arise in either of two circumstances, one of those being that the confidential communication was created for the dominant purpose of giving or receiving legal advice, and the other being that the confidential communication was created for the dominant purpose of use in existing or anticipated legal proceedings. I have explained above why I consider that the first limb of that test is satisfied by the matter in issue. 34. The applicants raised a variety of other arguments in support of a finding that the matter in issue does not qualify for exemption under section 43(1) of the FOI Act, including waiver and the improper purpose exception (see paragraph 29 above). Other arguments raised by the applicants have no relevance to a finding that the matter in issue attracts legal professional privilege. Nevertheless, I will discuss below, all of the arguments raised by the applicants. Submissions by the applicants Improper purpose exception 35. As I noted at paragraph 29 above, legal professional privilege can be displaced if legal advice is given in furtherance of an illegal or improper purpose. To displace legal professional privilege, however, there must be prima facie evidence (sufficient to afford reasonable grounds for believing) that the relevant communication was made in preparation for, or furtherance of, some illegal or improper purpose. Only communications made in preparation for, or furtherance of, the illegal or improper purpose are denied protection, not those that are merely relevant to it (see Butler v Board of Trade [1970] 3 All ER 593 at pp.596-597). 36. Messrs Farrand-Collins and Wildman argued in their submissions dated 1 January 2007 and 7 January 2007, respectively, that there was impropriety in various actions taken by the Council. They asserted that the Council was endeavouring to use section 43(1) of the FOI Act as a screen to avoid scrutiny of the way Council officers conduct Council business. 37. Mr Farrand-Collins gave, as an example, an issue concerning the boundary realignment of the CalAqua land. He submitted that material disclosed in the Probity Report supported the local community’s belief that, in respect of the CalAqua land, Council officers had chosen to disregard legal advice (to the effect that there was a strong argument that the entity ‘AquaGen’ had some form of interest in the land) and had proceeded with a boundary realignment application regardless of the legal advice, and without resolving the issue of a possible conflicting interest in the land by AquaGen. Mr Farrand-Collins expressed concern that the Council may have disregarded other legal advice provided to it. He argued that, in respect of the contract to purchase the farm land, the Council was aware for over a year that its failure to have obtained the Treasurer’s prior consent to the purchase of the farm land (in breach of state legislation), rendered the purchase contract vulnerable, but that the Council appeared in that period to have ‘fished’ among several firms of solicitors for ‘suitable’ legal advice. 38. Mr Wildman’s submission was along similar lines, and argued that the sequence of events in question showed a lack of professionalism and integrity by Council officers. Mr Wildman stated that he sought access to the matter in issue to allow him to examine ‘ ... what advice or briefs Council requested, what was given and when, then what action was taken by the parties concerned’. 39. Information Commissioner Albietz considered the 'improper purpose' exception at some length in Re Murphy and Queensland Treasury (No. 2) [1998] QICmr 9; (1998) 4 QAR 446 at pp.457-462; paragraphs 31-42. At paragraphs 35, 36 and 37, he considered the judgments in Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 and in Propend Finance concerning the evidentiary onus that is on a person who contests the existence of legal professional privilege to demonstrate a prima facie case that the relevant communications were made in furtherance of an illegal or improper purpose. At paragraph 38, he drew the following principles from those cases: • To displace legal professional privilege, there must be prima facie evidence (sufficient to afford reasonable grounds for believing) that the relevant communication was made in preparation for, or furtherance of, some illegal or improper purpose. • Only communications made in preparation for, or furtherance of, the illegal or improper purpose are denied protection, not those that are merely relevant to it. In other words, it is not sufficient to find prima facie evidence of an illegal or improper purpose. One must find prima facie evidence that the particular communication was made in preparation for, or furtherance of, an illegal or improper purpose. • Knowledge, on the part of the legal adviser, that a particular communication was made in preparation for, or furtherance of, an illegal or improper purpose is not a necessary element (see R v Cox and Railton (1884) 14 QBD 153 at p.165; R v Bell: ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at p.145); however, such knowledge or intention on the part of the client, or the client's agent, is a necessary element. 40. Some assistance in understanding the second principle above is afforded from the observations of Hodgson CJ in Eq of the Supreme Court of New South Wales in Watson v McLernon [2000] NSWSC 306, 13 April 2000, at paragraph 116: The next question is, what would amount to furtherance of such a [dishonest] purpose? I accept that a purpose of merely concealing previous dishonest conduct, and avoiding adverse consequences, such as penalties or claims for damages, which could flow therefrom, would not amount to furtherance of the improper purpose. The policy of the law is to encourage people to get legal advice so that they can be aware of their rights in relation to such matters. However, if the person seeking advice proposes to continue the dishonest conduct, ... and proposes to use legal advice to assist in this purpose, then in my opinion that would be sufficient to amount to a furtherance of the improper purpose. 41. It is noteworthy also, that in the Federal Court decision of Freeman v Health Insurance Commission and Ors (1998) 157 ALR 333 at 342, Finkelstein J said: Notwithstanding the submissions made by the applicant, I do not believe that the exception should be extended so that the privilege is lost if there is an inadvertent abuse of statutory power. .... Legal professional privilege is an important right and the public interest does not require it to be lost except by conduct which is morally reprehensible. ... if the exception was now to be extended to cover inadvertent conduct it might endanger the basis of the privilege. 42. There was a successful appeal against parts of Finkelstein J's judgment (see Health Insurance Commission and Anor v Freeman (1998) 158 ALR 26), but no issue was taken with the above statement of principle. 43. Having examined the matter in issue, I am not satisfied that there is prima facie evidence before me that the various communications were made in preparation for, or furtherance of, some illegal or improper purpose. For example, as regards the purchase of the farm land, it is evident from the material which has been disclosed to the applicants that Council officers were aware that the Council was first required to obtain the Treasurer’s consent to the purchase of the land, and that the Council had nevertheless proceeded with the contract without obtaining the Treasurer’s consent. It is also evident that the Council obtained legal advice on issues relating to the purchase and the development of the land, and that the deficiency in the purchase contract was remedied. There is nothing before me to suggest that the relevant legal advice was obtained in preparation for, or in furtherance of, an illegal or improper purpose. 44. In those circumstances, I am not satisfied that the improper purpose exception operates to displace the prima facie privilege which I have found attaches to the matter in issue. Waiver 45. The High Court of Australia's decision in Mann v Carnell [1999] HCA 66; (1999) 74 ALJR 378 dealt with the principles relating to waiver of legal professional privilege. At pp.384-385, the High Court said: [28] ... Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege... [29] Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is ‘imputed by operation of law’. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some over-riding principle of fairness operating at large. ... [34] ... Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency. The reasoning of the majority in Goldberg illustrates this. 46. The applicants contend that various actions by the Council have resulted in privilege in the matter in issue being waived. (i) Disclosure of the legal advice to KPMG 47. In his submission dated 8 December 2006, Mr Smith submitted that the disclosure by the Council to KPMG of legal advice obtained by the Council amounted to a waiver of the privilege attaching to that advice. 48. It is clear that the Council intentionally disclosed to KPMG the legal advice that it had obtained from its solicitors. As regards such express or intentional conduct, Information Commissioner Albietz made the following observations in Re Hewitt at p.338 (paragraph 19): ... A person entitled to the benefit of legal professional privilege can waive the privilege through intentionally disclosing protected material. ... If disclosure is incompatible with retention of the confidentiality which is necessary for maintenance of the privilege, there will ordinarily be a general waiver of privilege .... However, the courts will allow an exception for a limited intentional disclosure of privileged material, if the disclosure is compatible with the retention of confidentiality. Thus, disclosure of privileged information by the beneficiary of the privilege to another person for a limited and specific purpose, on the clear understanding that the recipient is not to use or disclose the information for any other purpose, will not involve a general waiver of privilege, and, subject to questions of imputed waiver, may not disentitle the beneficiary of the privilege from asserting the privilege against other persons. ... 49. The Terms of Reference given to KPMG by the Council are reproduced on pages 131-132 of the Probity Report. The Audit Objectives as stated in the Terms of Reference (see paragraph 1 above) are as follows: To conduct a probity audit with respect to the Maleny Community Precinct Project (‘the Project’) and report on whether the Council has conducted itself in compliance with all relevant aspects of the law, the Local Government Act, regulations, Councils policies and procedures and prudent commercial practice. 50. One of the specific Audit Requirements stated in the Terms of Reference is: Review and assess all relevant documentation to ensure compliance with relevant requirements and that any departures from established procedures have been appropriately approved. 51. The Terms of Reference state that KPMG is ‘to have full access to records, personnel, meetings and premises’, and is to ‘obtain, analyse, interpret and document information to support the outcomes of the audit’. 52. I am satisfied that the Council intentionally disclosed to KPMG all relevant material in its possession (including legal advice it had obtained form its solicitors), for the specific and limited purpose set out in the Terms of Reference, namely, to conduct a probity audit and to report back to Council on the results of that audit. While it does not appear that there was an explicit statement by the Council that KPMG was not to use the legal advice and other material for any other purpose than the conduct of its audit and the preparation of its report for the Council, I consider that it is reasonable to imply from the specific Terms of Reference by which KPMG was retained, as well as from the sensitivity of the matter, and the actual conduct of KPMG, that it was clearly understood between the Council and KPMG that all relevant material was being disclosed to KPMG only for the purpose of conducting the probity audit and for no other purpose. The fact that KPMG did not, in fact, use or disclose the legal advice other than for that specific purpose supports a finding that KPMG understood the limited purpose for which it was given access to the legal advice, and that disclosure by the Council of the advice in those circumstances was not intended to operate as a general waiver of the privilege attaching to the advice. 53. Accordingly, I do not consider that disclosure of the legal advice to KPMG for the limited and specific purpose of allowing it to conduct a probity audit and report to the Council on the results of that audit, is incompatible with the retention by the Council of confidentiality in the advice. There is no suggestion that the Council has otherwise disclosed the legal advice or acted in a manner that is inconsistent with maintaining a claim for privilege over the advice. (ii) Undertaking to give full public access to Probity Report 54. In his submission dated 21 December 2006, Mr Stevenson stated that KPMG was aware, when it prepared the Probity Report, of an undertaking by the Mayor that the complete Probity Report would be disclosed to the public. He also submitted that the Council’s initial and internal review decision-makers did not claim exemption under section 43(1) of the FOI Act as both were aware of the Mayor’s undertaking and would have believed that privilege had been waived. 55. Mr Smith contended in his submission dated 8 December 2006 that the Mayor had verbally assured Mr Smith and Mr Peter Bryant OAM (the secretary of the Caloundra City Ratepayers & Residents Association Inc) that the Probity Report would be made public when completed. Mr Smith contended that the Mayor’s undertaking amounted to an implied waiver of privilege in the legal advice contained in the Probity Report. 56. These submissions by the applicants demonstrate a misunderstanding of the law relating to waiver of privilege. Whether or not privilege has been waived is a question of fact, and it is only the conduct of the client (i.e., the Council) which can amount to a waiver of privilege. What KPMG knew or did not know about what the Council intended or did not intend to do with the Probity Report is not relevant. When assessing an issue of waiver, it is necessary to examine the conduct of the client and decide whether that conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Accordingly, regardless of what the Mayor may or may not have said about intended public disclosure of the Probity Report, the issue is whether the Council has, in fact, disclosed the content of privileged legal advice in such circumstances as to amount to a general waiver of privilege. As there is nothing before me to demonstrate that there has been public disclosure by the Council of those parts of the Probity Report or document 3 which repeat or summarise legal advice obtained by the Council, it follows that I must find that the Council has not waived privilege in that advice. I have already explained above why I am satisfied that the limited disclosure of the advice to KPMG in order to allow it to conduct its probity audit did not amount to a waiver of privilege. (iii) Australian Wheat Board inquiry 57. Mr Smith referred in his submission to the 2006 Cole report (Report by Commissioner Terence Cole ‘Inquiry into certain Australian companies in relation to the UN Oil-For-Food Programme’ delivered 24 November 2006) in which Commissioner Cole published certain matter which he stated would have been exempt from publication on the basis that it attracted legal professional privilege, except for the fact that the matter had previously been published in a report. 58. As I noted above, there is nothing before me to demonstrate that the matter in issue has been publicly disclosed or published by the Council in circumstances that would amount to a general waiver of privilege. 59. In summary, as regards the improper purpose exception to legal professional privilege, and the principles with respect to waiver of privilege, I am satisfied for the reasons explained above that neither qualification or exception operates to displace the legal professional privilege which I have found attaches to the matter in issue. 60. I will now discuss the various other arguments raised by the applicants in favour of disclosure of the matter in issue. Public interest 61. Mr Smith contended in his submission dated 8 December 2006 that it is in the public interest that the entire Probity Report be made public because the Council agreed to the probity audit in order to demonstrate to the public that its dealings in all matters pertaining to the Maleny Community Precinct were both legal and ethical. Mr Smith submitted: In particular I refer to the following statement on page 109 of the [Probity] Report On 24th June 2004, when Council decided to exercise the option to purchase The Porter land on a 6-3 vote, Councillors had been further provided with, among other things; • ..... • ..... • ..... • ..... • Information that the deferred payment arrangement under the Porter Contract breached the SBFA Act. This new disclosure is central to this submission, and establishes clearly that the majority of the Members of the Council were prepared to ignore the law so far as the contract with Porter was concerned. This then begs the question whether the same Councillors can be trusted to act within the law insofar as other important issues in the overall dealing are concerned. There can be little doubt that the answer to this question would be clearly within the public interest. The only way that the public can be satisfied that their elected Councillors have acted lawfully and with probity in the balance of dealings in the overall proposal is by the release of the total content of the Probity Report, the submission by the CEO thereon, and associated reports. 62. Mr Gilmour-Walsh stated in his submission dated 10 September 2006: Lack of proper community and stakeholder consultation has provided an avenue for the provision of incomplete or inaccurate information and has been a key feature of Council behaviour in this matter. As a result of these poor practices a complex set of circumstances and issues has evolved, creating confusion and misperceptions that have already caused conflict and will influence the conduct of the community during any further stages of the project in question, impacting the quality of the final outcome. As confirmed in the recent report of the abridged probity audit conducted by KPMG, Council has misled the community. During Council-controlled stakeholder consultations held via a community-based Taskforce (formed August 2003) Council provided verbal reassurances that key risks and issues were being properly addressed. For example the taskforce were not advised of the conditions of Council’s joint venture arrangement that already proved itself to be unworkable. Not only were the taskforce members sufficiently qualified and knowledgeable to advise Council of the risks, each member and their associated community groups found that they potentially had agreed to Council action that was not in accord with their own interests. The community has lost faith in Council and requires all the information in order to completely understand the current situation and be reassured that in getting this project back on track, all issues have been identified. The lack of trust and faith in Council had already been raised as a serious issue in a Council-commissioned report in May 2003 (Tract Consultants Report, July 2003). From the information provided it would appear that Council either did not appreciate the Community’s need to know or it was not in the interests of certain Council officers to release complete and accurate information. Some of these Council officers still hold office. ... Whilst I am in support of Council acquiring this land for community purposes, I also require assurance that I have information that will enable me to fully assess the implications of further Council action. 63. In his submission dated 12 January 2007, Mr Gilmour-Walsh stated: The subsequent disclosure of most of the withheld information through the Probity Audit and under the direction of the Information Commissioner justified some of the concerns held by myself and other members of the community. The information withheld under ‘legal professional privilege’ is more than likely to further support my belief that Council failed to act in a professional manner. 64. In his submission dated 7 January 2006, Mr Wildman stated: By the end of 2007 Council hopes to complete the community consultation process on the Community precinct (Porters/Armstrong properties). It is essential for the community to participate with a clean slate, they must know about any legal restraints that may have arisen in the original negotiations. 65. It is clear that the Council’s actions with respect to the Maleny Community Precinct Project have been the subject of much criticism within the local community, and that the applicants are of the view that the Council has withheld from the community, important information about the Project. They argue that all information held by Council concerning the probity audit of the Project should be disclosed in the public interest, given the contentious nature of the Project and its importance to, and potential impact upon, the wider community. 66. While I acknowledge the controversy surrounding the Project, and the submissions of the applicants regarding the significant public interest in disclosure of the Probity Report, section 43(1) of the FOI Act is not subject to a public interest balancing test. As I have explained, the only issue for determination under section 43(1) is whether the matter in issue satisfies the test for legal professional privilege set down by the High Court in the Esso case. That test does not contain any element of public interest. Authority to act on behalf of the Council 67. Caloundra City News challenged the authority of Allens Arthur Robinson and Mr Storch to represent the Council’s position in these external reviews. Mr Stevenson submitted on 2 September 2006: On Thursday, February 2 Council by resolution, ceded the authority of Principal Officer to the Director City Services, Dawn Maddern (Att. A). To my knowledge that has not been rescinded. Both the AAR Submission and the Storch Declaration are dated August 7, 2006 and are in response to the Commissions preliminary decision notification to Council of July 7, 2006. In the Commission’s correspondence to me, of August 15, it is apparent from the words used that the Commission is of the opinion that the AAR Submission and Storch Declaration were made on behalf of, and with the full knowledge of, Caloundra City Council. On or about Tuesday, August 15 the then-Acting Mayor of Caloundra City Council, Councillor Anna Grosskreutz, became aware of the existence, for the first time, of correspondence between Council and the Commission. She demanded to be provided with it, and in an open General Meeting of Caloundra City Council on Thursday, August 17 it was debated. It was the first occasion the elected representatives knew anything about the AAR Submission and the Storch Declaration. The Sunshine Coast Daily the following day reported happenings within that meeting (Att.B). An attempt during the meeting by one Councillor to get some information made public was thwarted (Att.C). In such circumstances it would be dangerous for the Commission to believe that the views expressed in the AAR Submission or the Storch Declaration are representative of the wishes of Caloundra City Council. Their views are not known as they were never sought or expressed. And there has been no directive to either Allens Arthur Robinson or Mr Garry Storch from Caloundra City Council to respond on their behalf, in the manner in which the Commission has received. In my opinion both the AAR Submission and the Storch Declaration are ‘without power’ and should form no part in the Commission’s deliberations and final decision. 68. The internal arrangements which an agency makes regarding its handling of FOI external review applications is not a matter over which the Information Commissioner has any jurisdiction under the FOI Act. An issue regarding who or who was not informed about the way in which the Council responded to correspondence from this office is similarly of no relevance to the exercise of the Information Commissioner’s powers under Part 5 of the FOI Act. Nevertheless, I would take this opportunity to observe that section 1131 of the Local Government Act 1993 Qld would appear to be wide enough to authorise a Chief Executive Officer to make a statutory declaration on behalf of the Council, and to instruct solicitors on its behalf. Section 1131 provides: 1131 Role of chief executive officer (1) The chief executive officer of a local government has the role of implementing the local government’s policies and decisions. (2) On a day-to-day basis, the chief executive officer’s role includes managing the local government’s affairs. (3) The chief executive officer alone is responsible for— (a) organising the presentation of reports and reporting to the local government; and (b) conducting correspondence between the local government and other persons; and (c) managing and overseeing the administration of the local government and its corporate plan; and (d) coordinating the activities of all employees of the local government. (4) The chief executive officer has— (a) all the powers necessary for performing the chief executive officer’s role; and (b) the powers the local government specifically delegates to the chief executive officer. 69. The sole issue for my determination in this review is whether or not the matter in issue qualifies for exemption under the FOI Act. I have reviewed the matter in issue and formed the view that it meets the requirements for exemption under section 43(1) of the FOI Act. Any issue about who had authority to author the Council’s submissions throughout the course of this review does not alter my view that the matter in issue attracts legal professional privilege under section 43(1) of the FOI Act. Expert opinion or analysis 70. In his submission dated 8 December 2006, Mr Smith argued that the legal advice in issue constitutes expert opinion or analysis within the meaning of section 41(2)(c) of the FOI Act and, accordingly, cannot be exempt from disclosure under the FOI Act. 71. Sections 41(1) and (2) provide as follows: 41 Matter relating to deliberative processes (1) Matter is exempt matter if its disclosure— (a) would disclose— (i) an opinion, advice or recommendation that has been obtained, prepared or recorded; or (ii) a consultation or deliberation that has taken place; in the course of, or for the purposes of, the deliberative processes involved in the functions of government; and (b) would, on balance, be contrary to the public interest. (2) Matter is not exempt under subsection (1) if it merely consists of— (a) matter that appears in an agency’s policy document; or (b) factual or statistical matter; or (c) expert opinion or analysis by a person recognised as an expert in the field of knowledge to which the opinion or analysis relates. 72. This submission reflects a misunderstanding of the operation of the exemption provisions of the FOI Act. Under the FOI Act, matter may qualify for exemption under one or more of the exemption provisions contained in Part 3, Division 2, of the FOI Act. The mere fact that the matter in issue may not meet the requirements for exemption under section 41(1) of the FOI Act (which I am not required to decide in this case in any event) does not prevent it from qualifying for exemption under section 43(1) of the FOI Act if the requirements of that exemption provision are met. The exemption provisions contained in Part 3, Division 2, of the FOI Act operate independently of each other. The section 43(1) exemption claim was not made by the Council at the outset 73. Mr Smith argued in his submission dated 8 December 2006 that it was inappropriate for the Council to make a claim for exemption under section 43(1) of the FOI Act during the external review stage, when it had not relied upon that provision during the initial processing of his access application. Mr Stevenson argued in his submission dated 21 December 2006 that this office did not discuss the application of section 43(1) of the FOI Act in its initial correspondence with the applicants because it presumably held the view that section 43(1) did not apply. 74. I recognise that it may be disconcerting for an applicant to be notified during the course of an external review that an agency is now relying upon an exemption provision not previously raised during the processing of the FOI access application. However, the right of agencies, on external review, to raise new grounds for exemption, has been recognised in numerous court and tribunal proceedings. A review under Part 5 of the FOI Act is a review de novo. The agency is not bound to adhere to the position adopted in the decision under review (although it still carries the onus, under section 81 of the FOI Act, of establishing that the Information Commissioner should give a decision adverse to the applicant). In Re ‘NKS’ and Queensland Corrective Services Commission [1995] QICmr 21; (1995) 2 QAR 662, Information Commissioner Albietz said (at paragraph 5): I am empowered to make a fresh decision as to the correct application of the provisions of the FOI Act to any documents (or parts of documents) of the respondent agency or Minister, which fall within the terms of the applicant's FOI access application and to which the applicant has been refused access under the FOI Act. In the course of a review under Part 5, the respondent agency or Minister may, in effect, abandon reliance on the grounds previously given in support of the decision under review, in whole or in part, whether by making concessions to the applicant (which mean that some matter is no longer in issue) or by arguing fresh grounds to support a refusal of access to matter in issue. 75. I am satisfied that the applicants have been accorded procedural fairness in that they were notified of the Council’s fresh claim for exemption under section 43(1) of the FOI Act when it arose, and were given an opportunity to lodge submissions and/or evidence in response to that claim. Conclusion 76. For the reasons explained above, I am satisfied that the matter in issue qualifies for exemption from disclosure under section 43 of the FOI Act, and that the applicants therefore are not entitled to obtain access to it under the FOI Act. Decision 77. I decide to vary the decisions under review (being the decisions of Ms Dawn Maddern of the Council dated 2 February 2006 and 18 April 2006), by finding that the matter in issue (identified in paragraph 25 above) is exempt from disclosure under section 43(1) of the FOI Act. 78. I have made this decision as a delegate of the Information Commissioner, under section 90 of the FOI Act. ________________________R MossAssistant Information Commissioner Date: 8 February 2007

queensland

court_judgement

Queensland Information Commissioner 1993-

VHL and Department of Health [2009] QICmr 11 (20 February 2009)

VHL and Department of Health [2009] QICmr 11 (20 February 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210239 Applicant: VHL Respondent: Department of Health Decision Date: 20 February 2009 Catchwords: FREEDOM OF INFORMATION – section 42(1)(h) - matter relating to law enforcement or public safety - whether disclosure of an Application for a Justices Examination Order issued under the Mental Health Act 2000 (Qld) could reasonably be expected to prejudice system or procedure FREEDOM OF INFORMATION – section 42(1)(ca) – matter relating to law enforcement or public safety – whether disclosure of identifying information about a Justice of the Peace could reasonably be expected to result in that person being subjected to a serious act of harassment or intimidation Contents REASONS FOR DECISION Summary 1. In setting aside the decision under review, I am satisfied that: • parts of the Justice Examination Order (JEO) and JEO application that could identify the Justice of the Peace (JP) are exempt from disclosure under section 42(1)(ca) of the Freedom of Information Act 1992 (FOI Act) • the JEO application is exempt from disclosure under section 42(1)(h) of the FOI Act. Background 2. By letter dated 20 February 2007, the applicant applied to the Department for access to documents concerning the JEO application and the order pursuant to which she had been detained and examined (FOI Application). 3. On 21 March 2007, the Department decided that (Original Decision): • part of folio 12 qualified for exemption from disclosure under section 44(1) of the FOI Act • folio 15 is fully exempt from disclosure under section 42(1)(ca) of the FOI Act • folios 16 and 17 are fully exempt from disclosure under sections 42(1)(b) and 42(1)(ca) of the FOI Act • the remainder of the folios found to respond to the FOI Application may be released to the applicant. 4. By letter dated 26 March 2007, the applicant applied for an internal review of the Original Decision (Internal Review Application). 5. On 23 April 2007, Ms McKay, District Manager at the Department decided to affirm the Original Decision (Internal Review Decision). 6. By application received by the Office on 24 April 2007, the applicant sought external review of the Internal Review Decision (External Review Application). Decision under review 7. The decision under review is the Internal Review Decision dated 23 April 2007. Steps taken in the external review process 8. In correspondence to the Office dated 25 April 2007, the applicant withdrew her External Review Application. 9. By letter dated 3 May 2007, the applicant applied to have the external review reopened on the basis that she had withdrawn her External Review Application in the mistaken belief that her concerns could be addressed by the Office of the Health Minister, but now realised that it was necessary to pursue external review under the FOI Act, in order to seek access to the relevant documents. 10. By letters dated 8 June 2008, First Assistant Commissioner Rangihaeata informed the applicant and the Department of her decision to reopen the external review. 11. The Office undertook third party consultation with the JP in telephone conversations on 12 July 2007 and 19 July 2007. 12. The Office undertook third party consultation with the JEO applicant/s in telephone conversations on 12 July 2007 and 23 July 2007. 13. By letter dated 8 November 2007, Acting Information Commissioner Rangihaeata informed the Department of her preliminary view regarding specific parts of the documents in issue. 14. By letter dated 4 December 2007, the Department confirmed that whilst it maintained the same exemption claims that appeared in its Original Decision, it now also sought to claim that folios 16 and 17 were exempt under section 42(1)(h) of the FOI Act. 15. By facsimile dated 18 February 2008, the JEO applicant confirmed the accuracy of the information conveyed in their prior telephone conversations with the Office. The JEO applicant also advised that, with the exception of three parts of folio 16 that concerned the personal affairs of persons other than the applicant, the JEO applicant did not object to the applicant being given access to the balance of folio 16. 16. By letter dated 3 March 2008, the JEO applicant provided information about the JP. 17. In telephone conversations on 11 March 2008 (later confirmed in a facsimile to the Office dated 25 March 2008), the JP supplied additional information to the Office relevant to the external review. 18. In letters dated 20 May 2008, Acting Information Commissioner Rangihaeata informed the applicant, the Department, the JEO applicant and the JP of her preliminary view regarding the exemption provisions sought to be relied upon by the Department. 19. In response to the preliminary view noted at paragraph 18 above: • the applicant provided written submissions to the Office on 22 May 2008 and 2 June 2008, and verbal submissions on 27 May 2008. • the JEO applicant/s, in their letter dated 1 June 2008, informed Acting Information Commissioner Rangihaeata that they did not accept the preliminary view and now objected to disclosure of folios 15-17. The JEO applicant/s stated that that they would ‘take no further part in this process nor submit to any further arguments in regards this matter’. • by letter dated 4 June 2008, the JP provided further submissions for consideration in the external review. 20. By email dated 3 June 2008, the Department requested copies of correspondence received by the Office concerning the issues raised in Acting Information Commissioner Rangihaeata preliminary view of 20 May 2008, in order to better inform its response to that letter. Copies of the following[1] were supplied to the Department: • written correspondence received from the JEO applicant dated 18 February 2008, 3 March 2008 and 1 June 2008 • written correspondence received from the JP dated 25 March 2008. 21. By letter dated 10 June 2008, First Assistant Commissioner Rangihaeata informed the applicant that it was now her preliminary view that the part of folio 16 that set out the reasons for the JEO application qualified for exemption under section 42(1)(h) of the FOI Act. 22. By letter dated 10 June 2008, First Assistant Commissioner Rangihaeata informed the Department that it was now her preliminary view that, while the section of the JEO application that set out the reasons for the JEO application qualified for exemption from disclosure under section 42(1)(h) of the FOI Act, the remainder of the JEO application was not exempt from disclosure under sections 42(1)(b) or 42(1)(h) of the FOI Act. 23. By letter dated 12 June 2008, the applicant responded to the preliminary view at paragraph 21 above. 24. By letter dated 13 June 2008, First Assistant Commissioner Rangihaeata advised the JP that the reasons for the JEO application in folio 16 qualified for exemption under section 42(1)(h) of the FOI Act. 25. By letter dated 25 June 2008, the Department provided further submissions in response to both preliminary views,[2] and claimed, in addition to previous exemption claims, that matter in folios 15 and 17 which identified the JP qualified for exemption from disclosure under section 42(1)(h) and section 42(1)(ca) of the FOI Act. 26. On the basis that parts of its submission above had inadvertently been omitted, the Department provided a further edited copy of its submissions to the Office on 30 June 2008. 27. On 11 July 2008 a segment involving the applicant was run by Channel 7 on the Today Tonight programme. The Office wrote to Channel 7 on 15 July 2008 requesting a copy of the segment and a transcript. The Office contacted Channel 7 in writing and by telephone on several occasions during the period July to October 2009 to obtain the documents requested. Channel 7 provided a copy of the segment and a transcript on 14 October 2008. 28. During the period July to December 2008 the applicant provided further submissions and information by telephone and written correspondence. 29. OIC revised the preliminary view based on submissions received from all parties and information provided by Channel 7. 30. In a telephone conversation on 9 January 2009, First Assistant Commissioner Rangihaeata communicated to the applicant the revised preliminary view. 31. By letter dated 3 February 2009, I confirmed the above preliminary view in writing by informing the applicant that: • the residential address and telephone details of a departmental employee contained within folio 12 qualified for exemption under section 44(1) of the FOI Act[3] • parts of folios 15 and 17 qualified for exemption under section 42(1)(ca) of the FOI Act • folio 17 is exempt from disclosure under section 42(1)(h) of the FOI Act. 32. By letter dated 4 February 2009, the applicant indicated that whilst she did not accept First Assistant Commissioner Rangihaeata’s preliminary view at paragraph 27 above, she had chosen not to spend any further time on this review. Accordingly, I have proceeded on that basis in progressing this external review. 33. In making my decision in this matter, I have taken the following into account: • the applicant’s FOI Application, Internal Review Application and External Review Application • the Department’s Original Decision and Internal Review Decision • file notes of telephone conversations between staff members of the Office and the JEO applicant • written correspondence provided to the Office by the JEO applicant • written correspondence provided to the Office by the Department throughout the course of the external review • written correspondence provided to the Office by the applicant throughout the course of the external review • file notes of telephone conversations between staff members of the Office and the applicant • written correspondence provided to the Office by, and on behalf of, the JP • the Channel 7 Today Tonight programme broadcast on Friday, 11 July 2008 • the JEO and JEO application • relevant sections of the FOI Act and Mental Health Act 2000 (Qld) (MHA 2000) • explanatory notes to the Mental Health Bill 2000 (Qld) • previous decisions of the Information Commissioner of Queensland and the decisions and case law from other Australian jurisdictions as identified in this decision • factsheets published by the Department on its website • relevant provisions of the FOI Act and other legislation, caselaw and decisions of this Office. Matter in issue 34. The matter remaining in issue in this review comprises the JEO[4] and JEO application[5] (Matter in Issue). Relevant legislation 35. Under section 21 of the FOI Act, a person has a legally enforceable right to be given access to documents of an agency and official documents of a Minister. This right of access is subject to other provisions of the FOI Act, in particular, section 28 of the FOI Act, under which an agency can refuse access to exempt matter or an exempt document. 36. As noted above, the Department has refused the applicant access to the JEO and JEO application on the basis of sections 42(1)(h) and 42(1)(ca) of the FOI Act. My findings with respect to the application of these provisions to the Matter in Issue are set out below. Findings Section 42(1)(h) of the FOI Act 37. Section 42(1)(h) of the FOI Act provides: 42 Matters relating to law enforcement or public safety (1) Matter is exempt matter if its disclosure could reasonably be expected to – ... (h) prejudice a system or procedure for the protection of persons, property or environment; or ... (2) Matter is not exempt under subsection (1) if – (a) it consists of- (i) matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law; or (ii) matter containing a general outline of the structure of a program adopted by an agency for dealing with a contravention or possible contravention of the law; or (iii) a report on the degree of success achieved in a program adopted by an agency for dealing with a contravention or possible contravention of the law; or (iv) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law or the law relating to misconduct under the Crime and Misconduct Act 2001); or (v) a report on a law enforcement investigation that has already been disclosed to the person or body the subject of the investigation; and (b) its disclosure would, on balance, be in the public interest. ... The Department’s submissions 38. The Department submits that disclosure of the JEO application could reasonably be expected to prejudice the statutory scheme for the protection of persons set out in Chapter 2, part 3, division 2 of the MHA 2000. The applicant’s submissions 39. The applicant’s submissions are summarised at paragraph 54 of this decision. Application of section 42(1)(h) of the FOI Act to the Matter in Issue 40. The Information Commissioner has previously discussed the operation of section 42(1)(h) of the FOI Act and stated that for the provision to apply, the following criteria must be satisfied:[6] a) there exists an identifiable system or procedure b) it is a system or procedure for the protection of persons, property or environment c) disclosure of the information in issue could reasonably be expected to prejudice that system or procedure. a) Does an identifiable system or procedure exist? 41. Having regard to reference material available on the Department’s website, I note the objective of a JEO is to allow a person in the community to request a non-urgent (and involuntary) mental health assessment for a person who they believe may be experiencing mental health problems.[7] 42. The procedure is set out under Chapter 2, Part 3, Division 2 of the MHA 2000 as follows: • a person may apply to a Magistrate or Justice of the Peace for a JEO for another person[8] • the Magistrate or Justice of the Peace may issue a JEO if he/she reasonably believes that the relevant person has a mental illness and should be examined[9] • once a JEO has been issued and sent to an authorised mental health service, a doctor or authorised mental health practitioner may conduct the examination[10] • the doctor or authorised mental health practitioner may make a recommendation for assessment requiring an involuntary assessment of that person at an authorised mental health service[11] • if the doctor or authorised mental health practitioner does not make a recommendation for assessment they must explain their reasons for the Internal Review Decision.[12] 43. Having regard to the above, I am satisfied that the MHA 2000 establishes ‘a system or procedure’ for the purpose of section 42(1)(h) of the FOI Act. b) Is the procedure for the protection of persons, property or environment? 44. Prior to the enactment of the MHA 2000, the Information Commissioner considered in ROSK and Brisbane North Regional Health Authority; Others (Third Parties)[13] whether provisions contained within its predecessor, the Mental Health Act 1974 (Qld) established a procedure or system for the protection of persons, property or environment under section 42(1)(h) of the FOI Act. 45. The relevant provisions of the Mental Health Act 1974 (Qld) enabled a warrant to be issued for the removal (by police and a medical officer) of a person (suspected as being mentally ill and a danger) to a place of safety. 46. In ROSK, the Information Commissioner found that a system or procedure was established: • whereby members of the community who held a genuine belief that a person was mentally ill, and a danger to himself/herself or to others, could initiate action to protect that person or others from the apprehended danger • which answered the description of ‘a system or procedure for the protection of persons’ within the meaning of section 42(1)(h) of the FOI Act. 47. In TQN and Royal Brisbane Hospital Health Service District, [14] it was confirmed that the MHA 2000: • replaces the Mental Health Act 1974 (Qld) • establishes a procedure (enabling application for and issuance of a JEO) which is similar to the system set up by the Mental Health Act 1974 (Qld) for the protection of persons. 48. In relation to treatment which may occur as a consequence of a JEO, the explanatory note to the Mental Health Bill 2000 (Qld) states:[15] The scheme for involuntary treatment is necessary to protect the health and safety of persons with a mental illness and to ensure the safety of the community. A significant feature of some mental illnesses is the person’s inability to recognise the presence of illness and the need for treatment. Without treatment, the person is likely to remain unwell for an extended period to the detriment of their own quality of life, health and safety and in a small number of cases, the safety of others. 49. In view of the discussion above, I am satisfied that the procedures set out in Chapter 2, Part 3, Division 2 of the MHA 2000 establish ‘a system or procedure for the protection of persons’ described in section 42(1)(h) of the FOI Act. c) Could disclosure of the JEO Application be reasonably expected to prejudice that system or procedure? 50. Requirement (c) asks whether disclosing the document/s in issue could reasonably be expected to prejudice the system or procedure. 51. In Attorney-General v Cockcroft,[16] which dealt with the interpretation of the phrase ‘could reasonably be expected to prejudice the future supply of information’ in the context of the section 43(1)(c)(ii) (business affairs) exemption contained in the Commonwealth FOI Act, Bowen CJ and Beaumont J said:[17] In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act ... To construe s.43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based ... 52. The Justices interpretation of the phrase ‘could reasonably be expected to’ and the proposed line of inquiry, while made in the context of the business affairs exemption contained in Commonwealth legislation is relevant in the context of the exemption contained in section 42(1)(h) of the FOI Act. 53. Accordingly, to determine whether the JEO application is exempt from disclosure under section 42(1)(h) of the FOI Act, I must examine whether it is reasonable as distinct from something that is irrational, absurd or ridiculous to expect that disclosing the JEO application will ‘prejudice the system or procedure’ established by Chapter 2, Part 3, Division 2 of the MHA 2000. The applicant’s submissions 54. During the course of the review, the applicant made a number of oral and written submissions to the Office. Those submissions are summarised as follows: • she is concerned that her examination under the MHA 2000 was conducted without there being a proper basis for the allegations about her. She considers that she has been unjustly made the subject of a JEO, evidenced by the fact that the mental health examination under that process did not lead to any further action. • she considers that the person/s who initiated the JEO was/were acting adversely to her interests and perhaps intended to benefit themselves. She believes those person/s may be responsible for acts of vandalism at her home, and/or are seeking to cause her to leave her home. • unless she knows the content of the JEO application, she is unable to address any of the issues raised in it, and remains vulnerable to further attempts to have her involuntarily subjected to assessments under the MHA 2000. • the experience of being subject to the JEO has caused her great distress, both during the process of being involuntarily detained, and subsequently, as she attempted to discover the basis of the application. • although she believes her actions at one time may have been regarded as a sign of mental unwellness (and may be one ground for the JEO application), she considers that her behaviour at that time did not affect other persons and her symptoms resolved within a short time. • she believes she knows the identity of the JEO applicant/s and considers that a number of people may be involved. • she considers the JEO process is flawed because it is based on lies. 55. The applicant’s submissions are in the nature of ‘public interest’ submissions, in that they identify reasons why it is in the public interest that she be given access to the relevant documents. However, there is no public interest test incorporated into section 42(1)(h) of the FOI Act unless one of the exceptions referred to in section 42(2) applies. 56. Having examined the JEO application, I am satisfied that there is nothing in the circumstances of this case, nor any other material before me, that would indicate that section 42(2) of the FOI Act applies. Section 42(2) of the FOI Act is set out at paragraph 37 of this decision. 57. Accordingly, although the applicant raises issues which are clearly of genuine concern to her, they are not matters which I can take into account in reaching a decision in this matter. Similarly, although the applicant has suspicions as to the identity of the JEO applicant/s, this Office is unable to confirm or deny suspicions regarding the content of the Matter in Issue in the review.[18] 58. In making my decision in this matter I can only consider whether the exemption provisions claimed by the Department under the FOI Act have been correctly applied to the specific information to which access has been denied. To that extent I have carefully considered all the information provided to this Office by each of the parties in this review. 59. In relation to the applicant’s concerns that the system/procedure being used for an improper purpose and leading to unwarranted involuntary assessment, I note that in passing the MHA 2000 the Parliament took care to include a number of provisions aimed at protecting people against the inappropriate application of the involuntary processes. Those safeguards include:[19] • The person making a request for an assessment (e.g. a community member) must have observed the person within the last 3 days before making a request for involuntary assessment so the information is accurate and timely. • Before the person can be detained involuntarily for assessment, a recommendation for assessment must also be made by a doctor or other specially appointed experienced mental health professional (an “authorised mental health practitioner”), who must be satisfied that the person meets strict criteria. • Strict penalties are provided for in the [MHA 2000] against a person making documents based on information that the person knows to be untrue. The [MHA 2000] also makes it easier to commence a prosecution under this provision. • There is now a two-step authorisation process before involuntary treatment is authorised. Before a person can be detained for treatment, specific criteria must be met to authorise an assessment of the person. Once the assessment has occurred, different criteria must be met before involuntary treatment is authorised. The criteria for involuntary assessment and treatment are consistent with the UN Principles and the national model mental health legislation. • Stricter requirements for seclusion and mechanical restraint are proposed in the [MHA 2000] to replace administrative guidelines, with penalties imposed for contravening the requirements. • The [MHA 2000] proposes that involuntary treatment must, at an early stage, be authorised by a psychiatrist and not simply any medical practitioner. Orders made by an authorised doctor who is not a psychiatrist must be confirmed by a psychiatrist within 3 days. 60. A further safeguard is provided by section 522 of the MHA 2000 which makes it an offence to knowingly provide ‘false or misleading’ information to the Department. That section provides as follows: 522 False or misleading documents (1) A person must not state anything in any document required or permitted to be made under this Act the person knows is false or misleading in a material particular. Maximum penalty—40 penalty units. (2) It is enough for a complaint against a person for an offence against subsection (1) to state the statement made was, without specifying which, ‘false or misleading’. 61. The inclusion of the above provisions means that Parliament recognised the risk that some people would unnecessarily be subject to the system. However, Parliament also considered the benefit that the system would bring to the community together with the safeguards outweighed the detriment experienced by those people unnecessarily subject to it. 62. Applying the principles established in ROSK, Ferrier and Cockcroft, I consider that disclosure of the JEO application could reasonably be expected to disclose information provided by the JEO applicant/s. I consider that disclosure of information supplied by persons who provide information in support of an application under the MHA 2000 could reasonably be expected to result in other potential informants being less likely to provide relevant information, thereby prejudicing the system or procedure for the protection of persons which is established by the provisions of the MHA 2000. 63. Accordingly, for the reasons discussed above, I am satisfied that the JEO application qualifies for exemption from disclosure under section 42(1)(h) of the FOI Act. Section 42(1)(ca) of the FOI Act 64. The Department submits that identifying information about the JP qualifies for exemption under section 42(1)(ca) of the FOI Act. The JEO applicant and JP have also expressed similar concerns regarding the disclosure of the JP’s identity. 65. Paragraph (ca) of subsection 42(1) of the FOI Act provides:[20] 42 Matter relating to law enforcement or public safety (1) Matter is exempt if its disclosure could reasonably be expected to— ... (ca) result in a person being subjected to a serious act of harassment or intimidation. Legislative history of paragraph 42(1)(ca) of the FOI Act 66. Paragraph 42(1)(ca) of the FOI Act is a relatively new exemption provision inserted into the FOI Act by the Freedom of Information and Other Legislation Amendment Act 2005 (Qld) with commencement on 31 May 2005. There is no equivalent provision in other Australian jurisdictions, the United Kingdom or Canada, interpretation of which might provide guidance regarding the provision. 67. Paragraph 42(1)(ca) of the FOI Act was enacted in response to Report No 32 of the Legal, Constitutional and Administrative Review Committee (LCARC Report).[21] 68. The LCARC Report referred to paragraph 42(1)(c) of the FOI Act and noted that:[22] In some circumstances the disclosure of matter could risk harm to an individual which falls short of endangering their life or physical safety. For example, the disclosure of information could cause a person to apprehend harassment or intimidation. Harassment does not satisfy s42(1)(c) unless there is evidence of a risk that disclosure of the matter in issue would endanger a person’s life or physical safety. (Re Murphy and Queensland Treasury [1995] QICmr 23; (1995) 2 QAR 744 at paras 53, 90-91.) The QIC submitted that, for these reasons, the provision should be extended to also exempt matter which could reasonably be expected to subject a person to acts of serious harassment. 69. The LCARC Report also stated:[23] The committee agrees that potential harm to an individual, apart from the risk of endangering a person’s life or physical safety, justifies the non-disclosure of material under the Act. In particular, people should not be deterred from providing information to investigative authorities, and professionals responsible for preparing reports about individuals should not be deterred from providing full and frank reports. In this regard, s 42(1)(c) should be extended to situations where disclosure of information could be reasonably expected to: • subject a person to serious acts of harassment; or • substantially prejudice the mental well-being of a person. Each of these components is necessary. The first relates to likely possible acts against the person, whereas the second is focussed on any reasonable apprehension of harm which a person may have. Care should be taken in drafting the new provision to ensure that it is no broader than is necessary to protect the well-being of third parties who might be affected. The definition of ‘detriment’ for the purposes of the Criminal Code, chapter 33A (Unlawful stalking) appears to provide an appropriate precedent for an amended provision. 70. The LCARC Report contained the following recommendation:[24] In relation to the exemptions contained in s 42 (Matter relating to law enforcement or public safety), s 42(1)(c) should be extended to also exempt matter if its disclosure could reasonably be expected to: • subject a person to serious acts of harassment; or • substantially prejudice the mental well-being of a person. The definition of ‘detriment’ for the purposes of the Criminal Code, chapter 33A (Unlawful stalking) appears to provide an appropriate precedent for an amended provision. 71. In the explanatory notes to the Freedom of Information and Other Legislation Amendment Bill, paragraph 42(1)(ca) of the FOI Act was described as follows:[25] Clause 24 amends section 42 to create a new exemption to prevent disclosure where it is reasonably expected that such disclosure could subject a person to serious acts of harassment or intimidation. Such harassment or intimidation would be a consequence of, for example, the applicant having knowledge of the content of the information or of the provider of the information. For example, potential disclosure of information provided by a victim about the offence, upon the application of an offender, could constitute harassment or intimidation. Harassment or intimidation includes, for example, the threat of violence. This implements LCARC finding 177. Interpretation of paragraph 42(1)(ca) of the FOI Act 72. Section 4 of the FOI Act relevantly provides: 4 Object of Act and its achievement (1) The object of this Act is to extend as far as possible the right of the community to have access to information held by Queensland government. (2) Parliament recognises that, in a free and democratic society— (a) the public interest is served by promoting open discussion of public affairs and enhancing government’s accountability; and (b) the community should be kept informed of government’s operations, including, in particular, the rules and practices followed by government in its dealings with members of the community; and ... (3) Parliament also recognises there are competing interests in that the disclosure of particular information could be contrary to the public interest because its disclosure in some instances would have a prejudicial effect on— (a) essential public interests; or (b) the private or business affairs of members of the community about whom information is collected and held by government. (4) This Act is intended to strike a balance between those competing interests. (5) The object of this Act is achieved by— (a) giving members of the community a right of access to information held by government to the greatest extent possible with limited exceptions for the purpose of preventing a prejudicial effect on the public interest of a kind mentioned in subsection (3); and ... (6) It is Parliament’s intention that this Act be interpreted to further the object stated in subsection (1) in the context of the matters stated in subsections (2) to (5). 73. Consistent with Parliament’s intention expressed in subsection 4(6) of the FOI Act, paragraph 42(1)(ca) of the FOI Act must be interpreted in a way that best achieves the purpose of the FOI Act[26] as: the primary objective of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[27] 74. Subsection 4(1) of the FOI Act recognises that the community has a right to access information held by the Queensland government. However, subsections 4(2)-(5) of the FOI Act provide that the right of access to documents under the FOI Act is subject to a balancing of competing public interests. Accordingly, paragraph 42(1)(ca) should be interpreted in a way that extends as far as possible the right of the community to access information held by agencies whilst recognising that paragraph 42(1)(ca) is one of the limited exceptions that may apply because disclosure ‘could be contrary to the public interest’ as it ‘would have a prejudicial effect’ on ‘essential public interests’ or on ‘the private or business affairs of members of the community about whom information is collected and held by government.’ 75. Accordingly, in interpreting paragraph 42(1)(ca) of the FOI Act it is necessary to consider any ‘essential public interests’ and ‘private or business interests’ that, absent the provision, may be prejudiced by disclosure of documents through the right of access under section 21 of the FOI Act. 76. The LCARC Report specifically addresses the public interest in ensuring that persons are not deterred from providing information to investigative authorities and similarly, that professionals are not deterred from providing full and frank reports to agencies through concern that disclosure could lead to serious harassment or intimidation.[28] The Committee agreed that potential harm to an individual justifies non-disclosure. 77. In addition to the public interests identified by LCARC, paragraph 42(1)(ca) also works to protect the public interest in disclosure not having a prejudicial effect on the private or business affairs or individuals. 78. Though the term ‘personal affairs’ appears throughout the FOI Act, the term ‘private affairs’ does not otherwise appear. 79. In ABC v Lenah Game Meats Pty Ltd[29] Gleeson CJ noted that: There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private. 80. In accordance with subsection 4(6) of the FOI Act, paragraph 42(1)(ca) of the FOI Act may be interpreted as a limited exception to the right of access which allows non-disclosure of information or professional advice provided to an agency where that disclosure could reasonably be expected to result in serious harassment or intimidation of person/s. Such disclosure would therefore be contrary to the public interest in the supply of this information as well as the public interest in protecting such individuals from conduct that would prejudice their private affairs. ‘Could reasonably be expected to’ 81. As set out above in relation to section 42(1)(h), Cockcroft dealt with the interpretation of the phrase ‘could reasonably be expected to prejudice the future supply of information’ in the context of the paragraph 43(1)(c)(ii) (business affairs) exemption contained in the Commonwealth FOI Act. 82. Applying the Justices’ interpretation to the phrase ‘could reasonably be expected to’ in this context requires a consideration of whether the expectation that disclosure of the Information in issue will result in a serious act of harassment or intimidation is reasonably based. 83. Shepherd J also noted in Cockcroft that it is not necessary for a decision-maker ‘to be satisfied upon a balance of probabilities’ that disclosing the document will produce the anticipated prejudice.[30] 84. Depending on the circumstances of the particular review, a range of factors may be relevant in determining whether an act could reasonably be expected to occur. These factors may include, but are not limited to: • past conduct or a pattern of previous conduct • stated intentions concerning future conduct including threats • the nature of the relevant information in issue • the nature of the relationship between the parties • relevant contextual and/or cultural factors. ‘Harassment’ 85. The plain meaning of the word ‘harass’, as defined in the Macquarie Dictionary[31] includes: to trouble by repeated attacks, ... to disturb persistently; torment ‘Intimidation’ 86. The plain meaning of the word ‘intimidate’,[32] includes: to make timid, or inspire with fear; overawe; cow ... to force into or deter from some action by inducing fear ‘A serious act of harassment or intimidation’ 87. Paragraph 42(1)(ca) requires that an anticipated act of harassment or intimidation be serious. 88. The plain meaning of the word ‘serious’,[33] includes: giving cause for apprehension; critical 89. and in the New Shorter Oxford Dictionary (4th Edition) includes: having (potentially) important, esp. undesired, consequences; giving cause for concern. How relevant information is considered 90. The question of whether disclosure disclosing relevant parts of the JEO could reasonably be expected to result in a serious act of harassment or intimidation should be considered objectively, in light of all relevant information, including information from and/or about the claimed source of harassment or intimidation.[34] 91. Paragraph 42(1)(ca) of the FOI Act does not require a causal link to be drawn between a specific person and the conduct; nor does it require the conduct to be that of the applicant. Information contained on Channel 7 programme 92. I obtained a copy of a Channel 7 Today Tonight programme broadcast on Friday, 11 July 2008. During the programme the applicant was interviewed about the JEO subject of this review. In the interview, the applicant made a number of statements regarding events that occurred, her distress, how she felt about her treatment by various people involved, and her opinion regarding the need to change the JEO process and relevant legislation. 93. The applicant also made statements regarding what she would do if she obtained the Matter in Issue through this process under the FOI Act: ... Today Tonight reporter: What will you do when you find out who did this to you? Applicant: I will hunt them down. I don’t care how long it takes. I don’t care how much it costs me. ... 94. Such statements are relevant to my consideration, for the purposes of section 42(1)(ca) of the FOI Act, of what could reasonably be expected to result if the relevant parts of the JEO were disclosed to the applicant. “Hunt” is a word that used by itself can mean ‘endeavour to find.’[35] Alternatively it has also been defined to mean ‘to chase (game or other wild animals) for the purpose of catching or killing.’[36] There is no alternative meaning when the word is used in conjunction with the word ‘down’ as in ‘hunt them down’. “Hunt down” means to ‘pursue with intent to kill or capture.’[37] 95. In communications with the Office, the applicant has expressed concern that my reliance on the definition of “hunt down” suggests that she is capable of killing another person. 96. The precise definition of the above words is not determinative and should not be interpreted to mean that the applicant necessarily has an intention to kill the person/s responsible for the JEO. The applicant states that during the television interview when she used the words “Hunt them down” she meant ‘endeavour to find’. Even if this is her only intention, I consider the use of such words to comprise a threat which in an ordinary and reasonably person will give rise to consternation or fear of harassment. Furthermore, in correspondence and telephone calls to this Office the applicant has further advised that she holds the Department, the JEO applicant/s and the JP[38] responsible for the JEO. 97. On the basis of the applicant’s public and explicit statement of her intentions, I am satisfied that an expectation that the disclosure of this information to the applicant might result in a serious act of harassment or intimidation is a reasonable expectation. 98. The applicant has expressed an intention to pursue and harass a person who is performing an official and public role, which carries a likely consequence of deterring that person or other persons from performing this or similar roles. Interference with the private affairs of a public official by approaching them as they carry out their private lives or deterring a public official from performing their role are precisely the essential public and private interests the Parliament sought to protect in passing section 42(1)(ca) of the FOI Act. Accordingly, the identity of or any information that might lead the applicant to identify the person/s involved is exempt matter under section 42(1)(ca) of the FOI Act. The use of such information obtained under FOI to further the applicant’s expressed intention would amount to an abuse of her access rights under the FOI Act. Information provided by the Department, JP and JEO applicant/s 99. While I consider the applicant’s public statement about her intentions is alone sufficient to make out the claim for exemption under section 42(1)(ca) of the FOI Act, I have also had regard to additional evidence provided to me during the course of this review to which I have not referred in this decision. 100. I have given careful consideration to affording the applicant fairness[39] by providing adequate detail of my reasoning in making my decision. However, in the current circumstances I am constrained from providing further information about my reasoning because to do so would, in my view, risk bringing about the consequences that section 42(1)(ca) is intended to protect against. The evidence and reasons by their nature would tend to identify the people involved and therefore the information that is claimed to be exempt. 101. To the greatest extent possible, I have summarised the information where to do so would not identify people whose identities are contained within the Matter in Issue in this review. However, the majority of the submissions relate to matters specifically about the applicant and/or the people and is conveyed in such a manner that to disclose the submission would reveal the identity of the people whose identities are in issue. I have therefore considered such parts of the submissions, and my related specific conclusions, are necessarily confidential. 102. To the extent that those submissions may be summarised without revealing confidential information, I have included them below. 103. A summary of the Department’s submissions include: • that in the circumstances of this case, the Department ‘consider it reasonably likely that [the applicant’s] displeasure would be directed at the JP’ • the particular circumstances of the people involved and concerns raised are important to the consideration of this matter • that while the applicant has stated that she ‘will not rest until the persons involved in the issuance of the JEO are held to account for their actions’, the applicant appears to have exhausted the avenues of pursuing lawful remedies short of initiating legal action. • that the applicant’s previous conduct towards specific people meets the necessary standard required for section 42(1)(ca) of the FOI Act (i.e. repeated or persistent conduct which has disturbed other people to a substantial degree) and that, based on this, her future conduct (should the information be disclosed to her) can reasonably be expected to subject the JP to a serious act of harassment and/or intimidation in the specific context of section 42(1)(ca) of the FOI Act. 104. The Department also submits that it is not necessary to establish that physical violence would result for the purposes of section 42(1)(ca) of the FOI Act. I agree that such past or future action is not required to establish that section 42(1)(ca) of the FOI Act applies. 105. The JEO applicant/s raised specific concerns for the safety and welfare of the JP in the event that person’s identity was disclosed to the applicant. Such concerns were made with reference to information that would reveal the identity of the JEO applicant/s and/or the JP and I therefore consider those submissions to be confidential. 106. The JP made specific submissions about their personal concerns if their identity were to be disclosed to the applicant. The JP noted that the applicant had made numerous letters to the editor of newspapers about a range of matters including the JEO and had received significant media coverage. The JP submitted that given the applicant’s displeasure regarding the JEO, he/she considered that the applicant would be likely to air her grievances about the people involved publicly and that public statements made by the applicant or others may represent him/her poorly, even where he/she considers they have conducted themselves appropriately and lawfully. Similar submissions were made by Department. 107. The JP also submitted that it was relevant to his/her concerns about the applicant’s actions after any disclosure that the JEO applicant/s had been so concerned about the applicant’s behaviour that they had sought a JEO. I note in this respect that the applicant has previously advised me that, following the examination she was not detained for treatment. The applicant’s submissions 108. The applicant provided submissions and information through correspondence and telephone conversations during the course of this review. 109. For the most part, the applicant’s submissions are in support of her need to know the identities of the people involved in the issue of the JEO. I acknowledge the applicant has strong concerns and issues she wishes to pursue in relation to the JEO, and has expressed concerns about being subject to harassment and intimidation. However, as set out above in relation to the application of section 42(1)(h) of the FOI Act, the legislation does not allow public interest arguments regarding the applicant’s need to know to such information to be taken into account. Findings 110. I have carefully considered the submissions made by all parties to this review and information I have obtained from Channel 7. On the information currently available to me, I am satisfied that: • the JP is a person whom the applicant considers is responsible for the JEO being made concerning her. • the applicant appeared on a national television programme in which she and others were interviewed about her experience regarding the JEO, and in response to a question ‘what will you do when you find out who did this to you’ she stated ‘I will hunt them down. I don’t care how long it takes. I don’t care how much it costs me.’ • the Department, the JEO applicant/s and the JP hold strong concerns, based on specific incidents or instances of the applicant’s and others conduct, about the likelihood of (adverse behaviour) in the event the information regarding the identity of the JP was disclosed to the applicant. 111. I do not accept a particular confidential submission by the Department and another party regarding events they say occurred and the significance of such events. To the extent that the factual accounts differ, I prefer that of the other person directly involved. I am not satisfied that the preferred facts establish a previous instance of conduct that is persuasive for my consideration of the application of section 42(1)(ca) of the FOI Act. This means that I do not agree with the specific argument put to me that the applicant’s previous conduct shows that she has been intimidating or harassing a specific person and therefore that particular submission is not adversely affecting the applicant’s case. Application of the law 112. In determining whether this claim for exemption is made out, it is unnecessary for me to make a finding with respect to each and every past or future act of alleged harassment and intimidation. It is necessary for me to consider whether the expectation of serious harassment and intimidation on the disclosure of the identity of the JP is reasonably based. Is the expectation of serious harassment and intimidation on the disclosure of the identity of the JP reasonably based? 113. On the information currently available to me, I am satisfied that disclosure of the identity of the JP in this review could reasonably be expected to result in the applicant: • pursuing the people involved in the JEO process, particularly the JP who issued the JEO • being very persistent in their pursuit of that person • confronting that person about their concerns about the consequences of the JEO and opinions regarding the process and their conduct, in a manner that may be regarded as an ‘attack’ on that person • publicising such concerns and opinions about the person and their purported conduct • repeatedly taking such actions • conducting themselves in a way that attacks, disturbs or torments the JP and causes concern or apprehension or has undesired consequences. 114. In all the circumstances, I consider that disclosure of the identity of the JP in this review could reasonably be expected to result in the JP being subjected to a serious act of harassment or intimidation. 115. I am therefore satisfied that: • disclosure of the identity of the JP could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation • the identity of the JP as it appears in the JEO and JEO application is exempt from disclosure under paragraph 42(1)(ca) of the FOI Act. DECISION 116. For the reasons stated above, I set aside the decision under review by finding that: • parts of the JEO and JEO application that could identify the JP are exempt from disclosure under paragraph 42(1)(ca) of the FOI Act. • the JEO application is exempt from disclosure under section 42(1)(h) of the FOI Act ________________________ Julie Kinross Acting Information Commissioner Date: 20 February 2009 [1] With the approval of the JEO applicant and JP.[2] Including the preliminary views dated 20 May 2008 and 10 June 2008.[3] I confirmed that the applicant had previously advised a staff member of the Office that she did not seek this information and therefore this folio would no longer be considered in the external review.[4] Folio 15.[5] Folios 16 and 17.[6] Ferrier and Queensland Police Service [1996] QICmr 16; (1996) 3 QAR 350 at paragraphs 27-36.[7] See the Department factsheet entitled ‘Information about Justice Examination Orders’ available on the Department’s website: www.health.qld.gov.au/mha2000/documents/jeo_brochure.pdf.[8] Section 25 of the MHA 2000.[9] Section 28 of the MHA 2000.[10] Sections 29 and 30 of the MHA 2000.[11] Section 30 of the MHA 2000.[12] Section 32 of the MHA 2000.[13] [1996] QICmr 19; (1996) 3 QAR 393 (ROSK).[14] (Unreported, Queensland Information Commissioner, 31 October 2002).[15] Explanatory Note, Mental Health Bill 2000 (Qld) at page 14.[16] [1986] FCA 35; (1986) 64 ALR 97(Cockcroft). [17] Cockcroft, at 106. [18] See section 87 of the FOI Act.[19] Explanatory Note, Mental Health Bill 2000 (Qld) at page 6. See also ROSK at paragraph 24 where the Information Commissioner stated that in respect of the Mental Health Act 1974 (Qld) ‘...elaborate safeguards, checks and balances have been built into the statutory scheme.’[20] Subsection 42(1) of the FOI Act is subject to subsection 42(2) which provides that matter is not exempt under subsection (1) if it consists of matter described in paragraph (a) of subsection (2), unless its disclosure would, on balance, be in the public interest. I am satisfied that the relevant information is not of a type described in paragraph (a) and therefore subsection (2) of section 42 does not apply in this matter. [21] Legal, Constitutional and Administrative Review Committee, Freedom of Information in Queensland, December 2001, Report No 32. [22] At page 203.[23] At page 204. [24] Committee finding 177 – recommendation, at page 204. [25] At page 14. [26] Subsection 14A(1) of the AI Act. [27] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381. [28] Paragraph 42(1)(ca) of the FOI Act does not contain a public interest test, however, the public interest considerations discussed above are relevant to how paragraph 42(1)(ca) of the FOI Act is interpreted. [29] (2001) 208 CLR 199 at 226.[30] Cockcroft, at 106.[31] Macquarie Dictionary Online (Fourth Edition) www.macquariedictionary.com.au.[32] As above. [33] As above. [34] Price and Queensland Police Service (Unreported, Queensland Information Commissioner, 29 June 2007) at paragraph 63; see also the comments of the Information Commissioner at paragraph 47 of Murphy and Queensland Treasury [1995] QICmr 23; (1995) 2 QAR 744 regarding section 42(1)(c) of the FOI Act.[35] Macquarie Dictionary, Macquarie University, 2nd edition, 1992[36] As above[37] As above[38] The applicant has raised concerns regarding the appropriateness of the behaviour of the JP in relation to the JEO, as she believes the JP did not hold appropriate qualifications to exercise the discretion to issue the JEO[39] Section 83(3)(a) of the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

R25 and Queensland Police Service [2020] QICmr 50 (15 September 2020)

R25 and Queensland Police Service [2020] QICmr 50 (15 September 2020) Last Updated: 26 October 2020 Decision and Reasons for Decision Citation: R25 and Queensland Police Service [2020] QICmr 50 (15 September 2020) Application Number: 314850 Applicant: R25 Respondent: Queensland Police Service Decision Date: 15 September 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - DOCUMENT NONEXISTENT OR UNLOCATABLE - applicant contends additional documents exist - whether the information sought is nonexistent or unlocatable - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - IRRELEVANT INFORMATION - whether deleted information is irrelevant to the terms of the access application - section 88 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LAW ENFORCEMENT OR PUBLIC SAFETY INFORMATION - documents relating to the applicant and her interactions with the agency - whether disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment - sections 47(3)(a), 48 and schedule 3, section 10(1)(i) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LAW ENFORCEMENT OR PUBLIC SAFETY INFORMATION - documents relating to the applicant and her interactions with the agency - whether information was obtained, used or prepared for an investigation by a prescribed crime body or another agency in performance of the prescribed functions of the prescribed crime body - sections 47(3)(a), 48 and schedule 3, section 10(4) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for access, for the period from 1 July 2011 to 1 July 2013, to information as follows: Part 1: All emails and documents about [the applicant] to/from QPS to the Minister of Police Any documents including emails to/from MinisterialLiaison.Officer@police.qld.gov.au regarding [the applicant]. All documents and emails about [the applicant] generated or received or sent by police media officers All emails and documents organised for, searched for and related to [the applicant’s] Blue Card application Part 2: All security related warnings sent by QPS to staff of courts, judicial officers, Premier, hospitals, Gold Coast City Council such as workplace health and safety warnings, risk, notices, or to alert that [the applicant is] a danger to others Part 3: [The applicant’s] ESC file - All documents and communications about [the applicant and her] complaints made to Ethical Standards, including all emails and other documents relating to [her] ESC complaints, investigations of those complaints and related QPS located 30 pages and decided[2] to: in relation to Part 1, refuse access to documents on the ground documents do not exist in relation to Part 2, refuse access to 1 page on the ground it is exempt from disclosure on the basis disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment in relation to Part 3: delete information from 3 pages on the ground it is irrelevant to the application; and refuse access to parts of 26 pages on the ground the information is contrary to the public interest to disclose. The applicant applied[3] to the Office of the Information Commissioner (OIC) for external review of QPS’ decision refusing access and raised concerns about the sufficiency of QPS’s searches for documents responsive to Part 1 of the application. For the reasons set out below, I find that: access may be refused to documents responsive to Part 1 of the application on the ground that they are nonexistent parts of 3 pages are not relevant to the access application and may be deleted; and access may be refused to 2 pages and parts of 26 pages on the grounds they comprise exempt information. Preliminary issue – alleged bias The applicant has requested that I be removed from her matters[4] and alleged that I have an undisclosed bias against her.[5] I have issued previous decisions involving the same applicant in which she raised this issue. As I did on those occasions,[6] I have carefully considered these submissions, alongside the High Court’s test for assessing apprehended bias for a decision maker. The High Court’s test requires consideration of ‘if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide’.[7] The High Court has also noted that ‘[t]he question of whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made’.[8] OIC is an independent statutory body that conducts merits review of government decisions about access to, and amendment of, documents. The procedure to be followed on external review is, subject to the IP Act, within the discretion of the Information Commissioner.[9] In order to ensure procedural fairness (as required by both the IP Act[10] and common law), it is the practice of OIC to convey a preliminary view, based on an assessment of the material before the Information Commissioner or her delegate at that time, to an adversely affected party. This appraises that party of the issues under consideration and affords them the opportunity to put forward any further information they consider relevant to those issues. During this external review, I conveyed[11] a preliminary view to the applicant that access to further documents can be refused on the basis they are nonexistent or unlocatable, some information could be deleted from the copies of the documents released to her on the ground that it is irrelevant and access to other information can be refused on the grounds that it comprises exempt information. My letter advised the applicant that the purpose of my view was to give her the opportunity to put forward her views, and if she provided additional information supporting her case, this would be considered and could alter the outcome.[12] For this decision, I am the delegate of the Information Commissioner.[13] I have not to my knowledge dealt with the applicant in any capacity prior to her reviews and cannot identify any conflict of interest in my dealing with her application for review of QPS’s decision. I do not consider the fact that the applicant has asked for me to be removed from her matters has altered my conduct of the review or consideration of the issues before me in any way. In these circumstances, paraphrasing the High Court’s test, I am unable to identify any basis for finding that a fair-minded lay observer might reasonably apprehend that I[14] might not bring an impartial and unprejudiced mind to the resolution of this matter. Accordingly, I have proceeded to make this decision. Background Significant procedural steps taken during the external review are set out in the Appendix to this decision. The applicant has previously requested that all her matters be finalised by way of written decision that can be appealed to the Queensland Civil and Administrative Tribunal. Reviewable decision The decision under review is QPS’s decision dated 9 September 2019. Evidence considered The applicant frequently emailed the OIC during the review, often making submissions within the emails or attachments. I have considered all this material and have extracted those parts which I consider have relevance to the issues to be determined in this external review. In reaching my decision, I have had regard to the submissions, evidence, legislation, and other material referred to throughout these reasons (including footnotes and Appendix). 14. Generally, it is necessary that I have regard to the Human Rights Act 2019 (Qld) (HR Act) given that section 11(1) of the HR Act provides that ‘[a]ll individuals in Queensland have human rights’ (my emphasis), In this matter however, the applicant currently resides in New South Wales. Accordingly, I am not required to have regard to the HR Act vis a vis the applicant in this review. Nonetheless I have had regard to the HR Act, particularly the right to seek and receive information,[15] as if the applicant was in Queensland. I consider a decision-maker will be ‘respecting and acting compatibly with’ the right to seek and receive information, and other rights prescribed in the HR Act, when applying the law prescribed in the IP Act and the Right to Information Act 2009 (Qld) (RTI Act).[16] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act.[17] I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[18] ‘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.[19] Information in issue The information in issue in this review is contained within 2 pages[20] and parts of 28 pages.[21] Issues for determination The issues for determination in this review are: Sufficiency of search: whether access to documents responsive to Part 1 of the access application may be refused on the ground that they are nonexistent. Irrelevant information: whether certain information may be deleted on the ground it is irrelevant to the scope of the access application. Refusal of access: whether access to information may be refused on the basis it is exempt information variously on the basis that: disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment; or it was obtained, used or prepared for an investigation by a prescribed crime body or another agency, in the performance of the prescribed functions of a prescribed crime body. Sufficiency of search Relevant law Under the IP Act, a person has a right to be given access to documents of an agency to the extent they contain the individual’s personal information.[22] However, this right is subject to other provisions of the IP Act and the RTI Act including the grounds on which an agency or Minister may refuse access to documents.[23] Access to a document may be refused if the document is nonexistent or unlocatable.[24] A document is nonexistent[25] if there are reasonable grounds to be satisfied that the document does not exist. A document is unlocatable[26] if it has been or should be in the agency’s possession and all reasonable steps have been taken to find it, but it cannot be found. To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience and have regard to a number of key factors including:[27] the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including: the nature and age of the requested document/s; and the nature of the government activity the request relates to.[28] When proper consideration is given to relevant factors, it may be unnecessary for searches to be conducted. However, if an agency or Minister relies on searches to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the requested documents. The key factors identified above are also relevant to a consideration of whether an agency or Minister has taken all reasonable steps before concluding that documents are unlocatable.[29] Findings In response to Part 1, QPS’s decision[30] states: In this case I am satisfied that there are reasonable grounds to believe that this document does not exist. In reaching this decision I have taken account of the following: Searches of QPS databases show no records or incidents for the dates you mentioned in the application Searches and enquiries have been conducted with: The Ministerial Liaison Officer (MLO), resulting in the advice that no such documents exist. It is likely that if such documents existed, the office of the MLO would retain such documents. Media and Public Affairs Group, resulting in the advice that no such documents exist. The Media and Public Affairs Group is an area that might keep such documents if they existed. The Ethical Standards Command resulting in the advice that no such documents exist. State Crime Command resulting in the advice that no such documents exist. The QPS does not have any part in the process of applications as it is entirely up to the statutory regulatory authority, Blue Card Services. Police Information Centre resulting in the advice that no such documents exist. It is likely that if such documents existed, the Police Information Centre would retain such documents. Further, since no such document exists or is expected to exist in current databases, I consider that no such document would be kept in or be retrievable from a backup system. In seeking an external review, the applicant submitted[31] that the ‘records request was obstructed again by QPS ...’ and that the ‘requested QPS records are needed to set out the particulars of a law suit...’. I have taken this submission to mean that the applicant seeks review of QPS’s decision to refuse access to information, including QPS’s decision to refuse access to documents which respond to Part 1 on the basis that they are nonexistent. OIC required QPS to provide records of the searches conducted. I have considered these records and I am satisfied that they confirm the nature and results of the searches as described above by QPS. As it appeared that QPS had searched all locations where any existing documents would logically be found, I sought further submissions from the applicant including any specific evidence she was able to present as to the existence of the documents sought. The applicant did not provide further submissions or specific evidence as to the existence of the documents sought. In the absence of specific evidence pointing to the existence of further documents, and in light of the enquiries made, the locations identified and the searches undertaken by QPS, and having regard to the factors set out in paragraph 19 above, I am satisfied that all reasonable searches have been conducted for documents responding to Part 1, and that they do not exist. On this basis, access to documents which respond to Part 1 may be refused under sections 47(3)(e) and 52(1)(a) of the RTI Act. Irrelevant information Relevant law Section 88 of the IP Act provides that an agency may give access to a document subject to the deletion of information it considers is not relevant to an application. This provision does not set out a ground for refusal of access. Rather, it provides a mechanism to allow irrelevant information to be deleted from documents which are identified for release to an applicant. In deciding whether information is irrelevant, it is necessary to consider whether the information has any bearing upon, or is pertinent to, the terms of the application.[32] Findings QPS deleted small portions of information on 3 pages[33] on the basis that they were irrelevant to the access application. I have reviewed the small portions of information that were deleted and I am satisfied that they constitute information about other individuals and/or matters being dealt with by QPS which do not relate to the applicant or the terms of her access application. As per the terms of her application, the applicant sought information about herself. Given the small portions of information on the 3 pages in no way relates to the applicant and clearly fall outside the terms of the application, I find that they can be deleted from the copies of the documents released to the applicant.[34] Refusal of access Relevant law Access to a document may be refused to the extent it comprises exempt information.[35] Relevantly, information will be exempt from disclosure if disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment (System or Procedure Exemption).[36] For the System or Procedure Exemption to apply, the following three elements must be satisfied:[37] there exists an identifiable system or procedure it is a system or procedure for the protection of persons, property or the environment; and disclosure of the information could reasonably be expected to prejudice that system or procedure. An exception to the System or Procedure Exemption applies where the information consists of:[38] matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law matter containing a general outline of the structure of a program adopted by an agency for dealing with a contravention or possible contravention of the law a report on the degree of success achieved in a program adopted by an agency for dealing with a contravention or possible contravention of the law a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law or the law relating to corruption under the Crime and Corruption Act 2001 (Qld) (CC Act); or a report on a law enforcement investigation that has already been disclosed to the entity the subject of the investigation. Also of relevance to this decision is Schedule 3, section 10(4) of the RTI Act. That section provides that information will also be exempt from disclosure if the information was obtained, used or prepared for an investigation by a prescribed crime body or another agency,[39] in the performance of the prescribed functions of a prescribed crime body (Prescribed Crime Body Exemption). However, it will not apply where:[40] the information consists of information about the applicant; and the investigation has been finalised. Findings: System or Procedure Exemption QPS refused access to information contained within 1 page (Category A information) on the basis the information was subject to the System or Procedure Exemption.[41] While I am limited by the operation of the IP Act in the extent to which I can describe the exact content of the Category A Information,[42] it is information which responds to Part 2 of the application and can broadly be described as flags recorded by QPS officers against the applicant’s QPRIME[43] record. QPS officers who become aware of relevant information[44] in the performance of their duties in relation to a person, business, vehicle or address are required to enter that information into the relevant QPRIME record.[45] I am satisfied that the process of recording flags by QPS officers against an individual’s QPRIME record comprises an identifiable system or procedure. I consider this system is designed to ensure the safety and security of the subject individuals, the broader community and in some instances, publicly/privately-owned property. For these reasons, I am satisfied that requirements (a) and (b) at paragraph 32 above are met. I am also satisfied that revealing the specific flags recorded by QPS against an individual’s QPRIME record could reasonably be expected to allow individuals to use that information to modify their behavior in such a way so as to avoid detection by QPS. I am satisfied that this would compromise the ongoing effectiveness of the warning system. Additionally, Police may be discouraged from entering appropriate warnings, which in turn may compromise public safety and police safety. As a result, I find that disclosure of such information could reasonably be expected to prejudice QPS’s warnings system, and requirement (c) at paragraph 32 above is also met. A preliminary view setting out the above was conveyed to the applicant. In response, the applicant submitted[46] ‘Police powers were not used for lawful investigations.’ I have taken this to mean that the applicant is raising public interest arguments relating to revealing or substantiating that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct, and contributing to the administration of justice generally, including procedural fairness, or for the applicant.[47] In view of the applicant’s submission above, I have considered whether any of the relevant exceptions to the exemption may apply.[48] Having considered the Category A Information, I am satisfied that it does not consist of any of the types of specific information referred to in schedule 3, section 10(2) of the RTI Act. Based on the above, I am satisfied that the Category A information comprises exempt information as its disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment, that no exceptions to the exemption apply in the circumstances, and that access to it may therefore be refused.[49] Where information is found to be exempt, there is no scope under the legislation to consider public interest arguments because Parliament has decided that it would be contrary to the public interest to disclose exempt information. Accordingly, I cannot take any of the applicant’s submissions concerning the public interest into account. In addition, the Information Commissioner does not have the power to direct that access be given to information that is found to be exempt.[50] Findings: Prescribed Crime Body Exemption QPS refused access to information contained within 1 page[51] and parts of 26 pages[52] (Category B Information) on the basis that the information was subject to the Prescribed Crime Body Exemption. I have reviewed the documents located by QPS which contain the Category B Information. These documents respond to Part 3 of the access application and reveal that the information contained within them relates to two complaints made by the applicant: The First Complaint: was lodged with the QPS Ethical Standards Command on 12 January 2012 after being notified of the First Complaint, the CCC[53] referred it to QPS to deal with; and the allegations were categorised as involving misconduct. The Second Complaint: was lodged with the CCC on 16 January 2012 was referred to QPS to deal with; and the allegations were categorised as involving official or police misconduct. The CCC is a prescribed crime body[54] and its prescribed functions are broad in relation to suspected corrupt conduct[55] or police misconduct.[56] Where the CCC refers a complaint back to an agency, such as QPS, to investigate, subject to the CCC’s monitoring role,[57] all information obtained used or prepared by the agency as part of that investigation will also be exempt information under the Prescribed Crime Body Exemption. In the circumstances of this matter, I am satisfied that the Category B information was obtained, used or prepared by QPS in the performance of the CCC’s prescribed functions. While the investigations regarding the First and Second Complaints have been finalised, I am also satisfied that the Category B information is not ‘about’ the applicant but rather it is about the individuals the subject of the complaints, and therefore the exception to the Prescribed Crime Body Exemption does not apply. For these reasons, I find that the Category B information is exempt information under the Prescribed Crime Body Exemption and access to that information may be refused.[58] As with the Category A Information, where information is found to be exempt, there is no scope under the legislation to consider public interest arguments because Parliament has decided that it would be contrary to the public interest to disclose exempt information and I reiterate that the Information Commissioner does not have the power to direct that access be given to information that is found to be exempt.[59]DECISION I vary QPS’s decision by finding that: access may be refused to documents responsive to Part 1 of the application on the ground that they are nonexistent under sections 47(3)(e) and 52(1)(a) of the RTI Act parts of 3 pages are not relevant to the access application and may be deleted under section 88 of the IP Act; and access may be refused to: the Category A Information on the ground that it is exempt under sections 47(3)(a) and 48 and schedule 3, section 10(1)(i) of the RTI Act; and the Category B Information on the ground that it is exempt under sections 47(3)(a) and 48 and schedule 3, section 10(4) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.Assistant Information Commissioner CorbyDate: 15 September 2020 APPENDIX Significant procedural steps Date Event 9 September 2019 OIC received the applicant’s application for external review. 12 September 2019 OIC received an emailed submission from the applicant. 17 September 2019 OIC received an emailed submission from the applicant. 23 September 2019 OIC received an emailed submission from the applicant. 25 September 2019 OIC notified QPS and the applicant that the application for external review had been received and requested procedural documents. OIC received two emailed submissions from the applicant. OIC separately wrote to the applicant about this external review and other external reviews sought by her. 26 September 2019 OIC received an emailed submission from the applicant. OIC received the requested procedural documents from QPS. 14 October 2019 OIC notified the applicant and QPS that the external review application had been accepted and requested the following from QPS: any records of the searches conducted a copy of the documents located clearly showing the information to which access was refused; and any correspondence between the applicant and QPS about the terms of the applicationOIC received an emailed submission from the applicant. 17 October 2020 OIC received records of the searches conducted and details of correspondence between the applicant and QPS about the terms of the application from QPS. 25 October 2020 OIC received email confirmation from QPS that all documentation requested in OIC’s letter dated 14 October 2019 had been provided. 17 January 2020 OIC wrote to QPS advising that a copy of the documents located had not been received by OIC. 21 January 2020 OIC received a copy of the documents located from QPS. 30 January 2020 OIC wrote to the applicant about this external review and other external reviews sought by her. 27 February 2020 OIC received an emailed submission from the applicant. 5 March 2020 OIC received an emailed submission from the applicant. 11 March 2020 OIC wrote to the applicant about this external review and other external reviews sought by her. 12 March 2020 OIC received an emailed submission from the applicant. 14 April 2020 OIC sought clarification from QPS about two discrepancies identified by OIC between the reasons set out in QPS’s decision notice and the mark-up on the copy of the documents located provided to OIC. 21 April 2020 OIC received a submission from QPS addressing the two discrepancies identified by OIC. 27 May 2020 OIC sought further clarification from QPS about the two discrepancies identified by OIC. 1 June 2020 OIC wrote to the applicant about this external review and other external reviews sought by her. 19 June 2020 OIC received a further submission from QPS addressing the two discrepancies identified by OIC. 29 June 2020 OIC conveyed a preliminary view to the applicant. 30 June 2020 OIC received an emailed submission from the applicant. 6 July 2020 OIC received an emailed submission from the applicant. OIC wrote to the applicant about this external review and other external reviews sought by her. 9 July 2020 OIC received an emailed submission from the applicant. 20 July 2020 OIC received two emailed submissions from the applicant. 11 August 2020 OIC received an emailed submission from the applicant. 17 August 2020 OIC wrote to the applicant about this external review and other external reviews sought by her. 3 September 2020 OIC wrote to the applicant about this external review and other external reviews sought by her. 4 September 2020 OIC received an emailed submission from the applicant. [1] Access application dated 8 May 2019.[2] Decision dated 9 September 2019. [3] External review application dated 9 September 2019.[4] Emailed submission dated 27 February 2020.[5] Emailed submission dated 12 March 2020.[6] I have not listed these previous decisions to protect the applicant’s privacy.[7] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. See also Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31] per Gummow ACJ, Hayne, Crennan and Bell JJ.[8] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [20] per Kiefel, Bell, Keane and Nettle JJ. [9] Section 108 of the IP Act.[10] Section 110 of the IP Act.[11] Letter to applicant dated 29 June 2020.[12] Footnote 1 of letter to applicant dated 29 June 2020.[13] Section 139 of the IP Act.[14] As a delegate of the Information Commissioner under section 139 of the IP Act.[15] Section 21(2) of the HR Act. [16] 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]. [17] Section 58(1) of the HR Act provides that it ‘is unlawful for a public entity— (a) to act or make a decision in a way that is not compatible with human rights; or (b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.[18] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [19] XYZ at [573].[20] Comprising a single page located in response to Part 2 of the application (this page was not numbered in QPS’s decision) and page 29 of the documents located in response to Part 3 of the application.[21] Comprising pages 1-24, 26-28 and 30 of the documents located in response to Part 3 of the application.[22] Section 40 of the IP Act.[23] Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent it could refuse access to the document under section 47 of the RTI Act were the document to be the subject of an access application under the RTI Act.[24] Sections 47(3)(e) and 52(1) of the RTI Act.[25] Section 52(1)(a) of the RTI Act.[26] Section 52(1)(b) of the RTI Act.[27] PDE and The University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE). PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of which are replicated in section 52 of the RTI Act. [28] PDE at [37] - [38].[29] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [20] - [21].[30] At page 2 of QPS’s decision.[31] Email to OIC dated 9 September 2019 at 9:58 am.[32] O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [52].[33] Identified within the decision as pages 27-29 of the documents located responsive to Part 3 of the access application. However, on external review, QPS confirmed that the irrelevant information was contained within pages 27-28 and 30.[34] Under section 88 of the IP Act.[35] Sections 47(3)(a) and 48 of the RTI Act. Schedule 3 of the RTI Act specifies categories of exempt information.[36] Schedule 3, section 10(1)(i) of the RTI Act.[37] As set out in Ferrier and Queensland Police Service [1996] QICmr 16; (1996) 3 QAR 350 [27]-[36] under the equivalent provision in the repealed Freedom of Information Act 1992 (Qld), and summarised in I3C1ST and Department of Community Safety (Unreported, Queensland Information Commissioner, 30 August 2011) [12] in the context of the RTI Act.[38] Schedule 3, section 10(2) of the RTI Act.[39] Although the Crime and Corruption Commission (the CCC) has primary responsibility for dealing with corrupt conduct complaints, the CCC may refer such a complaint to a public official (which includes the chief executive officer of a unit of public administration) to be dealt with by the public official or in cooperation with the CCC, subject to the CCC’s monitoring role: sections 45 and 46(2) of the CC Act. Equivalent provisions with the same numbering were contained in the Crime and Misconduct Act 2001 (Qld), in operation at the time of relevant investigations. [40] Schedule 3, section 10(6) of the RTI Act.[41] Comprising the single page located in response to Part 2 of the application set out at footnote 20 above.[42] Section 121 of the IP Act.[43] QPRIME (Queensland Police Records and Information Management Exchange) is a data management system used by QPS.[44] Relevant information may include the full name and date of birth, including any aliases of the person; current address; any general tendency toward violent or suicidal behaviour, including self-mutilation, violence towards police or other persons; the use or possession of weapons; and any incident of spitting or biting, either directed at persons or otherwise whilst in police custody including in watchhouse cells, police vehicles or establishments.[45] See section 1.6.11 of the QPS Operational Procedures Manual Issue 77 Public Edition | 31 July 2020, accessed at https://www.police.qld.gov.au/queensland-police-service-corporate-documents/operational-policies/operational-procedures-manual on 1 September 2020.[46] Submission to OIC dated 30 June 2020.[47] Schedule 4, Part 2, items 6, 16 and 17 of the RTI Act.[48] In line with Commissioner of the Police v Shelton & Anor [2020] QCA 96.[49] Under section 47(3)(a) of the RTI Act.[50] Section 118(2) of the IP Act. [51] Comprising page 29.[52] Comprising pages 1-24, 26 and 30.[53] Formerly known as the Crime and Misconduct Commission.[54] The CCC’s prescribed functions are defined in schedule 3, section 10(9) of the RTI Act as its crime, intelligence and corruption functions. These functions are specified in Chapter 2 of the CC Act.[55] As defined in section 15 of the CC Act. Section 22 of the CC Act provides that a reference to corruption includes, in the context of a complaint or corruption investigation, suspected corruption.[56] As defined in schedule 2 of the CC Act.[57] The CCC’s corruption function involves dealing with complaints about corruption in an appropriate way, having regard to principles set out in section 34 of the CC Act (see section 33 of the CC Act). These principles include the principle of devolution—which specifies that action to deal with corruption in a unit of public administration should generally happen within the unit (see section 34(c) of the CC Act). The principle of devolution is enabled by some of the provisions that specify how the CCC may perform this function—namely, provisions enabling the CCC to refer a complaint to a relevant public official or unit of public administration to be dealt with by them, or dealt with by them in cooperation with the CCC, subject to the CCC’s monitoring role (sections 35(1)(b),(d) and (e) and 46(2)(b) of the CC Act). The nature of the CCC’s monitoring role is set out at section 48 of the CC Act. Similarly, provisions addressing how a public official is to deal with a complaint about corrupt conduct also enable devolution, by providing that the public official has a responsibility to deal with a complaint that is referred to it by the CCC (section of the CC Act) subject to the CCC’s monitoring role (section 44(2) of the CC Act). [58] Under section 47(3)(a) of the RTI Act.[59] Section 118(2) of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

W7SV7G and Department of Education [2018] QICmr 24 (22 May 2018)

W7SV7G and Department of Education [2018] QICmr 24 (22 May 2018) Last Updated: 12 June 2018 Decision and Reasons for Decision Citation: W7SV7G and Department of Education [2018] QICmr 24 (22 May 2018) Application Number: 313410 Applicant: W7SV7G Respondent: Department of Education Decision Date: 22 May 2018 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - information relating to the applicant’s employment with the agency - administration of justice and procedural fairness - accountability and transparency in workplace processes - privacy of other individuals - prejudice to management function - whether disclosure would, on balance, be contrary to the public interest - whether access to information may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of Education and Training (Department) under the Information Privacy Act 2009 (Qld) (IP Act) for access to correspondence sent by the Queensland Teachers’ Union (Union) raising matters in relation to him and a school at which he had previously worked.[1] The Department located six pages and decided to refuse access[2] to all of the information on the basis that disclosure would, on balance, be contrary to the public interest.[3] The applicant then applied to the Office of the Information Commissioner (OIC) for external review of the Department’s refusal of access decision.[4] On external review, the applicant submitted that he had not been afforded procedural fairness by the Department in terms of school placements. He argued that by having access to the information, it would give him an opportunity to respond to any adverse allegations that had been made about him in the context of his employment. The Department was of the view that natural justice had been afforded to the applicant through an earlier investigation process, and also relied on the public interest factor in protecting the privacy of the other individuals involved to favour nondisclosure. The public interest factors are finely balanced in this case, with several factors applying to favour disclosure of information about the applicant in the context of his employment. However, I have found that the weight of the public interest in protecting the privacy of other individuals is significant and determinative. Accordingly, for the reasons set out below, I affirm the Department’s decision to refuse access to information on the basis that its disclosure would, on balance, be contrary to the public interest.[5] Background Significant procedural steps taken by OIC in conducting the external review are set out in the Appendix to these reasons. During the review, the Department provided OIC with background information about the applicant’s employment situation. To summarise, the Department advised that the applicant had a ‘long history of issues’, had been the subject of ‘numerous complaints’ some of which had led to ‘grievance investigation(s) in which the allegations were found to be substantiated’.[6] The applicant has recently retired from his employment with the Department.[7] Reviewable decision The decision under review is the Department’s decision dated 14 June 2017. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision is referred to in these reasons (including footnotes and Appendix). Information in issue As set out above, the Department located six pages in response to the access application and refused access to those pages in their entirety. While the IP Act limits the extent to which I can describe the particular content of those pages,[8] they include an email sent by the Union to the Department, and attached statements provided by individuals in relation to the applicant in the context of his employment (Information in Issue).[9] Issue for determination The issue for determination is whether access to the Information in Issue may be refused under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act, on the basis that its disclosure would, on balance, be contrary to the public interest. Relevant law Under the IP Act, an individual has a right to be given access to documents of an agency to the extent the documents contain the individual’s personal information.[10] While the IP Act is to be administered with a pro-disclosure bias,[11] the right of access is subject to certain limitations, including the grounds for refusal of access.[12] Relevantly, access may be refused to information where its disclosure would, on balance, be contrary to the public interest.[13] Various public interest factors may be relevant to deciding where the balance of the public interest lies[14] and a decision-maker is required to take specific steps in reaching a decision.[15] Findings No irrelevant factors arise in the circumstances of this case and I have not taken any into account in making my decision. Factors favouring disclosure The applicant submits that he has a ‘prima facie right to access’ his personal information.[16] It is uncontested that the applicant’s personal information[17] appears throughout the Information in Issue in the form of his name, descriptions of his actions, references to his past conduct and opinions expressed by other individuals about him. The public interest favours disclosure of an applicant’s personal information and I am satisfied that this factor applies in this case to the extent the Information in Issue contains the applicant’s personal information.[18] In affording weight to this factor, it is relevant to consider the context in which the information appears. Ordinarily, there is a public interest in people being able to see what has been said about them, and this is particularly strong in the case of an individual’s employment information. To the extent the Information in Issue refers to exchanges or discussions in which the applicant was involved, the applicant is likely to already be aware of that information. I have also taken into account the Department’s submission that the Information in Issue reiterates matters that were previously put to the applicant during an earlier workplace investigation into his conduct.[19] For these reasons, I find that the weight of this public interest factor is slightly reduced and therefore, afford it moderate weight in favour of disclosure. The applicant has submitted that he believes the Information in Issue contains information that is adverse to him. Specifically, he is concerned that the information had some bearing on him not being reappointed to a position at one school and his placement at a second school not eventuating.[20] The applicant submits that ‘the duty of natural justice requires a subject officer to receive and consider a complaint made against them’.[21] The applicant states he was suspended from his employment and considers it remains unclear whether the Information in Issue formed part of the basis of that suspension.[22] The applicant’s submissions in the preceding paragraph raise for consideration the public interest disclosure factors concerning administration of justice and procedural fairness.[23] In Willsford and Brisbane City Council[24] the Information Commissioner discussed the public interest in a person who has suffered an actionable wrong to be granted access to information in order to pursue a remedy. The Information Commissioner found that this factor arises if an applicant demonstrates that: they have suffered loss or damage or some kind of wrong, in respect of which a remedy is, or may be, available under the law they have a reasonable basis for seeking to pursue the remedy; and disclosing the information would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available or worth pursuing.[25] I am satisfied that the Willsford elements are arguably established on the facts of this case as the applicant appears to have suffered loss in terms of terminated/unsuccessful school placements, and may have avenues for associated workplace/industrial proceedings available to him. The Department however, refuted the applicant’s submissions in this regard and submitted that the Information in Issue does not include ‘new complaints’ nor did it prompt ‘a new complaint management or investigation process’. In this regard, the Department submitted that: During 2016 the applicant had been subject of an investigation of allegations made concerning the applicant’s conduct while working at [a school] As a result of this process and the hostile, aggressive conduct that was the subject of the allegations his employment had been suspended. ... These were not new issues that then gave rise a natural justice requirement, they did not kick off a new complaint management or investigation process under which the applicant was required to be afforded procedural fairness, the applicant did not suffer any kind of loss, damage or some kind of wrong as a direct result of these documents.[26] While there is a recognisable public interest in ensuring an individual has an opportunity to respond to adverse information about them, the evidence available to OIC in this review indicates that the applicant has already had such an opportunity afforded to him in the course of the earlier investigation. While the applicant asserts that the Information in Issue has led to him suffering adverse consequences, I am unable to identify any evidence to establish a sufficient nexus between the Information in Issue and any decisions made by the Department which have been adverse to the applicant’s employment prospects. Having carefully examined the applicant’s and Department’s submissions, the Information in Issue and the background and contextual information provided by the Department about the applicant’s employment history, I am satisfied that the weight of the public interest factors concerning administration of justice and procedural fairness can carry only moderate weight in the particular circumstances of this case. The applicant argues that he has a right to access (and amend)[27] his personal information to the extent it is inaccurate, out of date or misleading.[28] The RTI Act recognises that where disclosure could reasonably be expected to reveal that information is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant, this will raise a public interest in favour of disclosure.[29] The Information Commissioner has previously considered the application of this factor, in a comparable workplace context, as follows:[30] It is, by its very nature, the particular opinions and versions of events expressed by the relevant individuals who provided statements ... It is shaped by factors such as the individuals’ memories of relevant events and subjective impressions. This inherent subjectivity does not mean that the [information] is necessarily incorrect or unfairly subjective. I am satisfied that the above reasoning applies in this review as the Information in Issue comprises information provided by other individuals which has been shaped by their recollection of events. While an individual’s statement will inevitably be subjective, that does not equate to it comprising misleading, unfairly subjective, or irrelevant information, as required by the public interest factor. Accordingly, I find that this factor does not apply, in the circumstances of this case. I am satisfied that there are some further public interest factors which apply in favour of disclosure of the Information in Issue in terms of enhancing the accountability and transparency of the Department regarding how it handles workplace grievance matters.[31] There are however, some mitigating circumstances which serve to reduce the weight of these factors, discussed below. The Department has already advised the applicant that the Information in Issue was not taken into account in relation to his most recent suspension/disciplinary matters at a third school.[32] I have also taken into account the Department’s submission that the Information in Issue did not prompt any new investigation into the applicant, nor instigate any new complaint process. In view of the background and contextual information provided by the Department about the applicant’s employment history, I consider it is reasonable to accept that the Information in Issue reiterates concerns that have previously been put to the applicant in the course of an earlier investigation. The applicant considers that the Department should be required to provide further compelling evidence to demonstrate this point.[33] In the circumstances, I have no reason to suspect that the Department is providing false or misleading information to OIC and find it is appropriate to accept the Department’s submissions without requiring further corroborating evidence.[34] I also observe that the Information in Issue was created by the Union and other individuals, not the Department itself. As such, it does not set out any of the procedures/steps followed by the Department in making any decisions about the applicant’s employment, nor does it demonstrate any of the Department’s thinking processes or deliberations—had such information been included in terms of enhanced accountability, the public interest may have carried more weight. While I acknowledge that the Information in Issue forms part of the background and contextual information that was available to the Department in making decisions relating to the applicant’s employment, taking into account the Department’s submissions at paragraphs 17 and 22 above, [35]afford these factors35 only moderate weight in[36]avour of disclosure.36 Factors favouring nondisclosure The RTI Act recognises that the public interest will favour nondisclosure of information if it could reasonably be expected to prejudice the protection of an individual’s right to privacy.[37] The concept of ‘privacy’ is not defined in either the IP Act or the RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others.[38] While the IP Act prevents me from particularising the content of the Information in Issue, it can generally be described as information of an inherently sensitive and personal nature provided by other individuals. I am satisfied that it comprises the ‘personal information’ of those individuals.[39] I acknowledge that the information appears in a workplace context, within the public sector, however, having thoroughly reviewed its content, I am satisfied that it falls outside the routine day-to-day category[40] and into the other individuals’ personal sphere. Further, I consider that disclosure would constitute a significant intrusion into the private sphere of the individuals who chose to provide information of a sensitive and personal nature to the Department. During the review, the applicant expressed that he was not interested in finding out the identities of other individuals, but sought only the substance of what was said about him.[41] The Department submitted that it would not be possible to properly de-identify the Information in Issue given the size of the relevant school community, the applicant’s involvement and the nature of the information in the statements.[42] The Department submitted that, for these reasons, the identities of the other individuals could reasonably be ascertained, even if their names and identifying information were removed. Having closely examined the Information in Issue, I am satisfied that the other individuals’ identities are inextricably intertwined with the substance of their statements are inextricably intertwined. Given the size of the relevant school community and the applicant’s previous work history at the school, it would not be possible to de-identify the Information in Issue with sufficient certainty. In the particular factual matrix of this case, I am satisfied that protection of the other individuals’ right to privacy can only be achieved through nondisclosure of the entirety of the Information in Issue and therefore, I afford this factor[43] significant weight in favour of nondisclosure. I have also considered whether disclosure of the Information in Issue could reasonably be expected to prejudice the management function of the Department.[44] The Department has an obligation to deal with workplace grievance matters promptly, fairly and with a level of discretion. This does not however, translate into receiving evidence of allegations and complaints on an entirely confidential basis as this would be inconsistent with the principles of natural justice. However, the information provided by complainants/witnesses can, in some instances, go beyond the substantive issues pertinent to a complaint. To that end, I consider there is a public interest in the Department only conveying issues salient to a complaint, and not the more personal or private aspects that may be included in an individual’s statement. In the circumstances of this case, I consider that the nature of the Information in Issue is such that disclosure could reasonably be expected to prejudice the Department’s management function as individuals may be reluctant to comprehensively detail the personal impacts that a workplace situation has had on them in the future. I am satisfied that this factor also carries significant weight in favour of nondisclosure. Balancing the relevant factors I have taken into account the pro-disclosure bias and the applicant’s right to access his personal information. I have also recognised that there is a public interest in the applicant having access to information that may contribute to the administration of justice and procedural fairness for him, and in enhancing the accountability and transparency of the Department in terms of how it handles workplace grievance processes. While there are some mitigating circumstances which serve to reduce the weight of these factors, as discussed above, I consider they all carry moderate weight in favour of disclosure of the Information in Issue. However, the Information in Issue is inherently sensitive and personal in nature and for this reason, I have found that its disclosure could reasonably be expected to prejudice the protection of other individuals’ right to privacy, to a significant extent. I have also found that the Department’s management function could suffer significant prejudice in the future if sensitive information of this kind was disclosed under the IP Act. On balance, I find that the nondisclosure factors carry determinative weight and that therefore, disclosure of the Information in Issue would, on balance, be contrary to the public interest and access to it may be refused on that basis.[45] DECISION I affirm the Department’s decision to refuse access to the Information in Issue under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.K ShepherdAssistant Information Commissioner Date: 22 May 2018 APPENDIX Significant procedural steps Date Event 12 July 2017 OIC received the external review application and requested relevant procedural documents from the Department. 17 July 2017 OIC received the requested procedural documents from the Department. 26 July 2017 OIC notified the applicant and the Department that the external review had been accepted. OIC requested and received further information from the Department. 17 October 2017 OIC provided the applicant with a written update on the status of the review. 3 November 2017 OIC conveyed a preliminary view to the Department that part of the Information in Issue could be disclosed. OIC requested further background information about the applicant’s employment history. 17 November 2017 The Department responded to OIC’s request for further information. 24 November 2017 OIC provided the applicant with an update on the status of the review and received submissions, by telephone, from the applicant in response. 1 December 2017 OIC received further submissions from the Department. 5 December 2017 OIC requested additional information from the Department. 18 December 2017 OIC received the requested information from the Department. 8 January 2018 OIC provided the applicant with an update on the status of the review and requested further submissions in support of the applicant’s case. 18 January 2018 The applicant’s legal representative notified OIC that it did not consider there was any need to provide any more information. 6 February 2018 OIC conveyed a further preliminary view to the Department that part of the Information in Issue could be disclosed and requested submissions in response. 7 March 2018 OIC received submissions from the Department contesting the preliminary view, and proposing OIC conduct third party consultation. 12 March 2018 OIC received submissions from a third party objecting to disclosure of the Information in Issue. 13 March 2018 OIC provided the Department with an update on the status of the review. 27 March 2018 OIC sought the Department’s consent to convey parts of its submissions to the applicant. The Department generally agreed with OIC’s approach. 28 March 2018 OIC conveyed a preliminary view to the applicant and requested submissions in response. 29 March 2018 The applicant provided OIC with further submissions, by telephone. 27 April 2018 OIC received written submissions from the applicant contesting the preliminary view. [1] Access application dated 11 April 2017. Machinery of government changes in December 2017 transferred relevant responsibility from the Department. Accordingly, existing IP Act applications and reviews made to the Department before the machinery of government changes now rest with the Department of Education including this external review. For ease of reference, I refer to ‘the Department’ in these reasons. [2] Decision dated 14 June 2017. [3] Under section 67(1) of the IP Act and section 47(3)(b) of the Right to Information Act 2009 (Qld) (RTI Act). Section 67 of the IP Act provides that access to information may be refused on the same grounds as set out in section 47 of the RTI Act. [4] External review application received by OIC on 12 July 2017. [5] Under sections 47(3)(b) of the RTI Act and section 67(1) of the IP Act. [6] Department’s submission to OIC dated 7 March 2018. [7] Ibid. [8] Section 121 of the IP Act. [9] It appears that the applicant became aware of the existence of the Information in Issue through his dealings with the Department in relation to a period of suspension from his employment. [10] Section 40 of the IP Act. Section 12 of the IP Act defines ‘personal information’ 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.’[11] Section 64 of the IP Act. [12] Section 67 of the IP Act and section 47 of the RTI Act. See footnote 3 above. [13] Section 47(3)(b) of the RTI Act. [14] See schedule 4 of the RTI Act. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. [15] Section 49 of the RTI Act. The steps include: disregarding any irrelevant factors, identifying relevant factors favouring disclosure and nondisclosure, and balancing the relevant factors. [16] Submission to OIC dated 26 April 2018, page 3.[17] As defined in section 12 of the IP Act. See footnote 10 above.[18] Schedule 4, part 2, item 7 of the RTI Act.[19] Department’s submission to OIC dated 7 April 2018.[20] External review application, attachment marked ‘GC01’.[21] Ibid.[22] Ibid.[23] Schedule 4, part 2, items 16 and 17 of the RTI Act. [24] [1996] QICmr 17; (1996) 3 QAR 368 (Willsford). [25] Willsford at paragraph 17. This approach was affirmed by OIC in 1OS3FK and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011). [26] Submissions to OIC received on 7 March 2018.[27] I note however, that applying for amendment of personal information is a separate process under section 44 of the IP Act, and is not a matter for determination in this review. [28] Submission to OIC dated 26 April 2018, page 3. [29] Schedule 4, part 2, item 12 of the RTI Act. [30] F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 (9 June 2017) at [52] citing Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [15]-[20]. See also Balzary and Redland City Council; Tidbold (Third Party) [2017] QICmr 41 (1 September 2017) at [23].[31] Schedule 4, part 2, items 1 and 11 of the RTI Act.[32] Letter from the Department to the applicant date stamped 20 October 2017.[33] Submission to OIC dated 27 April 2018, page 3. [34] Section 108(1)(c) of the IP Act provides that the Information Commissioner ‘is not bound by the rules of evidence and may inform herself on any matter in any way the commissioner considers appropriate’.[35] Schedule 4, part 2, items 1 and 11 of the RTI Act.[36] I have had regard to all of the factors listed in schedule 4, part 2 of the RTI Act, and in the circumstances of this review, I find that no other public interest factors apply to favour disclosure of the Information in Issue. [37] Schedule 4, part 3, item 3 of the RTI Act.[38] Paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 12 August 2008, at paragraph 1.56.[39] Section 12 of the IP Act. Despite this, I have not considered the application of the harm factor in schedule 4, part 4, item 6 of the RTI Act, on the basis that there is evidence to suggest that the substance of the Information in Issue has previously been put to the applicant in the course of a previous investigation. To the extent that the applicant is already aware of the other individuals’ personal information, I am not satisfied that releasing it would constitute a ‘disclosure’ in order for the harm factor to apply. [40] Generally, the personal information of public servants in the routine day to day category attracts very low weight in favour of nondisclosure. For a discussion of routine and non-routine personal work information of public sector employees, see Kiepe and The University of Queensland (Information Commissioner of Queensland, 1 August 2012) at [18] to [21].[41] Telephone call with OIC on 9 January 2018.[42] Department’s submissions to OIC received on 7 March 2018. [43] Schedule 4, part 3, item 3 of the RTI Act[44] Schedule 4, part 3, item 19 of the RTI Act. [45] Section 67(1) of the IP Act and section 47(3)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

WJA Trading Pty Ltd and Office of Industrial Relations; R97 (Third Party) [2023] QICmr 12 (15 March 2023)

WJA Trading Pty Ltd and Office of Industrial Relations; R97 (Third Party) [2023] QICmr 12 (15 March 2023) Last Updated: 14 April 2023 Decision and Reasons for Decision Citation: WJA Trading Pty Ltd and Office of Industrial Relations; R97 (Third Party) [2023] QICmr 12 (15 March 2023) Application Number: 316519 Applicant: WJA Trading Pty Ltd (ACN 640 053 827) Respondent: Office of Industrial Relations Third Party: R97 Decision Date: 15 March 2023 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - DISCLOSURE DECISION - CONTRARY TO THE PUBLIC INTEREST - documents related to notices issued to applicant by agency - whether disclosure would prejudice business affairs - whether disclosure would prejudice an individual’s right to privacy - whether disclosure would, on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - DISCLOSURE DECISION - EXEMPT INFORMATION - LAW ENFORCEMENT OR PUBLIC SAFETY INFORMATION - documents related to notices issued to applicant by agency - whether disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation – whether disclosure could reasonably be expected to prejudice a person’s fair trial or the impartial adjudication of a case – whether disclosure could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law - whether exempt - sections 47(3)(a) and 48 and schedule 3, sections 10(1)(d), 10(1)(e) and 10(1)(f) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The Access Applicant, being the Third Party to this decision, made an Access Application under the Right to Information Act 2009 (Qld) (RTI Act) to the Office of Industrial Relations (OIR) seeking: Notices issued by OIR staff regarding the incident [reference number] relating to spray drift. Entities involved: WJA Trading Pty Ltd and [name of another entity] (WHS unit: Agriculture unit Maroochydore)’ dated October 2019 to 16 July 2021.[1] OIR located 19 pages in response to the Access Application. While processing the application, OIR consulted with WJA Trading Pty Ltd (ER Applicant) as a relevant third party under section 37 of the RTI Act. The ER Applicant objected to the disclosure of all information located by OIR. After considering these objections, Council decided to release 10 full pages and 9 part pages[2] to the Access Applicant.[3] The ER Applicant applied for internal review of OIR’s decision,[4] and OIR affirmed its original decision upon internal review.[5] The ER Applicant then applied[6] to the Office of the Information Commissioner (OIC) for external review of OIR’s internal review decision to disclose information contrary to the ER Applicant’s objections. For the reasons set out below, I affirm OIR’s decision and find that there is no basis under the RTI Act to refuse access to the information remaining in issue. Background The ER Applicant operates a farming property. The Access Applicant’s property is located in the same vicinity. Significant procedural steps in this external review are set out in the Appendix. Reviewable decision and evidence considered The decision under review is OIR’s internal review decision dated 8 December 2021. The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including the footnotes and the Appendix). The Human Rights Act 2019 (Qld) (HR Act) affords human rights to individuals in Queensland. In this case, the ER Applicant is a corporation but the Access Applicant (who is a participant in this review) is an individual. President Kingham in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors[7] indicated that where section 58(1) of the HR Act applies, there need be no mover to raise human rights issues because that section requires the relevant public entity to properly consider engaged human rights and not to act or make a decision that is not compatible with human rights. As such, I have taken into account that the Access Applicant is an individual with human rights. I also note Bell J’s observations in XYZ v Victoria Police (General)[8] on the interaction between the Victorian analogues of Queensland’s RTI Act and HR Act[9] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’ In observing and applying the law prescribed in the RTI Act, as I have done in this case, I am ‘respecting and acting compatibly with’ applicable human rights as stated in the HR Act.[10] Information in issue During the course of the review, OIC conveyed the preliminary view[11] that six of the 19 pages[12] OIR had identified as responsive to the Access Application were out of scope of the Access Application. The Access Applicant and OIR accepted this view and the Access Applicant confirmed they continued to seek access to the remaining information. As such, 6 full pages and 7 part pages[13] remain in issue in this external review. These comprise information appearing in improvement notices issued by OIR to the ER Applicant regarding spray drift (Improvement Notices). Onus As the decision under review is a disclosure decision,[14] the ER Applicant bears the onus of establishing that a decision not to disclose the Improvement Notices is justified or that the Information Commissioner should give a decision adverse to the Access Applicant.[15] Issues for determination Under the RTI Act, a person has a right to be given access to documents of an agency.[16] However, this right is subject to provisions of the RTI Act, including the grounds on which an agency may refuse access to documents. Relevantly, an agency may refuse access to exempt information[17] or to information the disclosure of which would, on balance, be contrary to the public interest.[18] The ER Applicant provided OIC with a number of submissions regarding grounds for refusal of access to the Improvement Notices. In summary, the ER Applicant submits: the Improvement Notices comprise exempt information, on the basis that disclosure could reasonably be expected to: result in a person being subjected to a serious act of harassment or intimidation[19] prejudice a person’s fair trial or the impartial adjudication of a case;[20] or prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law);[21] or disclosing the Improvement Notices would, on balance, be contrary to the public interest. Accordingly, the first issue for me to determine is whether access to the Improvement Notices may be refused on the ground that they are exempt information; and the second issue for me to determine is whether access to the Improvement Notices may be refused on the ground that, on balance, their disclosure would be contrary to the public interest.[22] The ER Applicant has also raised concerns[23] about: OIR’s handling of personal information the process which led to the issue of improvement notices and the content of those notices; and the conduct of individuals. OIC has informed the ER Applicant[24] that OIC’s jurisdiction in this review does not extend to investigating or addressing concerns of these types; rather, it is limited to reviewing OIR’s decision to disclose the Improvement Notices under the RTI Act. [25] To the extent the ER Applicant’s submissions in this respect are relevant to the issues for determination, I have addressed them below. Exemptions raised by the ER Applicant Serious act of harassment or intimidation The RTI Act provides that information is exempt information if its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.[26] For this exemption to apply, I must be satisfied that: there is a reasonable expectation[27] of harassment and intimidation arising as a result of disclosure, rather than from other circumstances; and the expected harassment or intimidation is serious in nature.[28] Factors that might be relevant in considering whether harassment and intimidation could reasonably be expected to occur include, but are not limited to: past conduct or a pattern of previous conduct the nature of the information in issue the nature of the relationship between the relevant parties; and relevant contextual and or cultural factors.[29] The ER Applicant’s submissions outline the following examples of past conduct by the Access Applicant and associate/s of the Access Applicant which, in its submission, give rise to a reasonable expectation of further harassment and intimidation:[30] harassment, threats, verbal abuse and physical intimidation ‘constant surveillance’ of certain individuals and their property ‘repeated malicious and vexatious complaints’ to several government departments and local governments from 2019 to 2022;[31] and ‘ongoing repeated litigation actions as recent as 2022’. The ER Applicant’s submissions also state: it has taken certain steps regarding harassment, intimidation and threats it has ‘spent every day over the last three years vigorously defending [its] farming practices against malicious and vexatious complaints with no relief and significant cost’ it believes that the ‘[i]n excess of 216 photos and in excess of 319 video files’ held by OIR were taken from the Access Applicant’s property[32] individuals involved with the ER Applicant fear for their safety it is concerned disclosure would lead to individuals ‘being subjected to continuous acts of harassment and intimidation’, an ‘escalation of a matter unnecessarily’, and ‘repeated litigation actions and increased harassment and intimidation’; and the Access Applicant has informed the ER Applicant that the Access Applicant intends to take legal action against the ER Applicant and/or individuals involved with the ER Applicant, and that the Access Applicant is seeking to obtain the Improvement Notices to ‘build a case’. Insofar as the ER Applicant makes submissions about conduct described as harassment, threats, verbal abuse, physical intimidation and surveillance: I note that it appears there is a pre-existing acrimonious relationship between the ER Applicant and certain other individuals regarding the ER Applicant’s farming practices. I further note that, on careful consideration of the Improvements Notices themselves, it is reasonable to conclude that the information they contain is relatively benign and the enforcement actions they refer to are relatively low level. Taking these matters into account, even if I were to accept the entirety of the ER Applicant’s submissions regarding past conduct, I do not consider there would be the required correlation or nexus between disclosing the Improvement Notices and a reoccurrence of harassment, threats, verbal abuse, physical intimidation and surveillance which is required for the exemption to apply. I am not satisfied the evidence before me shows that any further conduct of this nature would occur as a result of disclosure of the Improvement Notices, rather than independently or from any other circumstances.[33] I consider that conduct of the type raised in the ER Applicant’s submissions may, in all likelihood, occur or reoccur regardless of whether or not the Improvement Notices are disclosed.[34] I also observe that, while the ER Applicant’s submissions provide some information about conduct that could, if accepted, properly be characterised as harassment and intimidation, it is somewhat difficult given the limited material before me to conclude that such conduct amounts to serious harassment or intimidation, in the sense required for this exemption to apply.[35] I acknowledge that the ER Applicant’s submissions convey some distress and frustration, but I am not satisfied the ER Applicant has met its onus in this review of establishing that such conduct is sufficiently weighty, critical or concerning to meet the legal threshold to amount to serious harassment or intimidation for the purpose of the exemption. Insofar as the ER Applicant submits that the Access Applicant seeks access to the Improvement Notices to ‘build a case’ and has communicated an intention to take legal action: I accept that legal action may occur and could be considered as, at least in part, arising as a result of disclosing the Improvement Notices. It is not my role to evaluate the merits of potential legal proceedings that may arise out of circumstances related to information in issue on external review. [36] The question for me is whether such legal action (in whatever form this may take) could be properly categorised as serious harassment or intimidation. I am not satisfied that the ER Applicant has fulfilled its onus of establishing that such legal action would constitute harassment and intimidation, serious or otherwise. The ER Applicant has, in its submissions,[37] identified a previous decision of the Information Commissioner in which repeated litigation actions were found to amount to a serious act of harassment or intimidation in the sense required for schedule 3, section 10(1)(d) of the RTI Act. In Toogood, the Information Commissioner found that the exemption applied where the applicants in that case had engaged in a pattern of hostile communications, complaints and voluminous threats of legal action. In relation to this pattern of behaviour, the Information Commissioner stated:[38] Having considered the nature of the applicants’ complaints and threats of legal action, I am satisfied that a great number of these matters are unsubstantiated, lack substance or are otherwise unreasonable. The allegations concern a very large number of individuals and entities, and a wide range of matters such as corruption, breaches of the Competition and Consumer Act 2010 (Cth), breach of copyright, perjury and littering. When the nature of these complaints and threats are considered, along with the volume and breadth of these matters, and the extent of correspondence and social media communications generated by the applicants, I am satisfied that applicants have engaged in a pattern of unreasonable behaviour that ‘persistently disturbs’ and ‘torments’ Council, certain Council officers and third parties. I do not consider the complaints or threatened legal action to which the ER Applicant refers can be considered ‘unsubstantiated’, ‘lacking in substance’ or ‘otherwise unreasonable’ in the sense described by the Information Commissioner in Toogood.[39] I accept that the ER Applicant has vigorously defended complaints made against it and considers these complaints to be malicious and vexatious. However, as mentioned above, it is not my role to evaluate every complaint and legal proceeding brought or threatened against the ER Applicant.[40] The information before me does not indicate that the OIR determined that the complaints to which the Improvement Notices relate were unfounded, nor that any of the government agencies receiving these complaints determined that they were malicious or vexatious. Accordingly, on the evidence before me, I do not consider the history of complaints, or the fact of the Access Applicant having allegedly communicated an intention to take legal action, gives rise to a reasonable expectation that disclosure would result in a serious act of harassment or intimidation. I also do not consider that the fact OIR hold on record a number of photo and video files relating to the incident to be a serious act of harassment or intimidation, or an indicator that serious acts of harassment or intimidation could reasonably be expected to occur. In this respect, I note the 22 April 2021 letter from OIR to which the ER Applicant refers indicates that these files were not solely provided by third parties, but included photographs and videos taken by ‘the inspector’ and individuals associated with the ER Applicant. To the extent the referenced photos and videos include those provided by third parties, on the information before me, I do not consider that a party providing documentary evidence supporting a complaint about contraventions of the Work Health and Safety Act 2011 (Qld) (WHS Act) on its face constitutes a serious act of harassment or intimidation. The ER Applicant also cites a recent violent incident involving farming families which was reported in the media in support of its concerns for the safety of individuals and the potential escalation of a dispute.[41] I do not consider that this incident, involving individuals unrelated to the ER Applicant and Access Applicant, has any bearing on the question in this review regarding whether serious harassment or intimidation could reasonably be expected to result from disclosure of the Improvement Notices. In conclusion, having carefully considered all material before me, I cannot conclude that disclosure of the Improvement Notices could reasonably be expected to result in a person being subjected to serious act of harassment or intimidation. Accordingly, I am not satisfied that these Notices are exempt information under schedule 3, section 10(1)(d) of the RTI Act. Other exemptions raised The ER Applicant has also referenced schedule 3, sections 10(1)(e) and 10(1)(f) of the RTI Act in its submissions to OIC that access to the Improvement Notices should be refused.[42] These sections provide that information is exempt information if its disclosure could reasonably be expected to: prejudice a person’s fair trial or the impartial adjudication of a case;[43] or prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (including revenue law).[44] For the exemption at schedule 3, section 10(1)(e) of the RTI Act to apply, there must be a particular criminal proceeding or case to be adjudicated which would be impacted by disclosing the information in issue.[45] I am unaware of, and the ER Applicant has not identified,[46] any such proceedings or case to which it submits prejudice would occur if the Improvement Notices were disclosed. Even if there were proceedings currently on foot or a case to be adjudicated, I am unable to identify[47] the nature and extent of the anticipated prejudice to those processes that would result from disclosure.[48] For information to be exempt under schedule 3, section 10(1)(f) of the RTI Act, there must be ‘an identifiable method or procedure’ used by the agency for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law.[49] On the information before me, I am unable to identify, and the ER Applicant has not identified,[50] any method or procedure which would be impacted by disclosure of the Improvement Notices. Accordingly, I am not satisfied that the Improvement Notices are exempt information under schedule 3, sections 10(1)(e) or 10(1)(f) of the RTI Act. Public interest balancing test In assessing whether disclosure of information would, on balance be contrary to the public interest, a decision maker must:[51] identify factors that are irrelevant to determining the public interest and disregard them identify factors favouring disclosure of the information identify factors favouring nondisclosure of the information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Schedule 4 of the RTI Act contains non-exhaustive lists of factors that may be relevant to determining where the balance of public interest lies in a particular case. I have considered these factors, together with all relevant information, in reaching my decision.[52] I have also kept in mind the RTI Act’s pro-disclosure bias.[53] Irrelevant factors The ER Applicant has raised concerns that: access to the Improvement Notices is being sought by a party ‘not acting in the “Public Interest” rather in a personal capacity to frustrate, intimidate and harass...’ and as a ‘ruse method to try and validate evidence of spray drift that does not exist’;[54] and the ‘release of “piecemeal notices” of a much broader investigation across multiple agencies with multiple responses would only lead to mis-interpretation by the public and not serve in the public’s interest...’.[55] The RTI Act does not require access applicants to supply reasons for making an access request.[56] It is well settled that an applicant’s motives for requesting information are irrelevant to a consideration as to whether access should be granted to requested information.[57] The RTI Act also states that the fact that disclosure could reasonably be expected to result in the applicant misunderstanding or misinterpreting the information is irrelevant to determining the public interest.[58] I have not taken into account the above matters, or any other irrelevant factors, in making this decision. Factors favouring disclosure The RTI Act sets out factors favouring disclosure in circumstances where disclosing information could reasonably be expected to: promote open discussion of public affairs and enhance the government’s accountability[59] inform the community of the government’s operations, including, in particular, the policies, guidelines and codes of conduct followed by the government in its dealings with members of the community[60] reveal the reason for a government decision and any background or contextual information that informed the decision;[61] and reveal environmental or health risks or measures relating to public health and safety.[62] The ER Applicant submits that ‘release is unnecessary’ because the investigation to which the Improvement Notices relate has been closed[63] and the notices complied with.[64] Even so, I consider that release of the Improvement Notices would reveal the steps OIR has taken in dealing with matters relating to public health and safety,[65] including in relation to investigations conducted in response to reported breaches of the WHS Act. I also consider disclosure would enhance OIR’s accountability in relation to investigations conducted into reported breaches of the WHS Act[66] and promote transparency in relation to the reasons for its decisions under that Act.[67] I consider these factors favouring disclosure deserve significant weight. Factors favouring nondisclosure I have considered whether disclosure of the Improvement Notices could prejudice the privacy of individuals or reveal their personal information.[68] The ER Applicant submits that improvement notices are ‘between myself and Work WHS’ and that disclosure could reasonably be expected to prejudice the protection of an individuals’ right to privacy.[69] OIR decided[70] to refuse the Access Applicant’s access to names of third party individuals, and so this information has been redacted in the Improvement Notices. I consider this substantially mitigates any prejudice to the privacy of individuals that may otherwise result from disclosure. To the extent the Improvement Notices include company names, addresses and ABNs, I do not consider it was Parliament’s intention, when drafting schedule 4, part 3, item 3 and part 4, section 6(1) of the RTI Act, that these nondisclosure factors would extend to protect information identifying a company.[71] While the ER Applicant submits that individuals associated with the ER Applicant company can be easily identified,[72] in my view any prejudice to the privacy of these individuals resulting from disclosure of the Improvement Notices would be minimal.[73] Accordingly, I afford these factors favouring nondisclosure low weight. In its original decision notice to the ER Applicant,[74] OIR noted that improvement notices issued under section 191 of the WHS Act are required to be displayed at a prominent place at or near the workplace.[75] The ER Applicant submits that the ‘workplace is within private boundaries’ and that ‘the notices are private to the workplace specifically and have not been displayed in the public domain’.[76] I do not consider that the fact of the relevant workplace being within private boundaries nullifies the intention of the WHS Act that improvement notices be displayed, and not be treated as private, confidential or secret. I also note that the purpose of the RTI Act is to make available documents that are not otherwise publicly available. I do not consider the fact of the relevant workplace being within private boundaries reduces the weight I have afforded to any of the factors I have identified in this decision as favouring disclosure of the Improvement Notices. I have also considered whether disclosure of the Improvement Notices would prejudice the private, business, professional, commercial or financial affairs of entities[77] or prejudice the business affairs of a person. [78] The ER Applicant submits that: the Improvement Notices are ‘misleading’, and that the ER Applicant applied for internal review of a decision to issue one of the notices;[79] and disclosure would cause ‘maximum frustration and embarrassment of my farming practices with no public defence’.[80] It is not my role in this review to determine whether content of, or decision to issue, the Improvement Notices was correct. I acknowledge the ER Applicant does not accept or admit any fault in relation to the incidents the subject of the notices and disagrees with the decision to issue the Improvement Notices. Having considered the Improvement Notices, I do not consider that they can be classified as ‘misleading’ in such a way that their release would unfairly harm the ER Applicant’s business reputation. However, I do consider that release of the Improvement Notices would reveal information about OIR’s investigations and actions taken to seek improvement of the ER Applicant’s practices, and that this may impact the ER Applicant’s reputation. I also consider the Improvement Notices generally relate to the ER Applicant’s business affairs. Having considered the information before me, including the relatively low level nature of the action taken by OIR by issuing improvement notices (as opposed to more robust enforcement action), I consider that any impact to the ER Applicant’s reputation and business affairs would be minor. Accordingly, I afford low weight to these factors favouring nondisclosure. The ER Applicant also submits disclosure of the Improvement Notices would prejudice the fair treatment of individuals, and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct.[81] I accept that the ER Applicant denies the circumstances leading to the issuing of the Improvement Notices. However, I do not consider that the allegations in the Improvement Notices can be considered unsubstantiated in circumstances where the inspector issuing the notices was satisfied as to the circumstances described therein such that they issued the notices.[82] Accordingly, I consider this factor favouring nondisclosure does not apply. The ER Applicant has also raised the following factors favouring nondisclosure in this review:[83] prejudice to security, law enforcement or public safety[84] impeding the administration of justice generally,[85] or for a person;[86] and disclosure is prohibited by an Act.[87] The ER Applicant has provided no further explanation as to why, in its submission, these factors arise to favour nondisclosure of the Improvement Notices.[88] I am unable to identify how the administration of justice would be impeded by disclosure of the Improvement Notices or the relevant legislative provision pursuant to which the ER Applicant submits disclosure is prohibited.[89] Also, as set out above,[90] I consider that disclosure of the Improvement Notices would reveal the steps OIR has taken to protect public safety and I am unable to ascertain how disclosure could prejudice security, law enforcement or public safety. Accordingly, I do not consider that these factors apply to favour nondisclosure of the Improvement Notices. Finally, given that the public interest factors listed in the RTI Act are not exhaustive, I have also considered whether the applicant’s submissions about harassment and intimidation[91] raise a public interest factor favouring nondisclosure requiring consideration in the context of the public interest test—that is, whether disclosure could reasonably be expected to result in a person being subjected to lower level (ie. less than serious) harassment and intimidation.[92] In terms of whether the types of past conduct the ER Applicant considers comprise harassment and intimidation could reasonably be expected to reoccur as a result of disclosing the Improvement Notices, I repeat and rely on my observations at paragraphs [25] to [28] above. Accordingly, I am unable to discern a correlation or nexus between disclosure of the Improvement Notices and the reoccurrence of the types of past conduct described by the ER Applicant as harassment, threats, verbal abuse, physical intimidation and surveillance. Further, while there may be a correlation between disclosure and possible legal action or complaints by the Access Application, I do not consider that the ER Applicant has satisfied the onus on it in this review of establishing that any such action they anticipate will result from disclosure could be properly classified as ‘harassment or intimidation’. While I accept that the ER Applicant may understandably wish to avoid any such action, or even the prospect of it, I do not consider that disclosure of the Improvement Notices could reasonably be expected to result in harassment or intimidation. Accordingly, I afford no weight to this factor favouring nondisclosure. I have carefully considered all other factors against disclosure, both in schedule 4, parts 3 and 4 of the RTI Act and more generally. I am unable to identify further factors which could be considered applicable in the circumstances of this review. Balancing the public interest I am satisfied that the significant weight of the pro-disclosure factors relating to the accountability and transparency of OIR outweighs the low weight I have afforded to the nondisclosure factors related to privacy and personal information of individuals, business affairs of the ER Applicant and lower level harassment or intimidation. Based on the information before me, and for the reasons set out above, I am not satisfied that disclosing the Improvement Notices would, on balance, be contrary to the public interest. Other matters raised The ER Applicant notes the fact that it ‘had no representation when the notices were issued’ as one of the reasons that release of the Improvement Notices is unnecessary.[93] I do not consider the engagement (or otherwise) of legal representation when the notices were issued has any bearing on my assessment of whether access should be refused to the Improvement Notices under the RTI Act. [94] The ER Applicant has referred to an access application it made previously to a Queensland government agency in response to which it received a notice refusing its access to the requested information. The ER Applicant submits that this indicates a ‘conflict between RTI officers on the release of information that is confidential to protect the complainant’, or a ‘double standard’.[95] While the ER Applicant may have concerns about the outcomes of separate access applications, I must determine each case on its own merits.[96] I consider that the outcome of the separate access application to which the ER Applicant refers has no bearing on this review. Conclusion For the reasons outlined above, I do not consider the ER Applicant has discharged the onus imposed by section 87(2) of the RTI Act in this review of establishing that the Improvement Notices comprise exempt information, or that the release of this information would, on balance, be contrary to the public interest. Accordingly, I am not satisfied that access to the Improvement Notices can be refused under the RTI Act.DECISION I affirm OIR’s decision to disclose the Improvement Notices and find there is no basis under the RTI Act to refuse access to the Improvement Notices. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.A RickardAssistant Information Commissioner Date: 15 March 2023 APPENDIX Significant procedural steps Date Event 4 January 2022 OIC received the external review application. 5 January 2022 OIC requested preliminary documents from OIR. 6 January 2022 OIC received the requested preliminary documents from OIR. 7 January 2022 The Access Applicant confirmed that they continued to seek access. 25 January 2022 OIC advised OIR and the ER Applicant that the external review application had been accepted.OIC conveyed a preliminary view to the ER Applicant, OIR and the Access Applicant. 7 February 2022 OIR advised OIC it agreed with OIC’s preliminary view. 9 February 2022 The ER Applicant provided submissions in response to OIC’s preliminary view. 10 February 2022 OIC re-sent its 25 January 2022 preliminary view to the Access Applicant.The Access Applicant advised OIC they agreed with OIC’s preliminary view. 16 June 2022 OIC conveyed a further preliminary view to the ER Applicant. 4 July 2022 The ER Applicant requested an extension of time to respond to OIC’s preliminary view.OIC granted the extension of time. 4 August 2022 The ER Applicant provided submissions in response to OIC’s preliminary view. 23 August 2022 OIC conveyed a third preliminary view to the ER Applicant. 24 August 2022 The Access Applicant applied to participate in the review. 25 August 2022 OIC provided OIR with an update. 6 September 2022 The ER Applicant provided submissions in response to OIC’s preliminary view. 6 October 2022 OIC conveyed a final preliminary view to the ER Applicant and confirmed the matter would proceed to final decision. [1] The access application is dated 16 July 2021. The Access Applicant subsequently agreed to narrow the scope of the access application in correspondence with OIR dated 26 August 2021.[2] Access to some information on pages 1, 4, 7, 8, 11, 12, 14, 15 and 17 of the 19 pages was refused on the grounds that, on balance, disclosure would be contrary to the public interest under sections 47(3)(b) and 49 of the RTI Act.[3] OIR’s decision dated 13 October 2021.[4] Internal review application dated 10 November 2021 (IR Application).[5] Internal review decision dated 8 December 2021. [6] External review application dated 4 January 2022 (ER Application). [7] [2020] QLC 33 at [90].[8] [2010] VCAT 255 (16 March 2010) (XYZ) at [573].[9] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [10] XYZ at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[11] Dated 25 January 2022.[12] Pages 1-3 and 17-19 of the 19 pages.[13] Pages 4-16 of the 19 pages. As noted at footnote 2 above, access to some information on pages 4, 7, 8, 11, 12, 14 and 15 of the 19 pages was refused. These redactions are consistent with the ER Applicant’s view that all information should be refused. The Access Applicant did not seek review of them. [14] ‘Disclosure decision’ is defined in section 87(3) of the RTI Act as ‘a decision to disclose a document or information contrary to the views of a relevant third party obtained under section 37’ of the RTI Act.[15] Section 87(2) of the RTI Act.[16] Section 23 of the RTI Act.[17] Pursuant to sections 47(3)(a) and 48 of the RTI Act.[18] Pursuant to sections 47(3)(b) and 49 of the RTI Act.[19] Schedule 3, section 10(1)(d) of the RTI Act.[20] Schedule 3, section 10(1)(e) of the RTI Act.[21] Schedule 3, section 10(1)(f) of the RTI Act.[22] BL v Office of the Information Commissioner, Department of Communities [2012] QCATA 149 at [15]- [16]. [23] IR Application, extracted in ER Application; ER Applicant’s submissions dated 6 September 2022.[24] In the fourth preliminary view to the ER Applicant dated 6 October 2022.[25] Fourth preliminary view to the ER Applicant dated 6 October 2022.[26] Schedule 3, section 10(1)(d) of the RTI Act.[27] The term ‘could reasonably be expected to’ requires that the expectation is reasonably based and that it is neither irrational, absurd or ridiculous, nor merely a possibility; 6ZJ3HG and Department of Environment and Heritage Protection; OY76VY (Third Party) [2016] QICmr 8 (24 February 2016) (6ZJ3HG) at [30].[28] 6ZJ3HG at [29], citing Watson v Office of the Information Commissioner Queensland & Ors [2015] QCATA 095 (Watson); Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009) (Sheridan) at [191]; Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 at [54]; Seven Network (Operations) Limited and Redland City Council (Unreported, Queensland Information Commissioner, 30 June 2011) at [19].[29] 6ZJ3HG at [31], citing Sheridan at [193] and Richards and Gold Coast City Council (Unreported, Queensland Information Commissioner, 28 March 2012) at [19]. [30] ER Application; ER Applicant’s submissions dated 9 February 2022, 4 August 2022 and 6 September 2022.[31] In its IR Application, extracted in the ER Application, the ER Applicant refers to ‘approximately 20 contacts with WHS and other department [sic] up to present date’. The ER Applicant also submits these complaints are for the purpose of closing down its business; ER Applicant’s email to OIR dated 5 October 2021, extracted in the ER Application.[32] In this regard, the ER Applicant has provided a copy of correspondence from OIR dated 22 April 2022 in relation to a previous access application seeking documents relating to the same incident, in which OIR stated it had identified ‘[i]n excess of 216 photos and in excess of 139 video files’ as responsive to that access application.[33] Watson at [19].[34] 6ZJ3HG at [37]-[38].[35] The use of the word ‘serious’ in schedule 3, section 10(1)(d) of the RTI Act indicates Parliament’s intention, when passing this provision, that some degree of low level harassment or intimidation would be tolerated before the exemption could be invoked; Toogood and Cassowary Coast Regional Council [2018] QICmr 13 (22 March 2018) (Toogood) at [18].[36] Toogood at [22].[37] ER Applicant’s submissions dated 9 February 2022 and 4 August 2022.[38] Toogood at [23].[39] Ibid.[40] Ibid at [22].[41] ER Applicant’s submissions dated 6 September 2022.[42] ER Applicant’s submissions dated 4 August 2022.[43] Schedule 3, section 10(1)(e) of the RTI Act.[44] Schedule 3, section 10(1)(f) of the RTI Act.[45] Campbell and North Burnett Regional Council; Melior Resources Incorporated (Third Party) [2016] QICmr 4 (29 January 2016) (Campbell) at [25]-[26].[46] OIC noted this in the third preliminary view to the ER Applicant dated 23 August 2022.[47] The ER Applicant has also not identified the nature of the claimed prejudice, or how it considers disclosure would result in the claimed prejudice. OIC noted this in the third preliminary view to the ER Applicant dated 23 August 2022.[48] Campbell at [27].[49] The Gold Coast Bulletin and Department of Police (Unreported, Queensland Information Commissioner, 23 December 2010) at [10] and [15].[50] OIC noted this in the third preliminary view to the ER Applicant dated 23 August 2022.[51] Section 49(3) of the RTI Act.[52] I have considered each of the public interest factors outlined in schedule 4 of the RTI Act, and any relevant factors are discussed below.[53] Section 44 of the RTI Act.[54] ER Applicant’s submissions dated 6 September 2022; see also ER Applicant’s email to OIR dated 5 October 2021, extracted in the ER Application.[55] ER Applicant’s submissions dated 6 September 2022; see also IR Application, extracted in ER Application.[56] I note also that the RTI Act operates with a pro-disclosure bias: see section 44 of the RTI Act.[57] Rylsey Enterprises Pty Ltd and Cassowary Coast Regional Council [2015] QICmr 13 (12 May 2015) at [15] and Helping Hands Network Pty Ltd and Department of Education, Training and Employment (Unreported, Queensland Information Commissioner, 30 October 2012) at [66] (which cited State of Queensland v Albietz [1995] 1 Qd R 215 at 219 where de Jersey J observed that ‘the Freedom of Information Act does not confer any discretion on the Information Commissioner, or the Supreme Court, to stop disclosure of information because of any particular motivation in the applicant’). Refer also to Victoria Police v Marke [2008] VSCA 218 at [66].[58] Schedule 4, part 1, item 2 of the RTI Act.[59] Schedule 4, part 2, item 1 of the RTI Act.[60] Schedule 4, part 2, item 3 of the RTI Act.[61] Schedule 4, part 2, item 11 of the RTI Act.[62] Schedule 4, part 2, item 14 of the RTI Act.[63] ER Applicant’s submissions dated 6 September 2022.[64] ER Application.[65] Schedule 4, part 2, item 14 of the RTI Act.[66] Schedule 4, part 2, items 1 and 3 of the RTI Act. [67] Schedule 4, part 2, item 11 of the RTI Act.[68] Schedule 4, part 3, item 3 and part 4, section 6(1) of the RTI Act.[69] ER Applicant’s email to OIR dated 5 October 2021, extracted in the ER Application; raising the factor favouring nondisclosure at schedule 4, part 3, item 3 of the RTI Act.[70] OIR’s decision notice to the Access Applicant dated 13 October 2021.[71] Schedule 4, part 3, item 3 of the RTI Act seeks to protect ‘an individual’s right to privacy’ (emphasis added). Likewise, schedule 4, part 4, section 6(1) of the RTI Act seeks to protect disclosure of ‘personal information of a person’; and ‘personal information’ is defined under the RTI Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’ (emphasis added); schedule 5 of the RTI Act and section 12 of the Information Privacy Act 2009 (Qld).[72] Telephone call between ER Applicant and OIC dated 4 July 2022.[73] I note, for example, that information about the directors of Australian companies is publicly accessible by searching the Australian Securities and Investments Commission’s website. [74] Dated 13 October 2021.[75] Section 210(1) of the WHS Act.[76] IR Application, extracted in ER Application.[77] Schedule 4, part 3, item 2 of the RTI Act. This factor was raised in the ER Applicant’s email to OIR dated 5 October 2021, extracted in the ER Application.[78] Schedule 4, part 3, item 15 of the RTI Act.[79] IR Application, extracted in ER Application.[80] ER Applicant’s submissions dated 6 September 2022.[81] ER Applicant’s email to OIR dated 5 October 2021, extracted in the ER Application; raising the factor favouring nondisclosure at schedule 4, part 3, item 6 of the RTI Act.[82] On the information before me, I am also aware that OIR’s decision to issue one of the Improvement Notices was confirmed on internal review. [83] ER Applicant’s email to OIR dated 5 October 2021, extracted in the ER Application; ER Applicant’s submissions dated 4 August 2022.[84] Schedule 4, part 3, item 7 of the RTI Act.[85] Schedule 4, part 3, item 8 of the RTI Act.[86] Schedule 4, part 3, item 9 of the RTI Act.[87] Schedule 4, part 3, item 22 of the RTI Act.[88] OIC noted this in the first and third preliminary views to the ER Applicant dated 25 January and 23 August 2022. OIC has also informed the ER Applicant of its onus in this review to establish that a decision not to disclose the Improvement Notices is justified: section 87(2) of the RTI Act.[89] I also note that the Improvement Notices were issued under the WHS Act and are required to be displayed at a prominent place at or near the workplace: section 210(1) of the WHS Act. [90] At paragraph [40] of this decision.[91] As noted in paragraphs [20] to [29] above, I do not accept the ER Applicant’s submission that disclosure of the Improvement Notices could reasonably be expected to result in a serious act of harassment or intimidation.[92] 6ZJ3HG at [69]-[71].[93] ER Applicant’s submissions dated 6 September 2022.[94] OIC explained this in the fourth preliminary view to the ER Applicant dated 6 October 2022.[95] IR Application, extracted in the ER Application.[96] OIC explained this in the first preliminary view to the ER Applicant dated 25 January 2022.

queensland

court_judgement

Queensland Information Commissioner 1993-

Morse and Queensland Police Service [2017] QICmr 38 (31 August 2017)

Morse and Queensland Police Service [2017] QICmr 38 (31 August 2017) Last Updated: 1 December 2017 .Decision and Reasons for Decision Citation: Morse and Queensland Police Service [2017] QICmr 38 (31 August 2017) Application Number: 312986 Applicant: Morse Respondent: Queensland Police Service Decision Date: 31 August 2017 Catchwords: ADMINISTRATIVE LAW – INFORMATION PRIVACY ACT – REFUSAL TO DEAL – application for access to information about searches for applicant’s personal information appearing in police database – whether application is expressed to relate to all information of a stated kind – whether all of the documents to which the application relates would comprise exempt information – section 59 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION ACT – EXEMPT INFORMATION – LAW ENFORCEMENT AND PUBLIC SAFETY INFORMATION – whether disclosure of information about searches for applicant’s personal information in police database could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law – applicant concerned that his personal information in police database may have been unlawfully accessed – whether information in police database reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law – schedule 3, section 10(1)(f) of the Right to Information Act 2009 (Qld) – exception in schedule 3, section 10(2)(a) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for access to information showing the names of the police officers who had accessed his personal information on the QPRIME database (QPRIME)[1] from 2006 until 10 June 2016, and the dates on which such access occurred.[2] Given the applicant’s application concerned his personal information, QPS decided to process it under the Information Privacy Act 2009 (Qld) (IP Act) and neither confirmed nor denied the existence of the requested information under section 69 of that Act.[3] The applicant sought internal review of QPS’s decision.[4] On internal review, QPS affirmed its original decision.[5] The applicant applied to the Office of the Information Commissioner (OIC) for external review of QPS’s internal review decision.[6] On external review, QPS accepted OIC’s preliminary view[7] that the neither confirm nor deny provision could not be relied on in this case[8] and made alternative submissions.[9] For the reasons set out below, I vary QPS’s decision and find that all documents to which the application relates comprise exempt information under schedule 3, section 10(1)(f) of the RTI Act, as their disclosure could reasonably be expected to prejudice QPS’s lawful methods and procedures and, therefore, section 59 of the IP Act can be relied on to refuse to deal with the application. Background Significant procedural steps relating to the application and external review process are set out in the Appendix. Reviewable decision The decision under review is QPS’s internal review decision dated 13 September 2016 to neither confirm nor deny the existence of documents requested by the applicant in his access application dated 20 June 2016. Evidence considered The evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including the footnotes and Appendix). Issues to be determined As noted at paragraph 5 above, QPS no longer contends that section 69 of the IP Act can be relied on to neither confirm nor deny the existence of the documents requested in the access application. Therefore, that provision is not considered in this decision.[10] The Information Commissioner[11] can decide any matter in relation to an application that could, under the IP Act, have been decided by the agency dealing with the application.[12] Accordingly, I will now consider whether the application may be the subject of a refusal to deal decision under section 59 of the IP Act.[13] To determine this issue, I must consider whether: the application is expressed to relate to all documents, or all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and all of the documents to which the application relates comprise exempt information. In support of his position that the requested information should be released, the applicant generally relies on:[14] his knowledge of previous releases of QPRIME information to other individuals his belief that there is a culture within QPS of unlawfully accessing QPRIME; and his concern that, due to media reporting around this issue, his profile on QPRIME has been accessed unlawfully. Relevant law If an access application is made to an agency under the IP Act, the agency should deal with the application unless this would not be in the public interest.[15] One of the few circumstances where it is not in the public interest to deal with an access application is set out section 59 of the IP Act as follows: 59 Exempt Information (1) This section applies if— (a) an access application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind or relate to a stated subject matter; and (b) it appears to the agency or Minister that all of the documents to which the application relates are comprised of exempt information. (2) The agency or Minister may refuse to deal with the application without having identified any or all of the documents. Exempt information is information, the disclosure of which Parliament has considered would, on balance, be contrary to the public interest.[16] Schedule 3 of the RTI Act lists the various types of information that constitute exempt information, 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; ... (2) However, information is not exempt under subsection (1) if it consists of— (a) matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law; ... Findings Class of documents For section 59 of the IP Act to be enlivened, I must firstly consider whether the application is expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind, or relate to a stated subject matter. To determine this, it is necessary to examine the terms of the access application. OIC has recently considered the application of section 59 of the IP Act in relation to applications for information substantially the same as that requested by the applicant in the application which is the subject of this review.[17] The applicant’s application seeks access to specific information (QPRIME access information) over a ten year period,[18] namely: Names and Dates of Police officers that have accessed any of my information on the QPRIME data base. I am satisfied that the application is framed as a request to access all entries in QPRIME relating to the applicant during the specified period. I am also satisfied that the application is expressed to relate to all documents that contain information of a stated kind, that is, information demonstrating when the applicant’s personal information on QPRIME was accessed and by whom. Accordingly, I find that the first limb of section 59 of the IP Act is satisfied. Exempt information I must also be satisfied that the documents to which the application relates are comprised of exempt information. Of relevance to this review, information will be exempt information if the following are established: there exists a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law; and disclosure could reasonably be expected to prejudice that method or procedure.[19] QPS submitted[20] that the process of QPS officers accessing information in QPRIME forms an integral part of the methods and procedures used by QPS for preventing, detecting or investigating contraventions, or possible contraventions of the law, specifically regarding intelligence and surveillance operations. Further, QPS submitted that disclosing the QPRIME access information would reveal: the number of occasions on which QPS officers have accessed QPRIME in relation to a particular individual the nature of the access; and the number and/or identity of the inquiring officer. QPS submitted that disclosure of such information would enable an individual to deduce whether particular QPS units were monitoring the individual’s behaviour or involvement in activities, and the level of QPS surveillance/investigation they were under.[21] On this basis, QPS submitted that disclosure of the QPRIME access information could reasonably be expected to prejudice the effectiveness of its lawful methods or procedures for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law. The applicant submitted[22] that disclosure of the use of QPRIME as a method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law could not be said to prejudice the effectiveness of QPRIME as a method or procedure. In support of this position, the applicant submitted as follows: ‘to disclose either that the police keep information in a computerised database or that police officers access the information held in that database reveals nothing which is novel, covert or clandestine’[23] ‘disclosure of methods or procedures which are “obvious and well known to the community” is not likely to prejudice their effectiveness’[24] some, but not all of, QPRIME access information might be exempt under other specific provisions in schedule 3, section 10 of the RTI Act[25] which would ‘otherwise have no work to do’[26] ‘if Parliament had intended that keeping documents in the QPRIME database be regarded as an integral part of QPS methods and procedures ... then it would have been unnecessary for the Parliament to have enacted the[se] specific provisions’[27] the logical result of finding that the QPRIME access information may be refused under schedule 3, section 10(1)(f) of the RTI Act is that QPS may circumvent the disclosure regimes in the RTI and IP Acts by claiming that ‘information held by it in computer databases which may be searched and accessed by police officers form an integral part of its lawful methods or procedures’, and ‘that effectively would operate to exempt the QPS from the disclosure regimes’[28]; and ‘the characterisation of QPRIME as “an integral part of QPS’s lawful methods and procedures, etc.” ... may have the absurd result of some information in QPRIME being deemed not to be exempt information by virtue of schedule 3, [section] 10(6) because it had been used by a specialist intelligence or security unit of the QPS, but other information continuing to be exempt as it was used by ordinary members of the QPS’[29]. Having considered the submissions provided by QPS on review,[30] I am satisfied that, when dealing with contraventions, or possible contraventions, of the law, QPS officers record information about certain individuals on QPRIME, and such information may relate to intelligence or surveillance operations, or other investigations. Further, I am satisfied that QPS officers also access information recorded in QPRIME both during and after such activities—for example, to obtain background information and inform their decisions. Given this position, I accept that accessing information in QPRIME forms an integral part of the methods and procedures used by QPS when dealing with contraventions, or possible contraventions, of the law. The existence of QPRIME as a database used by QPS, and the manner in which QPS officers use QPRIME—namely, recording information obtained by them and accessing previously recorded information—are commonly known. Consequently, I accept the applicant’s submission that ‘to disclose either that the police keep information in a computerised database or that police officers access the information held in that database reveals nothing which is novel, covert or clandestine’. The applicant further submits that ‘disclosure of methods or procedures which are “obvious and well known to the community” is not likely to prejudice their effectiveness’. In my view, this submission conflates information confirming the existence of QPRIME with the QPRIME access information. It suggests that, because QPS’s use of QPRIME is obvious or known to the community, it follows that disclosure of particular information from that database—that is, the QPRIME access information—is not likely to prejudice the effectiveness of QPS’s use of QPRIME. However, the prejudice does not, in my view, arise insofar as the QPRIME access information reveals the existence of QPRIME, how it works or its use by QPS officers. Rather, the prejudice arises in terms of the QPRIME access information revealing information (or an absence of information) which enables or assists an individual to deduce the level of surveillance they may (or may not) be under. This, in my opinion, reduces the effectiveness of QPRIME as a system for recording and exchanging information within QPS as part of conducting intelligence or surveillance operations, or otherwise dealing with contraventions, or possible contraventions, of the law. I am satisfied that disclosure of QPRIME access information, for any individual, whether that individual is subject to intelligence or surveillance operations or not, could reasonably be expected to prejudice these lawful methods and procedures as a whole. In reaching this conclusion, I have considered whether specific types of QPRIME access information may, if released with surrounding information redacted, not qualify as exempt information. In this regard, I have noted that the applicant does not seek access to information which would identify particular QPS units or the reasons for searches in QPRIME. However, I am of the view that releasing names or other information specific to particular QPS officers may still enable their identity and relevant unit, and therefore the nature of surveillance or intelligence (if any), to be ascertained. I have also considered the possibility of releasing information which indicates the frequency of access to information on QPRIME about a particular individual by QPS officers generally, or specific QPS officers. However, doing so would, in my view, risk revealing the level of QPS surveillance or investigation (if any) that an individual is under. As to the question of whether the expectation of prejudice is reasonable,[31] I am satisfied that QPS has demonstrated that there are particular circumstances[32] in which disclosing QPRIME access information could reasonably be expected to prejudice the lawful methods and procedures used by QPS, of which QPRIME is an integral part, even though the information may otherwise appear innocuous on its face or when read in isolation.[33] The applicant submits that disclosure of QPRIME access information might be exempt under other provisions in schedule 3, section 10,[34] that these provisions would ‘otherwise have no work to do’, and that it would have been unnecessary for Parliament to enact them ‘if Parliament had intended that keeping documents in the QPRIME database be regarded as an integral part of QPS methods and procedures’. It is my understanding that, in making these submissions, the applicant’s position is that I cannot find that the QPRIME access information may be refused under schedule 3, section 10(1)(f) of the RTI Act, as to do so would render the other provisions raised by him redundant. In respect of these submissions, I note that the provisions raised by the applicant[35] require that an investigation be on foot,[36] and that the information in issue be given in the course of the investigation, or obtained, used or prepared for it.[37] However, the nature of the information that would be subject to these provisions can be distinguished from the information in issue in this review. Here, the applicant is seeking information about who accessed his records within QPRIME and when (whether or not such access related to any investigation). He is not seeking his records viewed during any such access, nor is he seeking any documents received or generated during any investigation. Depending on the particular information and circumstances, I consider it feasible that the other exemption provisions in schedule 3, section 10 of the RTI Act raised by the applicant—or indeed schedule 3, section 10(1)(f)—may possibly apply to information of this nature. Accordingly, I cannot accept the applicant’s submissions that, to find that the QPRIME access information is exempt information under schedule 3, section 10(1)(f) is to, in effect, find that the other provisions raised by him are superfluous. I also do not accept the applicant’s submission that the logical effect of refusing access to the QPRIME access information is that QPS may circumvent the disclosure regimes in the RTI and IP Acts entirely by claiming that ‘information held by it in computer databases which may be searched and accessed by police officers form an integral part of its lawful methods or procedures’. This decision relates only to the QPRIME access information, not all information and documents stored on QPRIME. Each decision on an access application must be considered on its own particular merits, on a case by case basis. Finally, I do not accept the applicant’s submission that finding that the QPRIME access information may be refused under schedule 3, section 10(1)(f) of the RTI Act ‘may have the absurd result of some information in QPRIME being deemed not to be exempt information by virtue of schedule 3, [section] 10(6) because it had been used by a specialist intelligence or security unit of the QPS, but other information continuing to be exempt as it was used by ordinary members of the QPS’. In this regard, I note that the relevance of one exemption provision does not necessarily preclude the applicability of others. If there were circumstances where the exemption provisions in schedule 3, section 10(4) or (5) could apply, but for the operation of the exception raised by the applicant, the exemption provision in schedule 3, section 10(1)(f) of the RTI Act may still apply, depending on the particular information and circumstances. Given these considerations, I am satisfied that the QPRIME access information comprises exempt information under schedule 3, section 10(1)(f) of the RTI Act. Exception to the exemption The applicant also made an alternative submission[38] that, if the QPRIME access information does qualify as exempt information, it cannot be said on a ‘blanket basis’ that all documents must be exempt, because of the exception to the exemption in schedule 3, section 10(2)(a) of the RTI Act. This exception provides that information is not exempt information where it reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law. In his submissions,[39] the applicant refers to previous cases of unauthorised QPRIME access and a ‘culture within the QPS of officers accessing the QPRIME database unlawfully’. In this regard, he refers to media articles discussing this issue,[40] and expresses concern that his personal information within QPRIME has been accessed unlawfully.[41] However, for the exception in schedule 3, section 10(2)(a) of the RTI Act to apply,[42] the information itself, that is, the QPRIME access information, must consist of material that objectively reveals that the scope of a law enforcement investigation has exceeded the limits imposed by law.[43] In the application that is the subject of this review, the applicant sought access to QPRIME access information. As noted at paragraph 29 above, the applicant is seeking to access information about who has accessed, viewed or otherwise utilised his records within QPRIME and when they did so, rather than seeking to access records relating to an investigation. I am satisfied that the QPRIME access information alone, cannot, of itself, reveal that any particular access to QPRIME was unauthorised, or that the scope of any law enforcement investigation had exceeded the limits imposed by law. I also consider that this is the case when considering the QPRIME access information within the context of all information before me in this review. Accordingly, I am satisfied that the QPRIME access information may, at best, amount to untested evidence concerning an officer’s authority to access QPRIME in a particular instance. Given this position, I cannot conclude that QPRIME access information reveals evidence of an investigation having exceeded its limits. Accordingly, I am satisfied that on the available information in this review, the exception to the exemption in schedule 3, section 10(2) of the RTI Act does not apply.[44] Other submissions In his submissions, the applicant also referred to other individuals who have successfully obtained access to QPRIME access information from QPS which revealed, in one case, that an individual’s record had been accessed in excess of 1,400 times.[45] I acknowledge that QPS has, on some occasions in the past, disclosed QPRIME access information.[46] However, in processing a series of applications made to QPS by various individuals seeking access to information substantially the same as the QPRIME access information in the past year, QPS identified several issues associated with disclosure of such information, which led to QPS making submissions to OIC regarding its expectation of prejudice to its methods or procedures, as they relate to QPRIME.[47] The position previously taken by QPS in relation to disclosure of QPRIME access information does not have any impact on my finding that this information meets the requirements for exemption under schedule 3, section 10(1)(f) of the RTI Act. There is nothing in the IP Act which prevents an agency from reconsidering its position on disclosure of particular information. Similarly, there is no requirement for me to follow the approach taken by an agency in response to a previous access application. In conducting a merits review, I am required to determine each matter on its own facts and on the basis of the available evidence at the time of making my decision. The applicant also submitted that there is a significant public interest in disclosure of the QPRIME access information. I acknowledge that the IP Act is to be administered with a pro-disclosure bias[48] and that it is Parliament’s intention that the grounds for refusing to deal with applications be interpreted narrowly.[49] However, 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. While an agency has discretion in these circumstances,[50] the Information Commissioner does not.[51] Once a class of documents satisfies the requirements of an exemption, as I have found in this case, I am precluded from considering any public interest factors, no matter how compelling.[52] DECISION I vary the decision of QPS and find that section 59 of the IP Act can be relied on to refuse to deal with the applicant’s access application, on the basis that the application is expressed to relate to all documents containing information of a stated kind, and all of the documents to which the application relates comprise exempt information under schedule 3, section 10(1)(f) of the RTI Act. I have made this decision under section 123 of the IP Act, as a delegate of the Information Commissioner, under section 139 of the IP Act.A RickardAssistant Information Commissioner Date: 31 August 2017 APPENDIX Significant procedural steps Date Event 13 October 2016 OIC received the applicant’s external review application. 19 October 2016 OIC notified the applicant and QPS that the external review had been accepted. 19 October 2016 OIC conveyed a preliminary view to QPS and invited QPS to provide submissions in response. 24 October 2016 QPS accepted OIC’s preliminary view. 22 November 2016 OIC conveyed a preliminary view to the applicant and requested submissions in response. 2 December 2016 The applicant requested, and was granted, an extension of time to provide submissions. 8 December 2016 The applicant provided written submissions to OIC.[53] 2 June 2017 OIC provided QPS with a copy of the applicant’s submissions on external review and requested further submissions from QPS. 16 June 2017 QPS provided written submissions to OIC.[54] [1] QPRIME is the Queensland Police Records and Information Management Exchange. This is the database used by QPS to capture and maintain records for all police incidents in Queensland.[2] Access application dated 20 June 2016.[3] Decision dated 29 July 2016.[4] In a letter to QPS dated 25 August 2016.[5] Internal review decision dated 13 September 2016.[6] External review application dated 30 September 2016.[7] Letter to QPS dated 19 October 2016.[8] Given it is commonly known that QPS maintains a computer database to capture and maintain records about police incidents.[9] Submission dated 24 October 2016.[10] Accordingly, the applicant’s submissions in respect of QPS’s decision to neither confirm nor deny the existence of documents requested in the access application have also not been addressed in these reasons for decision. [11] Or delegate. [12] Section 118(1)(b) of the IP Act.[13] QPS does not contest the application of section 59 of the IP Act. [14] While I have carefully considered all of the submissions received, the applicant’s submissions are only addressed below to the extent they are relevant to the issues for determination.[15] Section 58(1) of the IP Act. [16] See sections 47(3)(a) and 48 and schedule 3 of the RTI Act. [17] See Isles and Queensland Police Service [2017] QICmr 1 (12 January 2017) (Isles), Flori and Queensland Police Service [2017] QICmr 5 (16 February 2017) (Flori), Shelton and Queensland Police Service [2017] QICmr 18 (29 May 2017) (Shelton), Eaves and Queensland Police Service [2017] QICmr 23 (30 June 2017) (Eaves), Kyriakou and Queensland Police Service [2017] QICmr 29 (9 August 2017) (Kyriakou (1)), Kyriakou and Queensland Police Service [2017] QICmr 30 (9 August 2017) (Kyriakou (2)), Kyriakou and Queensland Police Service [2017] QICmr 31 (9 August 2017) (Kyriakou (3)). [18] The period 2006 to 10 June 2016. [19] Schedule 3, section 10(1)(f) of the RTI Act. [20] Submission dated 16 June 2017.[21] In its submission, QPS provided generic examples of how disclosure of QPRIME access information, showing the frequency of access and identifying who accessed the information, may prejudice policing activities. The following are a sample of QPS’s examples: • Persons who have engaged in criminal activities could identify, through the existence or absence of records, whether they have been identified as a suspect or person of interest. For example, a person who has committed an offence could identify whether they are a suspect simply by applying for access records for any enquiries undertaken after the date of the offence • Persons who may have previously been considered a suspect/person of interest may be able to identify whether they remain so, through the existence or absence of records. For example, a suspect in a cold case murder could identify whether they remain a suspect, and if not, could feel safe to take action to dispose of items used or obtained in the commission of the offence; and • Persons proposing to engage in criminal activities could identify, through the existence or absence of records, whether they are the subject of attention/surveillance by police. For example, persons proposing to engage in terrorism related activities could identify whether they are, or have been subject to police attention and, if so, alter their activities to avoid detection; or, if not, feel empowered to continue with the activity.These examples, being generic, should not be construed as relating to the circumstances of this external review.[22] External review application and submission dated 8 December 2016.[23] Paragraph 16 of submission dated 8 December 2016.[24] Paragraph 17 of submission dated 8 December 2016, citing T and Queensland Health [1994] QICmr 4; (1994) 1 QAR 386 at [32]. [25] That is, schedule 3, section 10(1)(a), 10(3), 10(4), 10(5)(a), 10(5)(b) and 10(5)(c) of the RTI Act.[26] Paragraph 18 of submission dated 8 December 2016. [27] Paragraph 19 of submission dated 8 December 2016. [28] Paragraph 20 of submission dated 8 December 2016. [29] Paragraph 21 of submission dated 8 December 2016. [30] Submission dated 16 June 2017. [31] The requirements of the phrase ‘could reasonably be expected to’ in the particular context of this exemption were discussed by the Right to Information Commissioner in Gold Coast Bulletin and Queensland Police Service (Unreported, Queensland Information Commissioner, 23 December 2010) at [20]-[21]. [32] Including those noted in the generic examples at footnote 21 above.[33] Under section 121(3) of the IP Act, I must not disclose information claimed to be exempt or contrary to the public interest in reasons for decision. I am therefore constrained in the extent to which I can explain the particular circumstances put forward by QPS in support of the application of this exemption.[34] That is, schedule 3, section 10(1)(a), 10(3), 10(4), 10(5)(a), 10(5)(b) and 10(5)(c) of the RTI Act. [35] Except schedule 3, section 105(c) of the RTI Act which relates to information received by Crime Stoppers Queensland Ltd.[36] Schedule 3, section 10(1)(a) of the RTI Act. [37] By the relevant law enforcement body for the purposes of schedule 3, sections 10(3), 10(4) and 10(5)(a) and (b) of the RTI Act.[38] Paragraphs 25-29 of submission dated 8 December 2016.[39] External review application and submission dated 8 December 2016.[40] The media articles referred to in the applicant’s submission include, among others: • AAP, ‘Qld cop stood down over ‘database breach’ (17 May 2016) http://www.news.com.au/national/breaking-news/qld-cop-stood-down-over-database-breach/news-story/a62186679a17dd70ca4eea4c589c83e2; and • CCC Media Release, ‘Police officer charged for unauthorised access and disclosure of confidential information’ (22 June 2016) http://www.ccc.qld.gov.au/news-and-media/ccc-media-releases/police-officer-charged-for-unauthorised-access-and-disclosure-of-confidential-information-22-june-2016.[41] I note that such concerns are able to be considered by other bodies such as the Crime and Corruption Commission, who are able to obtain access to relevant records.[42] As noted in Isles at [21], Flori at [25], Shelton at [28], Eaves at [24], and Kyriakou (1), Kyriakou (2) and Kyriakou (3) at [29]. [43] Previous decisions of the Information Commissioner have not considered, in any detail, the nature or extent of evidence required for this exception to apply.[44] There is no evidence available to OIC to indicate that any other exceptions in schedule 3, section 10(2) of the RTI Act apply.[45] External review application.[46] For example, see information released pursuant to informal resolution processes referred to at [12] of Wolfe and Queensland Police Service [2016] QICmr 27 (30 June 2016).[47] See paragraphs 19 to 21 above.[48] Section 58(4) of the IP Act.[49] Section 67(2) of the IP Act.[50] Section 58(4) of the IP Act.[51] Sections 58(4) and 118(2) of the IP Act. [52] Section 118(2) of the IP Act provides that the Information Commissioner does not have the power to direct that access to an exempt document be granted. [53] The applicant’s solicitor made the same submissions in this external review and another external review which has also been finalised by decision—see Cutts and Queensland Police Service [2017] QICmr 39 (31 August 2017) (Cutts).[54] QPS made the same submissions in this external review and the external review finalised in Cutts.

queensland

court_judgement

Queensland Information Commissioner 1993-

Stewart, Ronald and Department of Transport (No. 3) [1995] QICmr 12; (1995) 2 QAR 567 (16 May 1995)

Stewart, Ronald and Department of Transport (No. 3) [1995] QICmr 12; (1995) 2 QAR 567 (16 May 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 69 of 1994COMMISSIONER (QLD) ) (Decision No. 95012) Participants: RONALD KEITH STEWART Applicant - and - DEPARTMENT OF TRANSPORT Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - applicant challenging sufficiency of search by respondent for documents falling within the terms of his FOI access application - whether reasonable grounds for believing the respondent has possession or control of documents falling within the terms of the applicant's FOI access application.Freedom of Information Act 1992 Qld Ronald Keith Stewart and Department of Transport, Re (Information Commissioner Qld, Decision No. 95007, 12 May 1995, unreported)Ronald Keith Stewart and Department of Transport, Re (Information Commissioner Qld, Decision No. 95011, 15 May 1995, unreported) DECISIONThe decision under review (being the internal review decision of Mr W J Rodiger, on behalf of the Respondent, dated 14 February 1994) is affirmed.Date of Decision: 16 May 1995...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 69 of 1994COMMISSIONER (QLD) ) (Decision No. 95012) Participants: RONALD KEITH STEWART Applicant - and - DEPARTMENT OF TRANSPORT Respondent REASONS FOR DECISIONBackground1. The applicant complains that the respondent has failed to locate and deal with all documents falling within the terms of his initial application for access to documents under the Freedom of Information Act 1992 Qld (the FOI Act). 2. By letter dated 24 November 1993, Mr Stewart applied to the Department of Transport (the Department) for access to documents, in the following terms: I request all personal documents under Freedom of Information Act concerning myself as stated on document received from this Department: [Here the applicant listed seven points which had been noted in handwriting on two pages held by the Department. Copies of the pages had been supplied to the applicant in the course of an earlier FOI access application to the Department. It appears that the applicant considered that the points listed in the handwritten notes were allegations made against him by some person.] Also an application form from the Harristown State School in which I applied for a Crossing Supervisors position but appears to be missing from the files of Harristown State School (1984).3. The initial decision on behalf of the Department was made by Mr B J Butterworth and communicated to the applicant by letter dated 13 January 1994. As to the first part of the application (dealing with the seven points raised in the handwritten notes), Mr Butterworth formed a view that the notes appeared to be a record of a telephone conversation, but he indicated that he had been unable to establish the identity of the author of the document. Mr Butterworth, I think correctly, interpreted the application to be one for documents which supported or related to any of the seven points referred to in the handwritten notes. Mr Butterworth indicated that, apart from the handwritten notes in question, he could find no reference to six of the points in any documents of the Department. In relation to the other point he noted that some documents already supplied to Mr Stewart in the course of another FOI access application had referred to that subject, but that after a further search he had been unable to find any additional documents which related to that matter. Mr Butterworth made no reference to the second part of Mr Stewart's FOI access application (dealing with the job application).4. Mr Stewart applied for internal review of that decision by a letter dated 31 January 1994. The internal review was conducted by Mr W J Rodiger of the Department who, by letter dated 14 February 1994, affirmed Mr Butterworth's decision, saying: "I find there are no documents, in terms of section 21 [of the FOI Act] which would satisfy your request". Mr Stewart subsequently applied by letter dated 22 February 1994 for review, under Part 5 of the FOI Act, of Mr Rodiger's decision.Matter relating to points raised in handwritten notes5. I have obtained and examined a copy of the handwritten notes which contain the seven points referred to by Mr Stewart in his FOI access application. I consider that it was reasonable for Mr Butterworth to surmise that they are notes of a conversation (most likely between an officer of the Department and some other person) although whether they were made during a telephone conversation or at some other time is not certain. The notes are very brief and the intended meaning of the notes is probably known only to the author. The author is not identified on the notes in question, and could not be identified by the Department's subsequent inquiries. It is by no means clear to me that all of the seven points which Mr Stewart regards as being allegations against him can properly be categorised as allegations, or even that they all refer to Mr Stewart.6. Mr Stewart has been a participant in a number of external review applications before me. On 22 November 1993, two days before making the FOI access application which led to this review, he wrote to me in relation to an earlier application for review, number S 103/93. In his letter he made what is in essence the same request for access to documents relating to the seven points made in the handwritten notes. The scope of application for review number S 103/93 is much wider than the present application. Any documents which are relevant to the points raised in the handwritten notes would form a subset of the documents falling within the terms of application for review number S 103/93.7. I considered the corresponding part of Mr Stewart's letter of 22 November 1993 in paragraph 33 of my decision in respect of application for review number S 103/93, Re Ronald Keith Stewart and Department of Transport (Information Commissioner Qld, Decision No 95007, 12 May 1995, unreported; hereinafter referred to as Re Ronald Stewart) the relevant part of which I repeat below: 33. In addition to his general claim that there were other documents relating to his personal affairs, Mr Stewart, in a letter dated 22 November 1993, suggested that certain passages in a document already released to him indicated that there were other documents in existence which the Department had not disclosed to him. I have examined those passages carefully, and I can find no support for Mr Stewart's assertions. It appears to me that most of the points raised by Mr Stewart amount to assertions that no one should have made the notes or statements made in those documents without having documentary proof to back them up. In essence, I see this more as a criticism by Mr Stewart of the way he perceives the Department to work (i.e. making statements about a person without having sufficient documented proof to support the statements) than as evidence that there are reasonable grounds to believe that further documents exist which are responsive to Mr Stewart's FOI access application. In so saying, I make no comment on the operations of the Department; I merely reflect Mr Stewart's underlying complaint.8. At paragraphs 20-30 of my decision in Re Ronald Stewart, I described the searches carried out in relation to a number of applications by members of the Stewart family. For the same reasons given in Re Ronald Stewart, based on the searches and inquiries there described, I find that there are no reasonable grounds for believing that the documents requested in the first part of the applicant's FOI access application dated 24 November 1993, exist as documents in the possession or control of the respondent.Job application form9. Mr Stewart's FOI access application (see paragraph 2 above) also refers to a job application form he completed in or around 1984 for a position of School Crossing Supervisor at the Harristown State School. The document requested in this part of the application was also the subject of Mr Stewart's external review application number S 214/93. I have published reasons for decision in relation to that application: see Re Ronald Keith Stewart and Department of Transport (Information Commissioner Qld, Decision No 95011, 15 May 1995, unreported). For the reasons set out in that decision, I find that there are no reasonable grounds to believe that the requested document is now or has ever been in the possession or under the control of the Department.Conclusion10. I therefore affirm Mr Rodiger's internal review decision of 14 February 1994.F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Lotsearch Pty Ltd and Department of Environment and Heritage Protection [2016] QICmr 51 (16 December 2016)

Lotsearch Pty Ltd and Department of Environment and Heritage Protection [2016] QICmr 51 (16 December 2016) Last Updated: 6 February 2017 Decision and Reasons for Decision Citation: Lotsearch Pty Ltd and Department of Environment and Heritage Protection [2016] QICmr 51 (16 December 2016) Application Number: 312768 Applicant: Lotsearch Pty Ltd Respondent: Department of Environment and Heritage Protection Decision Date: 16 December 2016 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - OTHER ACCESS AVAILABLE - request for complete list of sites on the Contaminated Land Register and Environmental Management Register - whether the applicant can reasonably access the document under another Act - whether the document is commercially available - whether access may be refused under sections 47(3)(f) and 53 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - CONTRARY TO PUBLIC INTEREST INFORMATION - request for complete list of sites on the Contaminated Land Register and Environmental Management Register - enhancing transparency and revealing environmental risks - prejudice to business affairs of an agency - specialised statutory scheme - whether disclosure of information would, on balance, be contrary to the public interest - whether access may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary Lotsearch Pty Ltd (Lotsearch) applied to the Department of Environment and Heritage Protection (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a list of all sites appearing on the Contaminated Land Register (CLR) and the Environmental Management Register (EMR), including site names and addresses. The Department refused access to the requested information on the basis that other access was available.[1] Specifically, the Department decided that extracts from the CLR and EMR can be obtained, on payment of a fee, in accordance with the statutory scheme set up under the Environmental Protection Act 1994 (Qld) (EP Act) and therefore, such information was commercially available and reasonably open to public access. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision. On external review, OIC explored several informal resolution opportunities with the parties, however, a negotiated outcome could not be achieved. For the reasons set out below, I vary the Department’s decision and find that access to the requested CLR and EMR information may be refused under section 47(3)(b) of the RTI Act on the basis that its disclosure would, on balance, be contrary to the public interest under section 49 of the RTI Act. Background Significant procedural steps taken by the Department in processing the application and by OIC in conducting the external review are set out in the Appendix to these reasons. The paragraphs below are intended to provide some background and contextual information on the statutory scheme for accessing contaminated land information in Queensland and the broader submissions made by the applicant regarding public access to this type of information. The CLR and EMR are maintained under the EP Act. Land is listed on the EMR if certain types of activities (known as notifiable activities) have been, or are being, carried out on the land, or if the land is contaminated land, i.e., affected by a hazardous contaminant.[2] Contaminated land is moved from the EMR to the CLR where it is necessary to take action to remediate the land to prevent serious environmental harm and protect human health or other aspects of the environment.[3] The EP Act provides for various land information registers to be made available for public inspection.[4] However, the CLR and EMR are specifically excluded from the public inspection provisions in the EP Act.[5] Instead, the EP Act[6] provides that extracts from those registers can be obtained by payment of the prescribed fee.[7] The applicant, Lotsearch, uses geographic information systems (GIS) and database technologies to produce environmental and planning reports for its clients in New South Wales, Queensland and Victoria.[8] In support of the external review application, Lotsearch provided OIC with ‘equivalent information which is freely available for download’[9] from New South Wales and Victorian Environmental Protection Authorities.[10] The applicant initially submitted to OIC that the Department’s decision ‘contradicts the guiding principles’ outlined by the Queensland Government as part of the Open Data initiative[11] and consistently argued on external review that the ‘full list of information belongs in the public domain’.[12] The applicant did however, concede during the review that ‘[p]erhaps a request through the Open Data initiative would be more appropriate’.[13] Open Data is data that is made available by governments, organisations, researchers and individuals for anyone to access, use and share.[14] Open Data is one of the measures which the Queensland government has adopted to increase the flow of government information to the community. There are public consultation processes connected with Open Data regarding the types of information which citizens consider should be available through Open Data. The nature and extent of information which government chooses to make available in this way is a matter of government policy. Open Data operates independently from the disclosure processes under the RTI Act. Accordingly, I do not have jurisdiction to comment on whether the CLR and EMR datasets should be made available through Open Data— that is a policy decision for the Queensland Government. Therefore, to the extent the applicant’s submissions concern such matters, I have not considered them in these reasons for decision. Reviewable decision The decision under review is the Department’s decision made on 5 February 2016, refusing access to information under section 47(3)(f) of the RTI Act. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). I have carefully considered the applicant’s applications, written and oral submissions made to OIC during this external review and supporting documents, to the extent they are relevant to the issue for determination, as set out below. Information in Issue The applicant initially requested a copy of the CLR and EMR GIS datasets from the Department, including previous contaminated/licensed sites.[15] Following negotiations, the applicant reframed the request to: ‘a list of the site names, addresses and parcel reference numbers (if available) for all of the properties appearing on either the CLR and/or the EMR registers’.[16] In its decision, the Department stated that it was: ‘... unable to provide an exact number of responsive documents as the information is contained within the EMR and CLR ... and the number of documents will vary depending on the type of search undertaken of the registers.’ On external review, the applicant confirmed that it was seeking a list of all the sites appearing on the CLR and EMR, including ‘names, addresses and locations of each site appearing on the registers’.[17] The Department explained to OIC that report(s) listing all sites contained in the CLR and EMR could be produced from the Department’s data system, but as it changes daily, it is only current/valid at the time it is generated, and cannot be prepared for an earlier point in time.[18] For the purpose of this review, the report(s) listing the CLR and EMR sites, capable of being produced by the Department from its data system at a point in time, are referred to as the Information in Issue in these reasons for decision.[19] Issue for determination The issue for determination is whether access to the Information in Issue can be refused under the RTI Act. In this case, the relevant grounds of refusal are: section 47(3)(f) of the RTI Act – because other access to the document is available as mentioned in section 53(a) or (d) of the RTI Act; and section 47(3)(b) of the RTI Act – to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest under section 49 of the RTI Act.[20] A. Other access available Relevant law A person has a right to be given access to documents of an agency under the RTI Act.[21] However, this right is subject to other provisions of the RTI Act, including the grounds on which access may be refused set out in section 47 of the RTI Act. Access to a document may be refused if an applicant can reasonably access the document under another Act, or under arrangements made by an agency, whether or not the access is subject to a fee or charge.[22] Access may also be refused if the document is commercially available.[23] Findings The Department relied on section 47(3)(f) of the RTI Act to refuse access to the Information in Issue on the basis that there is a statutory scheme set up under the EP Act, enabling members of the public to purchase extracts from the CLR and EMR.[24] Under the EP Act, a member of the public can obtain an extract from the CLR and EMR about a specific site, using the lot/plan details applicable to the site. The document that is generated in response to such a search reflects what is recorded in the CLR or EMR at the time, in relation to one particular site only.[25] Where an application is made under the RTI Act for access to an extract from the CLR or EMR relating to a particular site, I accept that it would be open for an agency to refuse access to the document under sections 47(3)(b) and 53(a) of the RTI Act. However, for the reasons set out below, I consider that applying section 53 of the RTI Act to the applicant’s request for a complete listing of CLR and EMR sites, presents some difficulties. Firstly, in JM and Queensland Police Service (JM),[26] the Information Commissioner observed that the ‘very document’ to which access is sought must be available to the applicant under the relevant alternative access scheme before the ground for refusing access may be invoked. The Information Commissioner also found in JM that it is not sufficient that ‘information of the kind recorded in the document in issue’ is available to otherwise access.[27] In this case, I am satisfied that the very document that the applicant seeks is not the same as what is available under the EP Act scheme. As set out above, the applicant seeks a complete list of all sites which appear on the CLR and EMR. However, what the EP Act makes available for purchase is an extract from the registers, containing information relevant to a single property only.[28] Hypothetically speaking, multiple applications could be made under the EP Act to obtain extracts for every single parcel of land in Queensland. By compiling the purchased extracts into a single list, this would essentially produce the Information in Issue. The applicant submits that there are over three million individual parcels of land in Queensland and that conducting searches for each site would exceed $138 million.[29] In JM, the Information Commissioner noted that the cost of access under a specialised access scheme is a consideration that might be relevant to a determination of whether access is reasonably available.[30] Given the enormity of this task and considering that a large percentage of the results would relate to properties that are not listed on the CLR or EMR (ie. information which is not sought by the applicant), I am satisfied that the Information in Issue is not ‘reasonably’ available to otherwise access, as required under section 53(a) of the RTI Act. Secondly, the Department has confirmed to OIC that a report listing all of the properties in the CLR and EMR, ie. the Information in Issue, is not a document that is available for purchase from the Department. The Department advised OIC that the report is ‘wholly for internal State Government and Local Government Authorities (LGA) use and not for reproduction as a public register’.[31] For this reason, I am satisfied the Information in Issue is not ‘commercially available’ under section 53(d) of the RTI Act. On the basis of the above, I find that access to the Information in Issue may not be refused under section 47(3)(f) of the RTI Act as other access is not reasonably, nor commercially available, under section 53 of the RTI Act. B. Contrary to the public interest Relevant law External review by the Information Commissioner[32] is general merits review and the Information Commissioner must make a decision affirming or varying the decision under review or substitute a new decision.[33] Despite my finding in paragraph 25 above, in the circumstances of this case, I have considered below whether access to the Information in Issue may be refused under section 47(3)(b) of the RTI Act, on public intere[34] grounds.34 Access to information may be refused where disclosure would, on balance, be contrary to the public interest.[35] A decision-maker must have regard to the pro-disclosure bias.[36] 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 generally. This means that ordinarily, 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. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest and explains the steps that a decision-maker must take[37] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure[38] balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest. Findings Irrelevant factors The applicant is seeking the information for business purposes, that is, to complement the reporting services it provides to its clients who are undertaking environmental assessments and due diligence.[39] However, an applicant’s reasons for seeking access to information under the RTI Act are an irrelevant consideration.[40] Therefore, in making my decision, I have not taken these submissions into account. Factors favouring disclosure In any event, the applicant submitted that the information should be made available to the wider community,[41] for the following reasons: individuals living and working in Queensland have a right to understand potential risks from the surrounding areas the current mechanism/system in Queensland is unnecessarily restrictive and costly and does not protect individuals as it denies them the ability to be able to easily search and understand their proximity to contaminated sites or potentially contaminated activities; and failure to disclose the full list of contaminated sites in Queensland poses a threat to public health and safety.[42] The applicant also provided OIC with online listings for contaminated land information that is made available in other Australian States and Territories[43] to lend support to its argument that the full list of information belongs in the public domain. I accept that there is a public interest in ensuring that members of the public are informed about issues pertaining to land contamination and management of associated environmental issues, so that individuals and communities can put in place appropriate measures to safeguard their health and wellbeing. Government must also be accountable for ensuring that individuals are properly informed about land contamination issues and that such issues are actively managed to minimise risks to public health and safety. With this in mind, I have considered whether disclosure could reasonably be expected to enhance government accountability and transparency[44] and/or reveal environmental or health risks or measures relating to public health or safety.[45] I acknowledge that other Australian States and Territories publish contaminated land information online and I accept that this provides a level of transparency in government-held information. However, for the reasons set out below, I am satisfied that transparency can also be achieved through a statutory access scheme, such as that which currently operates in Queensland under the EP Act.[46] It is not the case that contaminated land information is kept secret from the public in Queensland. To the contrary, information on the CLR and EMR is publicly available, in site-specific extract form, upon payment of the prescribed fee. Importantly, the information that is provided by the statutory scheme is unfettered. The applicant has emphasised in its submissions the importance of individuals being aware of the inclusion of surrounding properties on the CLR and EMR. Under the EP Act scheme, if an individual is concerned about nearby properties, they are not prevented from applying to the Department for extracts relating to those particular properties.[47] There is no requirement that an individual must be the registered title holder to obtain a CLR or EMR extract for the site. I am therefore, unable to accept the applicant’s submission that the statutory scheme denies members of the public from understanding their proximity to contaminated sites. For these reasons, I do not consider that government accountability would be any further enhanced by disclosing the Information in Issue under the RTI Act. I accept that disclosing the Information in Issue, i.e., the entire CLR and EMR site listings, under the RTI Act would provide the community with some further transparency in this type of information. However, there is an issue with currency of the information which I consider serves to reduce the weight of this factor. The report generated from the Department’s database is only current at the point in time it is generated; entries in the CLR and EMR can change on a regular basis, even daily.[48] Accordingly, while disclosure of the entire list may provide an additional level of transparency for a particular point in time, I consider that the current mechanism for accessing up to date information delivers a superior level of transparency. For these reasons, I afford this factor[49] only minimal weight in favour of disclosure. To the extent that the Information in Issue includes sites listed on the CLR and EMR that are affected by hazardous contaminants, or upon which remedial action has been taken, I consider disclosure could reasonably be expected to reveal environmental or health risks. However, as the applicant only seeks site names, addresses and parcel reference numbers, the weight of this factor is somewhat lessened as the Information in Issue is in the form of a basic list of land parcels, as opposed to the more comprehensive information that appears in a site extract about the types of contaminants, activities and site management plan details.[50] In addition, for similar reasons to those outlined in paragraphs 34 and 35 above, I consider the weight to be attributed to this factor is further reduced by virtue of the statutory access scheme. As outlined above, information on the CLR and EMR about contaminated land and land subject to remedial action is readily available for members of the public to access, for a fee. Had there been a level of secrecy surrounding the information, or in the absence of a public access scheme, this factor may be deserving of more weight. However, in the circumstances, I find this factor carries only low weight in favour of disclosure. Factors favouring nondisclosure The RTI Act recognises that where disclosure of information could reasonably be expected to prejudice the business affairs of an agency, the public interest will favour nondisclosure.[51] Searches of the CLR and EMR are commonly conducted by prospective property buyers as part of a due diligence process and also by people who are considering developing or changing the use of a parcel of land in Queensland. The fees paid for CLR and EMR searches are a source of income for the Department and contribute to the overall State revenue balance.[52] I am satisfied that, if reports comprising the complete listings of sites in the registers were made available under the RTI Act, this could reasonably be expected to reduce the number of searches requested and paid for through the statutory scheme. In turn, this would reduce the associated income received by the Department.[53] While the applicant has submitted it is willing to pay ‘reasonable costs’ for this information,[54] I consider it is still reasonable to expect there would be a significant reduction in search requests made under the EP Act by the broader population. The EP Act scheme is the mechanism by which Parliament has decided to provide access to information about sites affected/potentially affected by land contamination in Queensland. As the Department is the agency with responsibility for administering the EP Act,[55] I am satisfied that managing access to CLR and EMR information through the statutory scheme forms part of the Department’s business affairs. The express exclusion of the CLR and EMR from the list of land registers open for public inspection under the EP Act demonstrates Queensland Parliament’s clear intention to provide and manage access to information in these registers exclusively through the statutory scheme. Taking this into account, I am satisfied that disclosing the Information in Issue under the RTI Act would undermine the operation of the specialised statutory scheme and could thereby, reasonably be expected to prejudice the Department’s business affairs. I acknowledge however, that the level of income generated from CLR and EMR searches is unlikely to represent a major component of the Department’s total income, and this serves to slightly reduce the weight of this factor. In the circumstances of this case, I afford moderate weight to the factor identified at paragraph 38 above in favour of nondisclosure. Balancing the public interest In addition to the pro-disclosure bias, I am satisfied that disclosing the Information in Issue under the RTI Act would somewhat enhance transparency in government-held information regarding contaminated land and to an extent, reveal environmental risks. However, given the operation of the statutory access scheme under the EP Act, I find that both factors carry only low weight in favour of disclosure. On the other hand, I am satisfied that the prejudice to the Department’s business affairs by undermining a specialised fee-based statutory scheme carries moderate and determinative weight against disclosure. Therefore, I find that disclosure of the Information in Issue would, on balance, be contrary to the public interest under section 49 of the RTI Act. Accordingly, I find that access to the Information in Issue may be refused under section 47(3)(b) of the RTI Act. DECISION I vary the decision under review by finding that access to the Information in Issue may be refused under section 47(3)(b) of the RTI Act as disclosure would, on balance, be contrary to the public interest under section 49 of the RTI Act. I have made this decision[56] as a delegate of the Information Commissioner, under section 145 of the RTI Act Katie Shepherd Assistant Information Commissioner Date: 16 December 2016 APPENDIX Significant procedural steps Date Event 27 November 2015 The Department received the access application and the application fee. 5 February 2016 The Department issued its decision to the applicant. 1 March 2016 OIC received the external review application. OIC notified the Department that the external review application had been received and requested that the Department provide a number of procedural documents by 8 March 2016. 8 March 2016 OIC received the requested documents from the Department. 15 March 2016 OIC notified the Department and the applicant that the external review application had been accepted. OIC asked the Department to provide additional information, including an extract from the CLR/EMR by 31 March 2016. 30 March 2016 OIC received the information requested from the Department. 7 April 2016 OIC asked the Department to provide further information about the data system used to record the CLR and EMR, by 22 April 2016. 22 April 2016 The Department sought an extension of time to respond to OIC’s request. An extension of time was granted until 29 April 2016. 29 April 2016 The Department provided OIC with the requested information. 2 June 2016 OIC conveyed a preliminary view to the applicant that access to the Information in Issue may be refused because disclosure would, on balance, be contrary to the public interest. OIC asked the applicant to provide submissions supporting its case by 17 June 2016 if the preliminary view was not accepted. 13 June 2016 OIC received submissions from the applicant. 21 June 2016 An OIC staff member spoke by telephone with two directors of the applicant about the applicant’s submissions and discussed ways that the review may be informally resolved. 6 July 2016 OIC made further inquiries with the Department regarding informal resolution options. 14 July 2016 OIC informed the applicant that it was unable to identify any opportunities for informally resolving the review under section 90 of the RTI Act and a formal decision would be issued. The applicant provided further submissions to OIC in support of its case. 23 August 2016 OIC conveyed to the Department that as the review had not been resolved informally, a formal decision would be issued. 29 September 2016 OIC provided the applicant with an update on the status of the review. The applicant provided further submissions to the external review. 24 November 2016 OIC asked the Department to provide a copy of the Information in Issue. 14 December 2016 The Department provided OIC with an abridged list of properties on the CLR and EMR taken from all LGA, a report for a specific LGA, and submissions regarding technical issues associated with generating such reports. [1] Under sections 47(3)(f) and 53(a) and (d) of the RTI Act. [2] https://www.qld.gov.au/environment/pollution/management/contaminated-land/about-registers/ (accessed 9 November 2016). [3] Ibid.[4] Sections 541 and 542 of the EP Act.[5] Section 542(1) of the EP Act.[6] Section 542(3) of the EP Act.[7] Under schedule 10, part 3, section 14 of the Environmental Protection Regulation 2008.[8] http://www.lotsearch.com.au/ (accessed on 17 November 2016). [9] External review application dated 26 February 2016.[10] http://www.epa.nsw.gov.au/prclmapp/searchregister.aspx (accessed on 9 November 2016); http://www.epa.vic.gov.au/your-environment/ land-and-groundwater/priority-sites-register (accessed on 9 November 2016).[11] External review application dated 26 February 2016. [12] Submission to OIC dated 14 June 2016. This line of argument was also raised in the applicant’s submissions to OIC dated 14 July and 29 September 2016.[13] Submission to OIC dated 14 June 2016.[14] ODI Queensland: http://queensland.theodi.org/ (accessed on 9 November 2016). The Queensland Government makes certain data which it collects, generates and stores for its use available through an Open Data Portal https://data.qld.gov.au/ (accessed on 9 November 2016). [15] Access application dated 27 November 2015. [16] Email to the Department dated 5 January 2016; the applicant’s reframed request did not specifically request any historical data.[17] External review application dated 26 February 2016. The applicant did not seek to raise the issue of access to historical CLR and EMR data on external review and therefore, access to such information is not considered in these reasons for decision.[18] Submissions to OIC dated 29 April 2016 and 14 December 2016. The Department initially indicated that a single report could be generated but later clarified to OIC that, due to the volume of entries in the registers and way the information is electronically stored, the requested information may need to be collated in multiple reports. [19] The Department provided OIC with an abridged list of properties on the CLR and EMR taken from all Local Government Areas (LGA) and a report for a specific LGA. [20] While section 47(3)(b) of the RTI Act precedes section 47(3)(f) of the RTI Act in the legislation, I have firstly assessed the application of the latter provision in these reasons, as it was the ground on which the Department relied to refuse access. [21] Section 23 of the RTI Act. [22] Sections 47(3)(f) and 53(a) of the RTI Act. [23] Sections 47(3)(f) and 53(d) of the RTI Act. [24] The EP Act provides for various land registers to be maintained and made available for public inspection. However, the CLR and EMR are specifically excluded from public inspection and instead, section 542(3) of the EP Act provides that extracts from those registers can be obtained by payment of the fee prescribed under the Environmental Protection Regulation 2008, schedule 10, part 3, section 14. [25] https://www.qld.gov.au/environment/pollution/management/contaminated-land/search-registers/ (accessed 9 November 2016). A search response will show: (i) if the land searched is or is not listed on the EMR or the CLR, (ii) what, if any, contaminants are on the land and have been notified to the Department, (iii) what, if any, notifiable activities have been, or are being, conducted on the land and have been notified to the Department, and (iv) if there is a site management plan for the land (if there is, a copy of the plan will also be provided). [26] (Unreported, Queensland Information Commissioner, 12 May 1995). While this decision considered section 22 of the now repealed Freedom of Information Act 1992 (Qld), the principles remain relevant in applying sections 47(3)(f) and 53 of the RTI Act as the provisions are largely equivalent in wording and operation. [27] At [43]. [28] The Department provided OIC with sample site extracts from the EMR and CLR. [29] External review application dated 26 February 2016.[30] JM at [39].[31] Department’s submission dated 29 April 2016.[32] Or delegate. [33] Section 110(1) of the RTI Act. See also section 105(1)(b) of the RTI Act. [34] Sections 47(3)(b) and 49 of the RTI Act. During the external review I conveyed to the Department my intention to decide the matter on this basis. [35] Section 47(3)(b) of the RTI Act. [36] Sections 44 and 49 of the RTI Act.[37] Section 49(3) of the RTI Act.[38] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant. [39] Access application dated 27 November 2015, external review application dated 26 February 2016 and submissions to OIC dated 14 June 2016. [40] See State of Queensland v Albietz, Information Commissioner (Qld) and Anor [1996] 1 Qd R 215 at 219 where de Jersey J observed that ‘the Freedom of Information Act does not confer any discretion on the Information Commissioner, or the Supreme Court, to stop disclosure of information because of any particular motivation in the applicant’. [41] Submission to OIC dated 14 June 2016.[42] Submissions to OIC dated 14 June, 14 July and 29 September 2016.[43] https://www.accesscanberra.act.gov.au/app/services/contaminated_sites/#/ https://ntepa.nt.gov.au/waste-pollution/contam inated-land; http://report.epa.sa.gov.au/data_and_publications/site_contamination_index; https://secure.dec.wa.gov.au/idelve/ css/ (accessed on 9 November 2016). See also footnote 10 above.[44] Schedule 4, part 2, item 1.[45] Schedule 4, part 2, item 14.[46] I also note the Department’s submission that the statutory regimes concerning contaminated land in other States and Territories are different to that which operates in Queensland. Variations in environmental protection legislation across Australian jurisdictions are not however, relevant to the issue for determination in this review and therefore, I have not examined them in these reasons for decision.[47] I would not expect the number of surrounding properties of interest to an individual to be at an onerous/unaffordable level such as that referred to at paragraph 23 above.[48] Department’s submission dated 29 April 2016.[49] Schedule 4, part 2, item 1 of the RTI Act.[50] See footnote 25 above.[51] Schedule 4, part 3, item 15 of the RTI Act.[52] Currently, the cost of a search is $47.65 if completed electronically and otherwise $55.95, per site: see schedule 10, section 14 of the Environmental Protection Regulation 2008 (Qld).[53] In a telephone conversation with OIC on 6 July 2016, the Department indicated that the potential reduction in revenue formed part of its objection to disclosing the complete register listings. [54] Submission to OIC dated 14 June 2016.[55] See the Administrative Arrangements Order (No.2) 2016 at https://www.qld.gov.au/about/how-government-works/government-responsibilities/ at page 25 (accessed on 15 December 2016)[56] Under section 110(1) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Helping Hands Network Pty Ltd and Department of Education, Training and Employment [2012] QICmr 52 (30 October 2012)

Helping Hands Network Pty Ltd and Department of Education, Training and Employment [2012] QICmr 52 (30 October 2012) Last Updated: 25 June 2013 Decision and Reasons for Decision Application Numbers: 310914 and 310957 Applicant: Helping Hands Network Pty Ltd Respondent: Department of Education, Training and Employment Decision Date: 30 October 2012 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION – DECISION GRANTING ACCESS – objection to disclosure of applicant’s tender documents – whether exempt from disclosure – sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) RIGHT TO INFORMATION – DECISION GRANTING ACCESS – objection to disclosure of report into applicant’s operations – whether disclosure would, on balance, be contrary to the public interest – sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary Helping Hands Network Pty Ltd (HH) is a provider of outside school hours care services. HH successfully tendered to provide such services to Mansfield State School and Golden Beach State School, each of which is administered by the Department. Two unsuccessful tenderers (Access Applicants)[1] applied separately to the Department of Education, Training and Employment (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to HH’s tender submissions relevant to the school in which tender process the particular Access Applicant had been unsuccessful.[2] The Department consulted with HH under section 37 of the RTI Act, seeking its views as to possible disclosure of the tender documents to the Access Applicants. HH objected to disclosure of the documents. Despite this objection, the Department nevertheless decided[3] to release parts of each tender submission to the relevant Access Applicant. HH applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision to disclose parts of each tender submission. For the reasons set out below, there are grounds on which to refuse access to parts of each tender submission beyond that information to which the Department decided to refuse access. There are, however, no grounds on which to refuse access to other parts. Access to certain parts of the Golden Beach submission, however, should be given by way of a reasonably opportunity to inspect. Background Significant procedural steps relating to the application and external review are set out in the Appendix to these reasons. Reviewable decision The decisions under review are: in review no. 310914, the Department’s decision deemed to have been made on 16 December 2011,[4] affirming an initial decision dated 7 October 2011 to release parts of the 48-page Mansfield tender submission, and in review no. 310957, the Department’s internal review decision dated 23 January 2012, to release parts of the 160-page Golden Beach tender submission. 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). Information in issue The specific information to which the Department decided to grant the Access Applicants access was as follows: review no. 310914: all of pages 1, 3-6, 9, 11-13, 16-17, 19 and 21-35, and parts of pages 2, 7, 10, 14, 18 and 20 of the Mansfield State School tender submission,[5] review no. 310957: all of pages 1, 3-7, 11, 13-16, 18-19, 21-22, 24, 26-38 and 51-160, and parts of pages 2, 8-10, 12, 17, 20, 23 and 25 of the Golden Beach tender submission.[6] The Department during the course of these external reviews accepted[7] my preliminary view[8] that some of the information which it had decided to release comprised exempt information or information the disclosure of which would be contrary to the public interest,[9] to which access may be refused.[10] HH, meanwhile, has withdrawn its objections to disclosure of various other segments of information.[11] None of this information or that referred to in the preceding paragraph remains in issue in either review. The information in issue in these reviews is therefore all pages or parts of pages described in paragraph 10, less those segments identified in paragraphs 11 and 12. OIC has prepared a copy of each tender submission with information in issue appropriately marked, to be forwarded to the participants under cover of these reasons. Issues in reviews HH contends that the information in issue comprises exempt information under section 48 of the RTI Act, to which access may be refused under section 47(3)(a) of the Act, as information the disclosure of which would found an action for a breach of confidence.[12] HH also contends that disclosure of the information would, on balance, be contrary to the public interest in accordance with section 49 of the RTI Act, and that access may therefore be refused to the information in issue under section 47(3)(b) of the RTI Act. Relevant law Onus As the decisions being reviewed are disclosure decisions,[13] HH bears the onus of establishing that a decision to not disclose the information in issue is justified or that the Information Commissioner should give a decision adverse to the Access Applicants.[14] Right to access information The RTI Act confers on persons a right to be given access to documents of an agency. This right is subject to other provisions of the RTI Act, including grounds on which access may be refused. Relevantly, access may be refused to exempt information[15] and information the disclosure of which would, on balance, be contrary to the public interest.[16] Requirements for breach of confidence exemption Information will be exempt if its disclosure would found an action for breach of confidence.[17] The words of the breach of confidence section refer to an action based in equity for breach of an equitable obligation of confidence.[18] The following must be established to give rise to an equitable obligation of confidence:[19] information must be capable of being specifically identifiable as information that is secret, rather than generally available; information must have the necessary quality of confidence, ie, the information must not be trivial or useless information, and it must have a degree of secrecy sufficient for it to be the subject of an obligation of conscience; circumstances of the communication must create an equitable obligation of confidence; and disclosure to the applicant for access must constitute an unauthorised use of the confidential information disclosure would result in detriment to the plaintiff (that is, HH). Analysis and Findings Entire tender submissions HH initially claimed that the entirety of each tender submission was subject to an equitable obligation of confidence, on the basis, essentially, that disclosure of same would reveal the ‘layout and presentation’ of the submissions, which was ‘relative to [HH’s] competitive advantage’.[20] In my preliminary view letter dated 6 June 2012, I advised HH that I did not accept this contention. While HH did not accept this preliminary view,[21] it has as noted subsequently withdrawn its objections to disclosure of parts of the tender submissions,[22] a position obviously inconsistent with a global claim of confidence. I think it open to conclude, therefore, that HH has impliedly abandoned this blanket claim. In any event, for the sake of completeness, I record my finding that I am not satisfied the entirety of each submission can be said to possess the necessary quality of confidence as demanded by criterion (b) of the cumulative requirements set out above. I accept that in appropriate circumstances even information that is in the public domain – as parts of each tender submission clearly are – may be the subject of an obligation of confidence.[23] I do not, however, consider that this is such a case. The core of each submission comprises a series of Departmentally-prescribed ‘forms’ into which the Department required tenderers to compile information. These ‘forms’ were obviously not produced as the result of any innovative enterprise or method on the part of HH, but were completed by HH in accordance with mandatory Departmental requirements. There can be no claim the layout or presentation of information of this kind is novel or unique to HH. It may be that, as HH submits,[24] tenderers retained some discretion as to additional information to be attached to tender submissions, and the formatting of such attachments. Establishing novelty or innovation as regards these optional attachments, however, would not be sufficient to sustain a global claim of confidence over the entirety of the submissions, for the reason the core body of the submissions simply follows, as explained in the preceding paragraphs, an obligatory layout and structure. In any event, I am not satisfied that HH has demonstrated the layout and formatting of the attachments to each of the tender submissions in issue is possessed of a particular novelty or innovation of a sensitive or secret nature capable of forming the subject of an equitable obligation of confidence. The relevant parts of each submission in my view simply present information (much of which, as I have discussed further below, is in the public domain, required by legislation to be made publicly available, or otherwise generic information) in accordance with relatively standard and/or trivial[25] layout and formatting methods – certain of which are readily observable on HH’s own website.[26] In these circumstances, I am not satisfied the layout and/or formatting of the entirety of the tender submissions can be said to be possessed of sufficient sensitivity or secrecy so as to form the subject of a binding obligation of confidence. Accordingly, I do not consider the entirety of the tender submissions satisfy the requirements for exemption as specified above. I will now consider whether specific segments of information as contained in those submissions might so qualify. Additional exempt information There are a number of segments in each tender submission the Department decided to disclose, but which in my view satisfy the requirements for exemption set out in paragraph 20. This ‘Additional Exempt Information’ is specifically identifiable[27] (comprising parts of the relevant tender submissions), is not trivial or useless and is confidential as against the Access Applicants.[28] I am also satisfied that this Additional Exempt Information was communicated in circumstances so as to give rise to an equitable obligation of confidence binding the Department not to disclose the information.[29] Clause 24.1 of the ‘Conditions of Offer’ applying to the relevant tender processes states:[30] The Customer [ie, the Department] will regard all information submitted by any offeror (except the name of the successful offeror) as confidential and will take all reasonable steps to safeguard the confidentiality of that information. The Department through this clause undertook to treat relevant information confidentially. HH was entitled to rely on that undertaking, and in my view communicated the additional exempt information on the understanding extended by the Department that it would be kept confidential. I am satisfied therefore that the Refused Information was communicated to the Department in circumstances which give rise to an equitable obligation of confidence. I am also satisfied that, as HH objects to disclosure of the Refused Information, its release would constitute an unauthorised use of the information,[31] and that such release would cause detriment to HH.[32] I conveyed the above reasoning to the Department by way of my preliminary view letter dated 6 June 2012. In reply,[33] the Department argued that relevant[34] segments of information did not comprise exempt information, as they did not, in general terms, possess the necessary quality or confidence and/or their disclosure would not occasion HH detriment. I do not accept these submissions. There are various other segments of information discussed further below that I agree are indeed in the public domain, or are otherwise so generic, innocuous or generally-known that they cannot properly form the subject of an equitable obligation of confidence. The specific segments I am considering here, however – which include the identities of referees and the substance of their testimonials, HH’s approach to complaints management,[35] and its staff attributes and fee structure – are not so far as I can ascertain publicly available or known to the Access Applicants,[36] nor in my view so trivial or obvious that they cannot be subject to protection.[37] I am also satisfied that, as noted above, disclosure of this information would cause HH detriment, the requirement of which is, as canvassed in note 32, readily satisfied in the case of a non-government participant such as HH. I am satisfied that the five requirements necessary to establish the breach of confidence exemption have been met as regards the Additional Exempt Information. Access may therefore be refused to this information on the basis it comprises exempt information. Remaining Information Having dealt with the Additional Exempt Information, I must now consider the balance of the tender submissions remaining in issue; that is, those specific segments of information in each submission to which the Department decided to grant access, but to the disclosure of which HH continues to object. I will refer to this information as the ‘Remaining Information’. I am not satisfied there are any grounds on which access to this Remaining Information may be refused. Firstly, I am not satisfied disclosure of any of this Remaining Information would found an action for a breach of confidence so as to render the information exempt. This is because I do not consider any of it satisfies the second cumulative requirement of secrecy noted above. While I am constrained from setting out in detail information claimed to be exempt,[38] I am satisfied that a considerable proportion of this Remaining Information is openly available either on HH’s website, or in relevant school literature and websites.[39] Other information – such as the fact HH is not a government owned entity[40] – is clearly not a matter of secrecy and is publicly deducible. Information of this kind – which is essentially in the public domain – cannot form the subject of an equitable obligation of confidence. Much of balance of the Remaining Information merely consists of relatively obvious and innocuous formatting techniques,[41] restatements of industry ‘common knowledge’ (such as statutory child care fee subsidy rates), or broad ‘motherhood’ statements of general principle and intent – for example, relatively generic assertions of corporate philosophy and expressions of commitment to the delivery of service of the kind commonly found in corporate promotional literature. I am not satisfied information of this kind is possessed of sufficient utility or gravity for it to be the subject of an equitable obligation of confidence. In general terms then, I am not satisfied the Remaining Information possesses the required quality of confidence, as it is either in the public domain, or otherwise too obvious or trivial to attract the protection of an equitable obligation of confidence. There is a portion of the Remaining Information – a section of the Golden Beach submission (the submission in issue in review no. 310957) – which requires a slightly more considered analysis. The relevant section comprises an annexure to this tender submission consisting of HH’s ‘policies and procedures’ manual (Manual).[42] On an initial review, I formed the preliminary view[43] the Manual satisfied the requirements for the breach of confidence exemption. The Department did not accept this preliminary view,[44] and drew my attention to regulation 171(2) of the Education and Care Services National Regulations 2011 (NSW)[45] (National Regulations), which provides: 171 Policies and procedures to be kept available ... (2) The approved provider of an education and care service must ensure that copies of the current policies and procedures required under regulation 168 and, in the case of a family day care service, regulation 169 are available for inspection at the education and care service premises at all times that the service is educating and caring for children or otherwise on request. Penalty: $1000. In light of those submissions, I subsequently advised[46] HH of a further preliminary view that as regulation 171(2) appeared to require HH to make the Manual[47] available for inspection, the document could not be said to possess the necessary quality of confidence required to establish the breach of confidence exemption. HH contested this preliminary view, relevantly submitting[48] that it ...strongly opposes provision and disclosure of any such information to a competitor or to the public. Although the policies and procedures are available for inspection, the policies and procedures are only available for inspection to the authorised Departmental staff and the registered families. The policies and procedures are not available to the general public. In order to access documentation, registered families are required to ask the co-ordinator of the service, who keep the policies and procedures securely in the office. The co-ordinator is not permitted and will not allow the document to be removed from the office or to be copied. Regulation 171(2) of the [Regulations] does not authorise the public to access the policies and procedures... I do not accept these submissions. It may well be the practice of HH to only provide access in the limited fashion described in its submissions. I do not, however, consider such practice aligns with the obligation imposed by regulation 171(2). It is my view that, properly construed, the regulation confers a general right of inspection on any individual to inspect the Manual, and not a right limited to a particular class of persons or otherwise qualified in the manner as argued by HH. As I advised HH by letter dated 10 September 2012, my view in this regard is reinforced by: advice obtained from the relevant regulatory authority, the Australian Children’s Education and Care Quality Authority (ACECQA), an officer of which informed an OIC staff member[49] that ACECQA interprets the regulation as conferring a general right of inspection, and ACECQA’s ‘Guide to the National Law and National Regulations’, which expressly encourages child care operators to publish policies and procedures documents such as the Manual online: ‘I[i]t would be appropriate for the service’s policies and procedures to be available online as well as at the premises’.[50] Accordingly, I am satisfied regulation 171(2) of the National Regulations confers a general right of inspection, and not, as HH contends, a right limited to a specific class of persons. As a document required to be made available to the public, the Manual cannot therefore be said to possess the necessary quality of confidence fundamental to establishing an equitable obligation of confidence. The Manual thus does not comprise exempt information to which access may be refused. Contrary to public interest information Nor do I consider that disclosure of any of this Remaining Information would, on balance, be contrary to the public interest. Sections 47(3)(b) and 49 of the RTI Act provide that access may be refused to a document where its disclosure would be contrary to the public interest. Section 49 of the RTI Act describes the procedure to be followed in identifying whether information is contrary to the public interest to release. The RTI Act lists factors which may be relevant to deciding the balance of the public interest and sets out the following steps to decide where the public interest lies in relation to the disclosure of information: identify any irrelevant factors and disregard them, identify relevant public interest factors favouring disclosure and nondisclosure, balance the relevant factors favouring disclosure and nondisclosure, and decide whether disclosure would, on balance, be contrary to the public interest. I have not taken irrelevant factors into account. Factors favouring disclosure The Department identified[51] the following public interest factors favouring disclosure: promote open discussion of public affairs and enhance Government accountability,[52] contribute to positive and informed debate on important issues or matters of serious interest,[53] inform the community of the Government’s operations,[54] allow or assist inquiry into possible deficiencies in agency or official conduct or administration,[55] reveal reasons for Government decisions and background or contextual information informing same,[56] and ensure effective oversight of public funds.[57] As I advised HH in my preliminary view letter dated 6 June 2012, I am satisfied disclosure of the Remaining Information could reasonably be expected to advance these public interest factors. Disclosure of this information will reveal information on which the Department relied in selecting HH to provide care services, allow the Access Applicants and the community generally to better assess the merits of aspects of HH’s submissions as against the conditions of offer and selection criteria, and permit the public to better evaluate the Department’s decisions to award publicly-funded contracts to HH. In doing so, disclosure will assist to ensure Departmental tender processes of this kind are conducted transparently, and that the Department is accountable for its contracting decisions. These are considerations bearing significant weight in this case, given the Department’s policy governing School Age Care Services contains an express preference for selection of both P&C and not-for-profit care providers in preference to commercial operators.[58] HH in its application for external review disputed the application of the ‘prodisclosure’ factors set out in paragraph 61. It did not, however, specifically press these claims following my 6 June 2012 preliminary view to the contrary, instead submitting that it was:...not satisfied with the Commissioner’s reasoning relating to the public interest argument, especially in the circumstances where a competitor is requesting the tender information. Our client is of the opinion that, if public interest served, then scoring sheets evidencing how the department grades the tenders, could be released.[59] As I advised HH in my preliminary view letter,[60] an access applicant’s motives for seeking access to information are irrelevant to a consideration as to whether access should be granted to requested information.[61] Speculation as to the identity of a particular access applicant,[62] the access applicant’s reasons for lodging an application, and any intended use of the information are not generally matters to be taken into account in assessing the balance of the public interest. Nor, in this regard, is the fact that the public interest may also or additionally be served by release of other information such as scoring sheets. The RTI Act confers a legally enforceable right of access to government-held information,[63] subject only to limited exceptions. Unless, relevantly, a recognised ground for refusal of access to requested information can be established, access must be granted. That an access applicant or the public interest generally may also be satisfied by release of alternative or additional information is not a legitimate basis for refusing access. I am satisfied the factors noted above apply so as to favour disclosure of the Remaining Information.Factors favouring nondisclosure Conversely, I am not satisfied that the nondisclosure or public interest harm factors raised by HH[64] in support of its objections to disclosure apply in the circumstances of this case.[65] HH’s submissions in this regard are largely premised on assertions similar to those canvassed at paragraphs 21: that the ‘formatting and layout of the documents is [HH’s] confidential information which gives [HH] a competitive advantage over other competit[66]s’,66 and that the way in which the tender submissions are ‘organised and presented’ comprises a ‘trade secret’ which would be prejudiced by [67]sclosure.67 As noted above, HH has during the course of this review withdrawn its objection to disclosure of parts of each tender submission, which essentially compromises any claim the tender submissions are commercially sensitive in entirety. In any event, for reasons similar to those discussed above, I do not accept HH’s global claims as to the confidentiality or commercial sensitivity of the ‘formatting and layout’ of the tender submissions. I am not satisfied that HH has demonstrated any inherent commercial value or sensitivity in the overall structure of the tender submissions, and, as noted above, can identify no particular innovation in the manner in which the formatting of each tender submission – core aspects of which, as noted above, generally adhere to the requirements enunciated in the Department’s Conditions of Offer and/or deploy formatting techniques which are plainly observable on HH’s website. As regards the specific information comprising the Remaining Information, I am similarly unable to identify how disclosure of information that is either publicly available or consists of broad ‘motherhood’ statements could reasonably be expected to cause relevant prejudices. It is not in my view reasonable to expect, for example, that disclosure of information identical to that published on HH’s website[68] could reasonably be expected to cause HH competitive harm.[69] Further, it is not apparent how the Remaining Information could be said to possess an intrinsic commercial value[70] that would be diminished by disclosure (and noting that the unquantified expense HH asserts it incurred in having the tender submissions produced does not of itself imbue the Remaining Information with any commercial value).[71] Nor can I identify any genuine arms-length buyer[72] who would be prepared to pay for access to publicly available or otherwise generic information. HH also contends that disclosure could reasonably be expected to prejudice future supply of information.[73] I do not, however, consider it reasonable to expect that disclosure of the Remaining Information would result in a substantial number of child care providers refraining from providing similar information in the future.[74] It is not in my view reasonable to expect that child care providers seeking the benefit of Departmental contracts – contracts which would appear to comprise a substantial source of the industry’s business – would omit relevant information and thus intentionally disadvantage themselves in the competition for such contracts, simply because information akin to the Remaining Information may become subject to public disclosure under the RTI Act. In these circumstances, I am not satisfied disclosure of the information in issue could reasonably be expected to prejudice the future supply of like information nor the Department’s ability to obtain confidential information. Balancing the public interest Even if any or all of the factors relied upon by HH could be said to apply to the Remaining Information, it is my view that the public interest in this case would, on balance, favour disclosure. As noted above, disclosure of the Remaining Information will enhance the transparency of the Department’s tender processes by revealing information taken into account in deciding to select HH, and the accountability of the Department for those decisions. As the Information Commissioner has previously stated:[75] Tenderers are not accountable to the public for the contents of their tenders... However, government agencies and local government authorities are accountable to the public regarding the decisions they make to award contracts for the performance of services to be undertaken for the benefit of the public (or a particular segment of the public) and which are to be paid for from funds raised by imposts on the public. Private sector businesses who wish to contract with government to perform services for the public have to accept an appropriate level of scrutiny of their dealings with government, and of their performance in terms of service delivery to the public, as something which goes with the territory. (My emphasis.) HH enjoys the benefit of Departmental contracts funded with public monies. In these circumstances, I consider it in the public interest to allow the community access to information on which HH relied to secure those contracts. Accordingly, I find that disclosure of the Remaining Information would not, on balance, be contrary to the public interest. Form of access and copyright While I have found that HH has not established any grounds on which access to the Remaining Information may be refused, I do consider that the relevant Access Applicant’s[76] access to part of this information – specifically, the Manual – should not be given in the form requested by the relevant Access Applicant, but instead given by way of a reasonable opportunity to inspect. This is because in my view providing the Access Applicant access to the Manual in the form requested[77] would involve an infringement of HH’s copyright. As noted in paragraph 52, HH has stated that it imposes strict controls over access to and reproduction of the Manual. While I have found that the National Regulations require HH to make this document available to the public, I am also cognisant of the fact that the particular right of access contained in the National Regulations is a right of inspection only. In these circumstances, I consider HH’s concerns can and should fairly be read as giving rise to an assertion of copyright over the Manual. Section 68(4) of the RTI Act allows an agency to refuse access to a document if granting same in the form requested by an applicant would, relevantly, infringe the copyright of a person other than the State.[78] The uncontested submissions[79] of HH are that it developed the Manual for use in conducting its child care operations. On the basis of both this and my review of document itself, I am prepared to find the Manual is an original work eligible for copyright protection under section 32 of the Copyright Act 1968 (Cth), ownership of which is held by HH.[80] Accordingly, I am satisfied providing the relevant Access Applicant access by way of provision of a copy of the Manual would infringe HH’s copyright.[81] Access to the Manual in the form requested by that Access Applicant should therefore be refused under section 68(4) of the RTI Act, and given instead by way of a reasonable opportunity to inspect the Manual[82] only. I should note that HH wrote to me[83] late in the review process advising that it would be amenable to access being granted to the Manual by way of inspection (although not withdrawing its objections to disclosure, thus necessitating the findings detailed above). In that letter, however, HH stipulated a number of conditions it sought to have imposed on such inspection. The fact that the RTI Act permits an agency to refuse access in a requested form and instead grant it in a form that would not involve an infringement of copyright appears, in my view, to implicitly empower an agency to impose appropriate conditions on such alternative form of access – for example, by ensuring any inspection is adequately supervised so as to prevent copying or reproduction of a relevant document. This is, however, a practical matter in my view best left to the discretion of the particular agency – albeit possibly in consultation with a copyright holder in the position of HH – and not an issue in relation to which I consider it appropriate to make any findings.[84] Having said that, I should note that as I have decided that there are no grounds under the RTI Act on which access to the Manual may be refused, the Access Applicant is entitled to exercise the statutory right of access contained in the RTI Act unfettered by any conditions other than those strictly necessary to ensure that such access would not infringe HH’s copyright. Such precautionary conditions would not include a condition that the relevant Access Applicant sign, as HH has requested, a confidentiality agreement prior to inspection. A condition of this kind would not serve to protect the rights inherent in HH’s copyright (secrecy not being among the relevant ‘bundle of rights’ prescribed in the Copyright Act 1968 (Cth)). It would, however, run entirely contrary to the generally unconditional right of access contained in section 23 of the RTI Act, which provides for no restrictions on the use to which information accessed under it may be put. Accordingly there is no basis on which a condition of this kind might be imposed. I should also note that, in considering what conditions may be appropriate to impose on an inspection so as to avoid infringement of third party copyright, an agency in the Department’s position must also be mindful that the ‘inspection’ form of access prescribed in section 68(1)(a) requires provision of a ‘reasonable opportunity’ to inspect. Agencies must therefore ensure that any conditions are not so onerous or unreasonable so as to preclude such ‘reasonable opportunity’. DECISION I vary the decisions under review, by finding: in each of review nos. 310914 and 310957, the Additional Exempt Information comprises exempt information to which access may be refused under section 47(3)(a) of the RTI Act, in each of review nos. 310914 and 310957, there are no grounds on which access to the Remaining Information may be refused, and accordingly each Access Applicant is entitled to access this information as it pertains to their access application, however in review no. 310957, access to the Manual in the form requested by the relevant Access Applicant should be refused, and given by way of inspection under section 68(1)(a) of the RTI Act. ________________________ Jenny Mead Acting Right to Information Commissioner Date: 30 October 2012 APPENDIX Significant procedural steps in external review 310914 Date Event 8 August 2011 Access Applicant applied to the Department for access to tender documents submitted by HH in response to the Department’s tender for Outside School Hours Care at Mansfield State School. 8 September 2011 The Department consulted with HH to seek its views on the proposed disclosure of documents. 14 September 2011 The Department received a response from HH objecting to the disclosure of their tender documents (Information in Issue). 7 October 2011 The Department issued its initial decision to the Access Applicant and HH, deciding to disclose some of the information in issue contrary to the views of HH. 26 October 2011 HH sought internal review of the Department’s initial decision. 16 December 2011 The Department issued a notice of a deemed decision to HH affirming its initial decision. 16 January 2012 HH applied to the Office of the Information Commissioner (OIC) for external review of the Department’s deemed decision. 31 January 2012 OIC informed HH that their application had been accepted for external review. 6 June 2012 OIC issued a preliminary view to HH, Department and Access Applicant that access to some segments of information in issue may be refused on the basis they comprise exempt information, however there was no ground for refusing access to the remaining information. 7 June 2012 Access Applicant telephoned OIC to clarify preliminary view letter dated 6 June 2012; Access Applicant was advised to lodge written submissions by due date (20 June 2012) and invited to apply to participate in external review. 20 June 2012 OIC received submissions from the Department in response to the preliminary view. 20 June 2012 OIC granted HH an extension of time until 22 June 2012 to provide submissions in response to the preliminary view. 22 June 2012 OIC received submissions from HH in response to the preliminary view. 18 July 2012 OIC issued a further preliminary to HH that various segments of information identified in the original preliminary view as comprising exempt information did not qualify for exemption and there was therefore no ground for refusing access to this information. 1 August 2012 OIC granted HH an extension of time until 8 August 2012 to provide submissions in response to the further preliminary view. 8 August 2012 OIC received submissions from HH in response to the further preliminary view. Significant procedural steps in external review 310957 Date Event 29 September 2011 Access Applicant applied to the Department for access to tender documents submitted by HH in response to the Department’s tender for Outside School Hours Care at Golden Beach State School. 25 October 2012 The Department consulted with HH to seek its views on the proposed disclosure of documents. 4 November 2011 The Department received a response from HH objecting to the disclosure of their tender documents (Information in Issue). 18 November 2011 The Department issued its initial decision to the Access Applicant and HH, deciding to disclose some of the information in issue contrary to the views of HH. 21 December 2011 HH sought internal review of the Department’s initial decision. 23 January 2012 The Department issued it its internal review decision to HH. 20 February 2012 HH applied to the Office of the Information Commissioner (OIC) for external review of the Department’s internal review decision. 1 March 2012 OIC informed HH that their application had been accepted for external review. 6 June 2012 OIC issued a preliminary to HH, Department and Access Applicant that access to some segments of information in issue may be refused on the basis they comprise exempt information, however there were no grounds for refusing access to the remaining information. 20 June 2012 OIC received submissions from the Department in response to the preliminary view. 20 June 2012 OIC granted HH an extension of time until 22 June 2012 to provide submissions in response to the preliminary view. 22 June 2012 OIC received submissions from HH in response to the preliminary view. 18 July 2012 OIC issued a further preliminary to HH that various segments of information identified in the original preliminary view as comprising exempt information did not qualify for exemption and there were no grounds for refusing access to the remaining information. 1 August 2012 OIC granted HH an extension of time until 8 August 2012 to provide submissions in response to the further preliminary view. 8 August 2012 OIC received submissions from HH in response to the further preliminary view. 10 September 2012 OIC wrote to Applicant, Department and Access Applicant setting out a preliminary view access to part of information in issue in the review should be by way of inspection only. 21 September 2012 Applicant advised OIC it was prepared to accept access by way of inspection to part of information in issue subject to certain specified conditions. [1] Neither of which has lodged written submissions nor formally applied to participate in these external reviews.[2] That is, one Access Applicant had been unsuccessful in the Mansfield process, and therefore sought access to HH’s Mansfield tender submission; the second had been unsuccessful in the Golden Beach process, and sought access to that submission.[3] By way of a deemed internal review decision dated 16 December 2011 on the access application concerning the Mansfield tender process, and an internal review decision dated 23 January 2012 on the Golden Beach process.[4] Under section 83(2) of the RTI Act.[5] The Department refused access to all of pages 8, 15 and 36-48.[6] The Department refused access to all of pages 39-50. Neither Access Applicant applied for review of the Department’s decisions to refuse access to information. Accordingly, information to which access was refused is not the subject of review.[7] See Departmental letter dated 20 June 2012 and enclosed copy of each tender submission, on which relevant information was marked.[8] Conveyed via letter dated 6 June 2012. I also wrote to each of the Access Applicants on this date setting out the preliminary view summarised in this paragraph and inviting submissions in the event either objected to my preliminary view. While the Access Applicant relevant to review no. 310914 did telephone an OIC officer on 7 June 2012 to affirm, in general terms, continuing interest in obtaining information and to raise concerns with the relevant tender process, neither indicated objection to my preliminary view nor lodged any written submissions. In accordance with the terms of my letters to each, I have proceeded on the basis each accepts that preliminary view. [9] As regards personal information in the form of signatures appearing on pages 3, 30 and 31 of the Golden Beach submission the subject of review no. 310957, under section 49 and section 47(3)(b) of the RTI Act.[10] In review no. 310914, segments of information on pages 9, 10, 18, 20, 22-24 and 31; in review no. 310957, information on pages 3, 8, 12, 15, 23, 25, 27-31, 35 and 51. As noted, neither Access Applicant sought to contest my preliminary view in this regard. In any event I am satisfied relevant information comprises exempt information, for the reasons explained at paragraphs 31-41 below.[11] Relevantly, information specified in its letter to OIC dated 8 August 2012.[12] Schedule 3, section 8 of the RTI Act.[13] ‘Disclosure decision’ is defined in section 87(3) of the RTI Act as a decision to disclose a document or information contrary to the views of a relevant third party obtained under section 37 of the RTI Act. [14] Section 87(2) of the RTI Act.[15] Sections 47(3)(a) and 48 of the RTI Act.[16] Sections 47(3)(b) and 49 of the RTI Act. [17] Schedule 3, section 8 of the RTI Act.[18] And not an action for breach of a contractual obligation of confidence, a cause of action which is properly characterised as an action for a breach of contract, not confidence: Callejo and Department of Immigration and Citizenship [2010] AATA 244 (Callejo) at paragraphs 163-166 and TSO08G and Department of Health (Unreported, Queensland Information Commissioner, 13 December 2011) . HH in its external review application in review no. 310957 took issue with Callejo insofar as it confined the breach of confidence exemption to equitable, and not contractual, obligations of confidence. OIC’s acceptance of Callejo – and the narrower interpretation of the breach of confidence exemption that flows from it – was explained to HH in my letter dated 6 June 2012; HH has not sought to further agitate or contest this issue.[19] See B and Brisbane North Regional Health Authority [1994] QICmr 1; [1994] 1 QAR 279 (B and BNRHA) at paragraphs 57-58; and Callejo, at paragraphs 163-171 and 176.[20] External review applications dated 16 January 2012 and 20 February 2012. [21] Submissions dated 22 June 2012.[22] Submissions dated 8 August 2012.[23] A submission raised by HH in its submissions dated 22 June 2012, citing Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215.[24] Submissions dated 22 June 2012.[25] Such as the use of certain devices and formatting techniques, the detail of which I am constrained from describing in these reasons but which are described in numbered paragraphs 2 and 3 of HH’s submissions dated 22 June 2012.[26] http://helpinghandsnetwork.com.au/, accessed 24 October 2012.[27]Therefore satisfying requirement (a).[28]Insomuch as the Access Applicants are not aware of the information, or of the fact HH has relied upon it in its tender submissions, thus satisfying requirement (b).[29]Requirement (c).[30] As set out in the Department’s decisions.[31]Requirement (d).[32]Requirement (e).The requirement of detriment can be easily established by a non-government plaintiff such as HH: B and BNRHA, at paragraph 111. The detriment suffered by the plaintiff need not be of a financial nature and may include embarrassment, loss of privacy, or fear, or an indirect detriment, for example, disclosure of the confidential information may injure some relation or friend.[33] Dated 20 June 2012.[34] The Department did accept that some information it had decided to disclose in fact comprised exempt information; as canvassed in paragraph 11, that information is no longer in issue in this review.[35] Which HH advised in submissions dated 8 August 2012 comprises information going beyond that it may be required to make generally available under relevant statutory obligations, a position the Department has not sought to contradict and I am prepared to accept.[36] The Department contended that the identity of schools to which HH supplies care services is information publicly available, including information published to HH’s own website. While I accept this is generally correct, the identities of schools and principals prepared to give HH references and testimonials are not, so far as I can determine, public knowledge. The Department also asserted that HH’s use of tenderers and testimonials is not itself a unique approach. That may well be correct; there is nothing before me to suggest, however, that the identity of specific referees and substance of their testimonials is not itself information that is confidential or secret as against the Access Applicants. I should also note that the Department submitted some of this school information would be known to one of the Access Applicants; there is nothing before me to suggest that this is the case; as noted in note 28, I am satisfied HH’s use of or reliance on this information is confidential as against the Access Applicants.[37] Noting that information need only be ‘significant’ to attract the protection of an equitable obligation of confidence and not necessarily, say, commercially valuable: Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73; [1984] 156 CLR 414.[38] Section 108 of the RTI Act.[39] Including, for example, information as to HH’s personnel and fee rates.[40] Recorded in the declarations as to competitive neutrality forming part of each tender submission.[41] Such as the use, for example, of tables of content and bolded text.[42] Specifically, Attachment 8 to the Golden Beach submission, numbered as pages 52-160. In the interests of efficiency, OIC has only reproduced the first page (page 52) of this Manual on the CD of information in issue accompanying these reasons; the entire document (ie, to page 160) is, however, in issue.[43] Conveyed to the Department by letter dated 6 June 2012.[44] Departmental submissions dated 20 June 2012.[45] Enacted under sections 301 and 302 of the Education and Care Services National Law Act 2010 (Vic), all of which apply in Queensland: Education and Care Services National Law (Queensland) Act 2011, section 4.[46] By letter dated 18 July 2012.[47] Which, as I advised HH in my 18 July 2012 letter, I understand comprises the ‘policies and procedures’ referred to in regulation 171(2), ie, the document it is required to produce and keep under the Regulations. HH has not sought to contradict my understanding in this regard.[48] Submissions dated 8 August 2012. HH also contended that it had ‘incurred a considerable expense in developing the policies and procedures’, which is not a consideration relevant to determining whether or not HH is required by law to make that information publicly available.[49] Via telephone on 6 September 2012.[50] At p. 104. The relevant guidelines are available at http://acecqa.gov.au/storage/2%20-%20Guide%20to%20the%20Education%20and%20Care%20Services%20National%20Law%20and%20National%20Regulations%20(updated%209.11).pdf (accessed 6 September 2012). [51] In review no. 310914, the initial decision dated 7 October 2011 (affirmed by decision deemed to have been made under section 82 of the RTI Act). In review no. 310957, the decision under review.[52] Schedule 4, part 2, item 1 of the RTI Act.[53] Schedule 4, part 2, item 2.[54] Schedule 4, part 2, item 3.[55] Schedule 4, part 2, item 5. I should note there is no suggestion of ‘deficiencies’ or any impropriety whatsoever in the conduct of either tender process; the relevant factor however only requires that disclosure of relevant information could reasonably be expected to permit or aid inquiry into ‘possible’ conduct of this kind, including, arguably, as, to whether or not same may have occurred. By revealing the primary information upon which decisions to let publicly funded contracts were based, I consider disclosure could reasonably be expected to allow or assist any such inquiry. In any event, I am satisfied the balance of the factors cited by the Department clearly apply, and as discussed in paragraph 78, are of sufficient weight to warrant disclosure of the information in issue.[56] Schedule 4, part 2, item 11.[57] Schedule 4, part 2, item 4.[58]In formulating my preliminary view I had regard to Policy SCM-PR-016, ‘Outside School Hours Care Services: Before and After School and Vacation Care’, clause 5. http://education.qld.gov.au/strategic/eppr/schools/scmpr016/ (accessed 21 May 2012). I understand this policy to be in substantially similar form as it applied at the date of each tender process, and HH has not sought to suggest otherwise. The policy has since the date of my preliminary view undergone further update, and the relevant version may now be accessed at: http://ppr.det.qld.gov.au/education/management/Pages/Outside-School-Hours-Care-and-Vacation-Care.aspx (accessed 22 October 2012).[59] Submissions dated 22 June 2012.[60] That is, my letter dated 6 June 2012.[61]See State of Queensland v Albietz, Information Commissioner (Qld) and Anor (1996) 1 Qd R 215, where De Jersey J observed that ‘the Freedom of Information Act does not confer any discretion on the Information Commissioner, or the Supreme Court, to stop disclosure of information because of any particular motivation in the applicant’ (at 219). See also the Victorian Supreme Court decision in Victoria Police v Marke [2008] VSCA 218, in which Weinberg JA noted (at para 66) ‘[the FOI Act] does not, in the normal course, contemplate that the motives of the person seeking access to a document should be scrutinised and characterised as either worthy or unworthy. These are value judgements, which are likely to be highly subjective, and have no place in a scheme that is designed to ensure the proper accountability of government.’ I consider these observations apply equally to the RTI Act. [62] Only one the identity of which appears to have been disclosed to Applicant by the Department.[63] Section 23 of the RTI Act.[64]Relevantly, schedule 4, part 3 items 2, 15 and 16 and schedule 4, part 4, items 7(1) (b), (c) and 8 of the RTI Act. [65]Insofar as particular factors cited are relevant: there is some information appearing in the Additional Exempt Information which HH in its applications for external review argued comprised personal information - the identities of referees and certain other personnel appearing on pages 9 and 31 of the Mansfield submission and 11 and 35 of the Golden Beach submission. As discussed above, I am satisfied this information comprises exempt information to which access may be refused. Thus the personal information/privacy harm/nondisclosure factors raised by HH do not therefore need to be considered.[66] Submissions dated 22 June 2012.[67] Review no. 310914 external review application dated 16 January 2012, for example.[68] Noting again that I am constrained by section 108 of the RTI Act from disclosing information claimed to be exempt or contrary to public interest information – it is sufficient for the purposes of these reasons to note publicly-accessible information of this kind concerns key personnel.[69] The adverse effect required by schedule 4, part 4, item 7(1)(c) of the RTI Act: Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 (Cannon), at paragraphs 82 – 84, and the related business affairs nondisclosure factors raised by HH. The comments in Cannon were made in the context of section 45(1)(c) of the FOI Act but are applicable to this harm factor and the related business affairs nondisclosure factors contained in schedule 4, part 3 item 2 and 15 of the RTI Act: see also Kalinga and BCC, at paragraph 89. I should note HH has not sought to claim any specific Remaining Information comprises a ‘trade secret’, and there appears to be nothing on the face of any of that information comprising a ‘formula, pattern or device or compilation of information’ ordinarily held to be characteristic of trade secrets: Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VicRp 7; [1967] VR 37, Gowans J at 46 referring to the American Restatement of the Law of Torts (1939, Volume 4 para 757).[70] Within the meaning of that phrase as used in the RTI Act as explained in Cannon, at paragraphs 51-60 – and noting that each tender submission relates to tender processes concluded some time ago. [71]Cannon, at paragraph 52.[72] The second possible interpretation of the phrase ‘commercial value’ as used in this provision: Cannon, as above.[73]A requirement of the harm factor contained in schedule 4, part 4 item 8, and the essence in this context of the nondisclosure factor contained in schedule 4, part 3, item 16. It should also be noted that both of these factors can only apply to information that is itself confidential, and not information in the public domain (such as, for example, personnel information and fee rates contained in the tender submissions, each of which are available on HH’s or relevant school websites).[74] See B and BNRHA, at paragraph 161, where the Information Commissioner relevantly stated that ‘[w]here ... persons must disclose information if they wish to obtain some benefit from the government (or they would otherwise be disadvantaged by withholding information) then ordinarily, disclosure could not reasonably be expected to prejudice the future supply of such information. In my opinion, the test is not to be applied by reference to whether the particular [supplier] whose ... information is being considered for disclosure, could reasonably be expected to refuse to supply such information in the future, but by reference to whether disclosure could reasonably be expected to prejudice future supply of such information from a substantial number of the sources available or likely to be available to an agency. See also Wanless Wastecorp Pty Ltd and Caboolture Shire Council (Wanless); JJ Richards & Sons Pty Ltd (Third Party) (2003) 6 QAR 242 at paragraphs 92-98.[75]Wanless, at paragraph 145.[76] The Access Applicant whose access application is the ultimate basis of review no. 310957.[77] The access application relevant to review no. 310957 and dated 29 September 2011 requests access by way of a copy.[78] Additionally, section 105(1)(b) of the RTI Act allows me to decide any matter in relation to an access application that could have been decided by the Department.[79] By letters dated 10 September 2012 I advised both the relevant Access Applicant and the Department of my preliminary view on the issue of form of access as discussed in these paragraphs 81-87; neither entity contested that preliminary view.[80] Which is manifestly an entity other than the State.[81] Relevantly, HH’s exclusive right to reproduce the manual in a material form: section 31(1) of the Copyright Act 1968 (Cth). Reproduction without HH’s authority or licence (such as for the purposes of providing access under the RTI Act) comprises an infringement of this right of reproduction: section 36 of the Copyright Act 1968 (Cth).[82] Under section 68(1)(a) of the RTI Act, a form of access which of itself I consider would not involve infringement of relevant copyright.[83] By letter dated 21 September 2012.[84] If indeed I even possess jurisdiction to do so.

queensland

court_judgement

Queensland Information Commissioner 1993-

NKS and Queensland Corrective Services Commission [1995] QICmr 21; (1995) 2 QAR 662 (30 June 1995)

NKS and Queensland Corrective Services Commission [1995] QICmr 21; (1995) 2 QAR 662 (30 June 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 79 of 1993COMMISSIONER (QLD) ) (Decision No. 95021) Participants: NKS Applicant - and - QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access to a psychiatric clinical note concerning the applicant contained on the applicant's medical file held by the respondent - application of s.44(3) of the Freedom of Information Act 1992 Qld - whether disclosure to the applicant might be prejudicial to the physical or mental health or wellbeing of the applicant.Freedom of Information Act 1992 Qld s.33(1)(b), s.44(2), s.44(3), s.44(3)(a), s.44(4), s.52(6)"S" and The Medical Board of Queensland, Re (Information Commissioner Qld, Decision No. 94028, 12 October 1994, unreported) DECISIONI set aside the decision under review, and in substitution for it, I decide that:(a) the document in issue contains information of a medical or psychiatric nature concerning the applicant;(b) disclosure of the document in issue to the applicant might be prejudicial to the mental health or wellbeing of the applicant (with the exception of those parts of the document to which the applicant has already been given access as explained in paragraph 13 of my reasons for decision); and(c) access to the document in issue (with the exception of those parts of it to which the applicant has previously been given access) is not to be given to the applicant but is to be given instead to a qualified medical practitioner nominated by the applicant and approved by the principal officer of the respondent, in accordance with s.44(3) of the Freedom of Information Act 1992 Qld.Date of Decision: 30 June 1995...............................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 79 of 1993COMMISSIONER (QLD) ) (Decision No. 95021) Participants: NKS Applicant - and - QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent REASONS FOR DECISIONBackground1. The applicant seeks review of the respondent's decision to refuse him access to a clinical note dated 20 July 1990 made by a psychiatrist, Dr P Edwards, concerning the applicant.2. By letter dated 20 January 1993, the applicant applied to the Queensland Corrective Services Commission (the QCSC) for access to "my medical record book". The applicant was, and still is, a prisoner detained by the QCSC. An initial decision was made by the QCSC's FOI Co-ordinator, Ms P Cabaniuk, and conveyed to the applicant by letter dated 5 March 1993. Ms Cabaniuk decided to grant the applicant access to his medical file with the exception of one document, being the clinical note in issue in this case. Ms Cabaniuk determined that document to be exempt under s.41(1), s.42(1)(c) and s.46(1)(b) of the Freedom of Information Act 1992 Qld (the FOI Act).3. By letter dated 8 April 1993, the applicant applied for internal review of Ms Cabaniuk's decision, in accordance with s.52 of the FOI Act. The applicant subsequently forwarded to me an application for external review dated 30 April 1993, claiming that an internal review decision had not been made within the time limit specified in the FOI Act, and that the QCSC was therefore deemed to have made a decision affirming Ms Cabaniuk's refusal of access to the clinical note (see s.52(6) of the FOI Act).4. The QCSC has informed me that the application for internal review, although dated 8 April 1993, was not received by Ms Cabaniuk until 16 April 1993, and that therefore an internal review decision made on behalf of the QCSC by Ms K Mahoney on 29 April 1993, and received on 30 April 1993 by the correctional centre in which the applicant was detained, was made within the 14 day time limit prescribed by s.52(6) of the FOI Act. It appears that the applicant purported to refuse acceptance of Ms Mahoney's internal review decision. It was returned with a hand-written notation by an official at the correctional centre that the envelope containing the internal review decision was opened by the applicant who then indicated that he would not accept the internal review decision, on the basis that the decision was outside the prescribed time for making that decision and that he had commenced an application for an external review in relation to the document in issue. 5. I do not propose to examine this dispute between the applicant and the respondent, since nothing really turns on it for the purposes of my review. Provided I have jurisdiction to undertake a review under Part 5 of the FOI Act (which I do in this case whether the decision under review is a deemed affirmation of Ms Cabaniuk's decision to refuse access, or a valid internal review decision by Ms Mahoney), I am empowered to make a fresh decision as to the correct application of the provisions of the FOI Act to any documents (or parts of documents) of the respondent agency or Minister, which fall within the terms of the applicant's FOI access application and to which the applicant has been refused access under the FOI Act. In the course of a review under Part 5, the respondent agency or Minister may, in effect, abandon reliance on the grounds previously given in support of the decision under review, in whole or in part, whether by making concessions to the applicant (which mean that some matter is no longer in issue) or by arguing fresh grounds to support a refusal of access to matter in issue. 6. I should observe, however, that there may be a more fundamental objection to the validity of Ms Mahoney's internal review decision than the alleged failure to observe time limits. Ms Mahoney did not affirm the claims for exemption made in Ms Cabaniuk's initial decision, but decided instead that access to the clinical note should be given in accordance with s.44(3) of the FOI Act. Subsections 44(3) and (4) provide as follows: 44. ... (3) If - (a) an application is made to an agency or Minister for access to a document of the agency or an official document of the Minister that contains information of a medical or psychiatric nature concerning the person making the application; and (b) it appears to the principal officer of the agency or the Minister that the disclosure of the information to the person might be prejudicial to the physical or mental health or wellbeing of the person; the principal officer or Minister may direct that access to the document is not to be given to the person but is to be given instead to a qualified medical practitioner nominated by the person and approved by the principal officer or Minister. (4) An agency or Minister may appoint a qualified medical practitioner to make a decision under subsection (3) on behalf of the agency or Minister.7. On what I consider to be the proper construction of these provisions, Ms Mahoney was not authorised to make a decision under s.44(3) of the FOI Act. Section 44(3) states that the principal officer of an agency may direct that access to a document of the kind stipulated in s.44(3)(a) is to be given in the manner provided for by s.44(3), after the principal officer has formed the view that disclosure to the applicant might be prejudicial to the physical or mental health or wellbeing of the applicant. Section 44(4) provides that an agency may appoint a qualified medical practitioner to make a decision under s.44(3) on behalf of the agency. Ms Mahoney was not the principal officer of the QCSC, nor a qualified medical practitioner. 8. While s.33(1)(b) of the FOI Act makes general provision for the principal officer of an agency to direct another officer of the agency to deal with an FOI access application on behalf of the agency, I do not think s.44(3) is properly to be construed as though its specific references to the principal officer include another officer holding a direction from the principal officer under s.33(1)(b). Subsection 44(4) reinforces my view, since it contemplates the making of a special appointment of a person with particular qualifications and expertise appropriate to the kinds of decisions which may be made under s.44(3), as the alternative to the principal officer exercising the discretion conferred by s.44(3). 9. In my opinion, Ms Mahoney did not have authority to make a decision under s.44(3), and her internal review decision dated 24 April 1993 was of no legal effect. The decision under review is therefore the deemed affirmation, in accordance with s.52(6) of the FOI Act, of Ms Cabaniuk's decision to refuse access to the document in issue. As foreshadowed in paragraph 5 above, however, this has made little practical difference to the review. The QCSC has not argued that the document in issue is exempt, and the only issue in the case, as presented to me by both participants, has been the application of s.44(3) to the clinical note.The external review process10. The QCSC has provided me with a copy of the clinical note in issue, which contains a psychiatric diagnosis of the applicant, together with observations recorded by Dr Edwards concerning his impressions of the applicant upon examination.11. During the course of this external review, a statutory declaration from a psychiatrist concerning the clinical note, was forwarded to my office. The psychiatrist's identity, and the precise detail of this evidence, must remain confidential for reasons which relate to another external review still in progress. In a letter to the applicant dated 16 September 1993, the substance of the psychiatrist's evidence was paraphrased, so as to acquaint the applicant with the substance of evidence in support of the respondent's case. The relevant evidence of the psychiatrist concerning the clinical note can be paraphrased as follows:? From the standpoint of the applicant's psychiatric health and wellbeing, the psychiatric clinical note dated 20 July 1990 should not be released to the applicant.? It would be appropriate if the clinical note was released to a medical practitioner, and in this regard the visiting prison psychiatrist was recommended. If the visiting prison psychiatrist was unable to perform this task, then it would be appropriate for the document to be released to another psychiatrist; however, release to a general medical practitioner would not be appropriate because of the slim prospects of obtaining a general medical practitioner with an adequate knowledge of psychiatry.? The clinical note contains a psychiatric diagnosis (together with other information) and there is a danger that the applicant may misunderstand the diagnosis that has been made. (An example was given of technical terms used in the document in issue which are prone to being misunderstood by lay persons.) There is a possibility that the applicant could come to some harm if the document was released to him, in the sense that he could experience depression once he examined the document. A psychiatrist should explain the diagnosis to the applicant. 12. The applicant's submission in response, dated 7 October 1993, rejected the evidence that disclosure of the clinical note to him would be prejudicial to his mental health or wellbeing. The applicant submitted that he had been aware of the general tone and content of the clinical note for approximately 6-8 months. The applicant enclosed a copy of a handwritten document dated 26 July 1990 made by a person described as a Nursing Manager (employed by the QCSC), which document was stamped to indicate that it had been released by the QCSC under the FOI Act. The Nursing Manager's note dated 26 July 1990 is not the same document as the clinical note, dated 20 July 1990, which is the document in issue. The Nursing Manager's note, however, contains two sentences which refer to a psychiatric assessment of the applicant, attributed to Dr Edwards. It appears that, having read the clinical note now in issue, the Nursing Manager included a brief reference to it in a document prepared for other administrative purposes. The applicant submitted that no harm would come to him from having access to the clinical note, because of the access that he had already obtained to the Nursing Manager's note. I should make clear, however, that there is other information in the clinical note of a medical or psychiatric nature concerning the applicant, to which no reference is made in the Nursing Manager's note.13. During the course of this external review, I provided the QCSC with a copy of the applicant's letter dated 7 October 1993 (together with the copy of the Nursing Manager's note) and asked the QCSC if it would be prepared to release part of the clinical note, in view of the contents of the Nursing Manager's note which had already been disclosed to the applicant. The QCSC agreed to give the applicant access to so much of the clinical note as contains the psychiatric diagnosis attributed to Dr Edwards in the Nursing Manager's note.14. In relation to the remainder of the clinical note, however, the QCSC maintains its stance that s.44(3) of the FOI Act should apply. The psychiatrist who provided the evidence referred to in paragraph 11 above contacted my office and, with knowledge of the information that had been obtained by the applicant in the Nursing Manager's note, nevertheless expressed the opinion that the remainder of the clinical note could be expected to cause some harm to the mental health or wellbeing of the applicant, if released directly to him, in the sense that the applicant could suffer depression and/or some loss of self-esteem. The psychiatrist maintained the view that the remainder of the psychiatric note should be released to a psychiatrist who would be able to work through the issues raised in it with the applicant. 15. The QCSC also lodged a written submission dated 28 July 1994 in support of its case that the clinical note should only be released in accordance s.44(3) of the FOI Act. In response to the applicant's submission, the QCSC submitted that the Nursing Manager's note dated 26 July 1990 does not reflect the entire contents of the clinical note dated 20 July 1990, which goes into more depth and detail than the Nursing Manager's note. The QCSC submitted that there is no evidence to suggest that the applicant has ever seen the clinical note itself. The QCSC relied upon the opinion of the psychiatrist referred to in paragraph 14 above that the remainder of the clinical note should not be disclosed to the applicant because of the risk of prejudice to the applicant's mental health or wellbeing.16. A copy of the QCSC's submission of 28 July 1994 (edited by deleting a small amount of matter claimed by the QCSC to be confidential) was provided to the applicant, and two opportunities were given to him to lodge a final submission in support of his case in this external review, but no response has been received from the applicant.Application of s.44(3) of the FOI Act17. In my reasons for decision in Re "S" and The Medical Board of Queensland (Information Commissioner Qld, Decision No. 94028, 12 October 1994, unreported), I made the following remarks (at paragraphs 12-13): 12. The terms of s.44(3) of the FOI Act are almost identical to the terms in which s.41(3) of the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act) was framed, prior to its amendment by the Freedom of Information Amendment Act 1991 Cth. In its former terms, s.41(3) of the Commonwealth FOI Act was considered by Deputy President Smart QC (now His Honour Mr Justice Smart of the New South Wales Supreme Court) in the decision of the Commonwealth Administrative Appeals Tribunal in Re K and Director-General of Social Security (1984) 6 ALD 354. Deputy President Smart observed (at pp.356-7) that the provision raised these matters for consideration: 1. Does the document in issue contain information of a medical or psychiatric nature concerning the applicant? 2. If the information were disclosed direct to the applicant is there a real and tangible possibility as distinct from a fanciful, remote or far-fetched possibility of prejudice to the physical or mental health or wellbeing of the applicant? This is what the words "might be prejudicial" mean. Wellbeing has a wide import and a phrase "physical or mental health or wellbeing" indicates that a broad approach is to be taken. The general health, welfare and good of the person is to be considered. 3. If there is a real and tangible possibility of such prejudice the decision-maker is called upon to exercise his discretion whether to direct that access which would otherwise be given to the applicant should be given to a medical practitioner nominated by him. In the exercise of such discretion the decision-maker should consider the nature and extent of any real and tangible possible prejudice and the likelihood of it occurring. A number of situations could arise: (a) The possible prejudice may be small and not such as to justify giving a direction. (b) The possible prejudice may be sufficient to be of concern, but not major concern. In such a case if the likelihood of such prejudice eventuating was small, the decision-maker may not give a direction. (c) The possible prejudice, if it eventuated, may be great but the likelihood of it occurring may be small. In such a case the gravity of possible consequences might prove decisive in exercising the discretion whether to give a direction. In the exercise of his discretion the decision-maker has to carefully consider all the circumstances and balance the relevant factors. 13. I consider that this passage should be accepted and applied in Queensland as correctly stating the general approach to be taken by decision-makers when considering the application of s.44(3) of the FOI Act.18. Those parts of the clinical note which remain in issue contain professional observations made by Dr Edwards after examining the applicant. I am satisfied that this is information of a medical or psychiatric nature concerning the applicant, so that the requirements of s.44(3)(a) of the FOI Act are satisfied.19. The next question which I have to determine is whether the release of the balance of the clinical note to the applicant might be prejudicial to his physical or mental health or wellbeing. The applicant asserts that disclosure would not cause him any harm as he has already received a diagnosis attributed to Dr Edwards. However, the evidence from the psychiatrist referred to in paragraphs 11 and 14 above, and my examination of the clinical note, has persuaded me that there is a real and tangible possibility (as distinct from a fanciful, remote or far-fetched possibility) of prejudice to the applicant's mental health or wellbeing if the applicant were to be given access to the balance of the clinical note remaining in issue. With the assistance of the psychiatrist's evidence referred to above, my assessment of the nature of the possible prejudice and the likelihood of its occurrence is such that I consider it preferable that the discretion conferred by s.44(3) of the FOI Act be exercised, and that access to those parts of the clinical note remaining in issue not be given to the applicant, but be given instead to a qualified medical practitioner nominated by the applicant and approved by the principal officer of the QCSC (or by a qualified medical practitioner appointed by the QCSC under s.44(4) of the FOI Act).20. The psychiatrist's evidence is that the qualified medical practitioner to whom access to the clinical note is to be given should be a psychiatrist, and I think that would be the preferable course. A decision by a principal officer (or a s.44(4) appointee) to withhold approval of a medical practitioner nominated by the applicant in accordance with s.44(3), should not be taken without good cause. Unless an agency is prepared to be generous, the expense of a consultation with the approved medical practitioner to whom access is given in accordance with s.44(3) must be borne by the applicant for access. To force the applicant to bear the greater expense (and, depending on how far the applicant lives from a place where consultation with an appropriate specialist can take place, the greater inconvenience) of a consultation with a specialist rather than a general practitioner can be a significant burden to an applicant. The guiding consideration must, however, be the interests of the physical or mental health or wellbeing of the applicant for access. If the principal officer (or s.44(4) appointee) is satisfied that considerations of that nature require that access be given to a specialist in a particular field of medicine, the principal officer (or s.44(4) appointee) is entitled to withhold approval until the applicant nominates a suitable specialist in the relevant field.Conclusion21. I set aside the decision under review, and in substitution for it, I decide that: (a) the document in issue contains information of a medical or psychiatric nature concerning the applicant; (b) disclosure of the document in issue to the applicant might be prejudicial to the mental health or wellbeing of the applicant (with the exception of those parts of the document to which the applicant has already been given access, as explained in paragraph 13 of my reasons for decision); and (c) access to the document in issue (with the exception of those parts of it to which the applicant has previously been given access) is not to be given to the applicant but is to be given instead to a qualified medical practitioner nominated by the applicant and approved by the principal officer of the respondent (or s.44(4) appointee), in accordance with s.44(3) of the FOI Act.F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

G83 and Queensland Police Service [2019] QICmr 47 (5 November 2019)

G83 and Queensland Police Service [2019] QICmr 47 (5 November 2019) Last Updated: 12 November 2019 Decision and Reasons for Decision Citation: G83 and Queensland Police Service [2019] QICmr 47 (5 November 2019) Application Number: 314339 Applicant: G83 Respondent: Queensland Police Service Decision Date: 5 November 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - information about police officer recruitment - recruitment process not finalised - applicant’s personal information - enhancing accountability and transparency - inquiry into possible deficiencies - fair treatment and procedural fairness - prejudice to testing and examination methods and procedures - prejudice to deliberative process and management function - whether disclosure, would, on balance, be contrary to the public interest - section 67(1) of the Information Privacy Act 2009 (Qld) - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant, a former police officer, applied to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to ‘All documents regarding my current application to join the Queensland Police Service’.[1] QPS located 221 pages in response to the application and released 10 of those pages to the applicant. QPS decided[2] to refuse access to the remaining 211 pages on the basis that disclosure of the information would, on balance, be contrary to the public interest, citing prejudice to the testing and examination procedures involved in a QPS recruitment process.[3] The applicant applied to the Office of the Information Commissioner (OIC) for external review of QPS’ refusal of access decision.[4] The applicant submitted that he had been waiting over two years for a decision to be made on his current recruitment application and had concerns about the lack of transparency in the application process. During the external review, QPS agreed to disclose some further information to the applicant, including communications involving the applicant, the applicant’s medical records, and some internal QPS documents regarding the recruitment process.[5] However, QPS maintained the position that disclosure of certain internal QPS documents, would, on balance, be contrary to the public interest. For the reasons set out below, I affirm QPS’ decision to refuse access to the information remaining in issue, under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act, as its disclosure would, on balance, be contrary to the public interest. Background The applicant was medically discharged from QPS in 2008, having worked with QPS since 1991. He unsuccessfully applied for readmission to the police force in 2011 and in late 2016, he made a further application to re-join QPS. As at the date of this decision, that recruitment application remains undecided. The applicant has expressed to OIC his frustration with the time it has taken QPS to make a decision on his recruitment application. In his view, the ‘RTI process is the only way that I will be able to view what information is being used’ to make the recruitment decision.[6] The decision under review is QPS’ refusal of access decision dated 12 December 2018. Significant procedural steps taken during the external review are set out in the Appendix. Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). Information in issue The information which is the subject of this decision includes correspondence sent/received by QPS in relation to the recruitment application, testing/assessment forms and responses, interview questions and panel member notes, and QPS deliberations on the applicant’s recruitment application (Recruitment Documents).[7] Issue for determination The issue for determination is whether access to the Recruitment Documents may be refused on the basis that disclosure would, on balance, be contrary to the public interest.[8] Relevant law The IP Act provides an individual with the right to access documents of an agency to the extent they contain the individual’s personal information.[9] This right of access is however, subject to certain limitations, including grounds for refusing access. One such ground is where disclosure would, on balance, be contrary to the public interest.[10] 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.[11] 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.[12] In deciding where the balance of the public interest lies, various factors may be relevant[13] and a decision-maker must take specific steps in reaching a decision on disclosure.[14] The factors listed in schedule 4 to the RTI Act generally require that the particular outcome that the factor is intended to promote or protect against ‘could reasonably be expected’ to result from disclosure. In assessing whether an outcome ‘could reasonably be expected’, the Information Commissioner has found that a decision maker must distinguish ‘between what is merely possible ... and expectations that are reasonably based’ and for which ‘real and substantial grounds exist’.[15] Other jurisdictions have similarly interpreted the phrase ‘as distinct from something that is irrational, absurd or ridiculous’.[16] Taking the above into account, my assessment of, and findings in relation to, the public interest factors relevant in this case, are set out below. Findings No irrelevant factors arise in the circumstances of this case, and I have not taken any, including those set out in schedule 4, part 1 of the RTI Act, into account. In making this decision, I have adopted a pro-disclosure bias, as required by section 64 of the IP Act. Factors favouring disclosure The applicant’s personal information appears throughout the Recruitment Documents, giving rise to a public interest factor favouring disclosure.[17] This factor is routinely afforded very high weight given the fundamental importance of individuals being able to access their personal information held by government agencies. The applicant has been given access to some information through the IP Act application process, including a significant number of pages to which QPS originally refused access and subsequently agreed to disclose following negotiations with OIC. However, I accept, as the applicant has argued, that much of the released information was already known to him, eg. it comprises copies of correspondence involving him, and his medical reports.[18] In the circumstances, I do not consider the released information serves to reduce the weight of this factor to any degree, and therefore, I afford this factor significant weight in favour of disclosure of the Recruitment Documents. The applicant submits that there has been a lack of transparency in the processing of his recruitment application.[19] I am satisfied that there is a public interest in QPS being accountable and transparent in relation to the decisions it makes, and processes undertaken in relation to police officer recruitment.[20] In the circumstances of this case, I also consider the public interest in informing the community of the government’s operations[21] and revealing the reason for a government decision and any background or contextual information that informed the decision[22] are relevant to consider. As I have noted above, the applicant has been granted access to some information regarding his recruitment application through the IP Act process. While I accept that some of that information was already known to him, I consider that certain released documents do serve, to an extent, to discharge the public interest factors identified in the preceding paragraph. For example, the document titled File Action Notes records the chronology of actions taken by QPS recruitment officers in dealing with the applicant’s recruitment application,[23] subject only to the deletion of information revealing particular deliberations/considerations. I consider the disclosure of this internal chronology has served to enhance QPS accountability and transparency, to a moderate degree. Also, a number of emails released to the applicant demonstrate that inquiries were made by QPS Recruiting Section to obtain information from within QPS units, and from external sources, to assist in QPS’ deliberations on the application. Notably, those emails demonstrate that the QPS recruitment officers asked the various sources to provide a response outlining any objections or concerns regarding the applicant’s recruitment application. I consider that the disclosure of these documents has served to provide a level of transparency in terms of revealing some of the steps taken in the recruitment application process, and that this serves to reduce the weight of the relevant public interest factors to moderate. The applicant is very concerned about the length of time it has taken QPS to decide his recruitment application.[24] He believes he has been treated unfairly and has been denied natural justice.[25] He is also concerned that information may have been ‘fabricated’ and wants an opportunity to ‘check the factual accuracy’ of the information provided and rectify any inaccuracies.[26] The applicant is understandably frustrated that he has been waiting approximately three years for an outcome on his current application (lodged in 2016) to be re-admitted to the police force. On its face, this does seem like a long time for a recruitment application to remain undecided. Therefore, I consider that disclosure could reasonably be expected to allow inquiry into possible deficiencies in QPS recruitment application handling process.[27] QPS has explained that the applicant ‘has a unique and complex medical and QPS history and as such his application has taken longer to process’ and this has been further complicated by the fact that during QPS’ consideration of the recruitment application, the applicant’s treating psychiatrist passed away, requiring QPS to ‘explore other options to adequately assess [the applicant’s] suitability to be offered a place as a recruit’.[28] I am satisfied that the particular complexities of this case appear to have legitimately extended the time taken to process the recruitment application. Also, the information available to me, both in the released documents (eg. the File Action Notes) and Recruitment Documents demonstrates that QPS recruitment officers have been actively progressing the matter since its receipt. QPS also submits that the applicant is ‘fully aware of the status of his application’.[29] In the circumstances, I afford this factor moderate weight. I am also satisfied that disclosing the Recruitment Documents could reasonably be expected to advance the applicant’s fair treatment[30] and contribute to procedural fairness for him.[31] Disclosure would allow the applicant to view the entirety of the information that QPS has before it in relation to the recruitment application, and critique/respond to any information of concern to him. I am also satisfied that disclosure of the Recruitment Documents would provide the applicant with a more comprehensive understanding of why QPS has taken the length of time it has to process the recruitment application. However, in attributing weight to these disclosure factors, I have also taken into account QPS submission[32] that ‘When each applicant enters into the recruitment process, they sign an acknowledgement that specific feedback will not be provided prior to the finalisation of the application.’ I also note that the content of the released documents, particularly the File Action Notes, do disclose a relatively detailed chronology about the steps/actions taken on the recruitment application, which serves to reduce the weight of these factors, to some extent. In the circumstances, I afford these factors low weight. As set out above, the applicant is concerned that there may be inaccuracies in the Recruitment Documents.[33] The applicant has not, however, advanced any evidence to demonstrate to me that this expectation is reasonably based. I accept that the applicant is at a disadvantage in not being able to see the Recruitment Documents. However, for the relevant public interest factor to apply, I must be satisfied that disclosure of the refused information could reasonably be expected to reveal that the Recruitment Documents contain incorrect, out of date, or misleading information, as distinct from a mere possibility that such information may appear within the documents. In the circumstances of this case, I am unable to find that this factor applies. Based on the information available to me, I am satisfied that no further public interest factors arise to favour disclosure of the Recruitment Documents.[34] Factors favouring nondisclosure QPS submissions QPS submitted that, while the applicant’s recruitment application remains active, disclosure of the Recruitment Documents would prejudice its decision-making processes.[35] Further, QPS argued that disclosure would place the applicant in a position to ‘subvert the internal workings and deliberations’ of the agency and that this would ‘thwart the Service’s ability to manage the recruitment process’ and ‘give the applicant an unfair advantage over other applicants, in a competitive environment’.[36] QPS outlined that its recruitment process for police officers involves a number of tests and examinations which are designed to ensure that people selected to the role will be able to provide the service that the community expects, and to handle the rigorous demands of policing.[37] QPS submitted that disclosure of the tests, results, questionnaires and examinations, which appear throughout the Recruitment Documents, would enable applicants to frame their responses, giving them an unfair advantage over other applicants.[38] QPS made specific submissions in relation to psychological testing that occurs during a recruitment process. QPS argued that disclosure would prejudice the effectiveness of the methods and procedures that are used to determine an applicant’s psychological suitability to perform the duties of a police officer.[39] Further, QPS submitted that disclosure of the psychological assessment documents and feedback could reasonably be expected to prejudice the effectiveness of those tests, the objects of which is to ensure appropriate candidates are selected to become police officers.[40] QPS submitted that the recruitment of suitable candidates is also a critical component of QPS’ management function. In particular, the selection of suitable candidates for a role that can be very demanding both physically and mentally forms part of QPS’ duty to ensure the welfare of employees.[41] QPS also submitted that its management function would be detrimentally affected if QPS Recruiting was required to respond to requests from recruitment applicants prior to the finalisation of the process, noting that QPS Recruiting receives over 10,000 applications each year.[42] QPS considers that not only would disclosure subvert the process by allowing applicants to tailor/frame their responses (as outlined above), it would also divert QPS Recruiting from deciding the applications, thereby further prejudicing its management function.[43] Analysis The public interest will favour nondisclosure of information that could reasonably be expected to prejudice (i) the management function of an agency,[44] (ii) a deliberative process of government;[45] and/or (iii) the effectiveness of testing procedures.[46] The RTI Act also recognises that disclosure could reasonably be expected to cause a public interest harm if disclosure could: prejudice the effectiveness of a method or procedure for the conduct to tests or examinations by an agency[47] prejudice achieving the objects of a test or examination conducted by an agency;[48] and reveal an opinion, advice or recommendation that has been obtained, prepared or recorded, or a consultation or deliberation that has taken place.[49] As noted in paragraph 10 above, the Recruitment Documents include copies of the questions the applicant was asked at a face to face interview, which formed part of the recruitment process. The interview panel members’ notes which record their observations and assessments of the applicant’s responses are also present. It is not uncommon for job applicants to be asked to return interview questions at the conclusion of an interview—this serves to preserve their confidentiality for the current process (as against competing applicants who are yet to be interviewed), and also in future recruitment processes (should they be re-used). I am satisfied that the effectiveness of testing/examination processes used in QPS recruitment is likely to be compromised by disclosure of these (and other testing/evaluation) documents as it could reasonably be expected to allow future applicants to tailor their responses to gain a more beneficial outcome, thereby undermining the recruitme[50] process.50 Similarly, I am satisfied that disclosure of the psychological testing questionnaire, responses and associated evaluation information could reasonably be expected to prejudice the recruitment process. As set out above, QPS has emphasised that selecting suitable candidates for recruitment to the police force is a critical component of its management function and psychological testing is one of the key methods used in the selection process. I accept that disclosure of this testing/evaluation information would reveal the particular areas on which applicants are assessed, and the methods that are used by QPS to evaluate an applicant’s responses/performance. I am satisfied that disclosure of such information could reasonably be expected to subvert the purpose of those testing methods as it would enable future candidates to respond in a way that could give them an unfair advantage in a highly competitive environment.[51] For the reasons set out in paragraphs 34 and 35 above, I am satisfied that disclosure of the Recruitment Documents would prejudice the effectiveness and objects of testing/examination methods used by QPS in its recruitment process. I also find that this would have a corresponding prejudicial impact on QPS&#821[52] management function52 as it may lead to unsuitable candidates being selected due to the presence of skewed/misleading testing results. In the circumstances, I affor[53]the relevant factors53 significant weight in favour of nondisclosure. Observations about, and assessment/evaluation of the applicant’s suitability to join the police force appear throughout the Recruitment Documents, particularly within correspondence, and the refused portions of the File Action Notes. I am satisfied that the information reveals QPS’ deliberations on issues associated with the applicant’s recruitment application, and constitute QPS’ pre-decisional thinking, thereby raising a public interest factor in favour of nondisclosure.[54] Given the unfinalised status of the recruitment process, I am satisfied that disclosure of this information could reasonably be expected to prejudice a deliberative process of government, namely, the process QPS is undertaking to decide whether or not to recruit the applicant into the police force.[55] I am also satisfied that a public interest harm arises in respect of particular documents that constitute opinions/advice/recommendations that have been obtained/prepared in relation to that deliberative process.[56] I am satisfied that the recruitment of suitable candidates to QPS is a process that involves input from various sources both internally within QPS, and externally (as relevant to a particular case). Given the potential ramifications of selecting a candidate that is not suitable for the demanding role of a police officer, I am satisfied that those involved in the recruitment process should be afforded a level of discretion to allow them to express their views openly and honestly. Therefore, I accept QPS’s submission that revealing internal conversations about a particular recruitment candidate before a decision has been made could reasonably be expected to prejudice that process. I afford the relevant factors[57] significant weight in favour of nondisclosure. Conclusion As demonstrated by the discussion above, there are multiple public interest factors which favour of disclosure of the Recruitment Documents. Primarily, the applicant’s entitlement to access his own personal information weighs heavily in favour of disclosure. I have also afforded moderate weight to the public interest in enhancing the accountability and transparency of the QPS recruitment process, and allowing inquiry into possible deficiencies in the conduct of that process, particularly given the length of time the applicant has been waiting for a decision to be made. I have also afforded weight, while low, to advancing the applicant’s fair treatment and affording him procedural fairness. There are also several relevant nondisclosure factors which must be balanced against the disclosure factors. Of key significance in this case is the reasonable likelihood of prejudice to effectiveness, and purpose of, the testing and examination procedures that form part of the recruitment process, the fact that the recruitment application remains the subject of deliberations and the negative impact on QPS’ management function. For the reasons set out above, I am satisfied that the collective weight of those nondisclosure factors and the level of public interest harm that could reasonably be expect to arise through disclosure of the Recruitment Documents, tip the scales in favour of nondisclosure. On balance, I find that disclosure of the Recruitment Documents would be contrary to the public interest and therefore, access to the information remaining in issue may be refused.DECISION On the basis of the above, I affirm QPS’ decision to refuse access to the Recruitment Documents under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.K ShepherdAssistant Information Commissioner 5 November 2019APPENDIX Significant procedural steps Date Event 12 December 2018 OIC received the application for external review. 21 December 2018 OIC notified the applicant and QPS that it had accepted the external review application and asked QPS to provide relevant information. 8 January 2019 OIC received the requested information from QPS. 12 April 2019 OIC conveyed a preliminary view to QPS. 17 May 2019 QPS provided submissions in response to OIC’s preliminary view, agreeing to release certain documents to the applicant. 11 June 2019 QPS released documents to applicant as part of the informal resolution process. 13 June 2019 OIC conveyed a further preliminary view to QPS. 8 July 2019 OIC received written submissions from the applicant. 25 July 2019 QPS provided further submissions to OIC confirming its position that access to certain documents should be refused on the basis that their disclosure would, on balance, be contrary to the public interest. 9 August 2019 OIC received telephone submissions from the applicant. 15 August 2019 OIC conveyed a further written preliminary view to QPS that there was no basis on which to refuse access to certain information. OIC also conveyed a written preliminary view to applicant and invited him to provide submissions if he wished to contest the view. 27 August 2019 OIC received further written submissions from the applicant, disagreeing with OIC’s preliminary view. 5 September 2019 QPS advised OIC that it had reconsidered its position and agreed to release certain documents to the applicant. 9 September 2019 OIC wrote to the applicant to address his concerns about the review process. The applicant provided OIC with additional written submissions. OIC wrote to QPS to confirm its agreement to release certain documents to the applicant, and to confirm OIC’s preliminary view in relation to nondisclosure of the remaining documents. OIC also requested QPS to advise OIC, as a matter of urgency, if the status of the applicant’s recruitment process changed. 10 September 2019 OIC wrote to the applicant to clarify certain procedural issues, and to confirm that the next step in the review would be for OIC to issue a formal written decision. 12 September 2019 QPS advised OIC that the further documents had been released to the applicant, in accordance with OIC’s preliminary view. 24 September 2019 QPS confirmed to OIC that a decision was yet to be made on the applicant’s recruitment application. 23 October 2019 OIC wrote to the applicant to confirm the information remaining in issue. 30 October 2019 The applicant telephoned OIC and confirmed that he was willing to exclude the personal information of other individuals, and information to which access is otherwise available, from consideration in the review. 5 November 2019 QPS confirmed the ongoing status of the recruitment process. [1] Access application dated 24 October 2018.[2] Decision dated 12 December 2018.[3] Section 67(1) of the IP Act, section 47(3)(b) of the Right to Information Act 2009 (Qld) (RTI Act) and schedule 4, part 4, section 3 of the RTI Act. [4] External review application dated 12 December 2018. [5] 96 full pages.[6] Submission to OIC dated 8 July 2019.[7] 63 full pages and parts of 2 pages. I note these figures are significantly lower than the 211 pages to which access was originally refused by QPS. This is the result of QPS’ agreement to disclose certain information to the applicant during the review (see footnote 5), and the applicant’s election not to pursue access to the personal information of third parties (eg. other recruitment candidates) and documents to which other access is available, eg. his traffic history, which appeared within the located documents. The issue of access to that information is therefore, not considered in these reasons. [8] Under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act. Section 67(1) of the IP Act sets out that an agency may refuse access to information in the same way and to the same extent that the agency could refuse access to the document under section 47 of RTI Act.[9] Section 40 of the IP Act.[10] Sections 47(3)(b) and 49 of the RTI Act.[11] 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.[12] Some factors, are however, expressed to apply for the benefit of a particular individual, eg. Schedule 4, part 2, items 7 and 17 of the RTI Act. [13] Including the non-exhaustive list of factors in schedule 4 of the RTI Act.[14] Section 49 of the RTI Act. The steps include: disregarding any irrelevant factors, identifying relevant factors favouring disclosure and nondisclosure and balancing the relevant factors.[15] B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at [154]- [160].[16] 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.[17] Schedule 4, part 2, item 7 of the RTI Act.[18] Applicant’s submission to OIC dated 27 August 2019.[19] Applicant’s submissions to OIC dated 27 August and 9 September 2019.[20] Schedule 4, part 2, item 1 of the RTI Act.[21] Schedule 4, part 2, item 3 of the RTI Act.[22] Schedule 3, part 2, item 11 of the RTI Act. [23] Since October 2016.[24] Submissions to OIC dated 8 July and 9 September 2019.[25] Submission to OIC dated 8 July 2019, telephone submissions provided 9 August 2019.[26] Submissions to OIC dated 8 July and 27 August 2019.[27] Schedule 4, part 2, item 5 of the RTI Act.[28] Submission to OIC received 25 July 2019 (dated 25 May 2019 due to typographical error). [29] Submission to OIC received 25 July 2019. [30] Schedule 4, part 2, item 10 of the RTI Act. [31] Schedule 4, part 2, items 16 and 17 of the RTI Act.[32] Submission to OIC received 25 July 2019.[33] Thereby, raising the public interest factor in schedule 4, part 2, item 12 of the RTI Act. [34] I have considered all of the factors listed in schedule 2, part 2 of the RTI Act and find that no further factors apply, other than those discussed above.[35] Submission to OIC received 25 July 2019.[36] Submission to OIC received 25 July 2019. QPS submitted that its Recruitment Unit receives in excess of 10,000 applications to join the police force each year. [37] QPS decision dated 12 December 2018.[38] QPS submissions dated 17 May 2019. [39] QPS decision dated 12 December 2018.[40] QPS decision dated 12 December 2018.[41] QPS submissions dated 17 May 2019 and submissions received 25 July 2019.[42] QPS submissions received 25 July 2019.[43] QPS submissions received 25 July 2019.[44] Schedule 4, part 3, item 19 of the RTI Act.[45] Schedule 4, part 3, item 20 of the RTI Act.[46] Schedule 4, part 3, item 21 of the RTI Act. [47] Schedule 4, part 4, section 3(a) of the RTI Act. See Lucas and The University of Queensland [2017] QICmr 14 (7 April 2017) for a discussion of this factor, and the related nondisclosure factor in schedule 4, part 3, item 21 of the RTI Act. [48] Schedule 4, part 4, section 3(b) of the RTI Act.[49] Schedule 4, part 4, section 4 of the RTI Act.[50] There can be no restriction on the use, dissemination or republication of information once it is released under the IP Act. [51] Once the recruitment process is finalised, there may be an opportunity for QPS to consider granting the applicant inspection access to some of the testing/examination information, psychological questionnaire/responses and interview panel member notes. Inspection access to test results routinely occurs in a university context when students seek copies/feedback on their past examinations. However, this would be a matter for QPS to consider, based on the particular circumstances of the case.[52] See W7SV7G and Department of Education [2018] QICmr 24 (22 May 2018) at paragraph [28].[53] Schedule 4, part 3, items 19 and 21 and schedule 4, part 4, section 3(a) and (b) of the RTI Act.[54] Schedule 4, part 3, item 20 of the RTI Act. See Straker and Sunshine Coast Regional Council; NBN Co Limited (Third Party) [2016] QICmr 44 (28 October 2016) at paragraphs [148]-[155]. [55] Noting that, once the recruitment process has been finalised, the relevance and weight of this nondisclosure factor would need to be reconsidered, subject to whether or not the recruitment application is accepted. [56] Schedule 4, part 4, section 4 of the RTI Act. I am unable to describe the exact nature of those documents, due to the limitations placed on me by section 120 and 121 of the IP Act. However, they can broadly be described as suitability reports. [57] Schedule 4, part 3, item 20 and part 4, section 4 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Middleton and Brisbane City Council [2011] QICmr 34 (6 September 2011)

Middleton and Brisbane City Council [2011] QICmr 34 (6 September 2011) Last Updated: 21 October 2011 Decision and Reasons for Decision Application Number: 310320 Applicant: Middleton Respondent: Brisbane City Council Decision Date: 6 September 2011 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – NONEXISTENT DOCUMENTS – applicant sought access to documents in relation to a residential sewage issue – agency located and released documents to the applicant – applicant contends that further documents responding to her access application exist – whether there are reasonable grounds for agency to be satisfied documents do not exist – whether agency has taken all reasonable steps to locate documents – whether access can be refused under sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary The applicant applied to Brisbane City Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to various documents relating to sewage flooding issues on her property. In response to the access application, Council located and provided the applicant with full access to 660 pages. In her external review application, the applicant questioned the sufficiency of Council’s searches, contending that Council holds more documents relevant to her access application. In response[1] to the Office of the Information Commissioner’s (OIC) preliminary view[2] the categories of documents which the applicant contends have not been located by Council were narrowed to the following: Category Particulars Category 1 Job Sheet or similar document for a sewage overflow incident reported on 16 February 2010 (Council reference CC28035553). Category 2 Job Sheet or similar document for a dry weather sewage overflow incident reported on 24 April 2010 (Council reference SCCC50 28396204). Category 3 All documentation on file for her propery that has not already been provided. This will include but is not limited to correspondence to and from third parties, including complaints from neighbours or local residents, State departments, the Office of the Queensland Ombudsman, Councillors, Queensland Local Government Mutual Liability Pool, Queensland Building Services Authority, Queensland Urban Utilities etc. Category 4 A copy of the Current and Historical Listing Form noting the sewage overflow incidents reported by the applicant on 16 February 2010 and 24 April 2010. Category 5 A copy of a written response that was provided to Councillor Sutton. Category 6 Copies of all documents that Councillor Sutton has on file in relation to her property, which includes but is not limited to correspondence to and from the Federal Member for Griffith since 20 March 2010. During the course of the external review, Council conducted further searches for documents responding to Categories 1 to 6 and provided submissions to the OIC in relation to those searches. For the reasons set out below, I am satisfied that Council may refuse access to Category 1 to 6 documents under section 47(3)(e) of the RTI Act as there are reasonable grounds to be satisfied that the documents sought do not exist.[3] Background Significant procedural steps relating to the application and external review are set out in Appendix A. Reviewable decision The decision under review is Council’s decision dated 22 July 2010. Issues in this review The remaining issue to be addressed on external review is whether Council is entitled to refuse access[4] to the documents sought at paragraph 4 above, on the basis that they are n[5]nexistent.5 Evidence considered Evidence, submissions, legislation and other material I have considered in reaching my decision is as disclosed in these reasons (including footnotes and appendices). Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency,[6] though this right is subject to other provisions of the RTI Act including the grounds on which an agency may refuse access to documents.[7] The RTI Act provides that access to a document may be refused[8] if the document is nonexistent or unlocatable.[9] Nonexistent document However, if an agency relies on searches to justify a decision that the document sought does not exist, all reasonable steps must be taken to locate the requested document.[10] Findings The applicant contends that Council should hold, but has not located, all documents described in Categories 1 to 6. Are there reasonable grounds to be satisfied that the documents in issue do not exist? The answer to this question is ‘yes’ in respect of each of the six categories of documents sought, for the reasons that follow. A document is nonexistent if there are reasonable grounds for the agency or Minister dealing with the access application to be satisfied that the document does not exist.[11] The RTI Act is silent on how an agency or Minister can be satisfied that a document does not exist. However, in PDE and the University of Queensland (PDE)[12] the Information Commissioner explained that to be satisfied that a document does not exist, the agency must rely on its particular knowledge and experience, having regard to various key factors including: administrative arrangements of government structure of the agency functions and responsibilities of the agency (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) practices and procedures of the agency (including but not limited to its information management approach) other factors reasonably inferred from information supplied by the applicant including: ○ the nature and age of the requested document/s; and ○ the nature of the government activity the request relates to. When these key factors are properly considered and a conclusion reached that the document does not exist, it may be unnecessary for searches to be conducted. However, if the agency relies on searches to justify a decision that the document sought does not exist, all reasonable steps must be taken to locate the requested document.[13] I consider each category of document sought in turn below. Category 1 and 2 Documents The applicant contends[14] that further Category 1 and 2 documents exist as Council officers who attended each sewage overflow incident at the applicant’s address informed her that a report of each visit to her property would be completed as a procedural requirement. The applicant states:[15] Whilst I have received the Job Cards for the above[16] and limited CCTV inspection results, there were no reports completed by Queensland Urban Utilities. The applicant later states[17] that she has not received Job Cards for sewage overflow incidents reported on 16 February 2010 and 24 April 2010 (2010 incidents). Council explained[18] that following each visit to the applicant’s property, information was recorded in Job Card Work Order BW247810[19] (Job Card) which is the ‘report’ Council officers referred to. In any event, Council asked Queensland Urban Utilities[20] (QUU), to undertake another search for any additional documents relating to the 2010 incidents that had not already been provided to the applicant. Council submits that no further documents were located. With specific reference to the Category 1 document, Council submits[21] that: the applicant telephoned Council’s Call Centre on 16 February 2010 to report a sewage overflow incident during that conversation Council informed the applicant of the appropriate Council fee for Council staff to attend her property; and the applicant declined to have Council staff visit her property to inspect this overflow incident. Council referred OIC to its usual practices and procedures[22] and submits that when a matter is resolved upon contact with Council’s Call Centre and no follow up action is required, the matter is closed in the Call Centre system. In this instance, Council staff did not visit the applicant’s property in response to the overflow incident reported on 16 February 2010 and therefore no Job Card record was created. On that basis, Council submits that the only document in existence relating to the overflow incident reported on 16 February 2010 is the Call Centre report. A copy of the Call Centre report was released to the applicant with Council’s decision and a further copy was provided by Council to the applicant on 9 June 2011. In relation to the Category 2 document, Council submits that a copy of the Job Card completed by Council staff following their attendance at the applicant’s property to inspect a sewage overflow incident reported on 24 April 2010 was released to the applicant with its decision. A further copy of the Category 2 document was provided to the applicant by Council on 9 June 2011. I have carefully considered Council’s submissions and I am satisfied that Council has taken all reasonable steps to locate the documents sought in Categories 1 and 2 and that there are reasonable grounds to be satisfied that: the Category 1 Job Card does not exist because it was never created;[23] and no further Category 1 or 2 documents exist and therefore Council may refuse access to the documents sought.[24] Category 3 Documents The applicant contends that Council has not provided her with a range of documents;[25] however the applicant has not provided any evidence to OIC to support the existence of additional Category 3 documents.[26] Specifically, the applicant claims a covering letter to Council providing a Plumbing and Drainage report (Report) dated 23 September 2009 should exist as well as further Category 3 documents from Council to the Queensland Local Government Mutual Liability Pool. Council submits that it holds no further Category 3 documents relevant to the access application. In support of its submission, Council has conducted a range of searches on a number of occasions including: searches of the TRIM records management system using a range of key words searches of CMX being Council’s correspondence management tracking system an inspection of file 185/420/522/43 which is a sewerage investigation file for the applicant’s address; and enquiries with relevant QUU officers. In relation to a covering letter to the Report, the Manager Plumbing Services Group, QUU informed Council that he was unaware of any covering letter accompanying the Report which was prepared by BT Plumbing Service and addressed to the Queensland Building Services Authority.[27] As to the applicant’s contention that Council has not located all documents sent or received by Queensland Local Government Mutual Liability Pool, Council submits[28] that, in accordance with its usual practices and procedures,[29] once insurance matters are referred to Council’s insurers or loss assessors, the matters are dealt with by them, with minimal documents being exchanged with Council, except where circumstances necessitate contact with Council. Council submits that, following the extensive searches detailed at paragraph 31 above, the documents sought by the applicant were not located nor were any further documents relevant to the access application. Council also submits that it has conducted numerous searches for documents relating to sewage overflow incidents at the applicant’s property across a number of access applications under the now repealed Freedom of Information Act 1982 (Qld) and RTI Act and that no further documents exist to those already provided to the applicant. In light of the repeated and detailed searches conducted by Council in this matter and previous applications, I find that there are reasonable grounds to be satisfied that no further Category 3 documents exist. Category 4 Documents The applicant is seeking evidence that the sewage overflow incidents she reported on 16 February 2010 and 24 April 2010 are listed on Council’s Current and Historical Listing Form. Council submits that a search for the ‘Current and Historical Listing’ of the 2010 incidents reported by the applicant could not be undertaken when processing the access application or during conduct of the external review as the ‘wet weather event flag was not activated’.[30] Council provided the applicant with a copy of the script which refers to Council’s Contact Centre being notified by QUU that ‘the wet weather surcharge has been activated’ in the Current and Historical Listing Form. This in turn makes the Current and Historical Listing Form available to Council staff to search and/or enter reports of sewage overflow incidents. Council explained that the wet weather surcharge is only activated during a ‘heavy rain event’. Then, if people to call and inquire if their property has been affected by heavy rain events in the past, the system can be searched and relevant incidents recorded. Council further explained that if someone makes the same inquiry during ‘dry weather’, the Current and Historical Listing system cannot be searched or incidents recorded. The applicant’s access application refers to the sewage overflow incident on 24 April 2010 as a ‘dry weather event’ and Council has confirmed[31] that the wet weather flag was not activated on 16 February 2010. Council therefore submits that the Job Card and Call Centre record (category 1 and 2 documents) released to the applicant are Council’s record of the 2010 incidents reported by the applicant. On the basis of the above, I am satisfied that the 2010 incidents were not recorded in the Current and Historical Listing system as the system was not accessible for such records to be created. Therefore, I am satisfied that Council may refuse access to Category 4 documents under sections 47(3)(e) and 52(1)(a) of the RTI Act as there are reasonable grounds to be satisfied that documents sought in Category 4 do not exist. Category 5 Documents The applicant contends that the Category 5 document must exist, pointing to an email[32] from Councillor Sutton indicating QUU had advised her arrangements would be made to investigate the sewage issues at the applicant’s property and that she (Councillor Sutton) would receive a ‘written response in due course’. The applicant made an identical request for the Category 5 document in another external review.[33] OIC issued its decision on 13 May 2011 which detailed OIC’s finding that there were reasonable grounds to be satisfied that the Category 5[34] document does not exist because it was not created. The applicant claims, in her external review application,[35] that ‘my Federal Member has also written asking for same’. The applicant’s reference to additional documents from her Federal Member is outside the scope of her access application as she has specifically requested a copy of the written response that she believes was provided to Councillor Sutton from QUU. As the request for the Category 5 document has been sufficiently addressed in an earlier OIC decision, and the applicant has been unable to provide any further evidence to support her contention, I am satisfied that it is unnecessary to address the applicant’s request for the Category 5 document in any further detail. Category 6 Documents The applicant contends that further Category 6 documents must be within the possession of Councillor Sutton’s Morningside Ward Office (Morningside Ward Office). On external review, the applicant specifically sought: a file note relating to the applicant’s telephone call to the Morningside Ward Office on 6 February 2008; and correspondence from the Morningside Ward Office acknowledging the documents received from the Federal Member for Griffith. The applicant further contends that OIC staff would need to visit the Morningside Ward Office to be satisfied that all documents requested have been located. I do not accept the applicant’s contention. OIC staff contacted the Morningside Ward Office for information on its records management processes.[36] The Morningside Ward Office Manager explained that: the offices’ central electronic records management system is ‘ACT’ staff record contact with any person in ACT staff scan all correspondence and hardcopy records into ACT and attach it to the individual’s file ACT is searched by an individual’s name the applicant has records dating back to 2004 stored in ACT the office also uses ‘Electrac’ which is an Australian Labor Party (ALP) program which Councillors representing the ALP are entitled to load onto Council computers and is predominantly used for mail-merge projects staff can also attach notes to a record in Electrac Electrac is also searched by name and there is no history of the applicant in Electrac staff had physically inspected hard copy files; and it is the usual practice of the Morningside Ward Office not to acknowledge correspondence unless a specific request for confirmation of receipt is made. In relation to item a) above, I also refer to OIC’s decision in Middleton and Brisbane City Council,[37] where the applicant requested a file note of a telephone call to the Morningside Ward Office of 7 February 2008 rather than 6 February 2008.[38] With regard to item b) above, OIC has reviewed the documents provided to the Morningside Ward Office by the Federal Member for Griffith.[39] OIC has considered the relevant documents and there is nothing in the Federal Member’s correspondence to the Morningside Ward Office to indicate that it should respond to or acknowledge the documents received from the Federal Member for Griffith. In accordance with the usual practices of the Morningside Ward Office,[40] I accept its submission that no correspondence was created in response to documents received from the Federal Member for Griffith. The Morningside Ward Office has repeatedly searched for the requested documents. Both electronic and hard copy records as detailed at paragraph 52 above, have been interrogated on a number of occasions. In the circumstances I am satisfied that Council has taken all reasonable steps to locate Category 6 documents and there are reasonable grounds to be satisfied that no further Category 6 documents exist.[41] Conclusion For the reasons set out above, I find that there are reasonable grounds to be satisfied that no further Category 1 to 6 documents exist in accordance with section 52(1)(a) and access can therefore be refused under section 47(3)(e) of the RTI Act. DECISION I affirm Council’s decision to refuse access to the requested documents under sections 47(3)(e) and 52(1)(a) of the RTI Act on the basis that no further Category 1 to 6 documents exist. I have made this decision as a delegate of the Information Commissioner under section 145 of the RTI Act. ________________________ Jenny Mead Right to Information Commissioner Date: 6 September 2011 APPENDIX A Significant procedural steps Date[42] Event 14 May 2010 The applicant applied to Council under the RTI Act for a range of documents which broadly relate to sewerage overflow issues at her residence. 22 July 2010 Council located and released 660 documents to the applicant. 27 July 2010 The applicant applied to OIC for external review of Council’s RTI Decision of 22 July 2010 claiming that Council had not located all documents relevant to her access application. 12 August 2010 OIC informed Council and the applicant that the external review application had been accepted for review. 14 August 2010 OIC received submissions from the applicant. 6 September 2010 OIC received further submissions from the applicant. 29 October 2010 Council provided OIC with submissions and further information on the searches performed for documents relevant to the access application. 6 November 2010 The applicant provided further submissions to OIC. 19 January 2011 Council provided OIC with submissions and further information on the searches performed for documents relevant to the access application. 14 February 2011 Council provided further submissions to OIC. 22 February 2011 OIC conveyed a written preliminary view to the applicant that Council had taken all reasonable steps to locate the documents in issue and that there were reasonable grounds to be satisfied that no further documents exist in relation to the application. OIC invited the applicant to provide submissions in support of her case if she did not accept the preliminary view. 25 February 2011 OIC received submissions from the applicant. 25 May 2011 OIC requested further information from Council. 22 June 2011 Council provided further submissions to OIC. 27 June 2011 OIC received further submissions from Council. 13 July 2011 OIC obtained submissions from the Morningside Ward Office on its usual administrative procedures and searches performed. APPENDIX B Relevant provisions of the RTI Act Section 47 of the RTI Act provides: 47 Grounds on which access may be refused (1) This section sets out grounds on which access may be refused. (2) It is the Parliament's intention that – (a) the grounds are to be interpreted narrowly; and (b) an agency or Minister may give access to a document even if a ground on which access may be refused applies. (3) On an application, an agency may refuse access to a document of the agency and a Minister may refuse access to a document of the Minister – ... (e) because the document is nonexistent or unlocatable as mentioned in section 52; or ... Section 52 of the RTI Act provides: 52 Document nonexistent or unlocatable (1) For section 47(3)(e), a document is nonexistent or unlocatable if— (a) the agency or Minister dealing with the application for access is satisfied the document does not exist; or Example— a document that has not been created .... [1] 25 February 2011.[2] 22 February 2011.[3] Under section 52(1)(a) of the RTI Act. [4] Under section 47(3)(e) of the RTI Act.[5] Under section 52(1)(a) of the RTI Act. [6] Section 23 of the RTI Act. [7] As set out in section 47 of the RTI Act.[8] Section 47(3)(e) of the RTI Act.[9] Sections 47(3)(e) and 52 of the RTI Act at Appendix B.[10] See PDE and the University of Queensland (PDE) (Unreported, Queensland Information Commissioner, 9 February 2009).[11] Section 52(1)(a) of the RTI Act. [12] Although PDE concerned section 28A of the now repealed Freedom of Information Act 1992 (Qld), the requirements of that section are replicated in section 52(1) of the RTI Act and therefore, the reasoning in PDE can be applied in the context of the RTI Act. See also Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) made under the RTI Act.[13] See PDE.[14] In her submissions to OIC dated 14 August 2010. [15] In her submissions to OIC dated 14 August 2010.[16] Referring to sewage overflow incidents on 16 February 2010 and 24 April 2010.[17] In her submissions to OIC dated 25 February 2011.[18] In its submissions to OIC dated 19 January 2011.[19] Contained in Council’s ‘Network Sewerage City Drains Resp Main; Responsive Mtcc’ system.[20] As a separate agency to Council since 1 July 2010 and formerly known as Brisbane Water. [21] In its submissions provided to OIC staff by telephone on 16 June 2011.[22] See PDE. [23] Section 47(3)(e) and section 52(1)(a) of the RTI Act. [24] Section 47(3)(e) and sections 52(1)(a) of the RTI Act. [25] Including documents provided from the Department of Infrastructure and Planning, Queensland Building Services Authority and the Office of the Queensland Ombudsman.[26] OIC has viewed a copy of the 660 pages released to the applicant in this matter. It is not apparent on the face of these documents that further Category 3 documents should exist. [27] In Council’s submission 29 October 2010.[28] In its submissions dated 14 February 2011.[29] See PDE. [30] Council’s submissions dated 22 June 2010.[31] In its discussions with OIC staff on 27 June 2011.[32] Dated 17 February 2010. [33] OIC reference 310347; see www.oic.qld.gov.au for a copy of the decision of Middleton and Queensland Urban Utilities (Unreported, Queensland Information Commissioner, 13 May 2011). [34] The relevant request was referred to as the Category B document in OIC’s decision of 13 May 2011 (OIC reference 310347). [35] Dated 27 July 2010. [36] On 27 June 2011, OIC also received a signed Search Certification and Record of Searches from the Morningside Ward Office. [37] OIC reference 310175; see www.oic.qld.gov.au for a copy of the decision of Middleton and Brisbane City Council, (Unreported, Queensland Information Commissioner, 13 May 2011). [38] In case there was some confusion with the dates provided by the applicant, OIC noted that the applicant had received a copy of her letter of 7 November 2009 to Councillor Sutton which includes a hand-written record of telephone calls between the applicant and Councillor Sutton’s office on 6 January 2010 and 7 January 2010. This information was provided to the applicant in a preliminary view, however the applicant did not clarify the date of the file note she was seeking. [39] The applicant has sent correspondence to the Federal Member for Griffith, which it responded to and then forwarded copies to the Morningside Ward Office.[40] See PDE. [41] Section 47(3)(e) and section 52(1)(a) of the RTI Act. [42] Of correspondence or relevant communication unless otherwise indicated.

queensland

court_judgement

Queensland Information Commissioner 1993-

J84 and Office of the Health Ombudsman [2019] QICmr 42 (1 October 2019)

J84 and Office of the Health Ombudsman [2019] QICmr 42 (1 October 2019) Last Updated: 17 October 2019 Decision and Reasons for Decision Citation: J84 and Office of the Health Ombudsman [2019] QICmr 42 (1 October 2019) Application Number: 314466 Applicant: J84 Respondent: Office of the Health Ombudsman Decision Date: 1 October 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST - complaints about medical treatment - accountability and transparency in a complaints process - matter of serious interest to the community - assist inquiry into conduct of agency or official - personal information of other individuals - prejudice future supply of confidential information - whether disclosure would, on balance, be contrary to the public interest - whether access to information may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] under the Information Privacy Act 2009 (Qld) (IP Act) to the Office of the Health Ombudsman (OHO) for access to documents relating to her complaints about health practitioners. OHO located 938 pages and decided to refuse access to three full pages and parts of 22 pages[2] on the basis that disclosure of information would, on balance, be contrary to the public interest.[3] The applicant applied to the Office of the Information Commissioner (OIC) for external review of OHO’s refusal of access decision. The applicant’s submissions indicate that she holds significant grievances about her medical treatment and other dealings with government agencies. I affirm OHO’s decision to refuse access to information under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act, on the basis that its disclosure would, on balance, be contrary to the public interest. Background Significant procedural steps taken by OIC in conducting the external review are set out in the Appendix to these reasons. The decision under review is OHO’s refusal of access decision dated 20 February 2019. Evidence, submissions, legislation and other material considered in reaching this decision is referred to in these reasons (including footnotes and Appendix). Information in issue The information in issue appears in emails/correspondence, database entries, internal OHO forms, a proposed referral to AHPRA[4], an AHPRA assessment report, and mental health progress notes (about the applicant).[5] The majority of the Refused Information is about a medical practitioner who was the subject of one of the applicant’s complaints (Medical Practitioner Information).[6] The Refused Information also contains incidental references to other individuals[7] and contact details such as email/residential addresses and telephone numbers (Third Party Information).[8] Parts of the applicant’s mental health progress notes (Medical Records) are also in issue. Issue for determination The issue for determination in this review, is whether access to the Refused Information may be refused under the IP Act on the bases that disclosure would, on balance, be contrary to the public interest. Relevant law The IP Act provides individuals with a right to be given access to documents of a Queensland government agency, to the extent they contain the individual’s personal information.[9] This right, is however, subject to some limitations, including the grounds on which access to information may be refused.[10] Access may be refused to information if its disclosure would, on balance, be contrary to the public interest.[11] 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.[12] 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. Various factors may be relevant to deciding where the balance of the public interest lies[13] and a decision-maker is required to take specific steps in reaching a decision on disclosure.[14] The factors listed in schedule 4 to the RTI Act generally require that the particular outcome that the factor is intended to promote or protect against ‘could reasonably be expected’ to result from disclosure. In assessing whether an event ‘could reasonably be expected’ to occur, the Information Commissioner has found:[15] The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural “expectations”) and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist. Similarly, the words ‘could reasonably be expected’ have been interpreted in other jurisdictions as follows:[16] ... “require a judgement to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous” to expect a disclosure of the information in issue could have the prescribed consequences relied on. Taking the above into account, my assessment of, and findings in relation to, the public interest factors relevant in this case, are set out below. Findings No irrelevant factors arise in the circumstances of this case and I have not taken any into account in making my decision. I have had regard to the pro-disclosure bias, as required by section 64 of the IP Act. Factors favouring disclosure The applicant’s submissions discuss a range of issues associated with her negative experiences with healthcare providers and other government agencies. The applicant considers that she has been treated unfairly and refers to various incidents that she argues have caused her significant distress, and which she says have impacted the financial, social and health aspects of her life.[17] The public interest will favour disclosure of information that could reasonably be expected to: enhance the Government’s accountability[18] and inform the community of the Government’s operations[19] contribute to positive and informed debate on important issues or matters of serious interest[20]; and reveal the reason for a government decision and background/contextual information to the decision.[21] I accept that disclosure of some of the Refused Information, particularly the Medical Practitioner Information, would provide the applicant with a more comprehensive understanding of the background/contextual information that was available to OHO (and AHPRA) in making decisions in connection with the applicant’s complaints, and to a lesser extent, some further details about the decision making process. In considering the weight to be attributed to these factors, it is relevant that OHO granted the applicant access to over 900 pages in response to the access application. Having reviewed the released information, I consider it has served to significantly discharge the above public interest factors as the applicant has been well informed of the investigation and decision making process. In the circumstances, I am satisfied that these factors carry moderate weight in favour of disclosure. I also consider that the issue of medical practitioner conduct, and the vigour of investigations by regulatory agencies into complaints about medical practitioners, is a matter of serious interest to the general community. As stated above, a significant volume of information has already been disclosed to the applicant about the handling of her complaints, including outcome notifications. I consider this has served to discharge this public interest factor to some extent, and therefore, afford it moderate weight in favour of disclosure of the Medical Practitioner Information. The Medical Records comprise the applicant’s personal information. This raises a factor favouring disclosure which is routinely afforded significant weight due to the fundamental importance of individuals having access to their personal information held by a government agency.[22] In four pages of the Medical Records[23], I am satisfied that the applicant’s personal information is inextricably intertwined with the personal information of others such that it cannot be separated to allow disclosure. I am satisfied that this reduces the weight in favour of its disclosure to moderate, and also raises factors in favour of nondisclosure (in relation to safeguarding the personal information and right to privacy of other individuals, discussed below). Given the nature of the concerns raised by the applicant, including allegations of unjust treatment and abuse, I have also considered whether disclosure of the Refused Information could reasonably be expected to contribute to administration of justice, procedural fairness and/or advance her fair treatment.[24] The applicant has not specifically argued that she requires the Refused Information to assess or pursue a legal remedy or further complaints process.[25] Given the Refused Information is mostly about a medical practitioner, I am unable to identify how it could contribute to the administration of justice for the applicant, or advance her fair treatment and therefore, I find that these factors do not apply.[26] I do however, afford low weight to the public interest in procedural fairness as the Refused Information, particularly the Medical Practitioner Information, formed part of the body of evidence considered by OHO (and AHPRA) in dealing with the applicant’s complaint. The applicant raises a number of concerns about her treatment in the public health system, including allegations that mental health service providers are influenced by funding models.[27] Therefore, I have also considered whether disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct of an agency or official.[28] In determining the weight of this factor, I acknowledge that the Refused Information concerns complaints about medical treatment received by the applicant in the public hospital system. I also note that OHO and AHPRA have notified the applicant of the outcome of the investigations and information about the decision making/investigation process. However, I accept that disclosure of the Refused Information could reasonably be expected to allow or assist the applicant’s inquiry, but only minimally, given the particular nature of the Refused Information.[29] The applicant submits that she has been subjected to fraudulent and criminal acts,[30] therefore, I have also considered whether disclosure of the Refused Information would contribute to the enforcement of the criminal law[31] or could reasonably be expected to reveal the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[32] While I have considered these factors, there is insufficient evidence before me to establish that either factor applies in this case. For the sake of completeness, I cannot see how disclosure of the Refused Information could reasonably be expected to further any other pro-disclosure factors arguably arising from the applicant’s submissions, or any other information available to me. Factors favouring nondisclosure As noted above, the Refused Information is generally about other individuals, including names, contact details and other personal information.[33] The Medical Practitioner Information is of a particularly sensitive nature. Taking this into account, and given the complaint context in which the Refused Information appears, I find that the following factors favouring nondisclosure are relevant: disclosure could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person[34] disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy[35]; and prejudice the future supply of confidential information.[36] As I have stated, the Medical Practitioner Information is of a sensitive nature, as it relates to aspects of the practitioner’s conduct in his profession, in the context of an investigation of a complaint about the practitioner. While I am limited in the extent to which I can describe the exact content,[37] I am satisfied that it comprises his personal information, the disclosure of which could lead to a significant public interest harm and that it is not ‘routine’ in nature.[38] I also consider that disclosure would negatively impact the practitioner’s right to privacy. While the concept of ‘privacy’ is not defined in either the IP Act or the RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others.[39] While information about a person’s public service employment is not routinely considered to form part of their private sphere, the Medical Practitioner Information, is of such a nature that I am satisfied it attracts a significant level of privacy in this case. I am also satisfied that disclosure of certain Medical Practitioner Information[40] could reasonably be expected to prejudice the future supply of confidential information. Complainants/notifiers generally participate in complaint processes on the understanding that information they provide will only be used for the purpose of conducting the investigation, and any subsequent disciplinary processes. There is no information available to me to indicate that the information provided by other individuals, in this Assessment Report, was done so on any other basis. Given the sensitive nature of the information, I consider it reasonable to expect that it was provided with an expectation of confidentiality. I am satisfied that disclosing the information in the assessment report, under the IP Act, which imposes no restrictions on further dissemination, could reasonably be expected to impact on the ability of OHO[41] to obtain confidential information in future investigations into health practitioner conduct. I consider there is a reasonable likelihood that complainants/notifiers would be reluctant to fully cooperate in an investigation process. Accordingly, I am satisfied disclosure of the information could reasonably be expected to prejudice the future supply of confidential information in relation to health practitioner conduct investigations. In the circumstances, I afford this factor significant weight. The Third Party Information comprises the names and contact details of other individuals. On the spectrum of sensitivity, this information is not at the higher end, however, it still comprises the personal information of other individuals. The RTI Act recognises that disclosure of such information could reasonably be expected to lead to a public interest harm. In assessing the level of harm and weight of this factor, it is relevant that the applicant is likely to be aware of some of the information due to her role as complainant, and the subject matter being her medical treatment. Despite this, I am satisfied that the public interest factors which seek to protect other people’s personal information and privacy still apply to the Third Party Information, particularly given that the information appears in the context of a medical treatment complaint investigation. I afford these factors moderate weight in favour of nondisclosure of the Third Party Information. As noted at paragraph 10 above, information on four pages of the Medical Records comprises the personal information of other individuals, but appears within the applicant’s mental health progress notes. I am satisfied that information is ‘shared’ personal information which cannot be severed. I afford moderate weight in favour of nondisclosure of this information. Balancing of the relevant factors As I have canvassed in these reasons, the volume of information released to the applicant by OHO was extensive and served to comprehensively inform the applicant of the relevant investigation and decision making processes relating to her complaints about medical treatment. In view of that, and given the Refused Information is largely the personal information of other individuals, I find that the weight of the factors which seek to enhance the accountability and transparency of government complaint handling processes, is moderate. I also afford moderate weight to the public interest in contributing to positive and informed debate on a matter of serious interest, ie. thorough investigations into complaints about health practitioners. I am satisfied that there is a strong public interest in the applicant having access to her own personal information and have taken this into account in relation to certain parts of her Medical Records which remain redacted. However, as that information is intertwined with the personal information of others, I am satisfied it cannot be severed so as to allow disclosure and therefore, the weight in favour of disclosure is reduced to moderate. I have also found that disclosure of the Refused Information could reasonably be expected to contribute to procedural fairness and assist inquiry into possible deficiencies in conduct. However, the weight of those factors is only minimal given the particular nature of the Refused Information. Conversely, I am satisfied that the public interest factors which favour nondisclosure of other people’s personal information and are intended to safeguard other individuals’ private spheres, carry significant weight, particularly in relation to the Medical Practitioner Information, which is highly sensitive in nature. Those factors also carry moderate weight in protecting the Third Party Information, despite its reduced sensitivity. I am also satisfied that the public interest in ensuring the confidentiality of information provided by a complainant/notifier in an investigation into health practitioner conduct/medical treatment, and mitigating prejudice to its future supply, carries significant weight in favour of nondisclosure, in relation to information in the AHPRA assessment report. In view of the above, I find that that the factors favouring nondisclosure carry more weight than the pro-disclosure factors. On balance, I find that disclosure of the Refused Information would be contrary to the public interest and therefore, access to it may be refused under the IP Act.DECISION For the reasons set out above, I affirm OHO’s decision to refuse access to the Refused Information under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.K ShepherdAssistant Information CommissionerDate: 1 October 2019 Appendix Significant procedural steps Date Event 20 February 2019 OIC received the external review application. 21 February 2019 OIC notified the applicant and OHO that it had received that application for external review and requested relevant procedural documents. OIC received the requested documents from OHO. 6 March 2019 OIC notified the applicant and OHO that it had accepted the application for external review. 15 April 2019 OIC conveyed a preliminary view to the applicant that access to the information in issue may be refused. The applicant provided submissions to OIC in response, raising concerns about the preliminary view. 27 May 2019 OIC wrote to the applicant to confirm the preliminary view and gave her another opportunity to provide submissions. The applicant telephoned OIC to reiterate her concerns about OIC’s preliminary view. 14 and 24 June and 1 July 2019 The applicant telephoned OIC to provide further submissions. In these conversations, the applicant asked OIC to contact Legal Aid Queensland (LAQ) as LAQ had previously represented the applicant in other matters. LAQ subsequently confirmed to OIC that it was unable to assist the applicant in the external review process and that it would correspond with the applicant directly to confirm this. 2 July 2019 OIC received further written submissions from the applicant. OIC provided OHO with an update on the status of the review. 3 July 2019 The applicant provided further oral submissions to OIC. 4 July 2019 OIC wrote to the applicant to confirm her submissions were being considered, and that a formal written decision would be required to finalise the review. 17 September 2019 OIC provided OHO with an update on the status of the review, and conveyed a view that some of the information in issue on pages 246 and 247 would not, on balance, be contrary to the public interest to disclose. OHO agreed with OIC’s view and agreed to disclose the information to the applicant. [1] Email dated 11 January 2019.[2] OHO granted access to 913 pages in full and the remaining parts of the 22 pages. [3] Decision dated 20 February 2019, relying on section 67(1) of the IP Act and section 47(3)(b) of the Right to Information Act 2009 (Qld) (RTI Act).[4] OHO receives all complaints about health practitioners in Queensland, but in dealing with a complaint, OHO has the discretion to refer certain complaints to the Australian Health Practitioners Registration Agency (AHPRA) to manage. [5] Parts of 21 pages and three full pages (of the AHPRA assessment report). In these reasons, I have collectively referred to the information in issue as the Refused Information. The number of part release pages which is the subject of this decision (21) is one less than what was originally in issue, due to the agreement of OHO (at a late stage of the review) to release some additional information to the applicant (as referred to in the Appendix). [6] Pages 170-171, 196, 247, 249-252. [7] Including basic contact details of the medical practitioner referred to at paragraph 9. [8] One page (page 356) also contains information and personal details of a second medical practitioner who was the subject of another complaint made by the applicant (which OHO decided not to investigate). As it is of a less sensitive character to the Medical Practitioner Information, I have therefore, categorised it with the Third Party Information. [9] Section 40 of the IP Act. [10] The grounds are set out in section 47 of the RTI Act. Section 67(1) of the IP Act provides that access may be refused to information in the same way and to the same extent as information may be refused under the RTI Act[11] Section 47(3)(b) of the RTI Act. [12] 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. [13] Including the non-exhaustive list of factors in schedule 4 of the RTI Act. [14] Section 49 of the RTI Act. The steps include: disregarding any irrelevant factors, identifying relevant factors favouring disclosure and nondisclosure and balancing the relevant factors. [15] B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at [154]- [160].[16] 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.[17] Submissions to OIC dated 2 July 2019.[18] Schedule 4, part 2, item 1 of the RTI Act.[19] Schedule 4, part 2, item 3 of the RTI Act.[20] Schedule 4, part 2, item 2 of the RTI Act.[21] Schedule 4, part 2, item 11 of the RTI Act.[22] Schedule 4, part 2, item 7 of the RTI Act.[23] Mental Health Progress Notes at pages 774, 870, 872 (duplicated at 873). The only other information redacted from other pages of the progress notes consists of contact telephone numbers of other individuals (eg. friends/family). [24] Schedule 4, part 2, items 10, 16 and 17 of the RTI Act. [25] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368. The Information Commissioner found that administration of justice considerations will arise for contemplation in balancing the public interest where disclosure of information would assist in the pursuit of a legal remedy, or to evaluate whether a remedy is available or worth pursuing.[26] If I am incorrect in this finding and these factors do apply, I would afford them nominal weight, given the nature of the Refused Information.[27] Submissions to OIC dated 2 July 2019.[28] Schedule 4, part 2, item 5 of the RTI Act.[29] I have also turned my mind to the public interest factor in schedule 4, part 2, item 6 of the RTI Act which seeks to promote disclosure of information that may reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct. However, on the face of the information available to OIC, I have not been able to establish the requirements for this factor to apply. Also, having regard to the limitations in section 120 and 121 of the IP Act, this is not an appropriate case for me to make a hypothetical finding as to the potential application of this factor. [30] Submissions to OIC dated 2 July 2019.[31] Schedule 4, part 2, item 18 of the RTI Act. [32] Schedule 4, part 2, item 12 of the RTI Act. [33] Defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[34] Schedule 4, part 4, section 6 of the RTI Act.[35] Schedule 4, part 3, item 3 and the RTI Act.[36] Schedule 4, part 4, section 8(1) of the RTI Act.[37] Sections 120 and 121 of the IP Act. [38] Information relating to day-to-day work activities and responsibilities of a public service employee may generally be disclosed despite it falling within the definition of personal information. However, agency documents can also contain personal information of public servants, which is not routine work information and to which nondisclosure factors will apply: Underwood and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 18 May 2012) at [60]. [39] Paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 12 August 2008, at paragraph 1.56.[40] Page 251, comprising a page of assessment report prepared by AHPRA in managing the complaint referred to it by OHO. [41] Including associated bodies, such as AHPRA and the various health practitioner registration boards, which manage complaints referred to them by OHO.

queensland

court_judgement

Queensland Information Commissioner 1993-

Mathews and Department of Transport and Main Roads [2013] QICmr 23 (28 August 2013)

Mathews and Department of Transport and Main Roads [2013] QICmr 23 (28 August 2013) Last Updated: 7 August 2014 Decision and Reasons for Decision Application Number: 311110 and 311176 Applicant: Mathews Respondent: Department of Transport and Main Roads Decision Date: 28 August 2013 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – EXEMPT INFORMATION – LEGAL PROFESSIONAL PRIVILEGE – access refused to documents - whether information is exempt on the basis of legal professional privilege under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 and schedule 3, section 7 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – EXEMPT INFORMATION – SERIOUS ACT OF HARASSMENT OR INTIMIDATION – access refused to documents - whether information is exempt because disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation – section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 and schedule 3, section 10(1)(g) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – access refused to documents – whether information concerns applicant’s personal information – – whether information is outside scope of the access application – sections 40 and 47 of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary In two access applications, the applicant applied to TransLink Transit Authority (TransLink) under the Information Privacy Act 2009 (Qld) (IP Act) for: all information about him on TransLink files up to 17 May 2012 (First Application); and all information about him on TransLink files from 17 May to 21 July 2012, including documents related to the processing of his First Application (Second Application). In response to the First Application, TransLink identified documents comprising 2,318 pages in total. It refused access to some pages and parts thereof on the basis that the information was subject to legal professional privilege or its disclosure would, on balance, be contrary to public interest. TransLink also excluded other information from consideration on the basis that it was irrelevant to the access application. In response to the Second Application, the Department of Transport and Main Roads (Department)[1] identified documents comprising 672 pages and made a decision on the same basis. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the two decisions insofar as they refused access to information. During the external reviews, a number of issues were informally resolved and the Department gave the applicant access to additional information. Following this process, the applicant has, in total, obtained access to: 737 entire pages and parts of 171 pages responsive to his First Application; and 80 entire pages and parts of 206 pages responsive to his Second Application. With respect to the remaining Information in Issue, for the reasons set out below, the Department was entitled to: refuse access to the Category A information as it is subject to legal professional privilege refuse access to the Category B information as its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation; and exclude the Category C information from consideration as it is outside the scope of both access applications. Background Significant procedural steps relating to the applications and the external reviews are set out in the appendix to this decision. Reviewable decisions The decisions under review in external reviews 311110 and 311176 respectively are: TransLink’s internal review decision dated 18 July 2012 (First Decision); and the Department’s internal review decision dated 17 September 2012 (Second Decision). Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). Issues resolved during external reviews During the external reviews, the Department accepted OIC’s view that some information that the Department considered to irrelevant to the access applications was within scope and therefore subject to consideration in the reviews.[2] Some of this information was not released to the applicant on the basis that it comprises either Category A information[3] or Category B information,[4] for the reasons set out below. Additionally, the Department accepted OIC’s view that a document[5] correctly identified by TransLink as being outside the scope of the First Application, was within the scope of the Second Application.[6] This document contains Category B information, for the reasons set out below. Issues for determination The specific issues for determination are whether: the Category A information comprises exempt information on the basis that it is subject to legal professional privilege[7] the Category B information comprises exempt information on the basis that it could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation;[8] and the Category C information is outside the scope of the First Application and the Second Application.[9] Is the Category A information subject to legal professional privilege? Yes, for the reasons that follow. The Category A information comprises 1,380 entire pages and parts of 44 pages responsive to the First Application and 314 entire pages and parts of 7 pages responsive to the Second Application.[10] Relevant law Under the IP Act, an individual has a right to be given access to documents of an agency to the extent the documents contain the individual’s personal information. However, this right is subject to limitations, including grounds for refusal of access.[11] The Right to Information Act 2009 (RTI Act) provides that access may be refused to documents to the extent that they comprise exempt information.[12] Schedule 3 of the RTI Act sets out categories of information the disclosure of which Parliament has deemed to be contrary to the public interest, and therefore exempt from disclosure.[13] Schedule 3, section 7 of the RTI Act provides that information will be exempt from disclosure if it would be privileged from production in a legal proceeding on the ground of legal professional privilege. This exemption reflects the requirements for establishing legal professional privilege at common law.[14] Confidential communications between a lawyer and client will be privileged where the communications are for the dominant purpose of seeking or giving legal advice (advice privilege) or use in existing or anticipated legal proceedings (litigation privilege).[15] The dominant purpose is ‘the ruling, prevailing, or most influential purpose’[16] and is to be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions. Legal professional privilege will also protect further communication of the above types of communication between parties, where each party has a common or mutual interest in obtaining legal advice or representation with respect to actual or anticipated litigation.[17] Findings The Category A information comprises confidential communications: between: the Department’s internal legal advisers and Departmental staff; or the Department’s external legal advisers and the Department’s internal legal advisers or Departmental stafffor: the purpose of seeking and providing legal advice; or use in, or in relation to, existing or anticipated legal proceedings[18] in the Australian Human Rights Commission against the Department in 2010 and against the Department’s contracted service provider in 2012; or between the Department and its contracted service provider, for the purpose of sharing legal advice, or obtaining evidence for use in, or in relation to, the proceedings in the Australian Human Rights Commission. 19. I am satisfied that the dominant purpose for the communications involving its internal and/or external legal advisers was seeking or providing legal advice, or obtaining evidence for the Department’s use in, or in relation to, legal proceedings. In this regard, I consider that proceedings before the Australian Human Rights Commission are sufficiently analogous to court proceedings to warrant recognition of the privilege.[19] Further, I am satisfied that the contracted service provider and the Department had a common or mutual interest in the defence of their respective legal proceedings (which encompassed the same issues), and therefore a common or mutual interest in relevant parts of the Category A information (which comprised advice regarding the issues, or material created for the use in, or in relation to, those proceedings). The applicant submits[20] that: “phoney” client privilege is being used to protect criminal preparations, in that Translink is requiring him to comply with registration requirements under the Guide, Hearing and Assistance Dogs Act 2009 (Qld) (GHAD Act) but, in his view, section 38 of that Act does not meet requirements of sections 9 and 54A of the Disability Discrimination Act 1992 (Cth) (DDA Act); and communications between the Department’s internal legal advisers and Departmental staff will only attract legal professional privilege if details regarding qualifications and dates of admission are provided. Given the applicant’s submissions, I have considered whether legal professional privilege does not attach to the Category A information because: the improper purpose exception[21] applies; or there is insufficient evidence to conclude that the professional relationship and independence element[22] of legal professional privilege is met. Improper purpose In Secher and James Cook University[23] the Assistant Information Commissioner considered the improper purpose exception to legal professional privilege and explained that: Legal professional privilege will not apply to legal communications made in the furtherance of a fraud or crime. This exception operates to displace legal professional privilege where evidence exists that the relevant client has embarked on a deliberate course of action knowing that the proposed actions were contrary to law, and has made the relevant communications in furtherance of that illegal or improper purpose. The person alleging that privilege has been displaced by reason of an alleged illegal or improper purpose must show that it is made out in the current circumstances. In establishing improper purpose, the standard of proof is high. The High Court has observed that it “is a serious thing to override legal professional privilege where it would otherwise be applicable” and as a result “vague or generalised contentions of crimes or improper purposes will not suffice.” I have carefully considered the applicant’s submissions together with the Category A information. My jurisdiction to consider these submissions is limited, given the issues and legislation they traverse. In any event, even if section 38 of the GHAD Act does not meet requirements of sections 9 and 54A of the DDA Act (about which I make no finding, given the limits on my jurisdiction), there is no evidence on the face of the Category A information, or otherwise before me, that the particular communications were made in furtherance of an illegal or improper purpose associated with registration requirements for assistance animals, or any other illegal or improper purpose. In these circumstances, I am satisfied that the improper purpose exception does not preclude the application of legal professional privilege to the Category A information. Department’s internal legal advisers Legal professional privilege may protect communications between a salaried employee legal adviser of a government department or statutory authority and his/her employer as the client, including communications through other employees of the same employer, provided there is a professional relationship of legal adviser and client, which secures to the advice an independent character, notwithstanding the employment.[24] In response to OIC inquiries regarding the status of the various Departmental officers identified in the Category A information as ‘Principal Legal Officer’ or ‘Manager’ in the Department’s unit responsible for providing legal services, the Department confirmed that officers holding such positions in that unit are appropriately qualified and engaged for the entirety of their positions in providing independent legal advice and support to the Department. Given that information, I am satisfied that the Department’s internal legal advisers acted in a professional, independent capacity, and accordingly, communications involving them may attract legal professional privilege. In conclusion, I find that the entirety of the Category A information satisfies the common law requirements for establishing legal professional privilege. Could disclosure of the Category B information reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation? Yes, for the reasons that follow. The Category B information comprises parts of 143 pages responsive to the First Application and parts of 205 pages responsive to the Second Application.[25] Relevant law Schedule 3, section 10(1)(d) of the RTI Act provides that information is exempt if its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation. The RTI Act does not define ‘a serious act of harassment or intimidation’ - therefore the terms should be given their ordinary meanings. The Information Commissioner has previously accepted the following dictionary definitions:[26] 'harass' includes 'to trouble by repeated attacks, ... to disturb persistently; torment’; and 'intimidate' includes ‘to make timid, or inspire with fear; overawe; cow ... to force into or deter from some action by inducing fear’. Further, the Information Commissioner has noted that some degree of harassment or intimidation is permissible before this exemption will apply.[27] Therefore, the expected harassment or intimidation must be serious in nature for schedule 3, section 10(1)(d) to apply. Relevant dictionary definitions of ‘serious’ include ‘weighty or important’,[28] ‘giving cause for apprehension; critical’,[29] and ‘having (potentially) important, esp. undesired, consequences; giving cause for concern’.[30] In Sheridan the Information Commissioner considered the phrase ‘could reasonably be expected to’ and found that, depending on the circumstances of the particular review, a range of factors may be relevant in determining whether an expectation is reasonably based. These factors may include, but are not limited to:[31] past conduct or a pattern of previous conduct the nature of the relevant matter in issue the nature of the relationship between the parties and/or relevant third parties; and relevant contextual and/or cultural factors. Findings The Category B information comprises information that identifies individuals, including staff of the Australian Human Rights Commission, the Department and one of its service delivery providers, and their contact details.[32] Is the expected harassment and/or intimidation serious in nature? I have carefully considered the information available to me, including the Department’s submissions, information released to the applicant by the Department, information on the applicant’s website and the Category B information. Documents that the Department released to the applicant under the First Decision, containing information that identifies certain individuals, have been posted on the applicant’s website accompanied by offensive and abusive remarks directed at those individuals. Further, the applicant’s website explicitly notes that it is his intention that potential future employers of individuals included on his website will, if they conduct internet searches of the individuals’ names, be directed to comments on the applicant’s website belittling and deriding them, in order to adversely affect their future employment prospects. After taking into account all of the information available to me, I have formed the view that this behaviour constitutes harassment, as the applicant’s actions are actions that attack, disturb or torment other persons. I also consider the applicant’s actions to be acts of intimidation, as his behaviour has, as intended, induced fear among some individuals regarding their current employment and future career prospects. While the posting of commentary such as that appearing on the applicant’s website alone may be insufficient to reach the threshold of a ‘serious act of harassment or intimidation’, the relevant commentary may be viewed in conjunction with its malicious intention of causing professional detriment to those referred to (as stated on his website). In these circumstances, I am satisfied that the applicant’s conduct is sufficiently concerning to constitute serious acts of harassment and intimidation of the individuals concerned. Is the expectation reasonably based and does it arise as a result of disclosing the Category B information?[33] As set out above, I consider that the applicant seriously harassed and intimidated individuals identified in information released to him by the First Decision. In this regard, I consider the applicant’s conduct occurred as a result of the disclosure of information similar to the Category B information. Further, I am satisfied that the applicant’s conduct regarding this similar information provides the necessary causal link[34] to establish a reasonable expectation that, if the Category B information is disclosed to the applicant, he will subject the individuals identified in it to similar serious acts of harassment or intimidation. That is, I am satisfied that the applicant’s website posts and comments regarding persons mentioned in the Category B information could reasonably be expected to commence, resume or intensify as a result of disclosure of that information. The applicant submits, in the context of this issue, that he was recently the victim of violence by three TransLink officers. He states he was assaulted by the TransLink officers on 5 March 2013 while on a bus with his assistance animals, and sustained injuries to his shoulder. On the information before me, I am unaware of any investigations undertaken in respect of the applicant’s allegation. In any event, I acknowledge the serious nature of the allegation and the applicant’s related antipathy towards the Department. However, I also note that the applicant’s submissions do not address his previous conduct towards individuals identified in information released to him by the First Decision, or the future likelihood of such conduct by him if he was able to access the Category B information. The applicant’s submissions therefore provide no evidence to counter or put into context the balance of information on this issue before me. Potentially, the applicant’s expressed antipathy towards the Department prompted by the alleged incident may increase the likelihood that the applicant may engage in serious acts of harassment and intimidation towards individuals identified in the Category B information. Whether or not this is the case, taking into account the causal link mentioned above and the lack of any evidence to suggest otherwise, I am satisfied that the expectation for future acts of this nature is reasonably based. In conclusion, I find that disclosure of the Category B Information could reasonably be expected to result in individuals being subjected to serious acts of harassment or intimidation. Is the Category C information outside the scope of each of the two access applications? Yes, for the reasons that follow. The Category C information comprises 100 entire pages and parts of 2 pages (the remainder of which comprise Category A information). Relevant law Under the IP Act, a person has a right to be given access to documents of an agency, to the extent the documents contain the individual’s personal information.[35] As the access applications are made under the IP Act, access may be refused to documents which do not contain the applicant’s personal information.[36] If any of the documents located in response to an access application under the IP Act do not contain the applicant’s personal information, the documents will not respond to the access application.[37] Additionally, access may be refused to documents which were not in existence when the particular access application was made.[38] Findings The terms of the First Application are: I now seek access to all information on any and every document that contains any information that relates to me, is relevant to me or is in any way personal to me, that is contained in any Files in the possession of TransLink. The terms of the Second Application are the same, except that it further specifies: AND that have come into existence or the possession or control of Translink subsequent to the date or time of myu [sic] previous request for such. This will include all documents produce [sic] in the process of fulfilling my previous IP application. I have carefully examined the Category C information. I am satisfied that it: post-dates both applications; or contains no information relating to the applicant. Information that post-dates the applications Some of the Category C information post-dates 21 July 2012, and therefore post-dates both the date on which Department received the First Application on 17 May 2012 and the date on which the Department received the Second Application on 21 July 2012. Given section 47(1) of the IP Act – which provides that an access application only applies to documents in existence on the day the application is received by the agency – I am satisfied that the Category C information that post-dates 21 July 2012 is outside the scope of both applications and cannot be considered in either review. Information other than the applicant’s personal information The remaining Category C information that does not relate to the applicant either: concerns complaints by persons other than the applicant relates to another person’s access to Departmental information; or relates to other issues, such as the Department’s website or general policy issues, and does not refer to the applicant. The applicant made submissions regarding information concerning complaints lodged by persons other than him that: Because Translink has acted unlawfully to me for as long as it has existed, complaints by other persons are not of no concern to me. However, both the specific terms of the two access applications, and the fact that they were made under the IP Act, constrain responsive information to information that is the applicant’s personal information. The applicant’s interest in accessing information about other persons who may have complaints about TransLink does not render that information the applicant’s personal information, and consequently cannot have the effect of enlarging the scope of his access applications. I am satisfied that information concerning other persons’ complaints falls outside the scope of both of the First Application and the Second Application. Similarly, I am satisfied that the remaining information unrelated to the applicant (regarding another person’s access application and issues such as the Department’s website or general policy issues) does not comprise the applicant’s personal information, and is therefore outside the scope of both applications. In summary, I find that the Category C information falls outside the scope of both the First Application and the Second Application and therefore cannot be considered in either review. DECISION For the reasons set out above, I vary the First Decision and the Second Decision under review and find that: access to the Category A information can be refused on the basis that it comprises exempt information as it is subject to legal professional privilege[39] access to the Category B information can be refused as its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation;[40] and access to the Category C information can be refused as it is outside the scope of the First Application and the Second Application.[41] I have made this decision as a delegate of the Information Commissioner, under section 139 of the Information Privacy Act 2009 (Qld). ________________________ Anna Rickard Acting Assistant Information Commissioner Date: 28 August 2013 APPENDIX Review 311110 - significant procedural steps Date Event 17 May 2012 TransLink received the access application under the RTI Act. 20 June 2012 TransLink issued its initial decision to the applicant. 22 June 2012 TransLink received the internal review application. 18 July 2012 TransLink issued its internal review decision to the applicant. 19 July 2012 OIC received the external review application. OIC asked TransLink to provide a number of procedural documents by 24 July 2012. 20 July 2012 OIC received the requested documents from TransLink. 23 July 2012 OIC notified the applicant and TransLink that it had accepted the external review application and asked TransLink to provide a copy of the documents in issue. 2 August 2012 OIC received the requested information from the Department. Review 311176 - significant procedural steps Date Event 21 July 2012 TransLink received the access application under the RTI Act. 28 August 2012 The Department issued its initial decision to the applicant. 28 August 2012 The Department received the internal review application. 17 September 2012 The Department issued its internal review decision to the applicant. 17 September 2012 OIC received the external review application. 18 September 2012 OIC asked the Department to provide a number of procedural documents by 21 September 2012. 21 September 2012 OIC received the requested documents from the Department. 8 October 2012 OIC asked the Department to provide a list identifying documents in the review and the Department provided OIC with the requested list. 10 October 2012 OIC notified the applicant and the Department that it had accepted the external review application. Reviews 311110 and 311176 - significant procedural steps Date Event 31 January 2013 OIC provided the applicant and Department with an update on the status of the external reviews. 11 March 2013 OIC requested that the Department provide information about documents released to the applicant under its decisions and the Department provided this information. 19 March 2013 OIC requested that the Department provide additional information about documents released to the applicant. 20 March 2013 OIC requested that the Department provide further information about documents released to the applicant. 21 March 2013 The Department provided information to OIC about documents released to the applicant. 22 March 2013 The Department provided further information to OIC about documents released to the applicant. 3 May 2013 OIC conveyed a preliminary view to the Department regarding information in issue in the reviews. 16 May 2013 The Department notified OIC that it accepted the preliminary view. 21 May 2013 OIC asked the Department to provide information that it no longer refused to disclose to the applicant by 27 May 2013. 13 June 2013 The Department notified OIC that it had provided the applicant with the relevant information. 18 June 2013 OIC conveyed a preliminary view to the applicant regarding information in issue in the reviews. 18 June 2013 The applicant notified OIC that he did not accept the preliminary view and provided submissions supporting his case in three emails. 15 July 2013 OIC requested that the Department provide information regarding its internal legal advisers and the Department provided that information. 19 August 2013 OIC conveyed a preliminary view to the applicant regarding information outside the scope of the two applications by two emails. 26 August 2013 OIC requested that the Department provide further information regarding individuals’ concerns and fears following publication of personal information responsive to the First Application by the applicant, and the Department provided that information. [1] Following machinery-of-Government changes implemented on 2 August 2012, TransLink became part of the Department. [2] In review 311110: File A, pages 173-289. In review 311176: pages 26-27, 54-63 and 615. [3] In review 311110: File A, pages 173-289. In review 311176: page 615.[4] In review 311176: pages 26-27 and 54-63. [5] In review 311110: File A, page 300.[6] As it concerns the applicant and is dated prior to the date that the Second Application was received by the Department – section 47 of the IP Act.[7] Sections 47(3)(a), 48 and schedule 3 section 7 of the RTI Act. [8] Sections 47(3)(b) and 49 of the RTI Act. [9] Section 40 of the IP Act.[10] Note – some of the part pages also contain Category B information.[11] The grounds for refusal are set out in section 47(3) of the RTI Act. [12] Section 47(3)(a) of the RTI Act. [13] Section 48(2) of the RTI Act. [14] Ozcare and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 May 2011) at [12].[15] The general principles of legal professional privilege were summarised by the High Court of Australia in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9] as follows: ‘It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings...’’[16] Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 at [416].[17] Buttes Gas & Oil Co and Anor v. Hammer and Anor (No.3) [1981] QB 223 at 243; Bulk Materials (Coal Handling) Services Pty Ltd v. Coal and Allied Operations Pty Ltd (1988) 13 NSWLR 689 at 691,696; and Southern Cross Airlines Holdings Ltd (in liq) v Arthur Anderson & Co [1998] FCA 963; (1998) 84 FCR 472 at 480.[18] Discrimination complaint proceedings concerning the provision of transport services.[19] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 69 ALR 31 at 41; and Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792 at [19]. [20] Submissions dated 18 June 2013.[21] Where a communication is made in furtherance of an illegal or improper purpose or, a purpose that is contrary to the public interest.[22] Which requires that communications involving an agency’s internal legal adviser occur in his/her capacity as a professional legal adviser.[23] (Unreported, Queensland Information Commissioner, 6 June 2012) at [20] and [21]. [24] Waterford v Commonwealth [1987] HCA 25; (1986) 163 CLR 54, 62 (Mason and Wilson JJ). [25] Note – some of the part pages also contain Category A information.[26] Ogawa and Queensland Police Service (Unreported, Queensland Office of the Information Commissioner, 21 June 2012) applying Sheridan and South Burnett Regional Council (and others) (Unreported, Queensland Information Commissioner, 9 April 2009) (Sheridan) at paragraphs 194-197 referring to the Macquarie Dictionary Online (Fourth Edition). The decision in Sheridan concerned section 42(1)(ca) of the now repealed Freedom of Information Act 1992 (Qld). Schedule 3, section 10(1)(d) of the RTI Act is drafted in substantially the same terms as the provision considered in Sheridan. Therefore, the Information Commissioner’s findings in that matter are relevant in interpreting schedule 3, section 10(1)(d) of the RTI Act.[27] Sheridan at [187].[28] Macquarie Dictionary Online (Fifth Edition).[29] Macquarie Dictionary Online (Fifth Edition).[30] New Shorter Oxford Dictionary (Fourth Edition), as quoted by the Information Commissioner in Sheridan.[31] Sheridan at [193].[32] The Category B information comprises: names, position, signatures, telephone numbers (including mobile telephone numbers), fax numbers, email addresses, photographs. In the First Decision and the Second Decision, the Department refused access to the Category B Information on the basis that, on balance, disclosure would be contrary to the public interest under section 47(3)(b) and section 49 of the RTI Act. [33] Rather than independently or from any other circumstances.[34] Richards and Gold Coast City Council (Unreported, Queensland Information Commissioner, 28 March 2012) at [21] adopting the reasoning in Sheridan at [307]. [35] Section 40 of the IP Act.[36] Personal information is defined in section 12 of the IP Act as: information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.[37] Mahoney and Ipswich City Council (Unreported, Queensland Information Commissioner, 17 June 2011) at [17]. [38] Under section 47(1) of the IP Act, an access application is taken to apply only to documents that are, or may be, in existence on the day the application is made. [39] Sections 47(3)(a) and 48 and schedule 3 section 7 of the RTI Act.[40] Sections 47(3)(b) and 49 of the RTI Act. [41] Section 40 of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Frecklington, MP and Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships [2018] QICmr 51 (13 December 2018)

Frecklington, MP and Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships [2018] QICmr 51 (13 December 2018) Last Updated: 20 December 2018 Decision and Reasons for Decision Citation: Frecklington, MP and Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships [2018] QICmr 51 (13 December 2018) Application Number: 314025 Applicant: Mrs Deb Frecklington MP, Leader of the Opposition Respondent: Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships Decision Date: 13 December 2018 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - UNLOCATABLE AND NONEXISTENT DOCUMENTS - SMS messages on mobile devices - whether respondent has taken all reasonable steps to locate documents - sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the respondent under the Right to Information Act 2009 (Qld) (RTI Act) for access to ‘[a]ll SMS messages sent and received between Curtis Pitt, Jackie Trad and Philip Strachan about QR’ between 15 February 2017 and 25 May 2018. The applicant’s access application was, as I understand, informed at least in part by an email from Mr Phillip Strachan to the former Treasurer and the current respondent, dated 16 February 2017, and published to Queensland Treasury’s (QT) disclosure log.[2] That email includes the statement that Mr Strachan intended to ‘brief you [the former Treasurer] and the Deputy Premier [the respondent] on progress verbally or via text to your mobile phones’. Searches were conducted of relevant mobile devices.[3] No responsive documents were found. QT, directed to deal with RTI applications on behalf of the respondent, therefore refused access to requested SMS messages, on the grounds they were nonexistent or unlocatable.[4] I am satisfied QT’s decision was justified. I affirm that decision. Background Significant procedural steps taken in this external review are set out in the Appendix. Reviewable decision The decision under review is QT’s decision dated 29 June 2018, made under the authority of the respondent. 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 whether the respondent was justified in refusing access to requested documents under section 47(3)(e) of the RTI Act, on the grounds those documents are nonexistent or unlocatable. Under the RTI Act, a document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[5] A document is unlocatable if it has been or should be in a Minister’s possession and all reasonable steps have been taken to find the document but it cannot be found.[6] To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience, having regard, as circumstances may require, to various factors, including considerations reasonably inferable from information supplied by an applicant.[7] Similar considerations apply as regards a finding that documents are unlocatable.[8] Importantly, if, as here, searches for documents are conducted, it must be shown that all reasonable steps have been taken to locate requested documents.[9] Accordingly, the key issue to be resolved in this matter is whether all reasonable steps have been taken to locate the documents requested by the applicant. Applicant’s submissions The applicant does not accept that all reasonable steps have been taken in this case. The applicant firstly doubted that the respondent’s devices would contain requested messages: ...[S]earches performed were insufficient, as the current devices are not likely to hold all messages sent and received. It’s likely that in the period from February 2017 to now, the devices may have been swapped or upgraded. ...the more complete way to search would have been for the Treasury RTI officer to have requested the Deputy Premier to produce her Telco’s network records of all messages sent and received.[10] The respondent confirmed during the review that devices had not been changed in the relevant period, which advice was conveyed to the applicant.[11] The applicant maintained, however, that the respondent should be required to request ‘the old SMS messages’ from the respondent’s telecommunications services provider.[12] Discussion and findings Following receipt of the applicant’s access application, the respondent’s mobile devices were, as noted, searched. As also noted, these searches located no relevant documents, and on this basis the respondent refused access to requested documents, under section 47(3)(e) of the RTI Act. There is nothing before me to call into question the respondent’s account of its search efforts – and the results of those efforts – which I accept as accurate. Given: the nature of the documents requested (SMS messages); and the fact that there is no conclusive evidence any such messages were ever created,[13] I consider that all reasonable steps to locate requested documents – ie, searches of devices that would have sent or received any such messages – have been taken. Access to requested documents may therefore be refused, under section 47(3)(e) of the RTI Act, on the basis those documents are nonexistent or unlocatable within the meaning of section 52(1) of the RTI Act. In reaching this finding, I have taken into account Mr Strachan’s suggestion that he may contact the respondent by way of mobile phone text message. Mr Strachan’s advice in this regard was, however, equivocal; SMS message is one of two communication methods proposed in his email. Of itself, I do not consider Mr Strachan’s statement calls into question the decision under review.[14] I have also had regard to the applicant’s submissions, as canvassed at paragraphs 13 and 14 above. Regarding ‘swapping’ of devices, it is not clear to me that a mere change in device would render inaccessible messages sent or received through accounts or services accessed via that device, and its replacements. In any event, this is not a matter on which I need to dwell: as noted above, the respondent has confirmed that there was no change in device. As for the submission that the respondent should be required to request the ‘old SMS messages’ from its telecommunications services provider: in view of considerations recorded above, I do not consider that reasonable search efforts require any such inquiry. There is, as noted, nothing conclusively establishing that there ever existed any ‘old SMS messages’ of the kind requested by the applicant. In these circumstances, searches of the actual devices that may have sent or received such messages adequately discharge the obligation on the respondent to take all reasonable steps to locate documents.[15] DECISION I affirm the decision under review. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI ActLouisa LynchRight to Information CommissionerDate: 13 December 2018 APPENDIX Significant procedural steps Date Event 5 July 2018 OIC received the external review application. 6 July 2018 OIC requested procedural documents from QT. 13 July 2018 OIC received the requested documents from QT. 19 July 2018 OIC notified the applicant and QT that it had accepted the external review application. 19 September 2018 OIC requested and received search records from QT. 20 September 2018 OIC requested further information concerning status of devices. 5 October 2018 OIC received further information from QT. 18 October 2018 OIC requested further information from QT concerning status of devices. 23 October 2018 OIC received requested information from QT. OIC wrote to the applicant, conveying a preliminary view requested information was nonexistent/unlocatable. 25 October 2018 OIC received submissions from the applicant. 6 November 2018 OIC wrote to the applicant, reiterating OIC’s 23 October 2018 preliminary view. 12 November 2018 OIC received further submissions from the applicant. [1] Application dated 25 May 2018.[2] https://s3.treasury.qld.gov.au/files/TCM827_Release-for-DL.pdf, ‘RTI Document No. 89’.[3] Search record dated 4 June 2018.[4] Section 47(3)(e) and section 52 of the RTI Act. [5] Section 52(1)(a) of the RTI Act.[6] Section 52(1)(b) of the RTI Act.[7] See, for example, Lester and Department of Justice and Attorney-General [2017] QICmr 17 (Lester) (16 May 2017) and Gapsa and Public Service Commission [2016] QICmr 6 (11 February 2016) (Gapsa) , adopting the Information Commissioner’s comments and enumeration of relevant factors in PDE and the University of Queensland [2009] QICmr 7 (9 February 2009), [37]. [8] Lester, [15], citing Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [21].[9] Having regard to the factors stated in PDE, as they may arise: Gapsa, [14], citing PDE, [49]-[53]. See also section 130(2) of the RTI Act.[10] Applicant’s external review application.[11] Respondent’s email submission dated 23 October 2018 and OIC’s letter to the applicant dated 23 October 2018.[12] Submission dated 25 October 2018.[13] It being the case, as regards ‘received’ messages, that Mr Strachan only suggested that he may communicate by way of SMS message – a point discussed further below.[14] And do not consider that his email advice amounted to an ‘undertaking’ to communicate via SMS, as submitted by the applicant in 12 November 2018 submissions.[15] Noting, too, that there is a real question as to whether SMS messages that may be held by a third party telecommunications provider would comprise a ‘document of a Minister’ within the meaning of section 13 of the RTI Act – an issue on which I am not required to make a finding, but in relation to which OIC has previously found to the contrary: 1L2FOK and Department of Transport and Main Roads [2018] QICmr 35 (14 August 2018), at [46]-[47] (considering the substantially similar concept of ‘document of an agency’, stated in section 12 of the RTI Act).

queensland

court_judgement

Queensland Information Commissioner 1993-

Mewburn and Department of State Development [2015] QICmr 9 (21 April 2015)

Mewburn and Department of State Development [2015] QICmr 9 (21 April 2015) Last Updated: 23 November 2016 Decision and Reasons for Decision Citation: Mewburn and Department of State Development [2015] QICmr 9 (21 April 2015) Application Number: 312074 Applicant: Mewburn Respondent: Department of State Development Decision Date: 21 April 2015 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION -REFUSAL OF ACCESS - DOCUMENTS NONEXISTENT OR UNLOCATABLE - documents relating to planning matters and complaints - applicant contends further documents exist - planning anomalies on agricultural land and related investigations - numerous and extensive searches - whether the agency has taken all reasonable steps to locate the documents but the documents do not exist or are unlocatable - sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the then Department of State Development, Infrastructure and Planning (Department)[1] under the Right to Information Act 2009 (Qld) (RTI Act) for access to various documents covering a 19 year period from 1996 to 2014. The Department located 353 pages of information responsive to the application, and decided to release most of them.[2] The applicant sought internal review of the Department’s decision on the basis that it had not located any documents responsive to one aspect of her application. The Department’s internal review decision affirmed the original decision.[3] The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision. For the reasons set out below, I vary the decision under review and find that access to further information is refused under section 47(3)(e) of the RTI Act on the basis that it is nonexistent or unlocatable. Background On 17 March 2006, the applicant wrote to the then Minister for Local Government and Planning (Minister) about issues relating to the planning processes associated with a specified lot of land. The applicant submitted that she made a complaint ‘...about subdivision on agricultural land...’ and expressed concern ‘... that it was apparent that further subdivision was earmarked on addition[al] adjacent land owned by the same owners...This land was also classed as [good quality agricultural land]’.[4] On 11 May 2006, the Minister responded to the applicant’s letter, stating that officers of the Department of Local Government, Planning, Sport and Recreation (DLGPSR)[5] had advised her that the ‘...proposed development was inconsistent with the publicly notified draft planning scheme...’, and the Minister had forwarded a copy of the applicant’s letter to the Mayor of Kolan Shire Council to ‘...urgently investigate the situation and advise me of the outcome’. On external review, the applicant submitted that the Department should have, but failed to, locate additional documents regarding the provision of advice by Departmental officers to the Minister referred to in the Minister’s response to her complaint (Ministerial Advice Documents); and additional documents relating to alleged ‘planning anomalies on adjacent Lot 185 BON1356, ie Rural to Community to Rural purpose again’ (Planning Documents). During the course of the external review, the Department conducted a number of additional specific searches. While a small number of additional documents were located, most of these had previously been disclosed to the applicant in response to this or other access applications. Significant procedural steps relating to the application and the external review process are set out in the Appendix. Reviewable decision The decision under review is the Department’s deemed internal review decision dated 16 June 2014. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). Issue for determination The issue for determination is whether access to the Planning Documents and the Ministerial Advice Documents can be refused on the basis that they are nonexistent or unlocatable under sections 47(3)(e), 52(1)(a) and 52(1)(b) of the RTI Act. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[6] However, this right is subject to other provisions of the RTI Act, including grounds on which an agency may refuse access to documents.[7] Relevantly, for this review, access may be refused to documents which: do not exist[8] or have been (or should be) in an agency’s possession, but cannot be located.[9] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[10] A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but it cannot be found.[11] The RTI Act is silent on how an agency can be satisfied that a document does not exist. In a previous decision of the Information Commissioner, PDE and The University of Queensland,[12] the Information Commissioner explained that, to be satisfied that a document does not exist, an agency must rely on its particular knowledge and experience, having regard to various key factors including: the administrative arrangements of government the agency structure the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it) the agency’s practices and procedures (including but not limited to information management); and other factors reasonably inferred from information supplied by the applicant including: ○ the nature and age of the requested documents; and ○ the nature of the government activity to which the request relates. By considering the factors above, an agency may ascertain that a particular document was not created because, for example, its processes do not involve creating the specific document. In such instances, it is not necessary for the agency to search for the document. It is sufficient that the relevant circumstances to account for the nonexistent document are explained. In assessing whether documents are nonexistent, an agency may also conduct searches. Where searches are conducted, an agency must demonstrate that it has taken all reasonable steps to locate responsive documents, prior to deciding that the documents are nonexistent.[13] In determining whether all reasonable steps have been taken, regard should be had to the factors listed in PDE as set out above.[14] Findings The applicant contends that the Planning Documents and the Ministerial Advice Documents should exist, and should have been located by the Department. The Department stated that it conducted searches to locate relevant documents. Therefore, the issue before me, in considering whether the documents are non-existent or unlocatable, is whether all reasonable steps have been taken to locate them. I have reviewed the Department’s search certifications for the initial processing of the access application. They show that officers of the Department’s Regional Services Group spent one hour and 30 minutes searching files in the Department’s current electronic document and record management system (referred to within the Department as ‘The Source’),[15] and an officer in the Department’s Planning Group spent five hours searching this system and hard copy files.[16] On the information before me, it is evident that, as part of the Department’s consideration of the applicant’s application for internal review, the Department conducted additional searches using broad search terms[17] that captured an additional 257 documents. However, the Department’s Internal Review Decision states that the decision-maker did not have time to retrieve and inspect these documents, in order to identify relevant documents and make a decision about them, before it was deemed to have made a decision affirming its initial decision.[18] The applicant submitted, in her application for external review, that the search terms used by the Department during its consideration of her internal review application ‘...used a broad net, and created a false search which was unwarranted being the search of St Kilda road, then Tirroan, then 10 lot subdivision then Mewburn which were irrelevant and non-productive. The search which created 260 documents is misleading and should have been done under the lot and plan provided (Lot 185 BON 1356) or the name of the owner [of the property] being [owner’s name] which would have produced the documents immediately’.[19] The Department provided OIC with a schedule[20] regarding the searches it conducted during its consideration of the applicant’s application for internal review which led to the identification of the additional 257 documents. Like the applicant, the Department submitted that many of the additional documents identified during these searches were unlikely to be relevant to the access application given the broad search terms that it had employed. However, the search terms employed by the Department at this stage did include ‘Lot 185 Bon 1356’, as evidenced by the schedule. Given the applicant’s submission that a search for ‘the lot and plan provided (Lot 185 BON 1356) ... would have produced the documents immediately’,[21] the schedule provided by the Department has some relevance in this external review. The Department’s schedule confirms that the Department used ‘Lot 185 Bon 1356’ (among other search terms) to search both its current electronic document and record management system (‘The Source’) and superceded databases whose information had been migrated to the current system at the time of its inception (namely, TRIMFlow,[22] ‘CTrac’[23] and ‘Sustainable Planning’[24]). Notably, the searches of these databases using the search term ‘Lot 185 Bon 1356’ yielded no results. Noting the applicant’s submission that a search for ‘the name of the owner [of the property] being [owner’s name] which would have produced the documents immediately’,[25] OIC requested that the Department conduct a further search using the name of the owner of the relevant parcel of land. In response, the Department stated it had located 17 pages; however, 15 of these pages comprised documents already released to the applicant under the Department’s initial decision, or in response to an earlier access application made by her.[26] I have reviewed these documents and am satisfied that they are documents previously released to the applicant. The Department submitted that it had no objection to the release of the remaining two pages and they were released to the applicant. During the review the applicant submitted that:[27] I was advised at the time by a government officer that, essentially, preferential zoning (community use) had been applied by council to lot 185 BON1356 also on agricultural land, however, this was removed at the behest of the Minister following my 2006 complaint of breaches of State Planning Policy. ... The Ministers censures included above suggests that further documents on the planning anomalies on agricultural land and the investigations around such do exist both for the 10 lot development and lot 185 BON1356. Given these submissions, OIC asked the Department to conduct further searches for the Ministerial Advice Documents, using the ministerial correspondence number appearing on both the Minister’s letter to the applicant dated 11 May 2006 and a letter of the same date from the Minister to the Mayor of the Kolan Shire Council.[28] Further, OIC asked the Department to search using the terms ‘Kolan Shire; Ministerial’ and the street address for the parcel of land concerned.[29] The Department submitted that as a result of its searches, it identified, recalled and examined three archived hard copy files which contained 15 relevant pages; however, the 15 relevant pages comprised the documents already released to the applicant noted at paragraph 28 above. The Department submitted[30] that its further searches for Ministerial Advice Documents did not locate any written advice from DLGPSR officers to the Minister and that such advice may be unlocatable due to the: time that has elapsed since the advice was given various machinery of government changes that have occurred since this time; or advice being given to the Minister verbally. The Department further stated: Whilst the letters referred by the applicant establish reasonable grounds to believe in the existence of “the advice” as stated by the Minister on 11 May 2006 in the letter’s [sic] to both the applicant and Kolan Shire Council, there is no indication of specifically how, when or by whom the referred advice was delivered to the Minister. However, the responding letter from Cr Eddie Stone, Mayor, Kolan Shire Council, dated 23 May 2006 appears to address the issues raised by the subject advice, as stated by the Minister.[31] I have carefully considered the information provided by the Department about the searches it has undertaken. Specifically, I have considered the current and former departmental databases that have been searched, and the search terms employed when doing so. In the circumstances, I am satisfied that the Department has conducted searches in appropriate locations, having regard to the nature of the documents requested by the applicant and the Department’s recordkeeping practices and systems. Further, I consider that the search terms used were appropriate and relevant. In addition, I consider the Department’s explanation as to why further documents do not exist is plausible. Further, I note that the Minister’s letter to the applicant dated 11 May 2006 informs the applicant that: The State Government has not been involved in the development assessment and decision making process undertaken by Council ... due to the time since Council approved the development application on 22 February 2005, under the IPA the opportunity for me to exercise my powers in relation to this particular proposal has lapsed.[32] On this basis, it appears that, if further documents relating to the Planning Information and the Ministerial Advice exist, they may be held by other agencies. Given the Department completed searches using the applicant’s search terms (that is, the title reference ‘Lot 185 Bon 1356’ and the name of the owner of the parcel of land concerned), and search terms that could reasonably be expected to locate any documents associated with the letter from the Minister to the applicant dated 11 May 2006, I am unable to identify any further searches that the Department could reasonably be asked to undertake. In these circumstances, I am satisfied that the Department has taken all reasonable steps to locate additional documents relating to the Planning Documents and the Ministerial Advice Documents, and I consider that access to such documents may be refused under section 47(3)(e) of the RTI Act, on the basis that they are nonexistent and/or unlocatable.[33] DECISION I vary the decision under review and find that access to the Ministerial Advice Documents and Planning Information is refused under section 47(3)(e) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ___________________ Assistant Information Commissioner Corby Date: 21 April 2015APPENDIX Significant procedural steps Date Event 20 January 2014 The Department received the access application. 8 April 2014 The Department issued its decision on the access application. 19 May 2014 The Department received the application for internal review. 16 June 2014 The Department is taken to have made its Internal Review Decision. 18 June 2014 The Department issued notice of its Internal Review Decision in accordance with section 83(3) of the RTI Act. 22 June 2014 OIC received the application for external review. 23 June 2014 OIC notified the Department of the external review application and asked the Department to provide procedural documents. 26 June 2014 The Department provided OIC with the relevant procedural documents. 10 July 2014 OIC informed the applicant and the Department that the application had been accepted for external review. OIC asked the Department to provide the documents it located in processing the access application and on internal review, and information about the searches or enquiries undertaken while processing the access application. 22 July 2014 The Department provided OIC with the documents it located in processing the access application, information about the searches or enquiries undertaken while processing the access application and a submission on disclosure of the documents it identified on internal review. 24 July 2014 The Department provided OIC with a schedule listing the documents it located on internal review, and informed OIC that these documents had not been retrieved from archives. 4 August 2014 OIC asked the Department to conduct additional searches using the name of the owner of the parcel of land concerned. 18 August 2014 The Department provided OIC with documents it located in its searches using the name of the owner of the parcel of land concerned. 2 September 2014 OIC asked the Department to provide OIC with information and a submission about its searches using the name of the owner of the parcel of land concerned. 22 September 2014 The Department provided OIC with information and a submission about its searches using the name of the owner of the parcel of land concerned. 10 October 2014 OIC conveyed a written preliminary view to the applicant that access to further information may be refused under section 47(3)(e) of the RTI Act on the basis that it is nonexistent. 24 October 2014 The applicant advised OIC that she contested the preliminary view, and provided submissions in support of her case. 3 December 2014 OIC asked the Department to conduct additional searches for the Ministerial Advice Documents using the street address of the subject property as a search term. 13 January 2015 The Department provided OIC with information and a submission about its additional searches for the Ministerial Advice Documents. 18 February 2015 OIC conveyed a written preliminary view to the applicant that access to the Ministerial Advice may be refused under section 47(3)(e) of the RTI Act on the basis that it is nonexistent or unlocatable and that the next step in this review would be a written decision. [1] Following a machinery of government change on 16 February 2015, the legislation administered by the former Department of State Development, Infrastructure and Planning has been divided between the Department of Infrastructure, Local Government and Planning and the Department of State Development. The Department of State Development is the department responsible for this external review.[2] Of the 353 pages located, the Department decided to release 344 pages in full and nine pages in part. The Department refused to disclose the balance of the nine pages on the ground that disclosure would, on balance, be contrary to the public interest under section 47(3)(b) and 49 of the RTI Act. [3] The Department did not make an internal review decision within 20 business days after the internal review application was made and, under section 83 of the RTI Act, was taken to have made an internal review decision affirming its initial decision. The Department confirmed this in a notice dated 18 June 2014. Referred to hereafter as the Internal Review Decision.[4] Applicant’s submission to OIC dated 24 October 2014.[5] The Department formerly responsible for such matters.[6] Section 23 of the RTI Act.[7] These grounds are set out in section 47 of the RTI Act. [8] Section 52(1)(a) of the RTI Act.[9] Section 52(1)(b) of the RTI Act.[10] Section 52(1)(a) of the RTI Act.[11] Section 52(1)(b) of the RTI Act.[12] (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE).[13] As set out in PDE at [44]. See also section 130(2) of the RTI Act. [14] PDE at [49].[15] I understand the Department uses Total Records Information Management (TRIM) and, within the Department, refers to this system as ‘The Source’.[16] Search verifications dated 30 January and 6 February 2014 respectively. [17] Regional Services search: ‘St Kilda Road’; Planning Group search: ‘Tirroan’; and System Administrator search: ‘Mewburn’, ‘Planning anomalies’, ‘10 lot subdivision’, ‘Lot 185 Bon 1356’ and ‘Rural to Commuity to Rural purpose’. [18] See footnote number [3].[19] External review application dated 22 June 2014.[20] Department’s email to OIC dated 24 July 2014.[21] External review application dated 22 June 2014.[22] TRIMFlow – the Department’s previous electronic Document and Records Management System.[23] CTrac was the Correspondence Tracking system in use at the relevant time of the applicant's complaints to the Minister and the Minister's correspondence back to the applicant in 2006.[24] Sustainable Planning' was a database used by the Planning area of the Department in use at the relevant time of the applicant's complaints to the Minister and the Minister's correspondence back to the applicant in 2006.[25] External review application dated 22 June 2014.[26] Pages numbered 1, 7-9, 11, 13, 14, 15, 20-21 and 22-23 were released in response to the access application that is the subject of this external review and pages numbered 34-36 were released in response to an earlier access application made to the Department by the applicant (Department’s reference number RTIP1314-078).[27] Applicant’s submission to OIC dated 24 October 2014.[28] At page 22-23 released in response to the access application that is the subject of this external review[29] Given that the street address of the subject property (rather than title reference) was used as a reference in the Minister’s letter to the applicant dated 11 May 2006.[30] Department’s letter to OIC dated 13 January 2015.[31] Department’s letter to OIC dated 13 January 2015.[32] Letter from the Minister to the applicant dated 11 May 2006.[33] Section 52 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Kinder and Barristers' Board of Queensland [2000] QICmr 8 (31 March 2000)

Kinder and Barristers' Board of Queensland [2000] QICmr 8 (31 March 2000) Kinder and Barristers' Board (S 93/98, 31 March 2000, Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-4. These paragraphs deleted. REASONS FOR DECISION Background By letter dated 3 April 1998, the applicant applied to the Barristers' Board (the Board) for access, under the FOI Act to documents relating to his complaint to the Board concerning the conduct of a barrister. (Mr A J H Morris QC had investigated that complaint on behalf of the Board and prepared a report recommending that no further action be taken. A copy of Mr Morris' report had been provided to the applicant.) By letter dated 9 April 1998, Mr R C Kent, Consultant to the Board, informed the applicant that the Board had received advice to the effect that it was not a "public entity" and was therefore not subject to the application of the FOI Act. By letter dated 10 June 1998, the applicant applied to me for review of the Board's refusal to grant him access to the requested documents. Following inquiries by my Office, the Board provided copies of correspondence between it and the applicant, and contended that the applicant had not made a valid FOI access application. After considering that matter, I wrote to the Board advising that, in accordance with s.75 of the FOI Act, I had decided to make inquiries for the purpose of determining whether I had jurisdiction to deal with the applicant's application for external review. I invited the Board's submission as to whether the Board was a "public authority" under s.9 of the FOI Act, or caught by s.8(2) of the FOI Act. By letter dated 24 August 1998, the Board submitted that it is a part of the Supreme Court of Queensland, and that, pursuant to s.11(1) of the FOI Act, it is not subject to the application of the FOI Act, since the Board's functions relate to the judicial functions of the Supreme Court, i.e., the making of decisions to admit persons to practice as barristers-at-law. By letter dated 25 September 1998, I referred the applicant to s.11(1)(e) and (f) of the FOI Act and informed him of my preliminary view that the Board is an office of the Supreme Court and that the documents in issue were not subject to the application of the FOI Act. On that basis, I indicated to the applicant my preliminary view that I had no jurisdiction to proceed further with this review. I invited the applicant, should he not accept my preliminary view, to lodge any submission and/or evidence on which he cared to rely in support of his case. By letter dated 15 October 1998, the applicant lodged a submission directed inter alia, to the interpretation of s.11(1)(e) and (f) of the FOI Act. The Board was provided with a copy of the applicant's submission. The Board lodged a response dated 26 November 1998, which was in turn passed on to the applicant for reply. The applicant also lodged a number of further submissions. I have taken into account the following material in making my decision in this review: the applicant's FOI access application dated 3 April 1998; the Board's letter dated 9 April 1998; the applicant's external review application dated 10 June 1998; the applicant's letters and submissions dated 15 October 1998, 9 November 1998, 7 December 1998, 25 January 1999, 8 March 1999 and 27 April 1999; and the Board's letters and submissions dated 19 June 1998, 24 August 1998 and 26 November 1998. In its initial correspondence with the applicant, the Board suggested that it was not a public entity for the purposes of the FOI Act. Section 8(1) of the FOI Act defines "agency" to mean a "department, local government, or public authority". However, the Board has not pursued an argument that it is not a public authority, preferring to rely on the exclusionary provisions in s.11(1)(e) and (f) of the FOI Act. It appears clear to me that the Board is either an agency itself, or part of an agency, under the definitions in s.8 and s.9 of the FOI Act. However, given my finding in relation to the application of s.11(1)(f), it is not necessary for me to make a final determination on this point. The Board argued that the documents requested by the applicant were created or received by it in the course of the Board carrying out judicial functions, and that the documents were therefore excluded from the application of the FOI Act by s.11(1)(e). My examination of the material before me on this issue causes me to doubt that the Board was carrying out any judicial function in dealing with the applicant's complaint. However, because of my finding in relation to the application of s.11(1)(f) of the FOI Act, it is not necessary for me to express a concluded view on that issue. Application of s.11(1)(f) of the FOI Act Section 11(1)(f) and s.11(2) of the FOI Act provide: 11(1) This Act does not apply to— ... (f) a registry or other office of a court, or the staff of a registry or other office of a court in their official capacity, so far as its or their functions relate to the court's judicial functions; ... (2) In subsection (1), a reference to documents in relation to a particular function or activity is a reference to documents received or brought into existence in performing the function or carrying on the activity. In Re Christie and QIDC [1993] QICmr 1; (1993) 1 QAR 1 at p.8 (paragraphs 19-22), I explained that there is a drafting error in s.11(2) of the FOI Act, but that the legislature's clear intention can be given effect by reading s.11(2) as if it were in these terms: In subsection (1), a reference to a particular function or activity means that this Act does not apply to documents received or brought into existence in performing the function or carrying on the activity. The Board was created, pursuant to the Supreme Court Act 1921, by a Rule of Court promulgated by an Order in Council dated 4 December 1975 (the Barristers' Admission Rules). The Board's primary function is to oversee the rules relating to the admission of barristers, and to issue its certificate upon a person having satisfied the prescribed conditions for admission. It is not the Board, but the Supreme Court, which admits persons to the roll of Barristers-at-Law (who are then permitted to appear in the Supreme Court by right). Whether or not a person holds the certificate of the Board does not bind the Supreme Court, in its discretion, to admit a particular person to the roll of Barristers-at-Law: see Re Julius [1941] St.R.Qd. 247. While in the ordinary course of events, the certificate of the Board will be persuasive, nevertheless, the decision to admit a person as a Barrister-at-Law is a judicial function of the Supreme Court. The applicant argued that the Board could not be regarded as an "office of a court", stating that it performed no judicial functions and merely happened to occupy offices within the court complex. However, I consider that the Board is an "office of a court", within the terms of s.11(1)(f) of the FOI Act. I consider that those words not only cover individual office holders, but also extend to offices constituted by a number of persons, such as the Board. The Board was established under the Barristers' Admission Rules in order to assist the Supreme Court in certain functions. The applicant contends that the Board does not carry out any judicial functions in relation to the handling of complaints against barristers. As I have indicated above, this may well be true. However, under the wording of s.11(1)(f), there is no requirement that the Board itself have any judicial function. The question which I must consider is whether the relevant functions of the Board "relate to the court's judicial functions". I am satisfied that the Supreme Court has a function with respect to discipline of barristers-at-law, and that that function is a judicial function. In Harrison's Law and Conduct of the Legal Profession in Queensland (2nd edition, 1984), at page 33, Williams J refers to the old case of In Re Antigua Justices (1 Knapp 267) [actually Knapp's Appeal Cases, 1829-1836 in 12 E.R.] as providing authority for the proposition that authority to impose disciplinary sanctions, such as suspension from practice, must be incidental to the function of admitting barristers-at-law to practice. Williams J stated that the effect of those authorities: ... appears to be that at common law the Court has an inherent power, as a necessary adjunct to its function of administering justice, to suspend a barrister from practice, and that where barristers are admitted by the Court, the Court also has the power to deprive a barrister of his formal status as such, i.e. to disbar him as distinct from suspending him from practice. The Board has a specific function under the Barristers' Admission Rules to apply to the Full Court to have the name of a barrister-at-law, who has been convicted of an indictable offence, removed from the roll (Rule 42A). However, the Barristers' Admission Rules make no reference to applications to the Court in respect of the discipline of barristers in other circumstances. I note that the Bar Association of Queensland (although having no statutory function to do so) can consider complaints made against its members in respect of alleged professional misconduct or unprofessional conduct, and has standing to bring an application before the Supreme Court: see Re Clancy [1970] QWN 8. However, while members of the Bar Association must undertake to abide by the constitution and rules of the Bar Association, membership is entirely voluntary. Therefore, not all barristers are members of the Bar Association. For example, many barristers employed by government, or those employed by corporations, are not members of the Bar Association. Similarly, barristers in private practice at the bar may elect not to join the Bar Association. In In re Swanwick (1884) 2 QLR 1, which concerned a disbarred barrister's application for re-admission, Lilley CJ inferred that the Board of Examiners (effectively the forerunner of the Barristers' Board) had a duty to assist the Court in matters concerning the fitness of an applicant for admission or readmission. I also note the explanation by Mr Morris QC (at pages 7-15 of his report) of his understanding of the basis for the Board's authority to investigate the applicant's complaint. In the absence of a statutory body expressly vested with authority to investigate and take action, including initiating proceedings, in respect of alleged professional misconduct or unprofessional conduct by barristers, the Board has, in the instant case, assumed that role. While I am not aware of any specific case where the Board has initiated court proceedings against a barrister, to my mind, there is little doubt that the Board would have standing to apply to the Supreme Court for an order that a barrister's name be removed from the roll, or for some lesser sanction to be imposed such as suspension or a fine. In the instant case, the Board has taken on a role to assist the Supreme Court by undertaking initial investigation and assessment as to whether it would be appropriate to bring alleged professional misconduct, or unprofessional conduct, to the attention of the Supreme Court. The applicant himself prompted the action taken by the Board in the instant case, by making a complaint in respect of which he obviously wished the Board to take action. I am satisfied that the documents to which the applicant seeks access were received or brought into existence by the Board in the performance of functions which relate to the judicial functions of the Supreme Court. I find that those documents are excluded from the application of the FOI Act by the operation of s.11(1)(f) of the FOI Act. DECISION I decide that the documents sought by the applicant in his access application to the Board dated 3 April 1998 are not subject to the application of the FOI Act, by virtue of s.11(1)(f) of the FOI Act, and hence that - (a) the Board was entitled to refuse to deal with the applicant's application dated 3 April 1998 for access to documents under the Freedom of Information Act 1992 Qld; and (b) I do not have jurisdiction to deal further with the applicant's application for review dated 10 June 1998.

queensland

court_judgement

Queensland Information Commissioner 1993-

Banks and Queensland Corrective Services Commission [1995] QICmr 5; (1995) 2 QAR 461 (13 April 1995)

Banks and Queensland Corrective Services Commission [1995] QICmr 5; (1995) 2 QAR 461 (13 April 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 45 of 1993COMMISSIONER (QLD) ) (No. 95005) Participants: PETER JOHN BANKS Applicant - and - QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - application for amendment of information pursuant to s.53 of the Freedom of Information Act 1992 Qld - report by custodial correctional officer on a prison incident involving the applicant - whether the information in issue concerns the personal affairs of the applicant - whether the information in issue is inaccurate, incomplete, out-of-date or misleading - observations on the extent of the duty imposed on agencies by s.59 of the Freedom of Information Act 1992 Qld when an applicant exercises the right to require an agency to add a notation to information which the agency has refused to amend. Freedom of Information Act 1992 Qld s.53, s.57, s.59, s.79Doelle and Legal Aid Office (Queensland), Re [1993] QICmr 5; (1993) 1 QAR 207Lapidos and Office of Corrections (No. 2), Re (Victorian Administrative Appeals Tribunal, Jones J (President), 19 February 1990, unreported)Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227 DECISIONI affirm the respondent's (deemed) decision refusing to amend or correct information about the applicant contained in a report dated 30 August 1989 by Mr Robert Ian Williams (former custodial correctional officer) to the General Manager, Woodford Correctional Centre, on the basis that I am satisfied that the information contained in that report is not inaccurate, incomplete, out-of-date or misleading.Date of Decision: 13 April 1995...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 45 of 1993COMMISSIONER (QLD) ) (Decision No. 95005) Participants: PETER JOHN BANKS Applicant - and - QUEENSLAND CORRECTIVE SERVICES COMMISSION Respondent REASONS FOR DECISIONBackground1. This external review arises out of an application by Mr Banks to amend information pursuant to s.53 of the Freedom of Information Act 1992 Qld (the FOI Act).2. The applicant's application to amend information, dated 2 February 1993, sought amendment of several pieces of information in several documents. The applicant had obtained access to those documents through an earlier application for access under the FOI Act. My staff pursued investigations into disputed questions of fact, obtaining sworn evidence from a number of witnesses. Following lengthy negotiations with the applicant and relevant officers of the QCSC, all but one of the issues initially raised by Mr Banks' application for review have been resolved by a compromise between the participants on the form of amendments or notations to relevant documents held by the QCSC. The only issue which remains for formal determination concerns certain information in a report dated 30 August 1989 by a former custodial correctional officer, Mr Robert Ian Williams (which will be referred to in these reasons for decision as "the Report").3. In August 1989, Mr Williams was employed as a custodial correctional officer at the Woodford Correctional Centre. Mr Williams is no longer employed by the QCSC, having left that employment when the Woodford Correctional Centre closed. The document in issue is a handwritten report dated 30 August 1989, slightly more than one page in length, which Mr Williams submitted to the General Manager of the Woodford Correctional Centre. The Report describes an incident at the Woodford Correctional Centre involving the applicant. The Report attributes to the applicant the making of a statement to the effect that the only way that the applicant was likely to obtain a change in his prison job or a change in the prison in which he was detained, was to "smash or hit someone". The events leading up to the making of the statement attributed to the applicant, including an incident with another prisoner, are also described. The incidents occurred in the prison library, of which Mr Williams was the officer in charge.4. In his initial application to amend information (dated 2 February 1993) the applicant asserted that: The incident within the report is a fabrication, whether by the prisoner mentioned within the report or the originating officer I do not know or care. I request that if the report cannot be removed that the following note be attached to this report: "This report is a fabrication and as such should be treated with the contempt it deserves! P J B" 5. The FOI Co-ordinator of the QCSC, Ms P Cabaniuk, responded to Mr Banks' application by letter dated 15 March 1993 which, so far as relevant, stated: Under the Freedom of Information Act 1992, amendments can only be made by either altering the information or adding an appropriate notation to the information. Documents cannot be removed. You have not provided supporting evidence only facts to the contrary to justify an amendment. These facts must now be substantiated. This matter has been referred to the General Manager so that the matter may be looked into. Should the information on the document be incorrect, then your notations will be added to the file. You will be advised of the result as soon as practicable.6. Following receipt of that letter, the applicant lodged an application for external review with my office, received on 31 March 1993. I accepted that I had jurisdiction to deal with the application for external review, since the QCSC's letter of 15 March 1993 to Mr Banks did not notify a decision in response to Mr Banks' application for amendment of information. The 30 day time limit for giving that notification having then expired (see s.57 of the FOI Act), Mr Banks was entitled to apply to me for review, in accordance with s.79 of the FOI Act, on the basis of a deemed refusal of his application for amendment of information. Notations under s.59 of the FOI Act7. After receiving notification of the commencement of my review, the QCSC's FOI Co-Ordinator informed me that the applicant had made a request (undated) that a number of documents (including the Report) be notated pursuant to s.59 of the FOI Act, which provides: 59.(1) In this section - "agency" includes a Minister. (2) If an agency has refused to amend information, the applicant may, whether or not the applicant has applied to the Commissioner for review of the decision, by written notice, require the agency to add to the information a notation - (a) specifying the respects in which the applicant claims the information to be inaccurate, incomplete, out-of-date or misleading; and (b) if the applicant claims the information to be incomplete or out-of-date - setting out such information as the applicant claims is necessary to complete the information or to bring it up-to-date. (3) An agency must comply with the requirements of a notice under this section, and must cause written notice of the nature of the notation to be given to the applicant. (4) If an agency discloses to a person (including another agency and a Minister) any information contained in the part of its documents to which a notice under this section relates, the agency - (a) must ensure that there is given to the person, when the information is disclosed a statement - (i) stating that the person, or next of kin of the person, to whom the information relates claims that the information is inaccurate, incomplete, out-of-date or misleading; and (ii) setting out particulars of the notation added under this section; and (b) may include in the statement the reason for the agency's refusal to amend the information as requested. (5) This section is not intended to prevent or discourage agencies from giving particulars of a notation added to its documents under this section to a person (including another agency and a Minister) to whom information contained in the documents was given before the commencement of this section.8. In his application for notations to be made under s.59, Mr Banks made the following remarks in respect of the Report now in issue: It is much easier to fabricate an incident to effect the removal of an unwanted inmate, than to wait for one. The alleged incident revolved around my self being Shanghaied to Woodford and being put into a cushy job to appease me in working with two other inmates. There was not enough work to keep two people busy let alone three, and one of the other prisoners (The senior worker) resented someone (Me) being put to work in his library without him being consulted. I was not even shown how to do anything in the library even when I asked. I was later terminated without explanation and had only become aware of the alleged incident when I read the material resulting from an FOI request. This, together with the comments I outlined in my amendment request dated 2/2/93 should be attached. 9. I note that, apart from repeating his earlier allegation that the Report involves some kind of fabrication, the applicant has not specified whether all, or part (and if so, which part(s)) of the Report, is claimed to be a fabrication. Mr Banks sets out his version of conditions in the prison library, at the time his prison job was to work in the prison library, in terms which indicate he was disenchanted with that job, and he was not well received by other prisoners working in the library; but he does not acknowledge that the "alleged incident" occurred.10. In a letter dated 24 May 1993, the QCSC's FOI Co-Ordinator informed me that the notations requested by Mr Banks had been made and a copy of the form in which the notations were made was provided to me. They were made by way of a handwritten paragraph (dated 23 April 1993) being placed on the Report which refers any reader of the Report to notations attached to the Report, being notations in the form requested by the applicant. The QCSC's FOI Co-Ordinator also forwarded to me a copy of a letter she sent to the applicant, dated 23 April 1993, which informed the applicant, as required by s.59(3) of the FOI Act, that the notations had been made. 11. During the course of this external review, Mr Banks raised, as an issue, the necessity for the QCSC to notate each copy of the Report which is in the possession or control of the QCSC, in any location. A particular document may appear in a number of different files in the possession or control of an agency such as the QCSC, because copies of the same document may be required for different administrative purposes in various locations. In my opinion, it clearly accords with the objects of Part 4 of the FOI Act that, when an applicant exercises the statutory right under s.59 to require that certain information in a document be notated, the agency concerned has a corresponding duty to notate all copies of the relevant document which are in its possession or control. The purpose of s.59 would not be fulfilled if an agency's duty were to be regarded as any less onerous than I have indicated. The external review process12. The fact that the QCSC notated the document in issue in accordance with the applicant's request under s.59 does not affect the applicant's entitlement to seek external review of the QCSC's deemed refusal to amend or correct the document in issue.13. Since the applicant disputed the veracity of the Report, the issue for determination essentially became one of establishing whether the credibility of Mr Williams' account was to be preferred to that of Mr Banks, or vice-versa. A member of my staff interviewed Mr Williams to obtain his account of relevant events. Mr Williams was provided with a copy of the Report, and informed of the applicant's allegations that the incident described in the Report was a fabrication. Mr Williams subsequently completed a statutory declaration dated 25 February 1994. The relevant parts of Mr Williams' statutory declaration are as follows: On 30 August 1989, I was the Custodial Corrections Officer responsible for the library at the WCC (Woodford Correctional Centre). On that day, I observed the events that I have recorded in the attached report. I say that the contents of the report are true and correct in every respect. In particular, I recall Mr Banks saying to me that the only way he was going to get out of the prison is to "smash or hit someone". The words "smash or hit someone" are the actual words that Mr Banks used. I was the only prison officer in the library at the time, and there are no other prison officers who would have witnessed Mr Banks using those words. I was letting Mr Banks out of the library when he made the comment that the only way he was going to get out of the prison was to "smash or hit someone". In order for a prisoner to move from the library to another part of the prison, it was necessary for me, as the prison officer in charge of the library to let a prisoner out by unlocking the gates. When I was in the process of doing that and allowing Mr Banks out of the library area and he made the comment to me that the only way that he was going to get out of the prison was to "smash or hit someone", there was only himself and myself in the area. The report attached to this statutory declaration and marked "A" was made by me on the same day that the incident occurred, namely 30 August 1989. It is necessary for me to make a report such as this on the day that it occurs prior to my finishing duty for the day. ... The purpose of my making the report attached to this statutory declaration was to ensure that other prison officers in the prison were aware of the incident and to make the other prison officers aware that Mr Banks had made this comment, with a view to protecting other prison officers from any injury that might occur to them caused by Mr Banks. The report did not result in any charges against Mr Banks and that was not the purpose of the report. The purpose of the report was to warn other prison officers that the incident had occurred. It was part of my duties as a Custodial Corrections Officer to record incidents such as the incident described in the report.14. On 14 April 1994, the Deputy Information Commissioner forwarded a copy of Mr Williams' statutory declaration to the applicant. The applicant was asked to indicate whether he contested the accuracy of the entire Report, or whether he only wished to contest the comment attributed to him that: The only way that I'm going to get out of here is to "smash or hit someone".15. In that letter, the applicant was given the opportunity to lodge any evidence or submissions on which he wished to rely to support his case in this external review (which at that stage still involved issues relating to the amendment of other information in other documents). Mr Banks subsequently forwarded a nine page submission which referred in detail to the other matters which were then in issue (and have since been resolved) but which made no reference to Mr Williams' Report.16. The QCSC was also provided with a copy of Mr Williams' statutory declaration and was given the opportunity to lodge evidence and a written submission concerning the Report, as well as the other issues then remaining in this external review. The QCSC provided a short written submission to my office dated 27 October 1994, indicating that the QCSC was not prepared to amend the Report for the following reasons: (a) Initial section 51 consultation with the author revealed that the report was accurate and not misleading. (b) Statutory Declaration by author supports above. (c) No other witnesses present in library to support applicant's allegations of report being false. (d) The report was written on same day of incident. The incident would have been fresh in the Officers' mind. (e) The applicant has not addressed or challenged the contents of this Statutory Declaration, nor has he provided one to the Information Commissioner.Principles applicable to an application to amend information17. The provision of the FOI Act which entitles a person to apply to have information amended is s.53: 53. If a person has had access to a document from an agency or Minister (whether or not under this Act) containing information relating to - (a) the person's personal affairs; or (b) the personal affairs of a deceased person to whom the person is next of kin; the person is entitled to apply to the agency or Minister for correction or amendment of any part of the information if it is inaccurate, incomplete, out-of-date or misleading.18. I discussed the principles applicable to an application to amend information pursuant to Part 4 of the FOI Act in my decision in Re Doelle and Legal Aid Office (Queensland) [1993] QICmr 5; (1993) 1 QAR 207. (A copy of that decision was provided to the applicant under cover of the Deputy Information Commissioner's letter of 14 April 1994, in which the opportunity was extended to the applicant to lodge evidence and submissions in support of his case in this external review.)19. In his application to amend information, Mr Banks indicated that he wanted the information that he considered to be inaccurate, incomplete, out-of-date or misleading (including Mr Williams' Report) to be destroyed. At paragraphs 61-63 of my decision in Re Doelle, I held that the words "correction or amendment" in s.53 of the FOI Act do not authorise the destruction of documents or removal of documents from files, even if information contained in the documents is established to be inaccurate, incomplete, out-of-date or misleading. On the facts of this case, therefore, even if the applicant were to succeed in demonstrating that all or part of the Report is inaccurate, incomplete, out-of-date or misleading, s.53 of the FOI Act would not permit the Report to be destroyed or removed from the relevant file(s) of the QCSC.20. At paragraph 16 of my decision in Re Doelle, I said: Prior to considering the form which any correction of, or amendment to, information in a document of an agency or Minister may take, the following elements of s.53 of the FOI Act must be satisfied: (a) the applicant must have had access to a document of an agency or Minister, whether under the provisions of the FOI Act or otherwise; (b) the document must contain information relating to the applicant's personal affairs, or the personal affairs of a deceased person to whom the applicant is next of kin; and (c) the information or some part of the information referred to in (b) must be inaccurate, incomplete, out-of-date or misleading.Application of the relevant principles to this case21. In this case, it is clear that the applicant has had access to the Report in issue, under the FOI Act. I am also satisfied that the second element of s.53 is established in that the information contained in the Report concerns Mr Banks' personal affairs. I considered the meaning of the term "personal affairs" in detail in my reasons for decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227. At paragraph 80 of Re Stewart, I expressed agreement with the opinion of Jones J (President) of the Victorian Administrative Appeals Tribunal in Re Lapidos and Office of Corrections (No. 2) (19 February 1990, unreported) to the effect that information concerning what happens to a prisoner while in prison is ordinarily to be characterised as information which concerns the prisoner's personal affairs.22. The key issue in this case is whether the third element of s.53 is satisfied. Pursuant to s.81 of the FOI Act, the QCSC has the onus of establishing that its refusal to amend or correct the Report was justified. To discharge its onus, the QCSC must establish, on the balance of probabilities, that the information in the report, which the applicant seeks to amend or correct, is not inaccurate, incomplete, out-of-date or misleading. 23. In his initial application to amend information (dated 2 February 1993), the applicant asserted that: The incident within the report is a fabrication, whether by the prisoner mentioned within the report or the originating officer I do not know or care.24. This gives rise to some confusion, since the Report describes an earlier incident which occurred between the applicant and another prisoner, as well as the later incident in which the applicant is said by Mr Williams (at a time when only the applicant and Mr Williams were present) to have uttered words to the effect that the only way that he (Banks) was "going to get out of here" was to "smash or hit someone". I do not see how it could be suggested that the other prisoner could have fabricated the second incident, since Mr Williams was reporting words which he claimed to have himself heard. This suggests that the incident which Mr Banks is alleging to be a fabrication may be the earlier incident involving another prisoner working in the prison library. At no stage has Mr Banks clarified whether it is the first incident, the second incident, or both, which he claims to be a fabrication. However, I consider that the second incident must be the one which is of concern to the applicant, since there is really nothing in the first incident which reflects adversely on the applicant. The first incident (which in essence merely involved another prisoner, whose job it was to work in the library, expressing annoyance that the applicant had also been instructed to work in the library, because there were already too many prisoners working in the library) is actually entirely consistent with the remarks made by Mr Banks in his application for notations to be made under s.59 of the FOI Act: see paragraphs 8-9 above. That incident, considered on its own, was quite trivial. I find it difficult to accept that anyone could have a motive for fabricating a report of an incident of that nature. Moreover, Mr Banks' remarks set out in paragraph 8 above support the credibility of Mr Williams' account of the first incident. I am satisfied that the first three paragraphs of the Report, which record the first incident, are not inaccurate, incomplete, out-of-date or misleading.25. The second incident is somewhat more serious in nature. The tenor of the Report is that Mr Williams saw fit to record an observation uttered by the applicant, for what it indicated about the applicant's attitude to his circumstances, of which the prison authorities ought to be aware. No suggestion is made in the Report, however, that the applicant made a specific threat against any individual, or appeared likely to take some action that involved smashing or hitting someone.26. In respect of the second incident, I have had regard to the fact that Mr Banks' application for amendment was prompted by his receipt, early in 1993, of a document of which he had previously been unaware, which attributed to him the making of certain remarks (which would undoubtedly have reflected on him unfavourably in the eyes of prison officers and prison managers) in an incident which occurred some three and a half years earlier, and which was not likely to have impressed his mind at that time as a particularly significant event. In my opinion, Mr Banks' recall of what occurred on the day in question is likely to be less reliable than the account given in Mr Williams' Report which was recorded on the same day. The fact that a report is made contemporaneously with the events it describes does not necessarily mean that it cannot be inaccurate, incomplete, out-of-date or misleading. However, the contemporaneity of Mr Williams' Report is a factor, with the others noted below, which leads me to prefer Mr Williams' account of relevant events. Mr Williams has been interviewed by a member of my staff and has declared (under the Oaths Act 1867 Qld) that the contents of the Report are true and correct. Mr Williams no longer has any connection with the QCSC. He was found to be a credible and reliable witness concerning the contents of his statutory declaration. On the balance of probabilities, I am satisfied that the information contained in the Report is not inaccurate, incomplete, out-of-date or misleading. Conclusion27. By virtue of its failure to make a decision within thirty days after receipt of the applicant's application to amend information, the QCSC is deemed to have made a decision refusing to amend each of the documents which were the subject of the applicant's amendment application. Since the application for review related to documents other than the Report, and those issues were resolved informally during the course of this external review, it is not appropriate that I merely affirm the deemed refusal to amend documents in accordance with the applicant's initial application for amendment under s.53. I will affirm only that part of the decision under review which relates to Mr Banks' application for amendment or correction of Mr Williams' Report dated 30 August 1989.F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Stewart, Carolyn and Department of Transport [1995] QICmr 10; (1995) 2 QAR 552 (15 May 1995)

Stewart, Carolyn and Department of Transport [1995] QICmr 10; (1995) 2 QAR 552 (15 May 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 166 of 1993COMMISSIONER (QLD) ) (Decision No. 95010) Participants: CAROLYN DAWN STEWART Applicant - and - DEPARTMENT OF TRANSPORT Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - application for access - interpretation of the terms of the applicant's FOI access application - applicant challenging sufficiency of search for documents falling within the terms of her FOI access application - whether search efforts of agency reasonable in all the circumstances.Freedom of Information Act 1992 Qld s.29(2)Freedom of Information Regulation 1992 Qld s.6Shepherd and Department of Housing, Local Government & Planning, Re (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported)Smith and Administrative Services Department, Re [1993] QICmr 3; (1993) 1 QAR 22Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227Ronald Keith Stewart and Department of Transport, Re (Information Commissioner Qld, Decision No. 95007, 12 May 1995, unreported) DECISIONThe decision under review (being the internal review decision of Mr W J Rodiger, on behalf of the respondent, dated 3 August 1993) is varied, in that I find that -(a) following the disclosure to the applicant of additional documents during the course of my review, I am satisfied that there are no reasonable grounds for believing that the respondent has possession or control of any documents or parts of documents, falling within the terms of the applicant's FOI access application dated 8 June 1993, to which the applicant has not been given access, except for the letter dated 12 June 1992 from Mr Ronald Stewart to the Minister for Transport referred to in (b) below; and(b) while there are reasonable grounds for believing that the respondent has possession or control of a letter dated 12 June 1992 from Mr Ronald Stewart to the Minister for Transport, I am satisfied that the search efforts made by the respondent, and by members of my staff, to locate that document have been reasonable in all the circumstances of the case, and that the document cannot now be located.Date of Decision: 15 May 1995...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 166 of 1993COMMISSIONER (QLD) ) (Decision No. 95010) Participants: CAROLYN DAWN STEWART Applicant - and - DEPARTMENT OF TRANSPORT Respondent REASONS FOR DECISIONBackground1. The applicant complains that the respondent has failed to locate and deal with all documents falling within the terms of her initial application for access to documents under the Freedom of Information Act 1992 Qld (the FOI Act).2. By letter dated 8 June 1993, Carolyn Stewart applied to the Department of Transport (the Department) for access to documents, in the following terms: I request all documents from all parties relating to "my personal affairs" arising out of the Queensland Transport inquiries from complaints I have made against [here a person, who will be referred to as Mrs Z was identified and that person's part-time occupation was stated] ...3. The initial decision on behalf of the Department was made by Mr B J Butterworth and communicated to the applicant by a letter dated 21 June 1993. In that letter Mr Butterworth said: I have enclosed documents which fit the definition of personal affairs documents in the Freedom of Information legislation. These are the only documents which do not attract the application fee and production costs. Documents relating to other persons e.g. [Mrs Z] could be regarded as personal affairs documents and be supplied free of charge but only to them. They could not be regarded as your personal affairs. Similarly documents relating to an investigation of a person other than yourself would not be regarded as your personal affairs. Should you require documents such as these, you must, as indicated by the Information Commissioner, pay the $30.00 application fee and be prepared to pay production costs of the order of 50 cents per page.4. By a letter dated 17 July 1993, Carolyn Stewart applied for internal review of Mr Butterworth's decision, stating: I wish to lodge an appeal on the grounds that not one of the documents I requested concerning "MY PERSONAL AFFAIRS AND RELATING TO THE DISPUTE ABOUT THE SCHOOL CROSSING AT THE HARRISTOWN STATE PRIMARY SCHOOL", have been sent to me.5. The internal review was conducted by Mr W J Rodiger of the Department, who, in a letter dated 3 August 1993, affirmed the earlier decision of Mr Butterworth. By letter dated 24 August 1993, Carolyn Stewart applied for review under Part 5 of the FOI Act in respect of Mr Rodiger's decision.Scope of the FOI access application6. At paragraphs 6-10 of my decision in Re Ronald Keith Stewart and Department of Transport (Information Commissioner Qld, Decision No. 95007, 12 May 1995, unreported), which I shall refer to in these reasons for decision as Re Ronald Stewart, I discussed the relevance of an earlier application by Carolyn Stewart and Ronald Stewart for documents relating to what I described in that decision as the school crossing dispute. (My reasons for decision in that earlier application are reported as Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227.) In Re Ronald Stewart, I determined that Ronald Stewart's FOI access application should be interpreted as an application for documents relating to his "personal affairs" as that term is interpreted for the purposes of the FOI Act.7. I consider that the terms of Carolyn Stewart's FOI access application make it clear that she sought access only to documents which relate to her "personal affairs", thus avoiding the requirement to pay an application fee that might otherwise be imposed by s.29(2) of the FOI Act and s.6 of the Freedom of Information Regulation 1992. I must therefore consider the sufficiency of search undertaken by the Department for documents which relate to Carolyn Stewart's personal affairs, as that term is interpreted for the purposes of the FOI Act.8. Carolyn Stewart has indicated that she does not seek access to documents which may be held by the Department concerning registration, licensing or accidents relating to motor vehicles or vessels. She has also indicated that she does not wish to pursue access to documents, copies of which have been provided to her husband, Ronald Stewart. I will therefore not consider further, in my reasons for decision, documents which fall into either of those categories.Sufficiency of search9. I have previously considered my jurisdiction, and powers on review, in respect of sufficiency of search issues in my decisions in Re Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 and Re Shepherd and Department of Housing, Local Government & Planning (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported). As I said in Re Shepherd at paragraphs 18-19, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.10. At paragraph 20 of my reasons for decision in Re Ronald Stewart, I indicated that there were a number of external review applications made by members of the Stewart family for documents held by the Department and by the Minister for Transport. I also noted that searches had been conducted by my staff, and staff of the Department and the Minister, for documents which might fall within the terms of any of the various FOI access applications lodged by members of the Stewart family. I described these searches at paragraphs 20-30 of my decision in Re Ronald Stewart. From those searches, members of my staff have identified all documents which concern, or which may reasonably be argued to concern, the personal affairs of Carolyn Stewart. In examining documents which might be relevant, my staff have taken a liberal view of what matter may concern Carolyn Stewart's personal affairs and the Department has been co-operative in agreeing to grant her access to further matter, notwithstanding initial concerns relating to the classification and exempt status of such matter in some instances. The Department has agreed to the release in full of all documents so identified.11. In Re Ronald Stewart, I referred to a letter dated 12 June 1992 (a copy of which was provided by Mr Ronald Stewart for my information) from Mr Ronald Stewart to the Minister of Transport. That document also falls within the terms of Carolyn Stewart's FOI access application. I described the searches undertaken for that document at paragraphs 21-24 of my decision in Re Ronald Stewart. For the reasons set out at paragraph 32 of that decision I find that there are reasonable grounds to believe that the requested document exists and is a document of the agency, but I find that the search efforts made by the agency to locate the document have been reasonable in all the circumstances, even though ultimately unsuccessful.12. As to Carolyn Stewart's general claim that there are other documents concerning her personal affairs held by the Department, I find that there are no reasonable grounds to believe that the requested documents exist. Extensive searches carried out by the Department and my staff, and examination of a wide range of documents by my staff, have not given rise to any indication that there are further documents in existence which fall within the terms of Carolyn Stewart's FOI access application for documents relating to her personal affairs. I cannot identify any further searches which the Department might reasonably be called upon to undertake in a quest for such documents.13. I noted in Re Ronald Stewart that one of the underlying causes of Mr Stewart's refusal to accept my preliminary view in relation to sufficiency of search was his interpretation of the term "personal affairs" as it is used in the FOI Act. It is clear that the interpretation of this term urged on me throughout this and other applications by members of the Stewart family is much wider than the interpretation which I adopted in my decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 and which I have reiterated in numerous decisions since that time. For example, in a letter dated 25 August 1994, Carolyn Stewart stated: I wish to advise you that I still feel that a number of documents are deliberately being withheld as statements from other people involved are being withheld by the Transport Dept. and as my name will be mentioned in these statements, I feel these documents must be released to me as part of my personal affairs.14. Carolyn Stewart's insistence on a wide interpretation of the term "personal affairs", in the face of my decisions giving it a more limited scope, is, I believe, the major factor influencing her claims that further documents which fall within the terms of her FOI access application must exist.15. I acknowledge that numerous documents exist which deal with what I have referred to as the school crossing dispute, but only some of these relate to Carolyn Stewart's personal affairs. I am satisfied that Carolyn Stewart has been given access to all documents which fall within the terms of her FOI access application dated 8 June 1993.Conclusion16. As further documents were discovered in the course of my review, it is appropriate that I vary the decision under review. I find that -(a) following the disclosure to the applicant of additional documents during the course of my review, I am satisfied that there are no reasonable grounds for believing that the respondent has possession or control of any documents or parts of documents, falling within the terms of the applicant's FOI access application dated 8 June 1993, to which the applicant has not been given access, except for the letter dated 12 June 1992 from Mr Ronald Stewart to the Minister for Transport referred to in (b) below; and(b) while there are reasonable grounds for believing that the respondent has possession or control of a letter dated 12 June 1992 from Mr Ronald Stewart to the Minister for Transport, I am satisfied that the search efforts made by the respondent, and by members of my staff, to locate that document have been reasonable in all the circumstances of the case, and that the document cannot now be located.F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

J6Q8CH and Department of Justice and Attorney-General (No. 2) [2018] QICmr 50 (12 December 2018)

J6Q8CH and Department of Justice and Attorney-General (No. 2) [2018] QICmr 50 (12 December 2018) Last Updated: 20 December 2018 Decision and Reasons for Decision Citation: J6Q8CH and Department of Justice and Attorney-General (No. 2) [2018] QICmr 50 (12 December 2018) Application Number: 313722 Applicant: J6Q8CH Respondent: Department of Justice and Attorney-General Decision Date: 12 December 2018 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - applicant seeking access to information about herself in documents relating to the processing of a previous access application - whether documents contain the applicant’s personal information - whether the documents can be the subject of an access application under the Information Privacy Act 2009 (Qld) - section 40(1)(a) of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - EXEMPT INFORMATION - documents relating to processing of a previous access application - hostile communications and threats by the applicant - whether disclosure of information could reasonably be expected to result in a serious act of harassment or intimidation against certain individuals - whether access to information may be refused under section 67 of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and schedule 3, section 10(1)(d) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of Justice and Attorney-General (Department) under the Information Privacy Act 2009 (Qld) (IP Act) to access information about the procedural actions taken by the Department in processing a previous access application she had made under the IP Act (Prior Application).[2] The Department located 202 pages of documents. Given the nature of the information requested by the applicant, the majority of the located documents comprised emails and correspondence the Department sent to or received from the applicant about the Prior Application and documents recording the searches and enquiries conducted by the Department to locate documents responsive to the Prior Application. The Department decided[3] to refuse access to some of the located information[4] and also delete certain pages[5] on the basis those pages fell outside the scope of the application. The applicant applied[6] to the Office of the Information Commissioner (OIC) for external review of the Department’s decision and raised concerns about the Department’s processing of the Prior Application. For the reasons set out below, I vary the Department’s decision and find that the majority of the information being considered in this review may be refused on the ground that it is exempt information and one page may be deleted as it is outside the scope of the access application. Background Significant procedural steps taken in this external review are set out in Appendix 1. Reviewable decision The decision under review is the Department’s decision dated 23 January 2018. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and appendices). The applicant has provided a number of submissions to OIC.[7] Generally, the applicant submitted[8] that she wanted to determine if the Prior Application was ‘processed fairly following a standard procedure’. However, a large proportion of the applicant’s submissions contend that information relevant to the Prior Application should be fully disclosed to her and, in this regard, I note that submissions of this nature have been addressed in the previous decision of this Office in J6Q8CH No. 1. The applicant’s submissions also outline her belief that she has been ‘repeatedly wrongfully convicted’[9] and that various government agencies have engaged in a smear campaign against her.[10] Additionally, the applicant provided information about further complaints and applications that she has lodged with other agencies, Ministers and various entities. In these reasons for decision, I have only considered and addressed submissions made by the applicant to the extent they raise issues relevant to the issues for determination in this review, as set out below. Information in issue The Information in Issue is identified in Appendix 2 and consists of 58 pages[11] and parts of 106 pages. I am unable to disclose the content of the Information in Issue,[12] however, I generally categorise it as follows: Category Description Deleted Information One page deleted on the basis it falls outside the scope of the access application. Category A Information Names, contact details and signatures of various Department officers. Category B Information Information about the applicant’s interactions with various individuals. The Category A Information appears on the 106 partly disclosed pages. As a result of the information that has been disclosed to the applicant, the applicant is aware of the substance of the documented communications in these 106 pages and the work titles of the public sector officers who were parties to them. I also note that some of the Category A Information appears in email chains between Department officers and the applicant and in letters addressed to the applicant—as a result, it is reasonable to assume that the applicant may be aware of, or already possess copies of, some of the Category A Information.[13] During the external review, the applicant sought[14] confirmation about whether 30 pages of the Category B Information[15] contained specified information about her.[16] OIC informed the applicant[17] that the 30 pages did not contain information of the type she specified but instead comprised information about the applicant’s ‘interactions with various individuals (including details of historical charges against [her])’. Issues for determination Some issues were informally resolved on external review.[18] The remaining issues to be determined are whether the Information in Issue may be deleted or refused on the grounds that it falls outside the scope of, or is irrelevant to, the terms of the access application or it is exempt information. Preliminary issues Before considering the issues for determination, it is necessary to deal with preliminary issues arising from concerns expressed by the applicant in her submissions. The applicant alleged[19] that OIC’s decision not to engage in further telephone communications with her was made in ‘retaliation’.[20] External review by the Information Commissioner[21] is merits review.[22] The procedure to be followed on external review is, subject to the IP Act, within the discretion of the Information Commissioner.[23] As noted in J6Q8CH No. 1, the decision to cease telephone communications with the applicant was not made lightly but as a result of the way the applicant had conducted herself in conversations with OIC staff, including the language used towards OIC staff. In this matter, I consider that despite ceasing telephone communication with the applicant, she was nonetheless afforded procedural fairness, for example, by conveying a preliminary view to the applicant in writing and inviting her to provide further submissions supporting her case.[24] The applicant also asserted[25] that OIC had not sent her any evidence of her ‘hostile communications’ towards anyone and was therefore biased. Further, the applicant contended that the letter conveying OIC’s preliminary view was ‘disgusting’ and a ‘victim blaming DAVRO strategy letter’[26] and that it showed an ‘unusual level of vitriol and subjectivity’.[27] As noted in paragraph 12 above, given constraints imposed by the IP Act,[28] I have necessarily adopted a level of generality in describing the Information in Issue in this decision. The Information Commissioner also has no discretion under the IP Act to disclose any of the Information in Issue to the applicant.[29] In these circumstances, the nondisclosure of the Information in Issue to the applicant is not evidence of bias. I also note that the material before me in this review includes the applicant’s submissions which reference[30] a prior conviction she received for sending an offensive email. The preliminary view letter was sent to the applicant to appraise her of the facts and the law applicable in the matter[31] and to ensure the applicant was given an opportunity to provide an informed submission to this office. The letter was written with great care and in a neutral tone. While it summarised factual information about the applicant’s conduct towards various individuals in order to explain how the preliminary view had been formed, I consider the letter did not ‘attack’ or ‘victim blame’ the applicant. Additionally, I reject the applicant’s assertion that the letter, or more generally the external review process, was subjective. Finally, the applicant asserted[32] that OIC decided to give little weight to her right to ‘fair and just access to her own information’ and thereby acted with bias, vindictiveness, discrimination, retribution and a failure to comply with the intent of the IP Act. While the IP Act is to be administered with a pro-disclosure bias,[33] an individual’s right to access government held information under the IP Act is subject to a number of exclusions and limitations, including grounds for refusal of access. In considering whether access may be given to the Information in Issue, I have considered the requirements of the IP Act as they apply to the Information in Issue. My reasons and considerations are set out in this decision. In these circumstances and taking into consideration the material before me, I am satisfied that none of the matters raised by the applicant evidence a lack of objectivity, or bias, discrimination or vindictiveness by OIC staff or in the external review process. The applicant also made further allegations of bias and retaliation stemming from separate matters she has with OIC, which involve other functions of the OIC[34]—as those separate matters are not relevant to the issues for determination in this review, they are not addressed in these reasons for decision, however, I consider that none of these further allegations evidence bias or a conflict of interest on the part of OIC or its staff regarding this external review. Finally, as noted in paragraph 4 above, the applicant raised concerns about the conduct of Department officers during the processing of her application. I note that information released to the applicant confirms that the Department referred the applicant’s complaint about such officer conduct to the Crime and Corruption Commission. In these circumstances, it is not appropriate for me to address those conduct concerns in these reasons for decision. I will now turn to consideration of the substantive issues to be determined in this review. Relevant law An individual has a right to be given access to documents of an agency to the extent they contain the individual’s personal information.[35] If a document does not contain any personal information of the individual, it is outside the scope of an access application made under the IP Act and the individual does not have a right to access that document under the IP Act. ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. As noted in paragraph 22 above, the right of access under the IP Act is subject to a number of exclusions and limitations, including grounds for refusal of access. Section 67(1) of the IP Act provides that access to a document may be refused on the same grounds upon which access to a document could be refused under section 47 of the Right to Information Act 2009 (Qld) (RTI Act). Section 47(3)(a) of the RTI Act relevantly permits an agency to refuse access to documents to the extent they comprise exempt information. Findings – Deleted Information I have carefully reviewed the Deleted Information and I am satisfied that it does not contain any of the applicant’s personal information—it does not identify the applicant and is not about the applicant. I note the applicant has made no submissions contesting the reasoning or conclusions in paragraph 30 above.[36] I find that the Deleted Information is outside the scope of the access application, which was made under the IP Act, and cannot be considered as part of the application. Findings – Category A Information and Category B Information Schedule 3 of the RTI Act specifies the types of information the disclosure of which Parliament has determined is exempt because its release would be contrary to the public interest. Relevantly, information is exempt if its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation (Harassment or Intimidation Exemption).[37] As the RTI Act does not define ‘a serious act of harassment or intimidation’, those terms are given their ordinary meanings.[38] As noted in J6Q8CH No. 1,[39] the Information Commissioner has previously accepted the following definitions:[40] ‘harass’ includes ‘to trouble by repeated attacks, ... to disturb persistently; torment’; and ‘intimidate’ includes ‘to make timid, or inspire with fear; overawe; cow ... to force into or deter from some action by inducing fear’. For the Harassment and Intimidation Exemption to apply: the expected harassment or intimidation must be ‘serious’ in nature[41]—conduct which is competitive, disparaging, unpleasant or ‘irksome and annoying’ is not sufficient to establish the exemption[42] there must also be a reasonable expectation of serious harassment or intimidation—this requires that the expectation be reasonably based on an objective examination of the relevant evidence[43] and must not be irrational, absurd or ridiculous,[44] nor a mere possibility;[45] and the expectation of serious intimidation or harassment must arise as a result of disclosure, rather than from other circumstances[46]—that is, I must be satisfied that the disclosure of the Category A and B Information, rather than the nature of the pre-existing relationship between the relevant parties, could reasonably be expected to cause the serious act of harassment or intimidation. (i) Is the expected harassment or intimidation serious in nature? Yes, for the reasons set out below. As previously noted, the applicant submitted[47] that OIC did not have any evidence of her ‘hostile communications’[48] and any allegation about her being hostile or aggressive is ‘mere retaliation’.[49] Again, I am constrained as to the level of detail I can provide about the Category A and B Information.[50] I have carefully considered the information available to OIC—some of which is sensitive in nature and cannot be set out in these reasons—and I am satisfied that there is a demonstrated history of the applicant’s enmity towards various public sector offices (and certain officers employed at a number of those public sector offices). More specifically, the evidence available to me demonstrates that the applicant has: (a) previously threatened to harm individuals, including certain Department staff[51] (b) previously been convicted of using a carriage service to menace, harass or offend[52] (c) engaged in hostile correspondence with the Department; and (d) employed hostile and inflammatory language in her verbal communications with Department officers.[53] On an objective assessment, I consider that the conduct identified in paragraph 37 above has repeatedly and persistently troubled, tormented and disturbed certain officers of the Department, and other individuals, and caused them to experience significant and prolonged distress,[54] even if this was not the applicant’s intention. Accordingly, I find that the applicant has engaged in a pattern of unreasonable behaviour that constitutes harassment for the purposes of the RTI Act. The applicant submitted that Department officers do not need protection as she is not violent and has a history of only ‘petty offences’.[55] Further, the applicant submitted that, in any event, Department officers have police protection available to them should they feel harassed or menaced.[56] However, I note that it is not necessary to demonstrate a likelihood of criminal behaviour (such as assault) for the Harassment and Intimidation Exemption to apply.[57] In this case, I consider the conduct referred to in paragraph 37 above is beyond merely unpleasant or annoying, and is a cause for serious concern by a number of individuals, particularly given the hostile nature of the applicant’s interactions with Department officers and the threats the applicant has made against various individuals. For this reason, I am satisfied that this pattern of behaviour constitutes ‘serious’ harassment. (ii)-(iii) Is the expectation of serious harassment reasonably based and does it arise from disclosing the Category A and B Information? Yes, for the reasons that follow. The applicant submitted that: she considers it is ‘highly suspicious and unethical that persons who are processing an application and making a decision about me have such a conflict of interest that their processes need to be concealed’[58] if Department officers were ‘merely doing their jobs there should be nothing there that would provoke harassment’[59] given her personal circumstances, there is ‘no real threat of this insulting allegation that I am a risk to harass anybody’;[60] and it is discriminatory to take her ‘unrecorded’ and ‘spent’ conviction for an incident that occurred some years ago into consideration.[61] In this regard I note that the information disclosed to the applicant has, for the most part, provided the applicant with an understanding of the documented actions taken by the Department in its processing of the Prior Application and the work titles of the public sector officers who were parties to communications which occurred as part of processing that application. In this sense, I consider the Department’s procedures and actions taken in processing the Prior Application have mostly been disclosed to, rather than concealed from, the applicant. The applicant also submitted that she considers a range of Department officers, including judicial officers, are ‘running a smear campaign’ about her and have engaged in ‘highly illegal conduct’ and that, as a result of these activities, she has been wrongfully convicted.[62] The Category A Information includes the names and contact details of various Department officers. Given this and the nature of the Category B Information, I consider the applicant’s prior conviction for using a carriage service to menace, harass or offend is relevant evidence to be considered in determining whether an expectation of serious harassment arising as a result of disclosing the Category A and B Information is reasonably based. Having carefully considered the content of the Category A and B Information, I am satisfied that its disclosure would result in further harassment of particular individuals—that is, on the evidence available to me, I am satisfied that disclosure of the Category A and B Information, rather than the applicant’s pre-existing enmity towards the Department, could reasonably be expected to result in further conduct similar to the conduct identified in items (a), (c) and (d) of paragraph 37 above. To the extent the Category B Information relates to individuals who are not Department officers, I am also satisfied that disclosure of this information could reasonably be expected to result in further conduct similar to the conduct identified in items (a), (c) and (d) of paragraph 37 above. (iv) Do any of the exceptions in schedule 3, section 10(2) of the RTI Act apply? Having carefully considered the Category A and B Information, I am satisfied that none of the exceptions listed in schedule 3, section 10(2) of the RTI Act[63] apply. Conclusion I find that access to the Category A and B Information is refused on the ground that it comprises exempt information.[64] I note that the applicant raised a number of public interest arguments in support of her view that the Information in Issue should be disclosed to her, including that she requires the Information in Issue to appeal her wrongful convictions. As noted in J6Q8CH No. 1, there is no requirement for me to consider the applicant’s public interest submissions in respect of the Category A and B Information because I have found that it is exempt information and Parliament has determined that disclosure of exempt information would, on balance, be contrary to the public interest in all instances.[65] DECISION I vary the Department’s decision and find that access to all but one page of the Information in Issue may be refused on the grounds that it is exempt information. The remaining page may be deleted on the basis that it is outside the scope of the access application. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. Assistant Information Commissioner Corby Date: 12 December 2018 APPENDIX 1 Significant procedural steps Date Event 25 January 2018 OIC received the external review application. 15 February 2018 OIC received the applicant’s submissions. 7 and 12 March 2018 OIC received the applicant’s emails addressed to other agencies (which were copied to OIC). 14 March 2018 OIC received the applicant’s further submissions by telephone. 6 April 2018 OIC received the applicant’s email concerning access applications to agencies other than the Department. 10 April 2018 The applicant raised concerns relating to searches performed by the Department and provided oral submissions. OIC received the applicant’s further written submissions. 11 April 2018 OIC asked the applicant to confirm her sufficiency of search concerns. 27 April 2018 OIC notified the applicant that OIC staff would not engage in further telephone communication with the applicant and any submissions the applicant wished to make were required in writing. 5 June 2018 OIC conveyed its preliminary view to the Department. 6 June 2018 The Department confirmed that it accepted OIC’s preliminary view. 21 June 2018 OIC conveyed its preliminary view to the applicant. OIC received the applicant’s further submissions. 22 June 2018 OIC received the applicant’s further submissions. 11 July 2018 OIC received the applicant’s further submissions. 21 July 2018 OIC received the applicant’s further submissions, which included a request for a description of 30 pages to which, in OIC’s view, access may be refused. 2 August 2018 The Department confirmed it did not object to a nominated description of the 30 pages being provided to the applicant. 6 August 2018 OIC conveyed a description of the 30 pages to the applicant. OIC received the applicant’s further submissions. 25 and 28 August 2018 OIC received the applicant’s further submissions. Appendix 2Information in issue Page Part or full refusals/deletion Category of refused/deleted information 1-3 part Category A Information 5-6 part Category A Information 8-9 part Category A Information 15-16 part Category A Information 17 full Category B Information 18 part Category A Information 19-21 full Category B Information 23 part Category A Information 25 part Category A Information 27 part Category A Information 28-29 part Category A Information 30 full Deleted Information 31 part Category A Information 32-61 full Category B Information 62-69 part Category A Information 71-79 part Category A Information 81 part Category A Information 83-88 part Category A Information 90 part Category A Information 91-95 full Category B Information 96 part Category A Information 98 part Category A Information 100-106 part Category A Information 108-109 part Category A Information 111-112 part Category A Information 114-120 part Category A Information 122 part Category A Information 125-133 part Category A Information 135-141 part Category A Information 142-143 full Category B Information 144-145 part Category A Information 146-147 full Category B Information 148-155 part Category A Information 156 full Category B Information 157-160 part Category A Information 161-164 full Category B Information 165-166 part Category A Information 167-176 full Category B Information 177-179 part Category A Information 181 part Category A Information 183 part Category A Information 185 part Category A Information 187-189 part Category A Information 192 part Category A Information 194 part Category A Information [1] On 19 December 2017. [2] Being an access application dated 12 October 2017, numbered IP180525 by the Department. The Prior Application requested access to a range of communications. The Department refused access to some of the information located in response to the Prior Application and the applicant sought external review of the Department’s decision. That external review (313709) was finalised by the Information Commissioner’s decision dated 10 December 2018 in J6Q8CH and Department of Justice and Attorney-General [2018] QICmr 49 (J6Q8CH No. 1). [3] On 23 January 2018.[4] Being 27 full pages and parts of 106 pages. [5] Being 38 full pages. [6] On 25 January 2018. [7] As set out in Appendix 1. [8] External review application. [9] Submissions dated 21 June 2018. [10] External review application. [11] To clarify, these 58 pages include some of the pages which the Department deleted on the basis they fell outside the scope of the application. [12] Section 121 of the IP Act. [13] I also note that in some of her submissions, the applicant appeared to indicate she did not wish to access names within the Information in issue (or some of them)—for example, in submissions dated 6 August 2018, the applicant stated that she ‘accepted not needing to know names unless they are judicial or QCAT officers or registrars’ and in submissions dated 28 August 2018, the applicant stated she did not need names (but requested the person’s position which, as noted above, has in most cases been disclosed). [14] Submissions dated 21 July 2018. [15] Being pages 32-61. During the review, the Department accepted OIC’s preliminary view that these 30 pages, which it had deleted as irrelevant, fell within the scope of the access application. [16] Specifically, the applicant sought confirmation as to whether those 30 pages contained ‘plans to influence a judicial decision against [the applicant] – wrongful conviction – photos or data about [the applicant’s] personal life that show stalking, photos or gossip laughing about [the applicant] being knocked unconscious outside [a courthouse], sexual references to [the applicant], gender slurs, references to knowing [the applicant] personally from somewhere’. In this regard, I also note the applicant’s submissions dated 21 June 2018 stated: ‘If those communications about [the applicant] did not involve any contact with a judicial officer [the applicant] is not interested in knowing about them. [The applicant fails] to see how they affect [the applicant’s] life if they are from low level staff and not shown to decision makers’. [17] By letter dated 6 August 2018. [18] The Department agreed to disclose seven pages to the applicant, which had been deleted as falling outside the scope of the access application. This disclosed information does not form part of the Information in Issue. [19] Submissions dated 21 June 2018. [20] More specifically, the applicant alleged because she had already begun legal action against OIC ‘on the grounds of discrimination and whistleblower retribution’, OIC was not ‘in an objective position to claim that [she was] hostile and aggressive’. [21] Or delegate. [22] Merits review is an administrative reconsideration of a case that can be described as ‘stepping into the shoes’ of the decision-maker, to determine what is the correct and preferable decision. [23] Section 108 of the IP Act. [24] In this regard, I note that the applicant provided written submissions to OIC on six separate occasions after OIC conveyed its preliminary view to the applicant. [25] Submissions dated 21 June 2018. More specifically, the applicant submitted she believed that such evidence of her hostile communications did not exist and she requested that OIC send evidence to her if OIC considered such material was before OIC. [26] I understand that ‘DAVRO’ is an acronym for ‘Deny, Attack, and Reverse Victim and Offender’. [27] Submissions dated 21 July 2018. [28] Under section 121 of the IP Act. [29] Section 120 of the IP Act. [30] Submissions dated 21 June 2018. [31] In this regard, I note that the letter identified relevant background; a preliminary view about the issues in the review; relevant law; and the information to be released to the applicant in accordance with the preliminary view. [32] Submissions dated 21 June 2018. [33] Section 64(1) of the IP Act. [34] I am unable in these reasons for decision to provide any further details of these matters. [35] Under section 40(1)(a) of the IP Act. [36] Which were put to the applicant on a preliminary view basis on 21 June 2018, for her consideration and reply. [37] Schedule 3, section 10(1)(d) of the RTI Act. This provision is subject to the exceptions contained in schedule 3, section 10(2) of the RTI Act. [38] Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009) (Sheridan) at [188]. The decision in Sheridan concerned section 42(1)(ca) of the repealed Freedom of Information Act 1992 (Qld). Schedule 3, section 10(1)(d) of the RTI Act is drafted in substantially the same terms as this provision, and the reasoning in Sheridan has since been cited with approval in relation to the RTI Act, in decisions including Mathews and Department of Transport and Main Roads [2014] QICmr 37 (19 September 2014) and Bowmaker Realty and Department of Justice and Attorney-General; Andrews [2015] QICmr 19 (17 August 2015) (Bowmaker).[39] At paragraph 24. [40] Richards and Gold Coast City Council (Unreported, Queensland Information Commissioner, 28 March 2012) at [13] and Ogawa and Queensland Police Service (Unreported, Queensland Office of the Information Commissioner, 21 June 2012) at [13], applying the Macquarie Dictionary Online (Fourth Edition) definitions referred to in Sheridan at [194]-[200]. [41] ‘Serious’ relevantly means ‘weighty or important’, ‘giving cause for apprehension; critical’: Macquarie Dictionary Online (as at 12 December 2018). [42] Bowmaker at [31]. [43] Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 (Murphy) at [45]-[47]. [44] Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97 (Cockcroft). [45] Murphy at [44]. In reaching a finding, it is not necessary for a decision-maker ‘to be satisfied upon a balance of probabilities’ that disclosing the document will produce the anticipated prejudice, or, in this case, serious harassment or intimidation: see Sheridan at [192-193] citing Cockcroft. In Sheridan, the Information Commissioner identified factors that might be relevant in considering whether an event could reasonably be expected to occur as including past conduct or a pattern of previous conduct, the nature of the information in issue, the nature of the relationship between the parties and/or third parties and relevant contextual and/or cultural factors.[46] Watson v Office of Information Commissioner Qld & Ors [2015] QCATA 95 per Thomas J at [19].[47] Submissions dated 21 June 2018. [48] As noted in footnote 25 above, the applicant requested, if OIC believed it had such evidence, that it be provided to her. [49] Submissions dated 21 June 2018. [50] Section 121 of the IP Act. [51] An email partially released to the applicant (at page 31 in IP 180853 File 12) records that the applicant ‘threatened to harm a QCAT case officer ... and police were involved’. Further, as noted in J6Q8CH No. 1, a threat by the applicant was also characterised as ‘a death threat’ in information released to the applicant. [52] To avoid identifying the applicant, I am unable to provide further details about this conviction in these reasons, however, I note that the applicant’s submissions dated 21 June 2018 reference the action she took which is the subject of this conviction. [53] A File Note partially released to the applicant (at page 159 in IP 180853 File 12) refers to an ‘abusive’ phone call the Department received from the applicant in which the applicant used ‘foul language’. [54] Refer to Toogood and Cassowary Coast Regional Council [2018] QICmr 13. [55] Submissions dated 11 July 2018. [56] Submissions dated 21 June 2018. [57] Conde and Queensland Police Service (Unreported, Queensland Information Commissioner, 18 October 2012) at [23]. [58] External review application. [59] Submissions dated 21 June 2018. [60] Submissions dated 21 June 2018. [61] Submissions dated 11 July 2018. The applicant further submitted that it is against the law to ‘withhold [her] government information based on an [unrecorded] and historic conviction’. [62] Submissions dated 21 June 2018. [63] The exceptions specified in schedule 3, section 10(2) of the RTI Act arise when information consists of: (a) matter revealing the scope of a law enforcement investigation has exceeded the limits imposed by law; (b) matters containing a general outline of the structure of a program adopted by an agency for dealing with a contravention or possible contravention of the law; (c) a report on the degree of success achieved in a program, adopted by an agency for dealing with a contravention or possible contravention of the law; (d) a report prepared in the course of a routine law enforcement inspection or investigation by an agency whose functions include that of enforcing the law (other than the criminal law or the law relating to corruption under the Crime and Corruption Act 2001); and (e) a report on a law enforcement investigation that has already been disclosed to the entity the subject of the investigation. [64] Under section 67(1) of the IP Act and section 47(3)(a) and schedule 3, section 10(1)(d) of the RTI Act. [65] Section 48(2) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Suskova and Council of the City of Gold Coast [2015] QICmr 31 (27 November 2015)

Suskova and Council of the City of Gold Coast [2015] QICmr 31 (27 November 2015) Last Updated: 19 January 2017 Decision and Reasons for Decision Citation: Suskova and Council of the City of Gold Coast [2015] QICmr 31 (27 November 2015) Application Number: 312288 Applicant: Suskova Respondent: Council of the City of Gold Coast Decision Date: 27 November 2015 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – CONTRARY TO PUBLIC INTEREST INFORMATION – information identifying a complainant and the substance of the complaint – internal floor plans – residential address of another individual – 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 – FORMS OF ACCESS – COPYRIGHT – building plan –whether giving access to a copy of the document would involve an infringement of the copyright of a person other than the State – access granted by way of inspection only – section 68(4)(c) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – UNLOCATABLE AND NONEXISTENT DOCUMENTS – applicant contends additional documents exist – whether agency has taken all reasonable steps to locate the documents but the documents cannot be found or do not exist – sections 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Council of the City of Gold Coast (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a broad range of documents generally relating to a number of her dealings with Council. Council located 109 pages and refused access to one page and parts of 13 pages on the basis that the information comprised exempt information under the RTI Act. Council also refused access to parts of two pages as disclosing the information would, on balance, be contrary to the public interest under the RTI Act. The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision to refuse access to this information and also raised extensive sufficiency of search issues. For the reasons set out below, the decision under review is varied and access to: the information in issue can be refused under section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest the exterior elevations plan can be granted by way of inspection only under section 68(4)(c) of the RTI Act as providing the applicant with a copy of this document would infringe copyright; and any additional information can be refused under section 47(3)(e) of the RTI Act as it is nonexistent or unlocatable. Background Significant procedural steps relating to the external review are set out in the appendix. Reviewable decision The decision under review is Council’s deemed affirmation of the original decision.[1] Evidence considered The applicant made submissions and provided voluminous supporting material to OIC supporting her case.[2] I have considered all of this information and, to the extent that it is relevant to the issues for determination, I address it below. Evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and appendix). Issues for determination A number of issues were informally resolved on external review.[3] As a result, the remaining issues for determination are whether: access to the information in issue can be refused on the basis that its disclosure would, on balance, be contrary to the public interest[4] providing the applicant with a copy of the exterior elevations plan would involve an infringement of the copyright of a person other than the State;[5] and access to the documents identified in the applicant’s sufficiency of search submissions can be refused on the basis that they are nonexistent or unlocatable.[6] Refusal of access The information in issue comprises: the name and contact details of a complainant and information provided to Council’s Development Compliance, Implementation and Assessment Branch by the complainant (Complaint Information);[7] and four building plans of a neighbouring unit from 2005, comprising an exterior elevations plan and three internal floor plans (Building Plans).[8] Relevant law A person has a right to be given access to documents of an agency under the RTI Act.[9] However, this right is subject to other provisions of the RTI Act, including the grounds on which an agency may refuse access to documents.[10] An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[11] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[12] and explains the steps that a decision-maker must take[13] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosing the information would, on balance, be contrary to the public interest. Findings Complaint Information No irrelevant factors arise in the circumstances of this case. I will now consider the relevant factors favouring disclosure and nondisclosure of the Complaint Information. Accountability and transparency of Council I have considered whether disclosing the Complaint Information could reasonably be expected to[14] enhance Council’s accountability for its handling of the complaint[15] or reveal the reasons for Council’s decision or any background or contextual information informing the decision in relation to the complaint.[16] Council must be accountable for the conduct of its investigations. The applicant was the subject of the complaint and I accept that disclosing the Complaint Information would reveal background or contextual information which may provide the applicant with a more comprehensive understanding of the information before Council which informed its subsequent action. Council issued the applicant with a show cause notice as a result of the complaint. The applicant submits that there was insufficient information provided by Council in issuing the show cause notice to enable her to fully understand the nature and details of the complaint made against her and that it was issued in unreasonable circumstances.[17] However, in this case, the information that Council has already released to the applicant reveals: the substance of the complaint against the applicant how Council responded to the complaint; and that the complaint was investigated and the applicant issued with a show cause notice. I consider the information which has already been provided to the applicant advances these factors significantly and that releasing the Complaint Information would only marginally enhance Council’s accountability in these circumstances. The applicant submits that disclosing the Complaint Information would significantly enhance Council’s transparency and accountability as she would have all information available to her to properly examine Council’s conduct and to ensure that all relevant laws, policies and procedures were complied with during her dealings with Council so that she could pursue further complaints or remedies.[18] The fact that the applicant is dissatisfied with Council’s handling of the complaint does not oblige Council to provide the applicant with access to its entire file. Relevantly, the Complaint Information does not relate to Council’s handling of the complaint nor reveal any of the steps Council took in its investigation – it is information provided to Council by the complainant. The applicant also contends that Council failed to properly investigate a complaint she made alleging misconduct by several Council officers.[19] Again, the Complaint Information does not relate to the applicant’s complaint and would not provide her with any understanding of how Council handled her complaint. I afford low weight to both of these factors for the reasons addressed above. Personal information and privacy The Complaint Information relates to building works on the applicant’s property and information provided to Council supporting the complaint. It generally comprises the applicant’s personal information[20] and this gives rise to a factor favouring disclosure.[21] I acknowledge the importance of providing individuals with access to their personal information held by public authorities and I afford significant weight to this factor. However, even though the subject matter of the Complaint Information generally relates to the applicant, the Complaint Information also comprises the complainant’s personal information. This personal information includes both the complainant’s identity and the information provided to Council. It is not possible for me to delete the complainant’s name from the Complaint Information and release the remaining information. The complainant would still be identifiable from the remaining information given the subject matter of the complaint. I am satisfied that disclosing the Complaint Information could reasonably be expected to: prejudice the protection of the complainant’s right to privacy;[22] and cause a public interest harm by disclosing the complainant’s personal information.[23] The applicant submits that she knows the complainant’s identity and contact details and that the identity of the complainant is obvious given the substance of the complaint. She also contends that the complainant made a written admission to the Body Corporate taking responsibility for the complaint to Council and that the document in which they make this admission is available to the public under the Body Corporate and Community Management (Standard Module) Regulation 2008. As a result, the applicant believes the complainant has no right to privacy in relation to the Complaint Information.[24] I accept that the applicant is generally aware of the substance of the Complaint Information as this information was conveyed to the applicant in the show cause notice. The applicant may also consider the identity of the complainant is obvious to her given the substance of the complaint. As some information has previously been disclosed to the applicant about the complaint, this reduces, but does not completely negate, the weight to be afforded to these factors favouring nondisclosure. I am satisfied the Complaint Information was provided to Council for the specific and limited purpose of Council conducting an investigation and that its disclosure outside of the investigation process could reasonably be expected to prejudice the complainant’s privacy. The extent of the intrusion, and the anticipated harm, may be reduced to some degree. However, I am not satisfied that the actual Complaint Information has been provided to the applicant nor that the privacy interest attaching to the information has been negated in the way the applicant contends. For these reasons, I afford moderate weight to both of these nondisclosure factors. The applicant also makes a number of submissions about there being a history of conflict with the people she believes are the complainants and the motivations and conduct of these people and Council officers.[25] These submissions are not relevant to the issues for determination in this review and I have not addressed them in these reasons. Prejudice the flow of information to Council If disclosing information could reasonably be expected to prejudice the flow of information to the police or another law enforcement or regulatory agency, a public interest factor favouring nondisclosure arises.[26] Council relies on members of the public to provide information which enables it to administer and enforce local laws.[27] I am satisfied that routinely disclosing the type of information in issue in this review would tend to discourage individuals from coming forward with information and cooperating with Council as they may consider that their personal information could be released to other individuals, including to the person who is the subject of the complaint. This in turn could reasonably be expected to negatively impact Council’s ability to obtain this information in future. The applicant considers that little or no weight should be afforded to this factor. She contends that releasing the Complaint Information would not result in a decrease in the flow of information from the public relating to genuine complaints but that there may be a reduction in the flow of vexatious complaints. The applicant submits that ‘vexatious complainants cannot hide behind the RTI Act in order to use Council resources to investigate non genuine complaints designed to harass or discriminate other members of the public’.[28] I am not required to determine in this review whether the complaint was vexatious or unfounded. However I note that Council did issue the applicant with a show cause notice in response to the complaint.[29] In P6Y4SX and Department of Police,[30] the Assistant Information Commissioner considered the public policy considerations in protecting the free flow of information and relevantly explained that ‘...it is generally recognised that there is very strong public interest in protecting the free flow of information to law enforcement agencies, even where this may result in an agency investigating false and/or unsubstantiated allegations’.[31] I agree with these comments and I am not persuaded by the applicant’s submissions on this issue. For these reasons, I afford significant weight to this nondisclosure factor. Administration of justice and fair treatment I have considered whether disclosing the Complaint Information could reasonably be expected to: advance the applicant’s fair treatment in accordance with the law in her dealings with Council;[32] and contribute to the administration of justice and procedural fairness both generally and for the applicant.[33] The applicant submits that Council did not afford her procedural fairness as she was not informed of the substance of the complaint and did not have the opportunity to respond to the complaint before the show cause notice was issued. In her view, Council should have investigated the complaint before issuing the show cause notice.[34] She also contends that Council should have followed relevant guidelines and issued a letter of demand instead of a show cause notice. In her view, if a letter of demand had been issued, she would have been able to provide evidence supporting her case and advise Council that the complaint was vexatious. The applicant submits that as a result of Council’s actions, she has been denied natural justice.[35] The notice which Council issued to the applicant invited her to show cause under section 590 of the Sustainable Planning Act 2009 (Qld) as to why an enforcement notice should not be issued in regards to building work at her property. The notice outlined the substance of the complaint, reasons for Council’s action and provided instructions on how to respond to the notice. The notice was not a decision. The purpose of issuing the notice was to seek the applicant’s response to the allegations and I consider that she was afforded procedural fairness in this regard. The applicant has provided detailed submissions on why the show cause notice should not have been issued and makes assertions about the motivations of Council officers in issuing the notice and conduct of Council officers in investigating the complaint.[36] I am unable to comment on Council’s actions or whether the issuing of the show cause notice was warranted in the circumstances. These issues are not relevant to the issues for determination. The fact that the applicant considers Council should have taken a different course of action in dealing with the complaint is not, in my view, relevant to the application of these factors. The applicant also submits that she intends to pursue various remedies available to her and that there is substantial public interest in pursuing any actionable wrongs by Council or a Council official in the circumstances.[37] The Information Commissioner has previously recognised that, in an appropriate case, there may be a public interest in a person who has suffered, or may have suffered, an actionable wrong, being permitted to obtain access to information which would assist the person to pursue any remedy which the law affords in those circumstances. However, a mere assertion by an applicant that information is required to enable pursuit of a legal remedy is not sufficient, in itself, to enliven this consideration.[38] The applicant has provided a document to OIC which indicates that she has recently made a complaint to the Anti-Discrimination Commission Queensland about Council and a Council officer.[39] I am unable to identify how disclosing the Complaint Information in this review would enable the applicant to pursue a legal remedy in that jurisdiction. Furthermore, there is no evidence currently before me to indicate that disclosing the Complaint Information would enable the applicant to pursue any other legal remedy. As noted above, the Complaint Information is the information which the complainant provided to Council – it does not relate to Council’s actions which are the subject of the applicant’s concerns. The applicant is able to address any concerns about the complaint handling process and show cause notice without having seen the Complaint Information. As previously noted, the applicant is generally aware of the substance of the Complaint Information. For these reasons, I do not consider that these factors are relevant. Reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant The applicant submits that disclosing the Complaint Information could reasonably be expected to reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[40] The applicant relies on this factor as she considers the complaint is vexatious. In Matthews, the Right to Information Commissioner considered this factor in the context of a complaint and relevantly explained that: [41] ... I am mindful that complaint information is by its very nature, an individual’s particular version of events which is shaped by factors including the individual’s memory and subjective impressions. In my view, this inherent subjectivity does not necessarily mean that the resulting account or statement is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. Rather, it means that complaint information comprises a personal interpretation of relevant events, which an investigator must balance against other (often competing) statements and evidence in reaching a conclusion in a particular case. I agree with these comments. In this review, there is no evidence to suggest that the Complaint Information is not an accurate reflection of the views put forward by the complainant. Council is aware that a complaint represents only one version of events and that complaints may lack substance or warrant no further action. For these reasons, I do not consider that this factor is relevant. Reveal information about the conduct of Council officers The applicant submits[42] that disclosing the Complaint Information could reasonably be expected to: allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official; [43] and reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[44] The applicant makes a range of allegations about the conduct of Council officers in handling the complaint and attending her property to investigate. She submits that disclosing information about the conduct of a Council officer and other Council staff in issuing the show cause notice would assist her in determining the events that caused the show cause notice to be issued in circumstances which she considers were unreasonable. She also submits that she intends to lodge a complaint with Council concerning compliance issues arising from the complaint but is unable to do so until the Complaint Information is released to her. [45] As I have previously explained, the Complaint Information is the information which the complainant provided to Council – it does not relate to Council’s actions which are the subject of the applicant’s concerns. As the Complaint Information does not relate to the conduct of Council officers, or reveal how Council handled the complaint, its disclosure would not further these public interest factors and I am satisfied these factors are not relevant in the circumstances. Balancing the public interest factors I acknowledge the general public interest in promoting access to information under the RTI Act and the pro-disclosure bias in deciding access to documents.[46] I have identified three factors which favour disclosure of the Complaint Information. For the reasons addressed above, I afford low weight to the two factors relating to Council accountability and transparency and significant weight to the factor relating to the applicant’s personal information. I have identified three factors favouring nondisclosure of the Complaint Information. For the reasons addressed above, I afford moderate weight to the two factors relating to the personal information and privacy of the complainant and significant weight to the factor relating to protecting the flow of information to Council. As a result, I am satisfied that the factors favouring disclosure of the Complaint Information are outweighed by the factors favouring nondisclosure. Accordingly, I find that Council was entitled to refuse access to the Complaint Information under section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest. Building Plans Exterior elevations plan This is a plan of the exterior of a neighbouring property. I have decided to grant the applicant access to this plan subject to the deletion of the owner’s residential address.[47] I am satisfied the owner’s residential address is their personal information and its disclosure would, on balance, be contrary to the public interest.[48] The applicant seeks access to a copy of the plan. The RTI Act provides that if giving access in the form requested by the applicant would involve an infringement of the copyright of a person other than the State, access in that form may be refused and given in another form.[49] Copyright in architectural plans and drawings is regulated by the Copyright Act 1968 (Cth) (Copyright Act). Section 32 of the Copyright Act provides that copyright subsists in an artistic work. Section 10 of the Copyright Act relevantly defines ‘artistic work’ to include a drawing, whether the work is of artistic quality or not, a model of a building, whether the model is of artistic quality or not, or a work of artistic craftsmanship. Copyright in relation to an artistic work is an exclusive right to reproduce the work in a material form, publish the work and communicate the work to the public.[50] After carefully considering the relevant provisions of the Copyright Act, I am satisfied that the exterior elevations plan is subject to copyright and that providing the applicant with a copy of this document under the RTI Act would constitute an infringement of copyright. Accordingly, I have decided to grant the applicant access to this plan by way of inspection only. The applicant submits that there is no copyright in this plan as any purported rights to copyright were extinguished when the owner submitted the plan for permanent inclusion in the records of the Body Corporate. As a result, the applicant contends that the plan is now a public document.[51] If the plan was in fact still available from the Body Corporate records, then the applicant, as Secretary of the Body Corporate, would be able to access the plan in that way, without the need for an application under the RTI Act. However, I do not consider that the fact the plan may have been included in the Body Corporate records at some stage would waive copyright in the plan. The applicant also believes that, because the owner submitted the plan to Council for approval, it can be viewed by the general public. She also notes that material concerning development applications is publically available on Council’s website for development applications lodged after 2006.[52] I am satisfied that a copy of this plan is not available on Council’s website. Council’s policy is to release floor plans only with the consent of the registered owner.[53] The applicant does not appear to have the registered owner’s consent in this case. For these reasons, I find that access to the plan can be granted by way of inspection only and subject to the deletion of the owner’s residential address. Internal floor plans The three remaining plans are internal floor plans which show the changes the owner intended to make to their property. I accept that floor plans of houses are published regularly online and are made public from time to time, particularly when a property is listed for sale. However, I consider that plans of particular existing houses are not generally publicly available and that these internal floor plans, showing intended renovations, are not in the public domain. Until such time as these plans are made publicly available, I consider there is a degree of privacy which attaches to this type of information. This gives rise to a factor favouring nondisclosure to which I afford moderate weight.[54] I am unable to identify any factors which favour disclosure of these plans and which carry sufficient weight to justify disclosure in this instance. As noted above, the applicant is able to obtain access to these drawings from Council with the owner’s consent. The applicant has provided extensive submissions in relation to the Building Plans. In summary, the applicant submits that disclosing the Building Plans could reasonably be expected to contribute to the administration of justice, including procedural fairness, as:[55] a person who wishes to purchase the property needs to be able to identify previous works done; and she is the Secretary of the Body Corporate and wants to include the plans in the Body Corporate records to ensure that the extensions undertaken by the owner in 2005 are in accordance with approved Council plans. As noted above, a prospective purchaser may obtain a copy of these plans from Council with the owner’s consent. The applicant is not required to make this information available to a prospective purchaser – this is a matter for the owner and Council. In relation to the applicant’s submission that she wishes to ensure that the extensions undertaken by the owner in 2005 are in accordance with approved Council plans, this is not an issue relating to the administration of justice. If the applicant has concerns about the works undertaken, she may raise them with Council for further investigation. Council has provided the applicant with information showing that the Body Corporate had no objections to the proposed development at the time.[56] It has also released a copy of Council’s letter to the owner approving the development permit and setting out a number of conditions.[57] For these reasons, I find that access to these plans can be refused under section 47(3)(b) of the RTI Act as their disclosure would, on balance, be contrary to the public interest.[58] Sufficiency of search Relevant law Access to a document may be refused if the document is nonexistent or unlocatable.[59] A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but it cannot be found.[60] A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.[61] To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience and have regard to a number of key factors.[62] When proper consideration is given to relevant factors, it may not be necessary for searches to be conducted. However, if searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case as the search and enquiry process an agency will be required to undertake will depend on which of the key factors are most relevant in the particular circumstances. Findings The applicant sought access to 14 categories of documents which generally relate to Council’s dealings with her and neighboring properties from 2005. Council performed electronic and hardcopy searches of its files relating to the applicant’s property, the other two properties in the complex and the Body Corporate. It also had the relevant officers perform broad searches for diary notes, emails and log book entries which may relate to the applicant, the applicant’s address and lot number, the show cause notice and internal communications about these matters. Council located 109 pages in response to the applicant’s request. On internal review, the applicant raised numerous concerns about documents which Council had not located. Council performed further searches but did not locate any additional information. The applicant provided extensive submissions to OIC relating to documents which she considers exist and are relevant to her application but have not been located by Council. The Information Commissioner’s external review functions include investigating and reviewing whether agencies have taken reasonable steps to identify and locate documents applied for by applicants.[63] Generally, the agency that made the decision under review that has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[64] However, where an external review involves the issue of missing documents, the applicant has a practical onus to establish reasonable grounds to believe that the agency has not discharged its obligation to locate all relevant documents.[65] A large part of the applicant’s submissions are irrelevant to the issues for determination and are not addressed in these reasons. These submissions seek explanations from Council about the creation of certain documents,[66] request information about actions taken by particular staff and explain why the applicant needs particular information and what she believes the documents will show. In some cases, the applicant merely seeks confirmation from Council that certain information doesn’t exist. To the extent the applicant’s submissions are relevant to the issues for determination, they are addressed below. Document 238530 and customer request 43856070 The applicant submits that document 238530 and customer request 43856070 referred to in the documents located by Council have not been provided to her.[67] Council explained that:[68] document 238530 is the original complaint form submitted by the complainant in relation to building work allegedly undertaken by the applicant the original complaint form was scanned into Council’s system and the image was allocated the number 43856070 as a customer request; and the complaint was then allocated the complaint number 238530. I have considered Council’s explanation and the documents located by Council. I am satisfied Council’s explanation is correct that that the relevant documents have been located. Access to the complaint form was refused for the reasons addressed above as it comprises Complaint Information. Document 44721802 The applicant submits that document 44721802 lodged on Council’s computer system by a Council Compliance Officer on 9 July 2014 has not been provided. This document number appears again on Council’s system on 23 July 2014 as the show cause notice issued to the applicant.[69] Council confirmed that document 44721802 is the show cause notice that was served on the applicant on 23 July 2014.[70] On external review, Council further explained that:[71] the Compliance Officer created the show cause notice on 9 July 2014 the show cause notice was then provided to an Administrative Officer to type up and the officer allocated the date of 23 July 2014 to the document; and there are not multiple versions of this document, document 44721802 is the show cause notice that was issued to the applicant on 23 July 2014. The applicant submits that:[72] the Compliance Officer intended to close the file as there was no evidence of building works found during his investigation the officer did not record details of his inspection of the applicant’s premises when the officer became aware that a complaint had been made about his conduct, he colluded with other people so that a further complaint was made about the applicant which would provide sufficient grounds to issue the show cause notice; and document 44721802 was then removed from Council’s recording system. I accept Council’s explanation and note that there is no evidence to indicate that this document was modified in the way the applicant suggests. I am satisfied that document 44721802 has been located and released to the applicant. Internal documents about Council’s handling of the investigation and issuing of the show cause notice The applicant submits that work diaries, internal memos or log books from certain Council officers have not been located by Council.[73] On external review, OIC made further enquiries with Council about the existence of these documents and Council explained that: [74] Council officers make notes relating to investigations on a computerised application management system Council officers update these entries as events occur on the relevant complaint or customer request; and there is no requirement for an officer in the field to carry a written document. I have carefully reviewed the information located by Council and which has been released to the applicant. I have also considered the searches conducted by Council specifically for this information. It is evident from the information released to the applicant that Council officers have made entries about actions completed in relation to a complaint or customer request on the application management system. The information released to the applicant shows that Council officers made notes relating to, for example, the service of show cause notices, attending site inspections and sending and receiving correspondence. The applicant appears to be primarily concerned that the Council officer, who attended her property prior to issuing the show cause notice, did not record details of the site attendance. She submits that it is not logical that a Council officer would attend a private property and not take notes or record the matter electronically.[75] Council has located and released the customer request details which record the relevant officer’s notes in relation to this matter. I agree that these documents do not record the attendance at the applicant’s property in the same way as other officers have recorded their attendances. Based on my review of this information, I consider the officer did not record the attendance. However, I do not consider that this points to the existence of additional information. If the attendance was recorded, it would appear in the documents which Council has located. The applicant also submits that Council would not conduct an investigation and issue a show cause notice on a verbal basis without any written reference or written referral to a supervisor.[76] However, the applicant has not provided any evidence which points to the existence of such information. A mere assertion or belief that certain internal documents should have been created does not mean that the documents were in fact created and further searches with Council, based on this mere assertion, are not warranted in the circumstances. Building, engineering, hydraulic or survey plans The applicant submits that Council has failed to locate building, engineering, hydraulic and survey plans from 2005 that she considers exist in relation to building work undertaken by a neighbouring owner. The applicant states that the documents must exist if there was lawful building approval for this property.[77] As noted above, Council has located the Building Plans which relate to this property from 2005. Despite the applicant’s submission that additional building, engineering, hydraulic or survey plans exist, there is no evidence to support this submission. Remaining sufficiency of search submissions Having carefully considered the applicant’s remaining submissions, together with the information set out above in relation to the nature and extent of Council’s searches, I am satisfied that Council was entitled to refuse access to the requested documents under section 47(3)(e) of the RTI Act on the basis that they are nonexistent or unlocatable. DECISION As set out above, I vary[78] the decision under review and find that access to: the information in issue identified above can be refused under section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest the exterior elevations plan can be granted by way of inspection only under section 68(4)(c) of the RTI Act as providing the applicant with a copy of this document would infringe copyright; and any additional information can be refused under section 47(3)(e) of the RTI Act as it is nonexistent or unlocatable. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ Tara Mainwaring A/Assistant Information Commissioner Date: 27 November 2015 APPENDIX Significant procedural steps Date Event 2 September 2014 Council received the access application. 3 October 2014 Council issued its decision to the applicant. 16 October 2014 Council received the internal review application. 30 October 2014 The applicant provided further submissions supporting the internal review application. 28 November 2014 Council purported to issue the internal review decision to the applicant. However, as Council did not issue its decision within the prescribed timeframe, it was taken to have affirmed the original decision. 2 December 2014 OIC received the external review application. 4 December 2014 OIC notified Council and the applicant that the external review application had been received. OIC asked Council to provide relevant procedural documents by 11 December 2014. 15 December 2014 OIC received the requested documents from Council. 21 January 2015 OIC notified the applicant and Council that the external review application had been accepted. OIC asked Council to provide additional procedural documents and a copy of the documents located in response to the application by 4 February 2015. OIC received submissions from the applicant confirming the basis for the external review application. 10 February 2015 OIC received the requested documents from Council. 16 February 2015 OIC received additional documents from Council. 5 June 2015 OIC asked the applicant to provide submissions by 19 June 2015 clarifying her sufficiency of search concerns. 18 June 2015 OIC received the applicant’s submissions. 26 August 2015 OIC requested further information from Council regarding their searches. 27 August 2015 OIC received the requested information from Council. 8 September 2015 OIC conveyed a preliminary view to the applicant by phone. The applicant did not accept the preliminary view. The applicant confirmed she did not seek access to the email address of another individual. 9 September 2015 OIC conveyed its preliminary view to Council on some of the information to which access had been refused. Council accepted the preliminary view. OIC asked Council for further information in relation to some of the sufficiency of search issues. Council provided the requested information. 22 September 2015 OIC asked Council for further information in relation to a sufficiency of search issue. Council advised OIC it had located four additional pages (the Building Plans). 28 September 2015 OIC received a copy of the additional documents from Council. Council provided a submission in which it objected to release of these documents. 7 October 2015 OIC conveyed its preliminary view to Council on the additional documents. Council accepted the preliminary view. 8 October 2015 OIC conveyed its preliminary view to the applicant and invited her to provide submissions supporting her case by 23 October 2015 if she did not accept the preliminary view. 23 October 2015 The applicant requested an extension of time until 30 October 2015 to respond to the preliminary view. OIC granted the requested extension. 28 October 2015 The applicant requested a further extension of time until 4 November 2015 to respond to the preliminary view. The applicant also raised a procedural issue. 29 October 2015 OIC granted the requested extension of time and addressed the procedural issue. 4 November 2015 The applicant notified OIC that she did not accept the preliminary view and provided detailed submissions and other documents supporting her case. The applicant also raised various procedural issues. 11 November 2015 OIC addressed the procedural issues with the applicant and advised that the preliminary view had not changed. The applicant requested an opportunity to provide further submissions supporting her case. 12 November 2015 OIC granted the applicant the requested extension of time to provide further submissions. 13 November 2015 OIC received the applicant’s submissions. The applicant repeated a number of procedural issues. 16 November 2015 OIC advised the applicant that the procedural issues had been addressed previously by OIC. [1] As Council’s internal review decision was made outside the timeframe prescribed by section 83(2) of the RTI Act, Council is deemed to have affirmed the original decision made on 3 October 2014. However Council purported to issue a decision to the applicant (after it was deemed to have affirmed the original decision) and OIC treated the purported decision as Council’s submission on external review. [2] The applicant’s submissions are set out in correspondence to Council dated 13 October 2014 and 30 October 2014 and to OIC dated 2 December 2014, 21 January 2015, 18 June 2015, 4 November 2015 and 13 November 2015. The applicant’s supporting material comprises more than 300 pages. The applicant also raised various procedural issues on external review which I have previously addressed. As these issues are not relevant to the decision, I have not addressed them in these reasons. [3] The applicant did not seek review of Council’s decision to refuse access to another individual’s email address. Council also accepted OIC’s preliminary view that the information in issue did not comprise exempt information under schedule 3, section 10(1)(b) of the RTI Act. [4] Section 47(3)(b) of the RTI Act. [5] Section 68(4)(c) of the RTI Act. [6] Section 47(3)(e) of the RTI Act. [7] This information comprises one page and 13 part pages.[8] This information comprises four pages. In submissions to OIC dated 18 June 2015, the applicant requested access to four drawings referred to in a letter from Council to another individual on 15 June 2005. OIC made further enquiries with Council about these documents. Council located these drawings and provided them to OIC for consideration. [9] Section 23 of the RTI Act.[10] Section 47 of the RTI Act.[11] Section 47(3)(b) and 49 of the RTI Act. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs, for the wellbeing of citizens generally. This means that, ordinarily, a public interest consideration is one which is common to all members of, or a substantial segment of, the community as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.[12] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant. [13] Section 49(3) of the RTI Act.[14] The term ‘could reasonably be expected to’ requires that the expectation be reasonably based, that it is neither irrational, absurd or ridiculous, nor merely a possibility. The expectation must arise as a result of disclosure, rather than from other circumstances. Whether the expected consequence is reasonable requires an objective examination of the relevant evidence. It is not necessary for a decision-maker to be satisfied upon a balance of probabilities that disclosing the document will produce the anticipated prejudice. See Nine Network Australia Pty Ltd and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 14 February 2012) at paragraph 31.[15] Schedule 4, part 2, item 1 of the RTI Act. [16] Schedule 4, part 2, item 11 of the RTI Act.[17] Submissions to Council dated 30 October 2014 and to OIC dated 2 December 2014, 18 June 2015 and 4 November 2015. [18] Submissions to Council dated 30 October 2014 and to OIC dated 4 November 2015. [19] Submissions to Council dated 30 October 2014 and to OIC dated 4 November 2015. [20] Section 12 of the Information Privacy Act 2009 (Qld) defines ‘personal information’ 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.’ [21] Schedule 4, part 2, item 7 of the RTI Act.[22] Schedule 4, part 3, item 3 of the RTI Act. [23] Schedule 4, part 4, section 6 of the RTI Act.[24] Submissions to Council dated 30 October 2014 and to OIC dated 2 December 2014 and 4 November 2015. [25] Submissions to Council dated 30 October 2014 and to OIC dated 4 November 2015. [26] Schedule 4, part 3, item 13 of the RTI Act. [27] See, for example, Matthews and Gold Coast City Council (Unreported, Queensland Information Commissioner, 23 June 2011) (Matthews) at paragraphs 25-27.[28] Submissions dated 4 November 2015. [29] In submissions dated 4 November 2015, the applicant submits that the show cause notice was later withdrawn by Council. [30] (Unreported, Queensland Information Commissioner, 31 January 2012). [31] At paragraph 40. [32] Schedule 4, part 2, item 10 of the RTI Act. [33] Schedule 4, part 2, items 16 and 17 of the RTI Act.[34] Submissions to Council dated 30 October 2014 and to OIC dated 4 November 2015. [35] Submissions dated 4 November 2015.[36] Submissions dated 2 December 2014, 18 June 2015 and 4 November 2015. [37] Submissions to Council dated 30 October 2014 and to OIC dated 4 November 2015. [38] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 at paragraphs 16 and 17.[39] Submissions dated 4 November 2015. [40] Schedule 4, part 2, item 12 of the RTI Act. Submissions to Council dated 30 October 2014.[41] At paragraphs 17 and 18.[42] Submissions to Council dated 30 October 2014 and to OIC dated 4 November 2015. [43] Schedule 4, part 2, item 5 of the RTI Act.[44] Schedule 4, part 2, item 6 of the RTI Act.[45] Submissions to Council dated 30 October 2014 and to OIC dated 4 November 2015.[46] Section 44 of the RTI Act. [47] The owner’s residential address is not the same as the address of the property which appears in the plan. [48] Section 47(3)(b) of the RTI Act. [49] Section 68(4)(c) of the RTI Act. [50] Section 31(1)(b) of the Copyright Act.[51] Submissions dated 4 November 2015. [52] Submissions dated 4 November 2015. [53] See Council’s application form for copies of building plans at http://www.goldcoast.qld.gov.au/planning-and-building/building-works-compliance-6336.html. [54] That is, disclosing this information could reasonably be expected to prejudice the protection of an individual’s right to privacy (schedule 4, part 3, item 3 of the RTI Act). [55] Submissions dated 4 November 2015. Schedule 4, part 2, items 16 and 17. [56] Two page handwritten letter to Council dated 19 April 2005. [57] Five page letter to the owner dated 15 June 2005. [58] In any event, even if access to the internal floor plans could be granted under the RTI Act, they would be subject to copyright for the reasons addressed above. Therefore, access to the internal floor plans would be granted by way of inspection only. [59] Sections 47(3)(e) and 52 of the RTI Act. [60] Section 52(1)(b) of the RTI Act.[61] Section 52(1)(a) of the RTI Act. [62] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at paragraph 19 which adopted the Information Commissioner’s comments in PDE and the University of Queensland [2009] QICmr7 (9 February 2009). The key factors include: the administrative arrangements of government; the agency structure; the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it); the agency’s practices and procedures (including but not exclusive to its information management approach) and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates.[63] Section 130(2) of the RTI Act.[64] Section 87(1) of the RTI Act.[65] Mewburn and Department of Local Government, Community Recovery and Resilience [2014] QICmr 43 (31 October 2014) at paragraph 13.[66] I have previously explained to the applicant that, to the extent her submissions seek answers to questions, instead of access to information, I am unable to consider them as part of this review and they are irrelevant to the issues for determination. This is because the RTI Act provides a right of access to information – it does not provide a right to obtain answers to questions from an agency. See Hearl and Mulgrave Shire Council [1994] QICmr 12; (1994) 1 QAR 557 at paragraphs 30-31 and Pearce and Queensland Rural Adjustment Authority; Various Landholders (Third Parties) (1999) 5 QAR 242.[67] Submissions to Council dated 30 October 2014 and to OIC dated 18 June 2015.[68] Council’s purported internal review decision. [69] Submissions to Council dated 30 October 2014 and to OIC dated 18 June 2015 and 4 November 2015. [70] Council’s purported internal review decision.[71] In a conversation with OIC on 9 September 2015. [72] Submissions dated 4 November 2015. [73] Submissions to Council dated 30 October 2014 and to OIC dated 18 June 2015 and 4 November 2015. [74] In a conversation with OIC on 9 September 2015.[75] Submissions dated 4 November 2015.[76] Submissions dated 18 June 2015. [77] Submissions dated 4 November 2015 and 13 November 2015. [78] The decision under review is a deemed affirmation of Council’s original decision. The decision is varied as Council located additional documents on external review (i.e. the Building Plans) and OIC reached the view that Council was not entitled to refuse access to the Complaint Information on the basis that it comprised exempt information under schedule 3, section 10(1)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

D92 and Queensland Police Service [2021] QICmr 28 (9 June 2021)

D92 and Queensland Police Service [2021] QICmr 28 (9 June 2021) Last Updated: 19 August 2021 Decision and Reasons for Decision Citation: D92 and Queensland Police Service [2021] QICmr 28 (9 June 2021) Application Number: 315644 Applicant: D92 Respondent: Queensland Police Service Decision Date: 9 June 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - IRRELEVANT INFORMATION - whether information may be deleted on the basis it is irrelevant to the terms of the access application - section 73 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST - personal information of other individuals - safeguarding personal information and the right to privacy of other individuals - whether disclosure would, on balance, be contrary to the public interest - whether access may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied[1] to the Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for access to various documents regarding QPS’s management of the applicant as an employee. 2. QPS did not make a decision within the relevant processing period[2] and was therefore deemed to have made a decision refusing access to the information sought.[3] 3. The applicant applied[4] to the Office of the Information Commissioner (OIC) for external review of QPS’s deemed decision refusing access. 4. OIC granted[5] QPS further time to deal with the access application.[6] 5. QPS did not make a decision within the further time granted and was therefore taken to have made a decision affirming the deemed decision.[7] 6. The applicant applied[8] to OIC for external review of QPS’s decision affirming the deemed decision. 7. For the reasons set out below, I vary QPS’s deemed decision[9] and find that: some information may be deleted on the ground it is irrelevant to the access application;[10] and access to the remaining information in issue[11] may be refused on the ground that disclosure would, on balance, be contrary to the public interest. Reviewable decision 8. The decision under review is the decision QPS is deemed to have made refusing access to the information sought. Evidence considered 9. Significant procedural steps taken during the external review are set out in the Appendix. 10. In reaching my decision, I have had regard to the submissions, evidence, legislation, and other material referred to throughout these reasons (including footnotes and Appendix). 11. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[12] particularly the right to seek and receive information.[13] I consider a decision-maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the RTI Act.[14] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation[15]: ‘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.’[16] Information in issue 12. During the review: QPS located 265 pages and agreed[17] to release 95 pages and parts of 136 pages to the applicant;[18] and the applicant no longer sought access to certain information.[19] 13. Therefore, the information remaining for consideration is the refused information appearing within: pages 64, 100-103, 107-109, 115-117 and 122-124 (Category A Information); and pages 1-4, 42-52 and 70-77 (Category B Information). Issues for determination 14. The issues for determination are whether: Irrelevant information: certain information can be deleted on the basis that it is irrelevant to the terms of the access application. Contrary to the public interest information: access to other information can be refused on the ground that its disclosure would, on balance, be contrary to the public interest. Irrelevant information – Category A Relevant law 15. Section 73 of the RTI Act allows an agency to delete or refuse information that is irrelevant to the scope of an access application. Findings 16. I have reviewed the Category A Information which has been deleted by QPS on the basis that it was irrelevant to the access application. While this information is contained within documents which also contain information which responds to the access application, the deleted Category A information itself does not respond to the terms of the access application. Rather it relates to other management actions of QPS about:[20] conduct of other officers recording overtime for cost purposes relating to deployment for bushfires and the state of emergency declared for bushfires in 2019 Road Policing Command QLiTE excessive data usage in October 2019; and a warning order for a specific operation. 17. Accordingly, I find that the Category A Information can be deleted from the copies of the documents released to the applicant on the basis that it is irrelevant to the terms of the applicant’s application for access. Contrary to the public interest information – Category B Relevant law 18. Under the RTI Act, access to information may be refused where its disclosure would, on balance, be contrary to the public interest.[21] 19. In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[22] identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest. 20. Schedule 4 of the RTI Act contains non-exhaustive lists of factors that may be relevant in determining where the balance of public interest lies in a particular case. I have carefully considered these lists, together with all other relevant information, in reaching my decision. Additionally, I have kept in mind the RTI Act’s pro-disclosure bias[23] and Parliament’s requirement that grounds for refusing access to information be interpreted narrowly.[24] Findings Irrelevant factors 21. During the external review, the applicant made a submission[25] which raised two irrelevant factors, being that: disclosure of the information may cause embarrassment or loss of confidence in QPS;[26] and the person who created the document containing the information was or is of high seniority.[27] 22. I have not taken these, or any other, irrelevant factors into account in reaching my decision. Factors favouring disclosure 23. The applicant also submitted[28] that public interest factors favouring disclosure ‘have not been significantly discharged’ and that disclosure of the remaining information sought could ‘enhance QPS's transparency and accountability by allowing [the applicant] to verify Sgt [A]'s conduct was in accordance with his supervisory responsibilities as outlined within ... 'The Queensland Police Service Integrity Framework'’. 24. I consider the following public interest factors favouring disclosure arise in the circumstances of this matter: Disclosure of the information could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability.[29] Disclosure of the information could reasonably be expected to inform the community of the Government’s operations, including, in particular, the policies, guidelines and codes of conduct followed by the Government in its dealings with members of the community.[30] Disclosure of the information could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the decision.[31] 25. These public interest factors favouring disclosure of information will arise if disclosure could reasonably be expected to enhance the accountability and transparency of QPS regarding its management of staff, for example, by revealing background or contextual information for decisions. The Category B Information comprises information provided to management by other individual/s about the applicant. I accept that disclosing this information would advance these factors to some degree. However, having reviewed the information disclosed to the applicant and the information not disclosed, I consider that the information which QPS has disclosed to the applicant has furthered his understanding of what information was available to QPS and provided background information to management decisions made about the applicant. Accordingly, I afford these three public interest factors in favour of disclosure moderate weight in relation to the Category B Information. 26. The applicant submitted:[32] procedural fairness requires that the substance of an allegation be put to a subject officer and this has not occurred as there is information which has been released which has ‘not been put to [the applicant] for response either by informal or formal processes’ the applicant has been absent from the workplace since January 2020 because of a psychological injury incurred due to unreasonable management action the applicant has commenced a WorkCover claim and further disclosure is required to ‘establish whether a civil writ under common law may be taken against the QPS due to sustaining an injury and suffering loss of income’; and the applicant considers that disclosure of the information will demonstrate that his supervisor’s ‘conduct was not only unreasonable, but his behaviour was continually repeated, victimizing, intimidating and or threatening towards’ the applicant and disclosure would assist him in making a complaint and in substantiating his claim. 27. These submissions give rise to a consideration of the following public interest factors favouring disclosure: Disclosure of the information could reasonably be expected to reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[33] Disclosure of the information could reasonably be expected to contribute to the administration of justice generally, including procedural fairness.[34] Disclosure of the information could reasonably be expected to contribute to the administration of justice for a person.[35] 28. In terms of the public interest in ensuring fair treatment and procedural fairness, I note that, at common law, the fair hearing aspect of procedural fairness requires that, before a decision that will deprive a person of some right, interest or legitimate expectation is made, the person is entitled to know the case against them and to be given the opportunity of replying to it.[36] This does not mean that the person is entitled to access copies of all relevant material. Rather, the person must be provided with adequate information about the material that is credible, relevant and significant to the adverse finding to be made, so that the person can be given the opportunity to make effective representations to the decision-maker.[37] In the present circumstances, I have reviewed the information which has been disclosed to the applicant and it details information that was available to his supervisor, and actions taken, when making decisions about the management of the applicant’s work performance. Given this, and noting the content of the Category B Information, I do not consider that disclosure of the Category B Information could reasonably be expected to advance the applicant’s fair treatment or afford him procedural fairness. Therefore, I am satisfied that the fair treatment and procedural fairness factors are not relevant to the public interest test under the RTI Act in the circumstances of this matter. And, even if it could be accepted that they were relevant, they would warrant no more than low weight, given the nature of the Category B Information. 29. In relation to the public interest in the administration of justice for a person (that person being the applicant), having, as noted previously, reviewed the information which QPS has released to the applicant, I consider that it is sufficient to assist him to pursue a legal remedy, or evaluate whether a remedy is available or worth pursuing.[38] While the Category B Information would provide the applicant with some further detail or source material, it would not, in my view, advance or alter the applicant’s understanding of the circumstances of which he is already aware, and therefore would not assist him in the pursuit of any actionable wrong. Consequently, I am satisfied that the public interest factor favouring disclosure, the administration of justice for a person factor, is not relevant to the public interest test under the RTI Act in the circumstances of this matter. And, even if it could be accepted that it was, it would only warrant low weight, given the nature of the Category B Information. 30. The applicant submitted that:[39] disclosure of the information could assist investigators from external agencies, such as the Human Rights Commission, Industrial Relations Commission and Workplace Health & Safety, and, if ‘corrupt conduct is observed to have taken place’, the Crime and Corruption Commission if misconduct is identified within the information, he has an obligation to report it he considers that QPS and his supervisor’s management of him ‘indicates that there was a clear bias against’ him and ‘the conduct amounted to unreasonable management action taken in an unreasonable manner’; and in relation to the statistical data, he is ‘conversant with the analytical layout of operations of these systems and to be provided with numbers that could have been fabricated in a constructed table from a word document is completely misleading the 'Office of the Information Commissioner'.’ 31. It is not OIC’s role to determine whether there has been any maladministration or wrongdoing on the part of QPS or its officers in conducting workplace investigations. Rather, OIC is limited to a merits review of government agencies’ decisions regarding access to[40] information under the RTI Act. However, the RTI Act recognises that the following public interest factors favouring disclosure may arise if: disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official;[41] and disclosure of the information could reasonably be expected to reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[42] 32. Given the extent of the information which has been released to the applicant by QPS, I am satisfied that he has been provided with sufficient information to allow or assist inquiry into possible deficiencies in the conduct or administration of QPS or an official in the conduct of management decisions made about him. My careful review of the Category B Information leaves me satisfied that disclosure of that information could not reasonably be expected to further these two public interest factors. Therefore, I afford them no weight in the circumstances. 33. Finally, the applicant submitted[43] that the information should be disclosed as disclosure could reasonably be expected to contribute to the enforcement of the criminal law.[44] In support of this, the applicant stated:[45] In some of the disclosed correspondence, it is quite clear that Sgt [A] has made several false accusations against me. It is imperative that these matters are investigated, not only to prove my innocence, but also to see if Sgt [A] can be held accountable for his actions through prosecutions. Making intentionally false accusations against another person that leads to an investigation is a criminal offence and the accuser can be subsequently charged & prosecuted. 34. It is clear from the applicant’s submission that he considers that information already disclosed would contribute to the enforcement of the criminal law. What is unclear is how disclosure of the Category B Information to the applicant might advance this public interest factor. He is evidently of the view that he is already in possession of information which enlivens the criminal law and therefore, I consider there is nothing further to be achieved by disclosing the Category B Information. Beyond merely asserting its relevance, the applicant has not articulated a case for the application of this factor. Further, having carefully considered the Category B Information, I do not consider that there is anything within the Category B Information itself to suggest the type of nefarious objective on the part of the complainant that the applicant is suggesting. Based on all these considerations, I am satisfied that this factor favouring disclosure does not arise for assessment in this case. Therefore, I afford this factor favouring disclosure no weight in the circumstances. Factors favouring nondisclosure 35. I consider the following public interest factors favouring nondisclosure arise in the circumstances of this matter: Disclosure of the information could reasonably be expected to prejudice the protection of an individual’s right to privacy.[46] Disclosure of the information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person, whether living or dead.[47] Disclosure of the information could reasonably be expected to prejudice an agency’s ability to obtain confidential information.[48] Disclosure of the information could reasonably be expected to prejudice the management function of an agency or the conduct of industrial relations by an agency.[49] Disclosure of the information could reasonably be expected to cause a public interest harm if disclosure could: have a substantial adverse effect on the management or assessment by an agency of the agency’s staff;[50] or have a substantial adverse effect on the conduct of industrial relations by an agency.[51] 36. Factors favouring nondisclosure relating to privacy considerations and the protection of the personal information of other individuals are relevant to the public interest test I am required to apply. The nature of the Category B Information in this review is such that its disclosure could reasonably be expected to infringe on the personal sphere of individuals other than the applicant thus prejudicing their right to privacy. Additionally, disclosure of the Category B Information would disclose personal information of individuals other than the applicant thus causing a public interest harm. I am satisfied that these factors in favour of nondisclosure apply in the circumstances of this matter and should be afforded significant weight. 37. In terms of the other applicable factors favouring nondisclosure, relating to QPS’s ability to obtain confidential information in the future and QPS’s management and conduct of industrial relations, I am satisfied that these factors should also be afforded significant weight. While it is reasonable to expect staff, particularly managers, to monitor and provide information to senior officers about performance issues relating to other staff, I consider it equally reasonable that disclosure of the Category B Information may make staff reluctant to fully participate or to provide full and complete information, particularly where those communications convey concerns of a sensitive nature. Further, I consider that such disclosure would impact QPS’s management functions and cause a public interest harm as disclosure of this type of information in these circumstances could have a substantial adverse effect on QPS’s management of its staff. Balancing the factors 38. I have considered the pro-disclosure bias in deciding access to information.[52] On balance, I consider the public interest factors in favour of nondisclosure outweigh the public interest factors in favour of disclosure in relation to the Category B Information. Accordingly, I find that access to the Category B Information may be refused on the basis that its disclosure would, on balance, be contrary to the public interest.DECISION 39. I vary QPS’s deemed decision and find that the Category A Information may be deleted under section 73 of the RTI Act and access to the Category B Information may be refused under sections 47(3)(b) and 49 of the RTI Act. 40. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Assistant Information Commissioner CorbyDate: 9 June 2021 APPENDIX Significant procedural steps Date Event 25 September 2020 OIC received the application for external review. 29 September 2020 OIC notified QPS and the applicant that the application for external review had been accepted and requested from QPS a copy of: a copy of the access application any correspondence between QPS and the applicant in the processing of the application any correspondence with consulted third parties; and a copy of all documents relevant to the access application marked-up, if necessary, to reflect QPS’s position on disclosure; and a submission detailing any grounds for refusing access. 30 September 2020 OIC received a copy of the access application and correspondence between QPS and the applicant from QPS. 23 October 2020 OIC received a submission from QPS. 26 October 2020 OIC received a marked-up copy of all documents relevant to the access application from QPS. 21 December 2020 OIC conveyed a preliminary view to the applicant and requested QPS release information to the applicant as agreed. 12 February 2021 OIC received confirmation that QPS had released information to the applicant as agreed. 26 February 2021 OIC received a submission from the applicant. 31 March 2021 OIC conveyed a further preliminary view to the applicant. 19 April 2021 OIC received a submission from the applicant. [1] Access application dated 29 May 2020.[2] Set out in section 18 of the RTI Act. [3] Under section 46(1)(a) of the RTI Act. QPS advised the applicant of the deemed decision by letter dated 4 August 2020.[4] External review application dated 4 August 2020.[5] On 20 August 2020. [6] Under section 93(2) of the RTI Act.[7] Under section 93(3) of the RTI Act.[8] Application for external review dated 25 September 2020.[9] Under section 46(1) of the RTI Act.[10] Referred to as the Category A Information in this decision.[11] Referred to as the Category B Information in this decision.[12] The HR Act came into force on 1 January 2020.[13] Section 21 of the HR Act. [14] 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].[15] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [16] XYZ at [573].[17] As set out in QPS’s submission, and attached schedule, to OIC dated 23 October 2020.[18] QPS released this information to the applicant by email dated 12 February 2021.[19] In his submissions to OIC dated 1 March 2021, the applicant only continued to seek review of the refused information contained within pages 1-4, 42-52, 64, 70-77, 100-103, 107-109, 115-117 and 122-124. The applicant also sought review of the refused information contained in page 114, however, page 114 was released to the applicant in full by QPS.[20] OIC’s letter to the applicant dated 31 March 2021 provided the applicant with additional information regarding the nature of the other management actions of QPS.[21] Section 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. See Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12, 14-16.[22] Section 49(3) of the RTI Act. [23] Section 44 of the RTI Act.[24] Section 47(2) of the RTI Act.[25] Submission dated 26 February 2021.[26] Schedule 4, part 1, item 1 of the RTI Act.[27] Schedule 4, part 1, item 4 of the RTI Act.[28] Submission dated 26 February 2021.[29] Schedule 4, part 2, item 1 of the RTI Act.[30] Schedule 4, part 2, item 3 of the RTI Act.[31] Schedule 4, part 2, item 11 of the RTI Act.[32] Submission dated 26 February 2021.[33] Schedule 4, part 2, item 6 of the RTI Act.[34] Schedule 4, part 2, item 16 of the RTI Act.[35] Schedule 4, part 2, item 17 of the RTI Act.[36] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (Kioa) at 584 per Mason J.[37] Kioa at 629 per Brennan J.[38] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 at [17] and confirmed in 1OS3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011).[39] Submission dated 26 February 2021.[40] And, where relevant, amendment of.[41] Schedule 4, part 2, item 5 of the RTI Act.[42] Schedule 4, part 2, item 12 of the RTI Act.[43] Submission dated 26 February 2021.[44] Schedule 4, part 2, item 19 of the RTI Act.[45] Submission to OIC dated 1 March 2021.[46] Schedule 4, part 3, item 3 of the RTI Act.[47] Schedule 4, part 4, section 6 of the RTI Act.[48] Schedule 4, part 3, item 16 of the RTI Act.[49] Schedule 4, part 3 item 19 of the RTI Act.[50] Schedule 4, section 3(c) of the RTI Act.[51] Schedule 4, section 3(d) of the RTI Act.[52] Section 44 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Q70 and Queensland Human Rights Commission [2020] QICmr 76 (21 December 2020)

Q70 and Queensland Human Rights Commission [2020] QICmr 76 (21 December 2020) Last Updated: 25 March 2021 Decision and Reasons for Decision Citation: Q70 and Queensland Human Rights Commission [2020] QICmr 76 (21 December 2020) Application Number: 315439 Applicant: Q70 Respondent: Queensland Human Rights Commission Decision Date: 21 December 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE - communications between agency officers and legal advisers - whether information would be privileged from production in a legal proceeding - improper purpose exception - whether access may be refused to exempt information - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 and schedule 3, section 7 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - personal information of other individuals - whether disclosure would, on balance, be contrary to the public interest - whether access may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - SCOPE - IRRELEVANT INFORMATION - request for information about the applicant - whether information may be excluded on the basis it is irrelevant to the scope of the application - section 88 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NONEXISTENT OR UNLOCATABLE DOCUMENTS - whether agency has taken all reasonable steps to locate documents requested by the applicant - whether access to further documents may be refused on the basis that they do not exist or cannot be located - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Queensland Human Rights Commission (QHRC) under the Information Privacy Act 2009 (Qld) (IP Act) to access information about her in documents created, sent or received by the QHRC Chief Executive Officer (CEO).[1] QHRC located 135 documents[2] mainly comprising emails and electronic records held by QHRC in relation to complaints, applications and administration files. QHRC granted access to most of the documents subject to the deletion of parts it considered were irrelevant to the scope of the application, or contrary to the public interest to disclose. QHRC also refused access to legally privileged communications on the basis they were exempt. The applicant applied to QHRC for internal review of the decision to refuse access to information and raised concerns that QHRC had not located all relevant documents.[3] On internal review, QHRC affirmed its original decision and provided the applicant with information about the searches conducted and its recordkeeping systems.[4] The applicant then applied to the Office of the Information Commissioner (OIC) for external review of QHRC’s internal review decision, continuing to raise concerns about the refused information and existence of further documents.[5] In her application, the applicant submitted that ‘QHRC operate in secrecy, with a culture of discrimination, vindictiveness and corruption’ and made allegations of ‘falsified records’. For the reasons set out below, I affirm QHRC’s decision and find that: access may be refused to information on the ground that it is exempt information or because its disclosure would, on balance, be contrary to the public interest[6] certain information may be deleted under section 88 of the IP Act on the basis it is irrelevant to the scope of the application; and access to any further documents may be refused on the basis they do not exist.[7] Background The decision under review is QHRC’s internal review decision dated 2 June 2020. The Appendix sets out significant procedural steps relevant to the review. In reaching this decision, I have taken into account evidence, submissions, legislation and other material as referred to in these reasons (including footnotes and the Appendix). Generally, it is necessary for decision makers to have regard to the Human Rights Act 2019 (Qld) (HR Act). However, section 11(1) of the HR Act provides that ‘[a]ll individuals in Queensland have human rights’ (my emphasis). Given the applicant resides in a State other than Queensland, I have not had direct regard to the HR Act. I have, however, observed and respected the law prescribed in the IP and RTI Acts in making this decision. Where the HR Act applies, doing so is construed as ‘respecting and acting compatibly with’ the rights prescribed in the HR Act.[8] Accordingly, had it been necessary for me to have regard to the HR Act, the requirements of section 58(1) of that Act would be satisfied and the observations of Bell J in XYZ about the interaction between the Victorian analogues of Queensland’s legislation would apply.[9] Information in issue The information to which access has been refused appears mainly in QHRC internal and external email communications (including attachments) and internal QHRC memoranda. Some of the pages contain correspondence exchanged between QHRC and the applicant. While I am limited in the extent I can describe the refused information,[10] it can be summarised as follows: communications between QHRC and its internal legal advisers (LPP information)[11] information about other individuals appearing in an internal QHRC memorandum to the CEO and a one-page email authored by the applicant (Third Party Information);[12] and information appearing on 56 pages[13] of emails and attachments (Irrelevant Information). Issues for determination The issues for determination fall into two categories. Firstly, I must consider refusal of access to the LPP Information on the basis it is exempt, and to the Third Party Information on the basis that disclosure would, on balance, be contrary to the public interest.[14] Secondly, the applicant has concerns about the scope of the application, deletion of the Irrelevant Information and submits that QHRC has not located all relevant documents (Scope and Further Documents).[15] The applicant has also raised concerns about the external review procedure followed by OIC. She contends that she is unable to participate in a written only process which has been used to cause ‘disadvantage and deception’,[16] and submits that:[17] I cannot receive my rights by your restrictive method of contact with me. You withhold critical information including your processes and contact with other parties. You do not answer questions unless you have waited several months and then it is obscured as to what you are communicating about. The procedure to be followed on external review is, subject to the IP Act, within the discretion of the Information Commissioner.[18] To afford procedural fairness,[19] OIC will generally issue a written preliminary view to an adversely affected party, based on an assessment of the material before the Information Commissioner or delegate at that time. This approach ensures that the party is presented with the information constituting the case against them and affords them the opportunity to put forward information in reply, in support of their case. During this review, I conveyed two written preliminary views to the applicant.[20] On each occasion, I invited the applicant to respond, and provided a number of options as to the form of her submissions.[21] The applicant elected to provide written submissions by email in response to the first preliminary view[22] but did not respond to the second. In these circumstances, I am satisfied that the applicant has been afforded adequate opportunities to put forward her views and has not been disadvantaged by OIC’s processes. Therefore, I have not dealt with the procedural concerns any further in this review. Exempt information Relevant law Under the IP Act, an individual has a right to be given access to documents of a Queensland government agency, to the extent they contain the individual’s personal information.[23] The right of access is however subject to some limitations, including the grounds on which access to information may be refused.[24] One ground for refusing access is where information comprises exempt information.[25] Information will qualify as exempt if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.[26] Legal professional privilege attaches to confidential communications between a lawyer and client made for the dominant purpose of seeking or giving legal advice or professional legal assistance, or preparing for, or for use in, or in relation to, existing or reasonably anticipated legal proceedings.[27] The privilege: will extend to copies of unprivileged documents made for the dominant purpose of obtaining legal advice;[28] and may protect communications between salaried employee legal advisers of a government department or statutory authority and his/her employer as the client (including communications through other employees of the same employer) provided there is a professional relationship of legal adviser and client, which secures to the advice an independent character, notwithstanding the employment.[29] The dominant purpose has been described as ‘the ruling, prevailing or most influential purpose’,[30] and it is to be determined objectively, having regard to the evidence, the nature of the documents and the parties’ submissions.[31] Qualifications and exceptions to legal professional privilege[32] may, in particular circumstances, affect the question of whether information attracts or remains subject to it, and therefore whether it comprises exempt information under the RTI Act. Findings Section 121 of the IP Act limits the detail I can give about the LPP Information. However, I can describe it as communications involving QHRC’s internal legal advisors which comprise requests for legal advice on issues associated with the applicant’s complaints and applications to QHRC and the legal advice provided (including attachments). On the information before me, there is no evidence that these communications were not confidential or that they have been disclosed outside of the lawyer-client relationship. I am also satisfied that, based on the content of the communications, they were created for the dominant purpose of QHRC seeking, or its legal advisors providing, legal advice. Therefore, I find that the elements of legal professional privilege are established in relation to the LPP Information. Legal professional privilege may be waived by the holder of the privilege.[33] There is no evidence available to me that QHRC, as the party entitled to the benefit of legal professional privilege, has waived that privilege. Therefore, I find that this exception to legal professional privilege does not apply. Legal professional privilege will also not apply to legal communications made in the furtherance of a fraud or crime.[34] This exception operates to displace legal professional privilege where evidence exists that the relevant client has embarked on a deliberate course of action knowing that the proposed actions were contrary to law, and has made the relevant communications in furtherance of ‘some illegal or improper purpose’.[35] The High Court of Australia in Propend[36] determined that a person alleging legal professional privilege is lost for illegality must do more than make vague or generalised contentions of crimes or improper purpose. The applicant submits that there is ‘no legal privilege for furthering unlawful purpose’.[37] However, the applicant has provided no further details, or evidence, supporting her allegation that legal professional privilege in the LPP Information has been displaced due to the improper purpose exception. Having considered the material before me (including the LPP Information and the applicant’s submissions), there is nothing before me, other than the applicant’s general assertion, to indicate that any communication within the LPP Information was made in furtherance of any illegal, improper or dishonest purpose. On this basis, I find that legal professional privilege has not been displaced by the improper purpose exception. For the above reasons, I am satisfied that the LPP Information meets the requirements of legal professional privilege and that the exceptions do not apply. Accordingly, I find access to the LPP Information may be refused as it comprises exempt information.[38] Third Party Information Access may be refused to information where disclosure would, on balance, be contrary to the public interest.[39] 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.[40] In deciding where the balance of the public interest lies, the RTI Act requires a decision maker to identify factors for and against disclosure and decide, on balance, whether disclosure would be contrary to the public interest.[41] In balancing the public interest, a decision maker is prohibited from taking into account irrelevant factors.[42] As set out in paragraph 9 above, the Third Party Information comprises the names and other personal [43]formation43 of other individuals in the following documents: an email which the applicant sent to two QHRC officers about one of her complaints (Email); and an internal memorandum addressed to QHRC’s CEO (Memo).[44] In making this decision, I have not taken into account any irrelevant factors. Factors favouring disclosure The applicant submits that she seeks information about QHRC’s decision to ‘ban all [her] rights to claim human rights protections’.[45] There is a public interest in QHRC being transparent and accountable in relation to its complaints handling procedures.[46] The Memo takes the form of a briefing note to the CEO and sets out the background to the applicant’s complaints to the QHRC with the purpose of the Memo[47] stated to be: To implement steps to protect the workplace health and safety of staff of the ADCQ and to ensure the complaint handling procedures of the Commission are sustainable.[48] QHRC’s accountability and transparency has been substantially enhanced by the information released to the applicant in the Memo, and the other located documents. I am satisfied that disclosure of the Third Party Information would not further advance the accountability and transparency of QHRC to any significant degree, as it is limited to the personal information of third parties and because the Email was authored by the applicant. On this basis, I afford minimal weight to these factors favouring disclosure. A factor favouring disclosure will also arise where disclosing information could reasonably be expected to reveal that the information is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant.[49] The applicant asserts that QHRC’s documents are ‘falsified records’,[50] however, she provided no further details about, or evidence in support of, this allegation. Taking into account the limited nature of the Third Party Information, I do not consider its disclosure would reveal it to be incorrect or misleading. Accordingly, I afford this factor no weight. The RTI Act also favours disclosure of an applicant’s personal information.[51] I am satisfied that the Email, which was authored by the applicant and includes her opinions, comprises the applicant’s personal information. Given the limited nature of the Third Party Information within the Email, I afford this factor low weight in favour of disclosure. Also, the applicant’s personal information is inextricably intertwined with the personal information of other individuals referred to in the Email, and therefore, its disclosure would also disclose the personal information of others, which raises a factor favouring nondisclosure discussed below. I have taken into account the pro-disclosure bias and considered whether any other public interest factors favouring disclosure apply, including those listed in schedule 4, part 2 of the RTI Act.[52] I cannot identify any other public interest consideration favouring disclosure of the Third Party Information.[53] Factors favouring nondisclosure The RTI Act recognises that there is a public interest harm[54] in disclosing the personal information of other individuals and that disclosing information that could reasonably be expected to prejudice the protection of an individual’s right to privacy gives rise to a public interest factor favouring nondisclosure.[55] The concept of ‘privacy’ is not defined in either the IP Act or RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others.[56] The Memo concerns steps taken to protect the workplace health and safety of QHRC’s staff and refers to some of the applicant’s communications, including the Email. The Third Party Information within both the Memo and the Email includes some highly sensitive personal information about individuals other than the applicant. The Third Party Information appears in a highly sensitive context. I consider that its disclosure would be a significant intrusion into the privacy of the other individuals. I also consider that the extent of the harm arising from disclosing other individuals’ names and some highly sensitive personal information about them, under the IP Act, would be significant. Accordingly, I afford significant weight to these factors favouring nondisclosure. I acknowledge that the applicant will be aware of the content of the Email that she authored, and would likely be aware of some of the Third Party Information in the Memo given her interactions with QHRC staff. However, I do not consider that reduces the weight of the nondisclosure factors to any significant degree, particularly as there can be no restriction on the use, dissemination or republication of information disclosed under the IP Act. Balancing the public interest I acknowledge the pro-disclosure bias in deciding access to documents under the IP Act.[57] In addition, and for the reasons addressed above, I have identified some factors favouring disclosure of the Third Party Information (including those relating to the applicant’s personal information and QHRC’s transparency and accountability).[58] However, taking into account the limited nature of the Third Party Information, I afford these factors low weight. On the other hand, I have identified that the public interest favours nondisclosure of the Third Party Information due to the significant weight afforded to protecting the personal information and right to privacy of other individuals, in a highly sensitive context.[59] On balance, I am satisfied that the public interest factors favouring nondisclosure outweigh the factors favouring disclosure. Accordingly, I find that disclosure of the Third Party Information would, on balance, be contrary to the public interest and access may be refused on this basis.[60] Scope and Further Documents Relevant law Section 88 of the IP Act permits information that is not relevant to an access application to be deleted from a document before giving access to a copy of the document. In deciding whether information is irrelevant, it is necessary to consider whether the information has any bearing upon, or is pertinent to, the terms of the application.[61] The functions of the Information Commissioner include investigating and reviewing whether an agency has taken reasonable steps to identify and locate documents applied for by applicants.[62] However, access may be refused to a document if it is nonexistent.[63] To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience and have regard to a number of key factors.[64] If searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case, depending on which of the key factors are most relevant in the circumstances. It is also well settled that the terms of an access application set the parameters for an agency’s search efforts.[65] Findings On external review, the applicant submits that she is seeking ‘all information held about my [sic] by QHRC’[66] and submits that QHRC has not located all relevant documents.[67] The access application requested communications, records, emails, minutes, texts, deleted or archived items, paper and electronic records about the applicant ‘created by, sent to or from or including or heard by’ the CEO of QHRC. The application did not identify any other QHRC officer by name, nor did it indicate that the applicant was seeking correspondence involving any other staff member except for the CEO. It is not open for an access applicant to unilaterally expand the scope of an access application on external review.[68] I consider the terms of the access application are clear; they were expressly stated to include correspondence involving the CEO and no other officer. I am satisfied that the Irrelevant Information is, on its face, correspondence between other individuals, not involving the QHRC CEO. Therefore, I find that the Irrelevant Information was validly excluded.[69] The applicant articulated her concerns about missing documents as follows:[70] I am unable to see deliberations or discussions and how they started for the QHRC act by [two individuals] to ban all my rights to claim human rights protections unless I pay tens of thousands for a lawyer. ... There seems to be no records showing communication with respondents to my allegations despite them being given all correspondence from me and a privacy notice that what they say is shared with the other parties. I cannot see a discussion about [individual] working for [another entity] but ordering my QHRC assessors which are her subordinates to reject all claims from me including claims they already said they would accept, or discussing her conflict of interest in [another entity] being one of the complaints she ordered by [sic] dismissed on arbitrary grounds that they refuse to explain. ... I cannot see my reviews of staff here, some of which were glowing reviews. QHRC confirmed that, in processing the application, it searched its electronic files relating to the applicant’s complaints,[71] the CEO’s email records[72] and QHRC’s electronic archive (known as Recfind).[73] In its decision, QHRC also identified that the following electronic records were identified as containing information about the applicant: complaint files (24 folders) information privacy access applications (6 folders); and confidential administration files (2 folders). The above folders were searched using the first and surname of the CEO as search terms and subsequently, each document was individually reviewed for relevance. OIC requested information from QHRC about its recordkeeping practices and the searches it conducted for information requested in the application. QHRC provided search records and certifications to OIC which confirm that searches for information responsive to the application were conducted of records held in the following locations: QHRC’s electronic files held in the applicant’s name records held in QHRC’s information management, privacy and right to information applications folder the email records of QHRC’s CEO; and QHRC’s electronic drive which contains sensitive files that are accessible to the Executive Leadership Team. QHRC also submits that enquiries were made of its CEO to confirm there were no other locations where relevant documents would be located. Based on the information before me, including the located documents, access application, QHRC’s search certifications and information in its decisions and submissions to OIC regarding its searches and recordkeeping practices, I am satisfied that QHRC has undertaken comprehensive searches of locations where it would be reasonable to expect that the types of information requested in the access application would be stored and has conducted appropriate enquiries about the existence of such information. I also find that it was reasonable for QHRC to limit its searches to locations that would be expected to contain communications involving the CEO and I am unable to identify any further steps or searches which would have been reasonable for QHRC to undertake given the scope of the application. With respect to the applicant’s submissions, I do not consider they contain any evidence to give rise to a reasonable expectation that further documents[74] ‘created by, sent to or from or including or heard by’ QHRC’s CEO, exist. On the basis of the above, I am satisfied that QHRC has taken all reasonable steps to locate information relevant to the access application and access to any further information may be refused on the basis that it does not exist.[75] DECISION For the reasons set out above, I find[76] that: access may be refused to the LPP Information as it is exempt information[77] access may be refused to the Third Party Information as disclosure would, on balance, be contrary to the public interest[78] the Irrelevant Information may be deleted under section 88 of the IP Act; and access to any further documents may be refused on the basis they do not exist.[79] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.K ShepherdAssistant Information Commissioner Date: 21 December 2020 APPENDIX Significant procedural steps Date Event 2 June 2020 OIC received the external review application. 23 June 2020 OIC notified the applicant and QHRC that the external review application had been accepted and requested information from QHRC. 1 July 2020 OIC received the requested information from QHRC. 31 July 2020 OIC received further information from QHRC. 24 August 2020 OIC conveyed a preliminary view to the applicant and invited the applicant to provide submissions if she did not accept the preliminary view. OIC received the applicant’s submissions contesting the preliminary view. 4 September 2020 OIC received an email from the applicant raising general concerns about OIC’s external review processes. 22 September 2020 OIC conveyed a further preliminary view to the applicant and invited the applicant to provide submissions if she did not accept the preliminary view. [1] Application dated 27 February 2020 and compliant on 18 March 2020. The date range applicable to the application is 1 January 2017 to 18 March 2020. [2] Comprising 1094 pages.[3] On 6 May 2020. [4] Decision dated 2 June 2020. [5] External review application dated 2 June 2020. [6] Under section 67(1) of the IP Act and sections 47(3)(a) and (b) of the Right to Information Act 2009 (Qld) (RTI Act). Section 67(1) of the IP Act sets out that an agency may refuse access to information in the same way and to the same extent that the agency could refuse access to the document under section 47 of the RTI Act were the document the subject of an access application under the RTI Act. [7] Sections 47(3)(e) and 52(1)(a) of the RTI 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] See XYZ at [573] where His Honour states ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’. [10] Section 121 of the IP Act.[11] 177 pages.[12] Pages 1, 2, 4, 5, 6, 8 and 10 in the File titled ‘Xs90 Unredacted’ (the memorandum is duplicated in these pages).[13] Being pages 7 and 10-12 in the File titled ‘Admin-UNREDACTED’; pages 17, 20-21, 22 (which is a blank page) and 23-24 in File titled ‘BNE3413121 – UNREDACTED’; pages 1, 22 and 23 in the File titled ‘BN3414860– UNREDACTED’’; pages 1, 4, 12, 15, 18, 21, 24, 27-28, 31, 34, 46-48, 51-58, 71 and 78-83 in the File titled ‘IP 2 – unredacted’; pages 12 and 19-24 in the File titled ‘IP 4 – unredacted’; and pages 6, 9-11, 20-21 and 25 in the File titled ‘Second privacy – unredacted’. [14] This category requires me to examine the grounds for refusal of access in section 47(3)(a) and (b) of the RTI Act. [15] This category requires me to examine the scope of the application, section 88 of the IP Act and sections 47(3)(e) and 52(1) of the RTI Act.[16] The applicant raised this concern on 4 September 2020, when responding to OIC’s email dated 3 September 2020, which provided a status update to the applicant concerning her then current external reviews. [17] Applicant’s email dated 24 August 2020. [18] Section 108(1)(a) of the IP Act. [19] As required by section 110(2) of the IP Act and common law. [20] By emails dated 24 August 2020 and 22 September 2020. [21] I invited the applicant to respond by audio file or in writing and noted that this could either be emailed to OIC or saved to a USB or CD and posted. [22] By email dated 24 August 2020. [23] Section 40 of the IP Act. [24] The grounds are set out in section 47 of the RTI Act. [25] Schedule 3 of the RTI Act identifies the types of exempt information. [26] Schedule 3, section 7 of the RTI Act. In Ozcare and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 May 2011) at [12], the Information Commissioner noted that this exemption reflects the requirements for establishing legal professional privilege at common law. [27] Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 552. These principles were recently confirmed by the High Court in Glencore International AG v Commissioner of Taxation [2019] HCA 26 at [23]- [25]. [28] As confirmed by the High Court in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 (Propend). [29] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 95-96 per Mason and Wilson JJ and Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 at [8]- [11]. [30] Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 at page 416.[31] In AWB Ltd v Cole & Anor (No 5) [2006] FCA 1234; (2006) 155 FCR 30, Justice Young observed that dominant purpose ‘is a question of fact that must be determined objectively’. I also note that the High Court confirmed in Propend that legal professional privilege will extend to copies of unprivileged documents made for the dominant purpose of obtaining legal advice. [32] Such as waiver or improper purpose. [33] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [28]. Waiver may be express or implied. [34] Fletcher & Ors v Fortress Credit Corporation (Australia) II Pty Limited & Ors [2014] QSC 303 at [51]. [35] Propend at 514. See also Secher and James Cook University (Unreported, Queensland Information Commissioner, 6 June 2012) at [20] and Murphy and Treasury Department [1998] QICmr 9; (1998) 4 QAR 446 at [31]- [42]. [36] At page 591. [37] Applicant’s email dated 24 August 2020. [38] Under section 67 of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 7 of the RTI Act. [39] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. [40] However, there are some recognised public interest considerations that may apply for the benefit of an individual. See Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12, 14. [41] Section 49(3) of the RTI Act. [42] Including those at schedule 4, part 1 of the RTI Act.[43] ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. [44] The Third Party Information appearing on pages 1, 2 and 4 is duplicated in the same document on pages 5, 6 and 8. [45] External review application dated 2 June 2020. [46] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act.[47] Released to the applicant. [48] ADCQ refers to the Anti-Discrimination Commission Queensland, which was renamed QHRC on 1 July 2019. [49] Schedule 4, part 2, item 12 of the RTI Act. [50] External review application dated 2 June 2020.[51] Schedule 4, part 2, item 7 of the RTI Act. [52] Taking into account the limited personal nature of the Third Party Information, I am unable to identify how disclosure could, for example, reveal or substantiate, or allow or assist inquiry into, possible agency conduct deficiencies (schedule 4, part 2, items 5 and 6 of the RTI Act); advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies (schedule 4, part 2, item 10 of the RTI Act); or contribute to the administration of justice generally, including procedural fairness, or for a person (schedule 4, part 2, items 16 and 17 of the RTI Act). [53] In the event that further relevant factors apply in favour of disclosure, I am satisfied that there is no evidence to indicate that any would carry sufficient weight to outweigh the significant weight that I have afforded to the public interest factors that favour nondisclosure, as discussed below.[54] Schedule 4, part 4, section 6 of the RTI Act.[55] Schedule 4, part 3, item 3 of the RTI Act. [56] Paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 12 August 2008, at paragraph 1.56.[57] Section 64 of the IP Act. [58] Schedule 4, part 2, items 1, 3, 7 and 11 of the RTI Act. [59] Schedule 4, part 4, section 6 and schedule 4, part 3, item 3 of the RTI Act.[60] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. [61] O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [52]. [62] Section 137(2) of the IP Act. [63] Section 67(1) of the IP Act and sections 47(3)(e) and 52(1) of the RTI Act. [64] These factors are identified in Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [19] as including the administrative arrangements of government; the agency structure; the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it); the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. These factors were more recently considered in Van Veenendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017). [65] Fennelly and Redland City Council (Unreported, Queensland Information Commissioner, 21 August 2012) at [15], citing Robbins and Brisbane North Regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30 and Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491. See also 3EUS8A and Department of Communities, Child Safety and Disability Services [2014] QICmr 29 (18 June 2014) at [33] and Usher and Department of Natural Resources and Mines [2014] QICmr 51 (19 December 2014) at [15]. [66] Applicant’s email dated 24 August 2020. [67] External review application dated 2 June 2020. [68] Robbins and Brisbane North Regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30 at [17]. See also 8RS6ZB and Metro North Hospital and Health Service [2015] QICmr 3 (13 February 2015) at [14]. [69] Under section 88 of the IP Act. [70] External review application dated 2 June 2020. [71] Using search terms including the first and last names of QHRC’s CEO. [72] Using the applicant’s last name as the search term. [73] Internal review decision dated 2 June 2020.[74] Including emailed reviews of staff, communications with respondents to her allegations, and deliberations or discussions between particular individuals. There is no evidence to suggest any of those documents (if they exist) were sent to, or involved, the CEO. [75] Section 67(1) of the IP Act and sections 47(3)(e) and 52(1)(a) of the RTI Act.[76] I affirm QHRC’s decision under review.[77] Under section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 7 of the RTI Act.[78] Under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act.[79] Sections 47(3)(e) and 52(1)(a) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

I18 and Queensland Police Service [2021] QICmr 44 (19 August 2021)

I18 and Queensland Police Service [2021] QICmr 44 (19 August 2021) Last Updated: 12 January 2022 Decision and Reasons for Decision Citation: I18 and Queensland Police Service [2021] QICmr 44 (19 August 2021) Application Number: 316114 Applicant: I18 Respondent: Queensland Police Service Decision Date: 19 August 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - DOCUMENT NONEXISTENT OR UNLOCATABLE - request for a police report made by applicant’s former employer - whether agency has taken all reasonable steps to locate the requested document - whether access may be refused on the basis the document sought does not exist - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied[1] to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for a copy of a report he believed had been made to police about him by his former employer. 2. Searches conducted by QPS did not locate any documents fitting the description provided by the applicant in his access application.[2] 3. The applicant applied[3] for external review of QPS’s decision, submitting that police officers attending his home, and others, had told him the report had been made or had otherwise confirmed the existence of what he described as ‘the Police Report against me’. 4. For the reasons set out below I affirm QPS’s decision that access to the requested report can be refused on the basis that it does not exist. Reviewable decision and evidence considered 5. The decision under review is QPS’s decision dated 4 June 2021. 6. Significant procedural steps relating to the external review are set out in the Appendix, and the evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). 7. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[4] In making this decision I have respected, and my actions and considerations have taken account of, that right and others prescribed in the HR Act.[5] Issue for determination 8. The issue for determination is whether access to the requested report can be refused on the basis that it is nonexistent. Relevant law 9. On external review, the functions of the Information Commissioner include investigating and reviewing whether an agency has taken all reasonable steps to identify and locate documents applied for by an applicant.[6] However, access to a document may be refused if it is nonexistent.[7] A document is nonexistent[8] if there are reasonable grounds to be satisfied that the document does not exist, for example, it is not a document that was created or received by the agency to which the application was made. 10. To be satisfied that a requested document is nonexistent, a decision maker must consider any relevant key factors.[9] If searches are relied on to justify a decision that a requested document does not exist, all reasonable steps must be taken to locate the document. What constitutes all reasonable steps will vary from case to case as the search and enquiry process an agency will be required to undertake will depend on which of the key factors are most relevant in the particular circumstances. Findings 11. The applicant’s access application[10] stated: On the 14/07/2017 I received a visit from the police and 2 mental health representatives telling me that [the applicant’s former employer] had made an official report to the Police... I was told that it is on official Police records against me... 12. The QPS decision letter[11] advised that searches of QPS databases were undertaken (using the information provided by the applicant) for records of police attendance and/or an incident on the nominated date and no documents were located. 13. On external review, the applicant expressed ongoing concerns about his former employer. He submitted[12] that, further to the information provided at paragraph 11 above, his complaints to the Ombudsman and the police about the requested report resulted in the report being withdrawn. The applicant also submitted that his Case Manager from Forensic Mental Health told him that he had seen the Report.[13] The applicant’s concerns about his former employer were conveyed in numerous emails sent to our office between 8 June 2021 and 28 June 2021. 14. I acknowledge that the applicant considers the content of the emails relevant to the issues in the review. While I consider most of this email content is not relevant to the issue for determination, I have addressed the email content which I have identified as relevant in this decision. In effect, I understand the applicant contends that, consistent with his concerns relating to his former employer, a number of people have confirmed to him that his former employer made a report to QPS, and therefore QPS must hold such a report. 15. My considerations in this review are confined to considering whether QPS has taken all reasonable steps to identify any QPS document that fits the applicant’s description of the requested report. 16. In response to OIC enquiries, QPS provided search certifications for the searches undertaken and submitted:[14] Searches of QPRIME were conducted and there is no QPRIME entry (report) for on or around 14/07/2017 regarding Police and Mental Health attending the applicant’s residence regarding a complaint from [the applicant’s former employer] or any other complaint in nature as outlined in the application [my underlining]. 17. QPS also provided copies of the results of searches from its Electronic Log – QCAD which showed no results for police attendance at the applicant’s property on the stated date, 14 July 2017 and supported QPS’s position that no report as described by the applicant was received by QPS. 18. In considering the question of whether QPS has taken all reasonable steps in the search process, I note that the applicant has requested a very specific report and provides a date as an approximate guide as to when he believes such a report would have been received or created by QPS. QPS has, in response to the request, conducted targeted searches of the locations where a report of this type would have been stored (QPRIME and QCAD). There is no question as to the appropriate locations that should be searched in this case. 19. I accept that the applicant holds a strong view that a report, as described in his access application, must exist. However, I am satisfied that QPS has conducted appropriate and targeted searches of the locations where such a document (or information evidencing its existence) would reasonably be expected to be held. 20. Notwithstanding the applicant’s submissions, there is no evidence before me to suggest that any further searches or steps can be taken by QPS to locate a report of the nature described by the applicant. 21. On the basis of the above, I am satisfied that: QPS has taken all reasonable steps to locate the requested report; and access may be refused to the requested report on the basis it is nonexistent.[15] DECISION 22. As a delegate of the Information Commissioner,[16] I affirm the QPS decision and find that access to the requested report may be refused under section 67(1) of the IP Act and sections 47(3)(e) and 52(1)(a) of the RTI Act, on the basis that it does not exist. Suzette JefferiesAssistant Information Commissioner Date: 19 August 2021 APPENDIX Significant procedural steps Date Event 8 June 2021 OIC received the application for external review. 9 June 2021 OIC requested preliminary documents from QPS. 10 June 2021 QPS provided the preliminary documents to OIC. 23 June 2021 OIC notified the applicant and QPS that the application for external review had been accepted. OIC requested and received search information from QPS. 28 June 2021 OIC conveyed a preliminary view to the applicant that QPS’s decision was correct. The applicant responded, contesting the preliminary view. [1] Access application dated 20 March 2021.[2] Decision dated 4 June 2021.[3] External review application made on 8 June 2021.[4] Section 21 of the HR Act.[5] In accordance with section 58(1) of the HR Act. See also XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation (Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic): ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’: XYZ at [573].[6] Section 137(2) of the IP Act. [7] Sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) (RTI Act). Section 67(1) of the IP Act provides that access may be refused to information in the same way and to the same extent as information may be refused under the RTI Act.[8] Section 52(1)(a) of the RTI Act.[9] See Lester and Department of Justice and Attorney-General [2017] QICmr 17 (16 May 2017) at [11] and Van Veendendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) at [23], which adopt the Information Commissioner’s comments in PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) at [37]-[38]. PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld). Section 52 of the RTI Act is drafted in substantially the same terms as the provision considered in PDE and, therefore, the Information Commissioner’s findings in PDE are relevant. The key factors include: the administrative arrangements of government; the agency structure; the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it); the agency’s practices and procedures (including but not exclusive to its information management approach) and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. [10] Dated 20 March 2021.[11] Decision letter dated 4 June 2021.[12] External review application dated 8 June 2021.[13] Applicant’s submissions dated 28 June 2021.[14] QPS submissions dated 23 June 2021.[15] For completeness, I note that searches of the backup system, as contemplated by section 52(2) of the RTI Act, are not required as there is no evidence before me to indicate QPS received or created the requested document, and therefore, no basis to consider it has been held on that system. [16] Under section 139 of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

I45 and Queensland Police Service [2021] QICmr 65 (7 December 2021)

I45 and Queensland Police Service [2021] QICmr 65 (7 December 2021) Last Updated: 29 August 2022 Decision and Reasons for Decision Citation: I45 and Queensland Police Service [2021] QICmr 65 (7 December 2021) Application Number: 315062 Applicant: I45 Respondent: Queensland Police Service Decision Date: 7 December 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - RIGHT TO INFORMATION - SCOPE OF APPLICATION - request for documents and communications about the applicant - whether certain information falls outside the scope of the application - section 40 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - EXEMPT INFORMATION - LAW ENFORCEMENT AND PUBLIC SAFETY INFORMATION - request for documents and communications about the applicant - whether disclosure could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law - whether access may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 and schedule 3, section 10(1)(f) of the Right to Information Act 2009 ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - DOCUMENTS NONEXISTENT OR UNLOCATABLE - whether agency has taken all reasonable steps to locate requested documents - whether access to further documents can be refused on the ground they are nonexistent or unlocatable - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) to access information about himself, including all information held in QPRIME[2]. QPS did not make a decision within the required statutory timeframe and was therefore taken to have made a deemed decision refusing access to the requested information.[3] The applicant then applied to the Office of the Information Commissioner (OIC) for external review of QPS’ deemed decision.[4] QPS located relevant documents and, as part of OIC’s informal resolution process,[5] QPS disclosed some of those documents to the applicant, subject to the redaction of certain information. The applicant remains dissatisfied with the level of information released to him and has raised concerns about the adequacy of QPS’ searches. For the reasons set out below, I vary QPS’ deemed decision and find that: one page does not contain the applicant’s personal information and is therefore, outside the scope of the IP Act application access may be refused to all the remaining located information as it comprises exempt information;[6] and access to any further documents may be refused on the basis they do not exist or cannot be located.[7] Background The applicant requested[8] access to the following: (i) all the information on QPRIME that relates, or refers, to the applicant (ii) all QPS emails that relate, or refer, to the applicant[9] (iii) a QPRIME audit report showing all inquiries on the applicant on the QPRIME system[10]; and (iv) all internal reports, intelligence reports, analyst reports, files, job logs and investigation files that relate, or refer, to the applicant within the State Crime Command. On external review, the applicant raised concerns with OIC about QPS’ processing of the application and what he perceived as delays in that process. The IP Act does not give OIC jurisdiction to investigate complaints about an agency’s conduct or processes, or the way it has handled a particular application. Therefore, I cannot consider the applicant’s concerns in this regard. The applicant also raised concerns about QPS’ delays in providing information and responses to OIC. Under the IP Act, the procedure to be taken on external review is, subject to the Act, at the discretion of the Information Commissioner.[11] I accept that the time taken to complete this review has not met the applicant’s expectations. I must also acknowledge that there were significant delays in OIC receiving certain information requested from QPS and in QPS releasing the information it had agreed to disclose to the applicant. As some of those delays can be attributed to internal resourcing issues at QPS, OIC was mindful of these circumstances when issuing requests to QPS and afforded QPS multiple extensions of time to respond to OIC. However, as demonstrated in the Appendix, there were significant periods of time when OIC could not progress the review due to outstanding responses from QPS, which consequently impeded the expeditious conduct of the review. The applicant also requested[12] that QPS provide him with an itemised list of the located documents (describing each document by its date, title, the part of the application to which it related and any claimed disclosure exemption). The IP Act does not require agencies to provide an applicant with a list of documents to which access has been refused.[13] The applicant argued that, in the absence of that requested list, he has not been afforded procedural fairness and is unable to ‘properly respond’ to OIC.[14] I accept that some of the redactions in the partially disclosed documents do not identify the basis upon which information has been refused. However, following disclosure, OIC conveyed preliminary views to the applicant to explain the basis for the refusal of access in respect of all information which had not been disclosed and invited the applicant to provide submissions contesting the preliminary view.[15] In response, the applicant has provided a number of submissions to OIC contesting the refusal of access. Accordingly, the applicant has been appraised of the basis upon which information has been refused and has been afforded a number of opportunities to put forward submissions supporting his position. In these circumstances, I am satisfied that the applicant was able to properly respond to OIC and has been afforded due process in this review. The significant procedural steps taken during the external review are set out in the Appendix to this decision. Reviewable decision and evidence considered The decision under review is the decision QPS is deemed to have made under section 66 of the IP Act. The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). Generally, it is necessary that decision makers have regard to the Human Rights Act 2019 (Qld) (HR Act), as section 11(1) of the HR Act provides that ‘[a]ll individuals in Queensland have human rights’ (my emphasis). The applicant contends that, although he resides in a State other than Queensland, he is entitled to the benefit of the HR Act because ‘at the relevant times’ he was present in Queensland.[16] On the basis of this nexus to Queensland, I have had regard to the HR Act, particularly the right to seek and receive information.[17] 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.[18] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act.[19] Information in Issue Information on 117 pages of QPS documents remains undisclosed to the applicant and is the subject of this decision (Information in Issue).[20] I have examined the Information in Issue. The IP Act precludes me from describing the content of the Information in Issue in these reasons,[21] however, I can confirm that it includes: a one page document marked as ‘outside scope – no applicant personal information’ (Page 35);[22] and the remaining information located by QPS in response to the access application, including QPRIME records, emails and partially redacted Street Check Summaries. Issues for determination The applicant did not initially contest OIC’s preliminary view that Page 35 had been validly excluded on the basis it did not contain any of his personal information.[23] However, he subsequently asserted that this document ‘must have relevance’ to his application.[24] It is QPS’ position that the remaining Information in Issue is exempt from disclosure whereas the applicant contends that all the located documents should be disclosed to him in an unredacted form. The applicant has also raised a general concern that QPS has not located all relevant documents. Accordingly, the issues for determination are whether: Page 35 can be excluded from the scope of the application on the basis it does not contain the applicant’s personal information the remaining Information in Issue comprises exempt information to which access may be refused;[25] and access to any further information may be refused on the basis it is nonexistent or unlocatable.[26] The applicant’s submissions raised the refusal to deal provision in section 59 of the IP Act. However, that provision is not an issue for determination in this review. The applicant also seeks to raise concerns beyond the jurisdiction of the Information Commissioner and which fall outside the scope of this review.[27] I have considered the applicant’s submissions and have summarised them throughout this decision to the extent they are relevant to the issues for determination. Relevant law Under section 40 of the IP Act, an individual has a right to be given access to documents of an agency to the extent they contain the individual’s personal information.[28] However, this right is subject to limitations, including grounds for refusal of access.[29] Access may be refused to a document to the extent it comprises exempt information[30] and information will qualify as exempt information where its disclosure could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law (Exemption).[31] Schedule 3, section 10(2) of the RTI Act sets out certain circumstances where the Exemption will not apply. Access may also be refused to a document because it is nonexistent or unlocatable.[32] To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience and have regard to a number of key factors.[33] If searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case, depending on which of the key factors are most relevant in the circumstances. For a document to be unlocatable, a decision-maker must consider whether there are reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency’s possession and whether the agency has taken all reasonable steps to find the document. In answering these questions, a decision-maker must consider the circumstances of the case and the key factors.[34] On an external review, the agency or Minister who made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[35] However, where the issue of missing documents is raised, the applicant bears a practical onus of demonstrating that the agency has not discharged its obligation to locate all relevant documents.[36] Findings Scope of IP Act application Section 40 of the IP Act provides a right of access to an individual’s personal information[37] in agency documents. Accordingly, a document will be outside the scope of an access application made under the IP Act if it does not contain any personal information of the access applicant. I have examined the contents of Page 35 and am satisfied it does not contain any information about the applicant, or information from which the applicant’s identity could reasonably be ascertained. Therefore, I find this document is outside the scope of the IP Act application and can be excluded from further determination on that basis.[38] Exemption As noted above, QPS considers that all of the remaining Information in Issue comprises exempt information. I have examined the remaining Information in Issue to assess whether the Exemption applies. As noted above, in these reasons, I am unable to describe this information in any detail[39], however, I can confirm that the document requested in part (iii) of the application is known as a QPRIME activity report and a report of this nature was located by QPS.[40] I can also confirm that remaining Information in Issue appears within documents located as relevant to other parts of the application, including information within: QPRIME (the database used to capture and maintain information obtained by QPS in its law enforcement functions);[41] and records held by State Crime Command (a unit within QPS that targets serious and organised crime). I am satisfied that use of the QPRIME database forms an integral part of QPS’ lawful methods and procedures for preventing, detecting, investigating or dealing with contraventions, or possible contraventions, of the law. I am also satisfied that the types of records held by State Crime Command inherently include information about methods and procedures for detecting or investigating serious and organised crime, or suspected criminal behaviour. The applicant submits that: QPS has previously disclosed QPRIME activity reports to other individuals and interstate police release audit information from their equivalent to QPRIME;[42] and disclosing this remaining Information in Issue could not reasonably be expected to prejudice any QPS method or procedure because a significant amount of information pertaining to police methods and procedures is available in the public domain.[43] When assessing whether an outcome could reasonably be expected to arise, I must distinguish ‘between what is merely possible ... and expectations that are reasonably based’ and for which ‘real and substantial grounds exist’.[44] As a decision-maker conducting merits review, I am also required to determine each matter on its own facts and on the basis of available evidence at the time of making my decision—there is no requirement for me to follow the approach taken by an agency in a previous external review nor to follow the disclosure approach of interstate agencies. I accept that there is a range of information in the public domain about various police methods and procedures, including what is available in the public edition of the OPM.[45] I also acknowledge the applicant’s submission that he has never been arrested or charged by the QPS.[46] However, after examining the content of the Information in Issue, I am satisfied that its disclosure could reasonably be expected to prejudice particular methods and procedures used by QPS in relation to surveillance, intelligence or investigation. I am further satisfied that disclosing this particular information could reasonably be expected to reduce the effectiveness of the relevant QPS’ methods and procedures which are referred to in the Information in Issue, including operation of the QPRIME system. The applicant also argues that an exemption cannot be applied by the QPS to avoid scrutiny or exposure of unlawful conduct ‘as indicated in schedule 3, s 10(2) of the RTI Act’.[47] More specifically, the applicant contends that schedule 3, section 10(2)(a) of the RTI Act[48] is enlivened and raised concerns that QPS may have acted on unlawful information and he may have been subject to unwarranted attention and improper QPRIME enquires.[49] On the other hand, QPS submits that the Information in Issue does not contain matter that would reveal that the scope of a law enforcement investigation has exceeded the limits imposed by law.[50] Having considered the Information in Issue and the submissions received from the parties, I am satisfied that this information does not consist of matter revealing that a law enforcement investigation has exceeded imposed legal limits. For these reasons, I find that access may be refused to the Information in Issue as it is comprised of exempt information.[51] Nonexistent or unlocatable documents The functions of the Information Commissioner on external review include investigating and reviewing whether an agency has taken reasonable steps to identify and locate documents applied for by applicants.[52] As noted above, QPS located information relevant to the application during the external review process. The applicant submits that there is no evidence QPS has searched for documents pertaining to parts (iii) and (iv) of the application and there is ‘information that the QPS has not supplied’.[53] I acknowledge that the applicant is at a certain disadvantage as he has been refused access to 89 full pages and parts of 28 pages. As a result, he is not aware of that redacted content, thereby giving rise to concerns about whether QPS has located all relevant information. However, as noted above, an agency is not required to provide an applicant with a list describing the documents to which access has been refused. I also note that, given the way the access application is framed, some of the located documents respond to more than one part of the application. To assess the reasonableness of QPS’ searches, OIC sought information from QPS about the searches it conducted. QPS’ response confirms that it searched its electronic records (including QPRIME, email databases and records held by State Crime Command) for information relevant to all parts of the application.[54] Taking into account the scope of the application, QPS’ searches and the nature of the documents which were located, I consider QPS undertook comprehensive searches of locations where it would be reasonable to expect that the types of information requested in the access application would be found. I also consider that enquiries were made of relevant staff. There is nothing before me, other than the applicant’s assertion, to support an expectation that further relevant documents exist. For these reasons, I am satisfied that QPS has taken all reasonable steps to locate relevant information and access to any further information may be refused on the basis that it does not exist or cannot be located.[55] DECISION For the reasons set out above, I vary[56] QPS’ deemed decision and find that: Page 35 does not contain the applicant’s personal information and is therefore, outside the scope of the IP Act application access can be refused to the Information in Issue under section 67(1) of the IP Act and section 47(3)(a) of the RTI Act as it comprises exempt information; and access to any further information may be refused under section 67(1) of the IP Act and section 47(3)(e) of the RTI Act on the basis it is nonexistent or unlocatable. K ShepherdActing Right to Information CommissionerDate: 7 December 2021 APPENDIX Significant procedural steps Date Event 9 December 2019 OIC received the external review application. 17 January 2020 OIC notified the applicant and QPS that the external review had been accepted and requested information from QPS. 3 April 2020 OIC received the requested information from QPS. 8 April 2020 OIC updated the applicant on the status of the review, and advised that OIC had received a copy of the documents QPS had located in response to his application. 22 April 2020 OIC requested further information from QPS including about its disclosure position on the located documents. 26 August 2020 QPS responded to OIC indicating that it would agree to disclose some information from the located documents. 8 September 2020 OIC asked QPS to disclose a copy of the located documents, redacted in accordance with QPS’ disclosure position, to the applicant, as part of the informal resolution process. OIC updated the applicant on the status of the matter and asked him to advise OIC whether he wished to pursue access to any redacted information. 28 September 2020 The applicant advised OIC that he had not received any documents from QPS. 4 November 2020 QPS advised OIC it had sent a redacted copy of the documents, reflecting its disclosure position, to the applicant. 5 November 2020 OIC updated the applicant and asked him to identify whether there was particular information he sought to pursue. 5 and 16 November 2020 The applicant contacted OIC to identify matters he was seeking to have addressed in the review. 8 December 2020 OIC conveyed a preliminary view to the applicant and invited the applicant to provide submissions if he did not accept the preliminary view. 25 January and 1 February 2021 OIC received the applicant’s submissions in response to the preliminary view. 12 February 2021 OIC requested further information from QPS, including about its searches for the requested documents. OIC provided an update to the applicant. 18 June 2021 OIC received QPS’ submissions about its searches. 22 June 2021 OIC received a further submission from the applicant. 8 July 2021 OIC conveyed a further preliminary view to the applicant and invited him to provide further submissions if he did not accept the preliminary view. 22 July 2021 OIC received the applicant’s further submissions in response to the preliminary view. [1] Application dated 21 August 2019 and received by QPS on 27 August 2019. [2] Queensland Police Records and Information Management Exchange. [3] Under section 66(1) of the IP Act. QPS confirmed this to the applicant by letter dated 9 December 2019. [4] On 9 December 2019. External review by the Information Commissioner is a merits review and, under section 118(1) of the IP Act, the Information Commissioner has the power to decide any matter in relation to an application that could have been decided by the agency, under the IP Act. [5] Under section 103(1) of the IP Act, the Information Commissioner is required to identify opportunities and processes for early resolution and to promote settlement of external reviews. [6] Under section 67(1) of the IP Act and sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) (RTI Act). Section 67(1) of the IP Act sets out that an agency may refuse access to information in the same way and to the same extent that the agency could refuse access to the document under section 47 of the RTI Act were the document the subject of an access application under the RTI Act. [7] Under section 67(1) of the IP Act and sections 47(3)(e) and 52 of the RTI Act. [8] Letter to QPS dated 26 September 2019. QPS subsequently confirmed this scope to the applicant on 30 October 2019, however, QPS incorrectly quoted the timeframe for (ii) as commencing on 1 January 2017. [9] For the period 1 July 2017 to 14 August 2019. [10] For the period 1 July 2017 to 14 August 2019. [11] Section 108(1)(a) of the IP Act. [12] On 28 September 2020, the applicant requested a ‘full list of documents discovered by QPS’. The applicant reiterated this request for a list of located documents on 5 November 2020, 16 November 2020, 25 January 2021 and 22 July 2021. [13] Section 121 of the IP Act also requires the Information Commissioner to take necessary steps to avoid the disclosure of information that is claimed to be exempt to an access applicant. Mindful of this obligation, I consider that disclosing the document description requested by the applicant could reasonably be expected to enable the applicant to identify some of the Information in Issue. [14] Submissions dated 22 July 2021. The applicant refers to a schedule of documents set out in a decision issued by the Victorian Civil and Administrative Tribunal (VCAT) as being ‘an example where certain information describing the details about the document is provided to enable the right to information applicant to properly respond to an agency’s purported exemption claim’. However, I note this referenced VCAT decision concerned information and claimed disclosure exemptions that are significantly different to those being considered in his review and that the referenced list of documents was produced for the purpose of the VCAT appeal hearing. [15] As set out in the Appendix. It is the practice of OIC to convey a preliminary view, based on an assessment of the material before the Information Commissioner or her delegate at that time, to an adversely affected participant. This is to explain the issues under consideration to the participant and affords them the opportunity to put forward any further information they consider relevant to those issues. It also forms part of the Information Commissioner’s processes for early resolution of external reviews. [16] Submissions dated 25 January 2021. [17] Section 21 of the HR Act. [18] 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]. [19] I also note the following observations made by Bell J in XYZ at [573], on the interaction between equivalent pieces of Victorian legislation (namely, the Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic)): ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’. [20] 89 full pages and portions of information redacted from 28 pages. [21] Section 121(3) of the IP Act, which prohibits the Information Commissioner from disclosing information that is claimed to be exempt information or contrary to the public interest information in an external review decision. [22] This document (with entire contents redacted) was included in the pages released to the applicant. [23] Accordingly, OIC’s letter dated 8 July 2021 notified the applicant that he was taken to have excluded that document from further consideration. [24] Submissions dated 22 July 2021. [25] Section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 10(1)(f) of the RTI Act. [26] Section 67(1) of the IP Act and sections 47(3)(e) and 52 of the RTI Act. [27] Including matters relating to QPS’ processing of the application, as referenced in paragraph 7 above. [28] ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. [29] As noted above, access may be refused to information under the IP Act in the same way and to the same extent that access can be refused to information under the RTI Act (refer to section 67(1) of the IP Act). [30] Sections 47(3)(a) and 48 of the RTI Act. Schedule 3 to the RTI Act identifies the types of exempt information. [31] Schedule 3, section 10(1)(f) of the RTI Act. [32] Sections 47(3)(e) and 52 of the RTI Act. [33] These factors are identified in Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) (Pryor) at [19] as including the administrative arrangements of government; the agency structure; the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it); the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. These factors were more recently considered in Van Veendendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) at [23] and J27 and Queensland Police Service [2021] QICmr 19 (6 May 2021) at [17]. [34] Pryor at [21]. [35] Section 100 of the IP Act.[36] See Mewburn and Department of Local Government, Community Recovery and Resilience [2014] QICmr 43 (31 October 2014) at [13]. [37] See footnote 28 for definition of ‘personal information’.[38] Apart from the general assertion referenced in paragraph 16, the applicant did not make any submission on this issue. [39] Under section 121(3) of the IP Act, the Information Commissioner is prohibited from including information that is claimed to be exempt in a decision. [40] As noted in previous decisions of the Information Commissioner, QPRIME activity reports generally reveal the amount of activity and the number of occasions on which QPS officers have accessed QPRIME in relation to an individual, the badge number of the inquiring officer, and includes a technical log of interactions within the database. Refer, for example, to Kyriakou and Queensland Police Service [2017] QICmr 30 (9 August 2017) at [30].[41] The Court of Appeal noted in Commissioner of the Police Service v Shelton & Anor [2020] QCA 96 at [5], that the Queensland Civil and Administrative Tribunal has previously described QPRIME as a database of information obtained by QPS in its law enforcement functions, which is a dynamic and constantly updated central record for QPS. [42] Submissions dated 15 January 2021. [43] Submissions dated 25 January 2021 and 22 July 2021. For example, the applicant refers to sections of the QPS Operational Procedures Manual (OPM) which relate to QPS methods and procedures. [44] B and Brisbane North Regional Health Authority [1994] QICmr 1 at [154]- [160] and Williams and Queensland Police Service [2017] QICmr 28 (4 August 2017) at [22]. Other jurisdictions have similarly interpreted the phrase ‘as distinct from something that is irrational, absurd or ridiculous’: See Smolenski v Commissioner of Police, NSW Police [2015] NSWCATAD 21 at [34], citing Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [28], McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] and Attorney-General’s Department v Cockcroft [1986] FCA 35; (1986) 10 FCR 180 at [190].[45] <https://www.police.qld.gov.au/qps-corporate-documents/operational-policies/operational-procedures-manual>. [46] Submissions dated 15 January 2021. I also acknowledge the applicant’s submission that he is not seeking this information in order to ascertain whether he is the subject of an active QPS investigation. [47] Submissions dated 15 January 2021. [48] Which provides that information will not be exempt where it consists of matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law. Although schedule 3, section 10(2) of the RTI Act lists other exceptions to the exemption provisions in schedule 3, section 10(1), those other exceptions do not arise in the circumstances of this matter and are not addressed in this decision. [49] Submissions dated 25 January 2021. [50] Submissions dated 15 June 2021. [51] Section 67(1) of the IP Act and sections 47(3)(a) and 48 and schedule 3, section 10(1)(f) of the RTI Act. [52] Section 137(2) of the IP Act. [53] Submission dated 25 January 2021. [54] QPS submission dated 15 June 2021, which also confirm that these searches were conducted by officers from QPS’ State Crime Command and the Ethical Standards Command Systems Audit and Investigation Unit. [55] Section 67(1) of the IP Act and section 47(3)(e) of the RTI Act. [56] As a delegate of the Information Commissioner, under section 139 of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Claes and Queensland Rail [1998] QICmr 26 (4 September 1998)

Claes and Queensland Rail [1998] QICmr 26 (4 September 1998) Claes and Queensland Rail (S 10/98, 4 September 1998, Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-4. These paragraphs deleted. REASONS FOR DECISION Background The applicant, Mr Claes, is employed by the Coal and Minerals Group of Queensland Rail, at Pring Station. In late April 1997, following an altercation which occurred between the applicant and another officer of Queensland Rail at Pring Station, there was an investigation which resulted in the applicant's being excluded from duty for several weeks. The other officer, ---- (whom I will refer to as the "third party") was not excluded from duty, but was required to attend a disciplinary interview. By letter dated 28 October 1997, the applicant applied to Queensland Rail for documents relating to the incident, including his personal file, his disciplinary file, and any other relevant documents about him held by the Coal and Minerals Group of Queensland Rail at Pring, Mackay or Rockhampton. By letter dated 23 December 1997, Mr Peter Carden, FOI Co-ordinator, Queensland Rail, informed the applicant that he had decided to grant access to most of the requested documents, subject to the deletion of certain matter which would identify third parties who had provided information and statements to the investigating officers. Mr Carden also advised the applicant that there had been an objection to the release of certain documents by the third party, but that he had decided that those documents were not exempt from disclosure to the applicant. In accordance with the provisions of s.51(2) of the FOI Act, Mr Carden advised the applicant that access could not be granted to those documents until the expiration of the prescribed period (of 28 days) within which the third party could apply for an internal review of Mr Carden's decision. By letter dated 2 January 1998, the third party applied for internal review of Mr Carden's decision. Queensland Rail's Acting FOI Internal Review Officer, Mr John Gibson, informed the applicant, by letter dated 14 January 1998, that he had decided to vary Mr Carden's decision in respect of the documents to the release of which the third party had objected, as Mr Gibson considered them to be exempt from disclosure under s.46(1)(b) of the FOI Act. By an application dated 19 January 1998, the applicant applied to me for review, under Part 5 of the FOI Act, of Mr Gibson's decision to exempt those documents which had been the subject of the third party's internal review application. External review process I obtained from Queensland Rail copies of the documents in issue. They are pages 165-171 of File RMO 4323, described by Queensland Rail as an 'industrial relations' file. The applicant has already been granted access to the majority of documents on that file, subject to the deletion of certain matter found to be exempt (i.e., matter which would identify the sources of the information in the documents). The documents in issue may be described as: Page Description of document 166-167 Report by [the 3rd party], dated 29 April 1997, on the incident at Pring Station on 28 April 1997 165 Information to be added to the report described above, dated 30 April 1997 171 Copy of p.165 with short handwritten notation 168-170 Record of interview between investigating officers and [the 3rd party], dated 2 May 1997 Following examination of those documents, further information was sought in relation to the policies adopted by Queensland Rail in respect of (a) the investigation of workplace incidents which could lead to disciplinary measures, and (b) disclosure, to the parties involved, of documents relating to investigations of this type. Queensland Rail forwarded to my office copies of the following documents: Discipline Guidelines (made under the Employee Relations Policy) Statement by Train Management Improvement Officer L A Gwynne, of Coal and Minerals Operations at Jilalan (one of the two officers assigned to investigate the altercation between the applicant and the third party) Queensland Rail has not made any formal submissions, but I have taken into account the reasons for decision given by Mr Carden and Mr Gibson. The third party, having become aware that the applicant had sought review, contacted my office on 2 February 1998 to discuss his concerns about disclosure of the documents in issue to the applicant. He subsequently provided a letter, dated 7 February, in support of his objections to the release of the documents in issue. This letter reflected the arguments used by Mr Gibson in support of his internal review decision, as well as outlining previous workplace and other incidents which caused the third party to be concerned at the possible consequences of disclosure of any matter to the applicant. The third party also stated that he (and other employees at Pring Station) only co-operated with the investigation to which the documents in issue relate after being assured that any information they gave to the investigating officers would be treated in confidence, and would not be released to the applicant. By letter dated 29 May 1998, the Assistant Information Commissioner informed the applicant of his preliminary view that the documents in issue were exempt from disclosure under s.40(c), and possibly also under s.46(1)(b), of the FOI Act. The applicant was invited to make a submission in support of his contention that he should be granted access to the documents, and he responded by letter dated 1 June 1998. Application of s.40(c) of the FOI Act Section 40(c) of the FOI Act provides: 40. Matter is exempt matter if its disclosure could reasonably be expected to - ... (c) have a substantial adverse effect on the management or assessment by an agency of the agency's personnel; ... ... unless its disclosure would, on balance, be in the public interest. I have considered the application of s.40(c) of the FOI Act in Re Pemberton and The University of Queensland (1994) 2 QAR 293, Re Murphy and Queensland Treasury & Ors [1995] QICmr 23; (1995) 2 QAR 744, Re Shaw and The University of Queensland [1995] QICmr 32; (1995) 3 QAR 107, and Re McCann and Queensland Police Service (Information Commissioner Qld, Decision No. 97010, 10 July 1997, unreported). The focus of this exemption provision is on the management or assessment by an agency of the agency's personnel. The exemption will be made out if it is established that disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of its personnel, unless disclosure of the matter in issue would, on balance, be in the public interest. I analysed the meaning of the phrase "could reasonably be expected to", by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth, in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at pp.339-341, paragraphs 154-160. In particular, I said in Re "B" (at pp.340-341, paragraph 160): The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist. The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Dictionary, 2nd ed); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993). If I am satisfied that any adverse effects could reasonably be expected to follow from disclosure of the matter in issue, I must then determine whether those adverse effects, either individually or in aggregate, constitute a substantial adverse effect on the management or assessment by Queensland Rail of its personnel. For reasons explained in Re Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663 (at pp.724-725, paragraphs 148-150), I consider that, where the Queensland Parliament has employed the phrase "substantial adverse effect" in s.40(c) of the FOI Act, it must have intended the adjective "substantial" to be used in the sense of grave, weighty, significant or serious. If I find that disclosure of the whole or any part of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by Queensland Rail of its personnel, I must then consider whether disclosure of that matter would nevertheless, on balance, be in the public interest. Substantial adverse effect? It is clear from the applicant's submission that there is considerable tension within the workplace at Pring Station. On the evidence before me, I consider that disclosure of further matter relating to the altercation between the applicant and the third party would do nothing to lessen that tension and that it could reasonably be expected to heighten the tension, with a consequent deterioration in workplace relations. The achievement and maintenance of satisfactory relations within the workplace is an aspect of the personnel management functions of Queensland Rail. Disclosure of matter which would increase tension, would have an adverse effect on the personnel management functions of Queensland Rail. Given the height which tensions have reached in this case, I consider that adverse effect could reasonably be expected to be a substantial one. In addition, Mr Gibson decided (in making his internal review decision that the documents in issue are exempt because their release would constitute a breach of confidence), that release of the documents in issue could reasonably be expected to have a substantial adverse affect on the future conduct of disciplinary investigations and, by extension, on the implementation of Queensland Rail's Disciplinary Guidelines. I accept that staff disciplinary processes are an aspect of the management or assessment by an agency of its personnel, and the investigation and disciplinary action which followed the incident at Pring Station were a part of that process. I have examined Queensland Rail's Disciplinary Guidelines, which are made under the agency's Employee Relations policy. The Guidelines specify that confidentiality should be maintained during the disciplinary process, and it is clear that the officers who investigated the altercation between the applicant and the third party made every effort to do so. Queensland Rail has also provided a memorandum from one of the investigating officers, which states in part: At the commencement of the investigation it became apparent to the investigating team that there existed a definite lack of co-operation from Qld Rail staff to freely express information regarding the altercation between Drivers Claes and [the 3rd party]. ...... At the commencement of most of the interviews, assurance was given to the staff that information contained in their statements would be treated in strict confidence. In the case of one Driver he was quite adamant he would not sign a statement and only agreed to submit some information when assured by the investigating team this information would be kept confidential. The third party has stated that the information he provided was given in confidence to the investigating officers, and that he was informed that any information given during the course of the investigation would be treated as confidential. In my view, it is not a wise practice for an investigator to give a blanket promise of confidentiality to a witness or prospective witness, since the common law requirements of procedural fairness may dictate that the critical evidence to support a disciplinary charge (and, apart from exceptional circumstances, the identity of its provider) be disclosed to a person who formally contests the charge. In writing the letters and taking part in the interview, the third party ought to have anticipated that the information he provided might have resulted in disciplinary proceedings against him and/or the applicant. Further, the third party ought to have appreciated that if, for example, action were to be taken to dismiss the applicant, the information the third party had provided would have to be put to the applicant, in order to allow him to respond. In my view, any assurance or understanding of confidentiality could not have been unconditional. It appears, however, that there was scope for a conditional understanding that the information provided by the third party would not be disclosed unless it was necessary to disclose the documents to the applicant, in the course of disciplinary proceedings against him. I discussed conditional understandings of confidentiality in Re McCann. At paragraph 48 of Re McCann, I said that: However, I consider that cases will occur, where...........the source's identity and/or evidence are not required to be disclosed (cf. Re McEniery at p.364, paragraph 33). Factors of the kind referred to in paragraph 38 above (and especially the vulnerability of a source to intimidation, harassment, recrimination, or threats to a source's livelihood or personal safety) may be evident, and may warrant a finding that there existed an implicit mutual understanding between a source of information and a law enforcement agency to the effect that the identity of the source, and/or the information supplied by the source, would be treated in confidence so far as practicable, consistent with the use of that information for the purpose of the agency's investigation and the prosecution of any charges stemming from the investigation. In the final outcome of the disciplinary proceedings, it appears that disclosure to the applicant never became necessary, according to the management practices adopted by Queensland Rail. It is therefore reasonable for the third party to expect that the information he provided would not be disclosed to the applicant, as disclosure did not become necessary for the purposes of action taken against the applicant. As an employer, Queensland Rail could direct employees to answer questions relevant to the conduct of its business. However, the reporting and proper investigation of incidents of physical altercations between staff raises particularly difficult management issues for most agencies, as the persons who were involved in, or witnesses to, the altercation are frequently unwilling to provide statements for fear of further violence or reprisals, or becoming caught up in a souring of relations in the workplace. Whether or not these fears are reasonably based in the particular case, they are a powerful deterrent to co-operation with investigators or management. In such cases, employees are more likely to co-operate fully if they are assured that the statements or evidence they provide will be treated as confidential by the agency, unless disclosure is necessary for the purposes of disciplinary proceedings. It is evident that this occurred in the investigation of the altercation involving the applicant and the third party, with explicit guarantees of confidentiality being given by the investigating officers. If information given in confidence were subsequently disclosed, in circumstances not required for the disciplinary processes of Queensland Rail, and particularly to a person from whom it was explicitly agreed it would be kept confidential, I accept that it could reasonably be expected to have a substantial adverse effect on the management or assessment by Queensland Rail of its personnel, through the apparent breach of trust involved, and by making it difficult to obtain full co-operation in similar investigations in the future (i.e., investigations in circumstances where it is appropriate to promise confidentiality in order to obtain co-operation). Considering the two adverse effects identified at paragraphs 29 and 30 above, I find that disclosure of the documents in issue could reasonably be expected to have a substantial adverse effect on the management and assessment by Queensland Rail of its staff. Public interest balancing test The establishment of a substantial adverse effect raises a prima facie public interest favouring non-disclosure of the documents in issue. It is clearly in the public interest that good working relations be maintained within Queensland Rail. Further, Queensland Rail has a duty, both as an employer and as a provider of services to the public, "to ensure the good health and safety of all persons at the workplace, including employees, customers and the general public" (Discipline Guidelines "Attachment A", p.29). There is a public interest in Queensland Rail successfully meeting its obligations under this policy, in addition to its obligations under both statute and the common law to maintain a safe workplace environment. I acknowledge that there is a public interest in a person, who is the subject of adverse information held by a government agency, having the opportunity to examine and respond to information given against him. I am, however, informed by Queensland Rail that the substance of the allegations against the applicant was made known to him at the time of the investigation and disciplinary action, although not in a form which would enable the applicant to identify individual sources of information. The applicant has argued that he requires access to the documents in issue in order to understand why Queensland Rail took action against him (by excluding him from duty) and not against the third party. The applicant has also claimed that Queensland Rail failed to act on his reports of harassment by the third party and other employees at Pring Station; that Queensland Rail failed to take prior harassment into account when investigating the altercation between the applicant and the third party at Pring Station on 28 April 1997; and that he was not accorded fair treatment in relation to this incident. As an employer, Queensland Rail is under an obligation to deal fairly and equitably with its employees, and to ensure the proper management and application of statute and common law requirements affecting the employer-employee relationship. This responsibility includes the proper application of disciplinary processes, and the prevention of workplace harassment and intimidation. There is a significant public interest in the accountability of Queensland Rail with respect to its employee management and disciplinary processes, and in the provision of information which will enable employees to understand and, if necessary, to pursue available avenues for redress of grievances if they are concerned about unfair treatment. I am not persuaded, however, that the material in the documents in issue will serve either of those purposes. Although the documents in issue have not been disclosed to the applicant, Queensland Rail has advised that the substance of the information in them was put to the applicant during the investigation, and that he was aware of the allegations against him. He has also seen the statements of other persons who were present at the time, and who witnessed parts of the incident in respect of which he was disciplined. The documents in issue do not contain information about any other incident involving the applicant and the third party (except for a brief reference to a previous incident, made in the applicant's presence during the altercation). Neither do they contain any information about alleged previous workplace harassment by or of the applicant (the applicant had complained that during the investigation he was not permitted to explain his actions by reference to previous harassment by the third party and other employees at Pring Station), or about the treatment by Queensland Rail of the applicant's concerns. I do not believe that they will assist the applicant's understanding of the disciplinary process, or of the response by Queensland Rail to his claims of harassment by other employees, including the third party. On the material before me, I am not satisfied that the public interest considerations which favour disclosure of the matter in issue are sufficiently strong to outweigh the public interest in avoiding a substantial adverse effect of the kind contemplated in s.40(c). I therefore find that the documents in issue are exempt matter under s.40(c) of the FOI Act. Section 46(1)(b) of the FOI Act In his internal review decision, Mr Gibson determined that the documents in issue were exempt from disclosure under s.46(1)(b) of the FOI Act. Given my findings in relation to s.40(c), I do not propose to give detailed consideration to the application of s.46(1)(b), although it is certainly arguable, in my view, that all or parts of the documents in issue are exempt matter under s.46(1)(b) of the FOI Act. DECISION I vary the decision under review (being the decision of Mr J Gibson, on behalf of Queensland Rail, dated 14 January 1998). I find that the matter in issue (described at paragraph 10 above) is exempt matter under s.40(c) of the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

B36 and Brisbane City Council [2022] QICmr 42 (7 September 2022)

B36 and Brisbane City Council [2022] QICmr 42 (7 September 2022) Last Updated: 20 February 2023 Decision and Reasons for Decision Citation: B36 and Brisbane City Council [2022] QICmr 42 (7 September 2022) Application Number: 316524 Applicant: B36 Respondent: Brisbane City Council Decision Date: 7 September 2022 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL WITH ACCESS APPLICATION - EFFECT ON AGENCY’S FUNCTIONS - request for all documents about applicant for specified time period - whether the work involved in dealing with application would, if carried out, substantially and unreasonably divert resources of agency from their use by agency in performing its functions - sections 60 and 61 of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to Brisbane City Council (Council) under the Information Privacy Act 2009 (Qld) (IP Act) in the following terms: Under the relevant Information Privacy Act (IP Act) and/or Right to Information Act (RTI Act), I hereby formally request access to any and all information, in any format, including, but not limited to - written correspondence/ notes / documentation/ emails / letters, verbal/ recorded/taped communications, phone calls/notes, photos, manager's notes, files, investigations and/or reports, and meeting notes on or about me, ... , regarding Administrative Access Complaint and associated information, held within/by Brisbane City Council (including the Office of the Disputes Commissioner). Date range is 4 September 2020 to 17 September 2021 (inclusive). [Applicant’s emphasis] The applicant identified five areas of Council that she considered would likely hold responsive documents. However, she also stated that she requested ‘a general broad search of Council outside of just the above. Third parties may be involved so please advise me if this is the case’. Council purported to decide to refuse to deal with the application under section 60 of the IP Act on the grounds that to process it would substantially and unreasonably divert Council’s resources in the performance of its functions. However, Council was outside the statutory timeframe in issuing the required preliminary notice under section 61 of the IP Act.[2] It was therefore deemed to have given a decision refusing access to the requested information.[3] By email dated 5 January 2022, the applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s deemed refusal of access. For the reasons set out below, I set aside Council’s deemed refusal of access to the requested information. In substitution, I find that Council was entitled to refuse to deal with the access application under section 60 of the IP Act. Background The applicant has made numerous access applications to Council arising out of her interactions with Council occurring either on her own behalf, or while acting as an agent for another person in relation to multiple access applications made to Council by that person. Reviewable decision The decision under review is Council’s deemed refusal of access under section 66 of the IP Act. Evidence considered Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). I have taken account of the applicant’s submissions to the extent that they are relevant to the issues for determination in this review.[4] 10. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[5] I consider a decision-maker will be ‘respecting, and acting compatibly with’ that right, and others prescribed in the HR Act, when applying the law prescribed in the IP Act and the RTI Act.[6] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[7] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[8] Issue for determination While Council’s decision is deemed to have been a refusal of access decision, it is clear from its purported initial and internal review decisions that its intention, had the relevant timeframes been met, was to refuse to deal with the access application under section 60 of the IP Act. Those purported decisions have the force of submissions for the purposes of this external review. When conducting a merits review of an agency’s decision, the Information Commissioner stands in the shoes of the agency and makes the correct and preferable decision. At the conclusion of the review, the Information Commissioner must make a written decision affirming or varying the decision, or setting it aside and making a decision in substitution.[9] Accordingly, the issue for determination is whether Council was entitled to refuse to deal with the access application under section 60 of the IP Act. Relevant law An individual has a right under the IP Act to be given access to documents of an agency to the extent that the documents contain the individual’s personal information.[10] An agency is required to deal with an access application unless doing so would, on balance, be contrary to the public interest.[11] The only circumstances in which dealing with an access application will not be in the public interest are set out in sections 59, 60 and 62 of the IP Act. Relevantly, section 60(1)(a) of the IP Act permits an agency to refuse to deal with an access application if the agency considers that 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. The phrase ‘substantially and unreasonably’ is not defined in the IP Act, the Right to Information Act 2009 (Qld), or the Acts Interpretation Act 1954 (Qld) (AIA). It is therefore appropriate to consider the ordinary meaning of these words.[12] The dictionary definitions[13] of those terms relevantly provide: ‘substantial’ means ‘of ample or considerable amount, quantity, size, etc’ ‘unreasonable’ means ‘exceeding the bounds of reason; immoderate; exorbitant’. 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 that a decision-maker: must not have regard to any reasons the applicant gives for applying for access, or the agency’s belief about what are the applicant’s reasons for applying for access;[14] and must have regard to the resources involved in: identifying, locating and collating documents deciding whether to give, refuse or defer access to documents, including the resources that would have to be used in examining documents and editing documents conducting any third party consultations making copies, or edited copies of documents; and notifying any final decision on the application.[15] While each agency's and each application's circumstances will vary, general factors that are relevant when deciding whether the diversion of resources or interference with normal operational functions is unreasonable include: the size of the agency[16] the ordinary allocation of RTI resources the other functions of the agency;[17] and whether and to what extent processing the application will take longer than the legislated processing period of 25 business days. 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. Rather, it is necessary to weigh up the considerations for and against, and form a balanced judgement of reasonableness, based on objective evidence.[18] Factors that have been taken into account in considering this question include:[19] 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 the 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 re-scoping 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.Submissions of Council As per its purported initial and internal review decisions, Council submits as follows: search results from the eight Council business areas located over 2680 pages across 533 files responsive to this application; the time commitment by Council officers on initial searches, identification, collation and partial scanning of materials (exclusive of document review by a decision maker) was in excess of 26 hours; reviewing the more than 2680 pages would involve significant work that includes: ➢ opening the files and documents and reviewing their contents; ➢ opening attachments and reviewing their contents; ➢ compiling all documents into a pdf format and structuring them in a manner suitable for review; ➢ editing pages to redact irrelevant information and information concerning Council employees or other third parties; and ➢ assessing and applying any Schedule 3 exemptions or Schedule 4 public interest factors including potential prejudice. the time involved for me, as decisionmaker, to review each page of the located documents and marking up each page in preparation for release would, as a conservative estimate take me one minute per page amounting to approximately 45 hours the estimated time to review the material set out above is in addition to that required to compile the documents, scan, and convert all the document holdings to pdf and structure them to enable review. As our team does not include a dedicated administrative officer, that task falls to the decision maker. A realistic estimate of document preparation time would be one minute per two pages amounting to an additional 22 hours of work. Balanced against the time required to conduct the internal review process, additional matters I considered included: ➢ the impact of the narrowed scope of the IP Act application; ➢ available delegated resources to handle IP Act and RTI Act internal reviews; ➢ the scope and volume of other work within the City Legal Corporate Governance and Commercial team; ➢ the volume of internal review applications completed this year; and ➢ the other workload within the team and the existing internal review matters requiring decision in December 2021. Your narrowing of the scope of your application to exclude emails from your own email address that were cc’ed to your account is of little effect in reducing the work involved as each document is still required to be reviewed to assess if it can be excluded. Internal review workload Council has delegated the authority for internal review decisions pursuant to s.94(2) of the IP Act to nominated personnel within the City Legal Corporate Governance and Commercial team that has a current staffing compliment of seven . The availability of a decision maker for internal review matters is further limited by the legislative requirement for that person to possess a certain level of seniority to the original decision maker and of course, by having the requisite experience within the team to conduct the reviews. Internal review applications are but one part of the specialist work performed by the City Legal Corporate Governance and Commercial team that includes significant Council projects including review, amendment and drafting of Council local laws, review of Council delegations and development of a new delegation register. These key projects are in addition to the 761 new file matters allocated to our team for the 2021 year to 30 November 2021. Of the 761 new matters allocated, 29 have been internal review matters. Of those 29 matters, three of those internal review applications remain current with the team and all three decisions are due on 8 December 2021. Two of the internal review applications are from you. Your other internal review claims inadequacy of search requiring recommencement of the search, collation and review process. In light of the significant workload within our team and the competing internal review decision deadlines, the commitment of one legal officer singularly to one file for more than 9 working days to the exclusion of all other work is unsustainable and poses an unreasonable and substantial impact on Council resources. Submissions of the applicant To the extent that it is necessary for the prerequisites in section 61 of the IP Act to be satisfied before a decision to refuse to deal with an access application is made under section 60 of the IP Act, the purported section 61 notice issued by Council to the applicant[20] satisfies these prerequisites. I have noted the applicant’s response to Council, including her suggested narrowing of her application as follows:[21] ... I am prepared to narrow the scope of this IP application by omitting emails that have been CCd to my email address of [...] – PROVIDED THAT these emails are duplicated such as when I send emails to Council and then CC my own email address of [...] This would not include emails where I am CCd in, for example, emails that are not from my email address of [...]. [Applicant’s emphasis] In her submission to OIC dated 22 July 2022, the applicant focused on arguments as to why disclosure of the responsive information would be in the public interest: I would like to remind the OIC that the Administrative Action Complaint (or AAC) with Council is an investigation complaint. I lodged my complaint with Council and it was referred as an Administrative Action Complaint. This AAC investigation was going for 3 months when the investigation officer suddenly went on leave, and it was left to the Disputes Commissioner (Ms Stefanie Nesbitt) to correspond with me via email. It was Council, including Ms Nesbitt and the CEO, who advised me I could go to the Queensland Ombudsman’s Office in relation to any suspected Administration Action failure. As you would be aware, taking a complaint to an external complaint body (even to the CCC), requires substantive evidence. The type of particular evidence which may (most likely, being an investigation) come from information released under privacy legislation. The object of privacy legislation, to my understanding, is to give a right of access to information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to release it. I believe, reasonably, that with-holding investigative information prejudices my right to administration of justice. Clearly, Council often writes (to me) about taking a complaint to the Queensland Ombudsman, or lodging review with the OIC, or going to the CCC (if you’re unhappy with the outcome of their investigation or review). Yet I am witnessing more and more the refusal (or outright unnecessary delay or reduction in information being released) to release my personal information (including investigative information). I genuinely believe I have suffered a wrong, and without access to the investigative file of the AAC (and associated information), then I am unable to be sure of any remedy/external complaint or investigation which may be available under the law (as I genuinely am unable to decide on what information to go over if I don’t have access to it!). I believe I have demonstrated my willingness, determination and potential/ability (despite disability/impairment) to lodge complaints, so it’s not hard to see that I would go down the course of action of further external complaints (therefore it is reasonable that I would pursue a remedy). It is therefore obvious that disclosure of the information I am seeking from Council in this matter would greatly assist myself to pursue a remedy (ie Queensland Ombudsman, or even the CCC) or to evaluate whether a remedy was available, or worth pursuing. The AAC was not finalised, but prematurely closed. There is a concern from the Disputes Commissioner herself about a conflict of interest connection. I raised matters with a Divisional Manager who appears to have suddenly disappeared from Council after I raised concerns of some of her (questionable) information in her emails to me. The reason I seek access to emails I have sent to, as well as emails I have received from, Council, in relation to the AAC is to ensure Council received (and perused/considered) all the relevant information provided, as well as the emails and information they sent to me are actually all contained in the investigation file of my AAC. I also have a current, ongoing Queensland Human Rights Commission investigation, which is at a conciliation stage. Some information on the AAC investigative file may be information that I could potentially submit to the QHRC as part of this conciliation process. ... I have had issues accessing investigative/complaint files including the CMP and Ethical standards investigations. Council refused to release them to me via administrative releases, and I then had issues applying for information via Council’s RTI Unit. Clearly this continues to be an issue with accessing the AAC investigation information and associated material. With respect, I am concerned that Council may be deliberately trying to with-hold certain investigative information from me in an attempt to suppress and subvert information being provided to me via the privacy request. I am also concerned that delaying sufficiently long enough to receive information from my privacy request, puts me out of time to lodge concerns with external complaint bodies. ... [Applicant’s emphasis] Findings What work would be involved in dealing with the access application? Council advised that preliminary search inquiries from eight Council business areas had located over 2680 potentially responsive pages. Based on this number of pages, Council estimated that 22 hours of administrative work would be involved in: searching for, extracting and reviewing the documents for relevance collating, scanning and compiling the documents into a pdf format for review by a decision-maker; and editing/redacting the documents in preparation for release. Council’s estimate was based upon one minute per two pages. I consider this to be a reasonable basis for the estimate. I am satisfied that, while an agency is required to consider how much time an access application is likely to take to process, a precise assessment is not required. As such, in cases where an assessment may, in itself, substantially and unreasonably divert the agency's resources, an estimate is acceptable. Council also estimated that 45 hours would be required to be spent by a decision-maker in: reviewing the documents and assessing them against the provisions of the IP Act; and marking up the documents to reflect the decision. Council’s estimate was based upon one minute per page, which I consider to be a conservative estimate. It is reasonable to expect that, given the nature of the access application as a request for complaint documents, responsive documents would likely contain the personal information of third parties. As such, I consider the time needed to review, consider and redact the personal information of other persons is likely to be significantly more than one minute. In my view, a more reasonable estimate is two minutes per page. This equates to a further 90 hours of work involved in processing the access application. In addition, I note that Council did not include an estimate of time needed to conduct any third party consultations, nor to prepare a written decision. I consider it is reasonable to estimate a further five hours would be required to complete these tasks, given the volume of documents. In summary, I am satisfied that approximately 117 hours of work[22] would be required to process and decide the applicant’s access application. Would the impact on Council’s functions be substantial and unreasonable? Yes. I am satisfied that processing the access application would substantially and unreasonably impact Council’s functions, for the reasons set out below. Based on the estimate set out above for compiling, reviewing and editing the responsive emails, as well as making and issuing a decision, the processing of the application would involve approximately 117 hours of work. This equates to one Council officer working on the access application for almost 17 business days,[23] or over three weeks, to the exclusion of all other functions. In its submissions, Council focused on the available resources in its City Legal division (which is responsible for conducting internal reviews of IP Act/RTI Act access decisions), and the competing work priorities of that division (see paragraph 20 above). Based on that information, and the wide range of other legal work for which the division is responsible, I am satisfied that spending nearly 17 business days to deal with one application would have a substantial and unreasonable impact on those resources. However, on the basis that Council’s decision was, in fact, a deemed refusal of access (see paragraph 3 above), I have also considered the impact on the resources of Council’s RTI unit were the application required to be processed by that unit. I discussed the resourcing of Council’s RTI unit in detail at paragraphs 40 to 46 of my decision in T74 and Brisbane City Council [2021] QICmr 54 (21 October 2021)[24] and I rely upon the observations and findings made there. While I do not have to hand the current number of access applications that Council is processing, previous years have shown that Council is an extremely busy RTI unit that receives a high volume of access applications relative to other agencies.[25] OIC’s own interactions with Council indicate the high volume of work required to be processed by the unit. Accordingly, having regard to information previously provided by Council about the staffing of its RTI Unit and the high volume of applications it receives each year, I am satisfied that spending 17 days to process one application would have a substantial and unreasonable impact on Council’s resources. I have had regard to the factors listed at paragraph 19 above to the extent that they are relevant to the circumstances of this case. I acknowledge, as noted at paragraph 21 above, that the applicant attempted to narrow the scope of her application by excluding emails sent from her email address, provided that these emails were duplicates (for example, emails that the applicant sent to Council and where she copied in her email address). The applicant did not exclude emails where she was copied in, but which were not sent from her email address. I agree with Council’s position that this concession is of little practical effect in reducing the work involved in processing the application because a review of each email would still be required to decide whether or not it can be excluded on the terms identified by the applicant. As noted, the applicant’s submissions focus solely on the public interest in disclosure of the requested information, rather than any arguments concerning the work involved in processing the application and its impact on Council’s resources. I accept that the public interest in disclosure is one relevant factor to be taken into when considering the application of section 60 of the IP Act (see paragraph 19 above). However, in terms of the applicant’s submission that she requires access to the requested information in order to make a complaint to the Queensland Ombudsman (QO), or because it may possibly be relevant to a complaint that she states she is pursuing with the Queensland Human Rights Commission (QHRC), I am not satisfied that she requires access to the information in order to make those complaints. If the applicant considers that Council has engaged in maladministration, she is free to make her complaint to the QO which will assess her complaint and request relevant information from Council if necessary. Similarly, if the applicant considers that Council has breached her human rights in dealing with her complaint, she can raise this matter with the QHRC which will, again, seek relevant information from Council if necessary. In summary, having regard to all relevant factors listed in paragraph 19 above, I am satisfied that requiring an officer of Council in either the RTI unit or the City Legal division to work on processing the applicant’s access application, to the exclusion of all other work, for a period of over three weeks, would significantly impact Council’s ability to process other access applications/applications for internal review, and attend to its other local government functions, resulting in a substantial and unreasonable diversion of Council’s resources. For the reasons set out above, I am satisfied that the work involved in dealing with the access application would, if carried out, substantially and unreasonably divert Council’s resources from their use in the performance of Council’s functions. DECISION I set aside Council’s deemed refusal of access. In substitution, I find that Council was entitled to refuse to deal with the applicant’s access application under section 60 of the IP Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.A Rickard A/Right to Information CommissionerDate: 7 September 2022 APPENDIX Significant procedural steps Date Event 5 January 2022 OIC received the application for external review. 6 January 2022 OIC requested that Council provide the initial documents. 10 January 2022 Council provided the initial documents. 10 February 2022 OIC advised the applicant and Council that the application for review had been accepted. 1 April 2022 OIC updated the applicant. 19 May 2022 OIC communicated a preliminary view to the applicant. 8 June 2022 The applicant requested and was granted an extension of time to 7 July 2022 in view of her disabilities. 15 June 2022 The applicant was granted a further extension of time to 22 July 2022. 22 July 2022 OIC received submissions from the applicant. 26 August 2022 The applicant requested an update. [1] Dated 20 September 2021. [2] The access application was compliant on 20 September 2021. The section 61 notice was issued on 27 October 2021, being business day 26. [3] Council’s purported initial decision dated 10 November 2021 and its purported internal review decision dated 7 December 2021 were invalid. [4] Including the external review application and the submission dated 22 July 2022. [5] Section 21(2) of the HR Act. [6] 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].[7] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [8] XYZ at [573].[9] Section 123 of the IP Act. [10] Section 40 of the IP Act. [11] Section 58 of the IP Act. [12] Section 14B of the AIA. [13] Macquarie Dictionary Online www.macquariedictionary.com.au (accessed 5 September 2022).[14] Section 60(3) of the IP Act. [15] Section 60(2) of the IP Act. [16] Middleton and Building Services Authority (Unreported, Queensland Information Commissioner, 24 December 2010) at [34]-[37].[17] 60CDYY and Department of Education and Training [2017] QICmr 52A (7 November 2017) at [18].[18] ROM212 and Queensland Fire and Emergency Services [2016] QICmr 35 (9 September 2016) at [42] and F60XCX and Department of the Premier and Cabinet [2016] QICmr 41 (13 October 2016) at [90], adopting Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1550 (Smeaton) at [30].[19] Smeaton at [39].[20] Dated 27 October 2021.[21] Dated 7 November 2021.[22] 22 + 90 + 5.[23] Based on a seven hour working day. [24] Issued to the applicant who was acting as agent for the access applicant in that matter. [25] Pages 94-96 of Department of Justice and Attorney-General, ‘Right to Information Act 2009 and Information Privacy Act 2009 Annual Report 2020-21’ at <rti.qld.gov.au> show that, in the 2020-21 financial year, Council received 544 RTI and IP applications; the next highest number of applications were received by City of Gold Coast (173) and Moreton Bay Regional Council (107), with all other local governments receiving fewer than 100 access applications.

queensland

court_judgement

Queensland Information Commissioner 1993-

Nine Network Australia Pty Ltd and Brisbane City Council [2012] QICmr 31 (7 June 2012)

Nine Network Australia Pty Ltd and Brisbane City Council [2012] QICmr 31 (7 June 2012) Nine Network Australia Pty Ltd and Brisbane City Council [2012] QICmr 31 (7 June 2012) Last Updated: 17 July 2012 Decision and Reasons for Decision Application Number: 310717 Applicant: Nine Network Australia Pty Ltd Respondent: Brisbane City Council Decision Date: 7 June 2012 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – applicant sought information about the top five revenue raising parking meters and amounts raised for the 2010 calendar year – whether the information comprises exempt information the disclosure of which would endanger a person’s life or physical safety under schedule 3, section 10(1)(c) and/or endanger the security of a structure under schedule 3, section 10(1)(h) of the Right to Information Act 2009 (Qld) – whether disclosure of the information would, on balance be contrary to the public interest – section 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to Brisbane City Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to the street and suburb locations of the top five revenue raising parking meter machines in 2010 and the amounts raised by each machine. Council located one page of relevant information and found that it was exempt from disclosure.[1] The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision refusing access. In the circumstances, Council is not entitled to refuse access to the relevant information in this review. Significant procedural steps Significant procedural steps are set out in the Appendix. Reviewable decision The decision under review is Council’s decision dated 25 July 2011. Relevant information Council produced a one page spreadsheet containing the five highest earning parking meters detailing the street name, suburb, number of parking spaces, hours and days of operation, hourly parking rate and total annual revenue of each machine (Relevant Information).[2] Material considered Evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and Appendix). Relevant law Under section 23 of the RTI Act, a person has a right to access documents of an agency subject to a number of exclusions and limitations, including grounds for refusal of access. These grounds are contained in section 47 of the RTI Act. Sections 47(3)(a) and 48 of the RTI Act provide that access may be refused to a document to the extent that it comprises ‘exempt information’. Schedule 3 sets out the types of information which the Parliament considers to be ‘exempt information’ as its disclosure would, on balance, be contrary to public interest. Sections 47(3)(b) and 49 of the RTI Act provide a ground for refusal of access where disclosure of information would, on balance, be contrary to the public interest. Issues for determination The issues for determination in this decision are whether: the Relevant Information comprises exempt information, the disclosure of which would: endanger a person’s life or physical safety[3] endanger the security of a structure;[4] or disclosure of the Relevant Information would, on balance, be contrary to the public interest.[5] I will examine these issues in turn. Findings Is the Relevant Information exempt from disclosure? No, for the reasons that follow. Council submits that the Relevant Information comprises exempt information, the disclosure of which could reasonably be expected to: endanger a person’s life or physical safety[6] and endanger the security of a structure.[7] The term ‘could reasonably be expected to’ requires that the relevant expectation is:[8] reasonably based; and neither irrational, absurd or ridiculous, nor merely a possibility whether the expected consequence is reasonable requires an objective examination of the relevant evidence the expectation must arise as a result of disclosure, rather than from other circumstances; and it is not necessary for a decision-maker ‘to be satisfied upon a balance of probabilities’ that disclosing the relevant information will produce the anticipated prejudice. In summary, Council submits that:[9] meters in Brisbane have been the subject of frequent attacks and thefts meter attendants have been verbally abused when attending to meters raising awareness of the amounts of money held by meters may create new opportunities for theft disclosure of the Relevant Information could reasonably be expected to result in: relevant meters being targeted for theft and/or vandalism relevant staff facing a greater risk of criminal activity. With respect to Council’s submission regarding disclosure leading to an increased likelihood of criminal activity, which could reasonably be expected to endanger a person’s life or physical safety or the security of a structure, I am not satisfied on the evidence before me that such an expectation is reasonably based given that: information which is currently publicly available reveals parking meter revenue collected by Council[10] and statistical data relating to the number of meters in Brisbane[11] the clearance of meters occurs in public and may be observed by members of the public; and the Relevant Information does not identify specific meters, nor does it reveal monetary amounts held at any one time. After carefully considering all of the information before me and on the basis of the matters set out above, I am satisfied that: there is insufficient evidence to conclude that disclosure of the Relevant Information could reasonably be expected to increase the likelihood of relevant criminal activity, as submitted by Council; and the Relevant Information does not comprise exempt information, the disclosure of which could reasonably be expected to endanger a person’s life or physical safety[12] or the security of a structure. [13] Would disclosure of the Relevant Information be contrary to the public interest? No, for the reasons that follow. In determining whether disclosure of the Relevant Information would, on balance, be contrary to the public interest I must:[14] identify and disregard irrelevant factors identify factors favouring disclosure of the information in the public interest identify factors favouring nondisclosure of the information in the public interest balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to public interest. Irrelevant factors I have examined schedule 4 of the RTI Act and consider that no irrelevant factors arise. Factors favouring disclosure After carefully considering all of the information before me, I am satisfied that the factors favouring disclosure of the Relevant Information include that disclosure could reasonably be expected to: ensure effective oversight of expenditure of public funds[15] promote open discussion of public affairs and enhance the Council’s accountability;[16] and contribute to positive and informed debate on important issues or matters of serious interest.[17] Based on the information before me, I am satisfied that: disclosure of the Relevant Information (revealing a snapshot of revenue raised by Council meters identified by street and suburb) could reasonably be expected to enhance the public interest factors favouring disclosure there is a strong public interest in ensuring that people affected by Council services (including users of parking meters and Council rate payers) are informed about Council’s management and collection of revenue from its parking meters; and the public interest factors favouring disclosure should be afforded moderate to significant weight in the circumstances. Factors favouring nondisclosure After carefully considering all of the information before me, I am satisfied that the factors favouring nondisclosure of the Relevant Information include that disclosure could reasonably be expected to prejudice the business, commercial or financial affairs of Council.[18] With respect to this factor, I am mindful of Council’s submission that disclosure of the Relevant Information could reasonably be expected to affect Council revenue if: revenue is lost through theft meters are inoperable due to damage; and/or Council is required to expend funds on repairs to or replacement of meters. [19] I am also mindful of Council’s public interest submission that ‘disclosure could reasonably be expected to prejudice the security of these parking meters and the public safety of officers servicing them’.[20] I have carefully considered the factors favouring nondisclosure and am satisfied on the information before me that disclosure of the Relevant Information could not reasonably be expected to prejudice the business, commercial or financial affairs of Council, security, law enforcement or public safety, given that: information which is currently publicly available reveals parking meter revenue collected by Council[21] and statistical data relating to the number of meters in Brisbane[22] the clearance of meters occurs in public and may be observed by members of the public; and the Relevant Information does not identify specific meters, nor does it reveal monetary amounts held at any one time. On the basis of the matters set out above, I am satisfied that the public interest factors favouring nondisclosure should be afforded little weight in the circumstances. Balancing the public interest In accordance with the matters set out above, I am satisfied that: the public interest factors favouring disclosure of the Relevant Information outweigh those favouring nondisclosure; and disclosure of the Relevant Information would not, on balance, be contrary to the public interest. DECISION I set aside the Department’s decision to refuse access to the Relevant Information and find that this information: does not comprise exempt information under section 47(3)(a) of the RTI Act; and would not, on balance, be contrary to the public interest to be disclosed under section 47(3)(b) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Assistant Commissioner Henry Date: 7 June 2012 APPENDIX Significant procedural steps Date Event 4 July 2011 Council received the applicant’s RTI Act application. 25 July 2011 Council issued its decision to the applicant refusing access to a one page document. 28 July 2011 OIC received the applicant’s external review application. 14 September 2011 OIC conveyed a preliminary view to the Council that access to some information could be refused as exempt information but the remainder could be disclosed. OIC invited the Council to provide submissions to OIC by 28 September 2011 27 September 2011 Council contested the OIC preliminary view and maintained all information was exempt information. It also raised fresh claims that disclosure of the information would, on balance, be contrary to the public interest. 28 September 2011 Applicant provided a submission to OIC detailing the release of similar information by another city Council. 16 May 2012 Applicant agreed to exclude some information from the scope of the application [1] Council later submitted in its letter to the OIC dated 27 September 2011 that disclosure of the information would, on balance, also be contrary to the public interest under section 47(3)(b) of the RTI Act. [2] During the course of the review, OIC obtained the agreement of the applicant to exclude the individual machine identification numbers and the location of each machine on the street from the scope of the application. Accordingly, this information does not form part of the Relevant Information.[3] Schedule 3, section 10(1)(c) of the RTI Act.[4] Schedule 3, section 10(1)(h) of the RTI Act.[5] Section 47(3)(b) and 49 of the RTI Act.[6] Sections 47(3)(a), 48 and schedule 3, sections 10(1)(c) of the RTI Act.[7] Sections 47(3)(a), 48 and schedule 3, sections 10(1)(h) of the RTI Act.[8] Most recently Nine Network Australia Pty Ltd and the Department of Justice and Attorney-General (310280, 14 February 2012) at paragraphs 29 to 31.[9] Council’s submission to the OIC dated 27 September 2012.[10] Council’s Annual Reports.[11] Information available from www.data.gov.au Parking Meter Areas Brisbane City Council.[12] Schedule 3, section 10(1)(c) of the RTI Act.[13] Schedule 3, section 10(1)(h) of the RTI Act.[14] Section 49(3) of the RTI Act.[15] Schedule 4, part 2 item 4 of the RTI Act.[16] Schedule 4, part 2, item 1 of the RTI Act.[17] Schedule 4, part 2, item 2 of the RTI Act.[18] Schedule 4, part 3, item 2 of the RTI Act.[19] Council’s submission to the OIC dated 27 September 2012.[20] Schedule 4, part 3, item 7 of the RTI Act[21] Council’s Annual Reports.[22] Information available from www.data.gov.au

queensland

court_judgement

Queensland Information Commissioner 1993-

Watkins Pacific Limited and Queensland Rail; Gold Coast Bulletin (Third Party) [1998] QICmr 20 (3 June 1998)

Watkins Pacific Limited and Queensland Rail; Gold Coast Bulletin (Third Party) [1998] QICmr 20 (3 June 1998) Watkins Pacific Limited and Queensland Rail (S 99/95, 6 March 1998, Information Commissioner Albietz) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-4. These paragraphs deleted. REASONS FOR DECISION Background This is a 'reverse FOI' application by Watkins Pacific Ltd (Watpac), objecting to a decision by Queensland Rail to grant the Gold Coast Bulletin access under the FOI Act to parts of a report by Weathered Howe, consulting engineers, who had been retained by Queensland Rail to investigate allegations against Watpac of unsafe construction practices on a segment of the Beenleigh-Robina railway line. By letter dated 17 January 1994, Mr David Smith made application to Queensland Rail, on behalf of the publisher of the Gold Coast Bulletin (Gold Coast Publications Pty Ltd), for access to documents under the FOI Act, in the following terms: Could Queensland Rail please provide correspondence and reports between Queensland Rail and engineers Weathered Howe in reference to the commissioned independent investigation of allegations regarding safety and quality of the 12 km section of the rail line between Ormeau and Coomera. There is a very strong public interest aspect of this request. The subject was raised in Parliament late last year, with allegations the quality and safety of construction of a section of the line may have been compromised. At the time, Opposition transport spokesman Vaughan Johnson warned of a possible "scandal" and possible "fraudulent practices". Queensland Rail less than two weeks later ordered an independent probe into the allegations, Gold Coast engineers Weathered Howe being commissioned to complete the study. Queensland Rail predicts up to five million passengers a year will use the rail link after its opening later this year. It is obviously in the public interest that the complete, and unabridged, Weathered Howe report is made available to the Gold Coast Bulletin. Queensland Rail identified a lengthy report from Weathered Howe, and a number of associated documents, as falling within the terms of the access application. Pursuant to s.51 of the FOI Act, Queensland Rail consulted Watpac, as the contractor responsible for the construction of the relevant segment of the rail line. Watpac objected to disclosure of the documents on the basis that they were exempt under s.45(1)(c) of the FOI Act. The initial decision in response to the FOI access application was made on behalf of Queensland Rail by Mr P Carden, FOI Co-ordinator, and communicated to Watpac and the Gold Coast Bulletin by letters dated 23 March and 24 March 1995, respectively. Mr Carden decided that the substantive sections of the Weathered Howe report, entitled "Summaries and Conclusions", "Standard of Work Overall and Areas of Concern", and "Quality Assurance Comments", plus a number of appendices to the report, were exempt matter under s.45(1)(c).Mr Carden also decided that a small amount of other matter was exempt under s.44(1) or s.46(1)(b) of the FOI Act. He decided that the balance of the report and its appendices were not exempt matter, and should be disclosed to the Gold Coast Bulletin. By letter dated 18 April 1995, Watpac, through its solicitors, sought internal review of Mr Carden's decision, with respect to the matter which Mr Carden had decided was not exempt matter. In his internal review decision dated 2 May 1995, Mr K Buckley, FOI Internal Review Officer, affirmed Mr Carden's decision that certain matter was not exempt matter, and should be disclosed to the Gold Coast Bulletin. Solicitors for Watpac then applied to me for external review, under Part 5 of the FOI Act, of Mr Buckley's decision. The Gold Coast Bulletin did not seek internal review of Mr Carden's decision that certain matter described above was exempt matter under s.45(1)(c), s.44(1) and s.46(1)(b), and accordingly the correctness of that part of Mr Carden's decision is not an issue which I have jurisdiction to determine in this external review. External review process I obtained and perused a copy of the entire Weathered Howe report and supporting documents. The Gold Coast Bulletin was consulted and confirmed that it wished to pursue access to the matter in issue, and to become a participant in these proceedings. As noted above, the substantive parts of the Weathered Howe report are not in issue in this external review, and have not been provided to the Gold Coast Bulletin. Concessions made by the Gold Coast Bulletin in the course of this external review have further limited the scope of the review, to the extent that the matter remaining in issue is: Description Folios Covering letter from Weathered Howe forwarding report 304-5 Cover pages of Report and table of contents 299-303 Section 1.0 - Introduction (two paragraphs) 298 Section 2.0 - Assessment Brief (brief description of purpose of consultancy, details of work and timing of reports.) 297-8 Appendix 3 - Watpac summary of the Davis relationship (the only matter in issue from this Appendix is a facsimile cover sheet with a simple two line message forwarding the summary. The summary itself is not in issue) 265-6 Appendix 4 - Queensland Rail letter securing services of Weathered Howe with 3 page attachment setting out background, purpose of consultancy and other details of consultancy. 257-62 Appendix 5 - Various documents recording allegations made by representatives of Roy Davis Contracting (part of folio 253 is not in issue) 241-56 Appendix 6 - Note of a telephone conversation with a representative of Roy Davis Contracting 238-40 Appendix 7 - Statutory declaration by a representative of Roy Davis Contracting and attached photographs 235-6 Appendix 8 - Statutory declaration by a representative of Roy Davis Contracting 233-4 Appendix 9 - Notes of meeting between Weathered Howe and Queensland Rail on progress of consultancy 230-32 Appendix 10 - Letter from a representative of Roy Davis Contracting 228-9 Appendix 11 - Notes of site inspections with Queensland Rail officers (part of folio 225 is not in issue) 221-27 Appendix 12 - Requests for information to Queensland Rail from Weathered Howe 216-20 Appendix 13 - Detailed Report Civil 2 (parts of the report dealing with adequacy of level of inspection of Queensland Rail officers are in issue. Balance is not in issue). 208-12 Some of the matter which remains in issue is merely administrative information relating to the commissioning and creation of the report. Other matter relates to the adequacy of supervision, by Queensland Rail officers, of construction work undertaken by Watpac. However, the bulk of the matter remaining in issue sets out the criticisms and concerns expressed about unsafe construction practices, which had given rise to the commissioning of the report, or which were made known to Weathered Howe in the course of its investigations. Weathered Howe's assessment of the validity of those concerns is contained in the substantive part of the report, which, however, is not in issue in this external review for the reason explained in paragraph 10 above. By letter dated 19 February 1997, the solicitors for Watpac were provided with a copy of my decision in Re Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 and invited to lodge a written submission and/or evidence in support of Watpac's contention that the matter in issue was exempt under s.45(1)(c) of the FOI Act. Despite being accorded a number of opportunities to provide a submission or evidence in support of its contentions, Watpac has lodged no material with me. In this context, it is worth repeating the comments which I published for the benefit of 'reverse FOI' applicants in Re Pope and Queensland Health [1994] QICmr 16; (1994) 1 QAR 616 at pp.621-622 (paragraph 17): Section 81 of the FOI Act provides that in a review under Part 5 of the FOI Act, the agency which made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant. In the present case, therefore, the formal onus remains on Queensland Health to justify its decision that the Seawright Report is not exempt under s.45(1)(c). Queensland Health can discharge this onus, however, by demonstrating that any one of the three elements which must be established to found a valid claim for exemption under s.45(1)(c) cannot be made out. Thus, the applicant in a 'reverse-FOI' case, while carrying no formal legal onus, must nevertheless, in practical terms, be careful to ensure that there is material before the Information Commissioner from which I am able to be satisfied that all elements of the exemption provision relied upon (in this case the three elements of s.45(1)(c)) are established. Application of 45(1)(c) of the FOI Act Section 45(1)(c) of the FOI Act provides: 45.(1) Matter is exempt matter if— ... (c) its disclosure— (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government; unless its disclosure would, on balance, be in the public interest. The correct approach to the interpretation and application of s.45(1)(c) is explained in Re Cannon at pp.516-523 (paragraphs 66-88). In summary, matter will be exempt under s.45(1)(c) if I am satisfied that: (a) the matter in issue is properly to be characterised as information concerning the business, professional, commercial or financial affairs of an agency or another person; and (b) disclosure of the matter in issue could reasonably be expected to have either of the prejudicial effects contemplated by s.45(1)(c)(ii), namely: (i) an adverse effect on the business, professional, commercial or financial affairs of the agency or another person, which the information in issue concerns; or (ii) prejudice to the future supply of such information to government; unless I am also satisfied that disclosure of the matter in issue would, on balance, be in the public interest. The only material before me which states grounds for Watpac's objection to disclosure, is a letter dated 15 March 1995 from Watpac's solicitors in response to s.51 consultation by Queensland Rail: (a) In the compilation of the reports and correspondence, due regard was not had to the rule of natural justice, in that the reports and correspondence contained hearsay evidence, were subjective in their analyses, and Watpac was not afforded the opportunity to make submissions in its own defence. (b) The report was commissioned by Q Rail in response to allegations made by a Subcontractor, which have been determined to be vexatious. (c) The report covers a review of fitness for purpose, public safety, as well as a wide range of other matters relating to construction supervision. The report confirms there are no areas of concern in relation to the works being fit for the purpose or safety to the public. The report makes unanswered allegations relating to construction practice which may be extremely detrimental to Watpac. (d) The allegations by the Subcontractor appear to have been made to secure a commercial settlement of litigation between the Subcontractor and Watpac. Both Watpac and Q Rail have been subjected to pressure from the Subcontractor through media releases and coverage. (e) The contents of the reports and correspondence are such, that selective releasing of the parts of the report which exacerbate media pressure on both Q Rail and Watpac, may prejudice the proper outcome of the current legal proceedings. Business, commercial or financial affairs? In interpreting this requirement, I have adopted a confined approach to the construction of the term "concerning the business, ... commercial or financial affairs of .... another person", which accords with the approach taken by Powell J of the NSW Supreme Court in Wittingslow Amusements Group v Director-General of the Environment Protection Authority of NSW (Supreme Court of NSW, Equity Division, No. 1963 of 1993, Powell J, 23 April 1993, unreported). The relevant passage from Powell J's decision is reproduced in Re Cannon at p.518, paragraph 72. A similar approach has also been adopted by Victorian judges (see the cases analysed in Re Cannon at pages 517-518, paragraphs 69-71). It is not sufficient that the matter in issue has some connection with a business, or has been provided to an agency by a business, or will be used by a business in the course of undertaking business operations. The matter in issue must itself be information about business, commercial or financial affairs, in order to satisfy this requirement. As I have noted above, some of the matter in issue is simply administrative information, or information about how Weathered Howe went about preparing the report. Other information relates to the quality of supervision by Queensland Rail officers. I am not satisfied that matter of that kind satisfies the initial requirement for exemption imposed by s.45(1)(c)(i). Other examples could be given. However, in light of the findings I have made below in relation to the other requirements for exemption under s.45(1)(c), I will refrain from adding to the length of this decision by attempting to identify in detail all matter which does or does not meet the requirement for exemption imposed by s.45(1)(c)(i) of the FOI Act. Adverse effect on business, commercial or financial affairs? Watpac has not argued that disclosure of the matter in issue could reasonably be expected to prejudice the future supply of such information to government, and I can see no reasonable basis for such a claim. I will therefore consider whether disclosure of the matter in issue could reasonably be expected to have an adverse effect on Watpac's business, commercial or financial affairs. I analysed the meaning of the phrase "could reasonably be expected to", by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth (the Commonwealth FOI Act), in my reasons for decision in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279, at pp.339-341, paragraphs 154-160. Those observations are also relevant here. In particular, I said in Re "B" (at pp.340-341, paragraph 160): The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist. The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Dictionary, 2nd ed); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993). Watpac has made a briefly-stated claim, in broad terms, that disclosure could be expected to prejudice its affairs, but has not backed up its claim with any evidence, or with specific submissions explaining how the disclosure of particular matter in issue could reasonably be expected to prejudice its relevant affairs. There is no doubt that the matter in issue contains criticisms or concerns raised about particular aspects of Watpac's construction practices in relation to the rail line. The validity of those criticisms/concerns was assessed in segments of the report which are not in issue in this external review. However, the contents of the report itself make it clear that the criticisms/concerns have already been the subject of considerable attention both in the media and in Parliament (see, for example, Appendix 2). Given the extent of public attention which had already been drawn to them by the time of the relevant FOI access application, it is doubtful that disclosure under the FOI Act of another statement of the concerns (even if in more detail than originally made public) could reasonably have been expected to prejudice the business, commercial or financial affairs of Watpac - disclosure of the matter in issue under the FOI Act would not be likely to have occasioned any significant escalation in the concerns which people might have had on first hearing of the criticisms. But, in any event, there has been a considerable lapse of time since the criticism/concerns first came to public attention. In that time, they have been assessed by independent expert engineers, and the rail line has been completed and has operated safely. Given the nature of the concerns expressed, the passage of time and the successful operation of the rail line, I consider that if any adverse effect on the business, commercial, or financial affairs of Watpac could reasonably be expected to follow as a consequence of the disclosure now of the matter in issue, any such adverse effect would be minimal. Public interest balancing test The construction of a rail line of the size of the Beenleigh-Robina rail line is a significant public undertaking. There is a significant public interest in Queensland Rail being held accountable to the public of Queensland for its part in procuring and supervising work carried out on the rail line. There is also a significant public interest in allowing members of the public access to matter which will enable them to assess whether this significant commuter and tourism facility has been properly constructed and is safe to serve the community. In my view, these public interest considerations favour disclosure both of the criticisms and concerns raised about safety aspects of some of Watpac's construction practices, and of the steps taken by or on behalf of Queensland Rail with a view to establishing whether or not the criticisms and concerns had any substance, and to assure the quality and safety of the construction work being undertaken on behalf of Queensland Rail. (In that regard, it is unfortunate, in my opinion, that the Gold Coast Bulletin did not pursue access to those segments of the report which detail Weathered Howe's assessment of the validity of the criticisms and concerns raised about unsafe construction practices.) Arguably, it may not have been appropriate to disclose the criticisms made about the safety of particular aspects of Watpac's construction practices, thereby risking prejudice to Watpac's business reputation, until it was established by investigation that the criticisms had substance. However, once the criticisms (albeit in a less detailed version than appears in the matter in issue) became a matter of public record after being raised in the Legislative Assembly (see Hansard, 16 November 1994, pp.10422-10423), the Queensland public was confronted with a significant issue of public safety, in respect of a major item of public infrastructure, which was ultimately intended to attract usage by the public in substantial numbers. From that point in time, I consider that the balance of the public interest, has favoured disclosure of the detail of the criticisms and concerns about safety aspects of Watpac's construction processes, so as to enable the public to assess whether the sources of the criticism were credible (including in terms of their knowledge of relevant facts and their relevant expertise) or perhaps motivated by self-interest, and to assess the nature and extent of any potential threat to public safety, with a view to ultimately holding Queensland Rail accountable for taking steps to assure the quality and safety of the construction work being undertaken for it on behalf of the Queensland public. I also consider that the public interest in accountability of government agencies for the performance of their functions favours disclosure of the matter in issue which concerns the supervision, and quality assurance practices, of Queensland Rail officers in respect of the Watpac construction contracts (although the extent to which any of that matter could be properly said to concern the business, commercial or financial affairs of Watpac would, in any event, be extremely limited: see paragraph 18 above). In light of the view I have stated at paragraph 23 above (i.e., that any adverse effect on the business, commercial or financial affairs of Watpac, that could reasonably be expected in consequence of disclosure of the matter in issue, would be minimal), I consider that the public interest considerations which tell in favour of disclosure of the matter in issue carry such weight as to warrant a finding that disclosure of the matter in issue would, on balance, be in the public interest. I therefore find that none of the matter in issue is exempt matter under s.45(1)(c) of the FOI Act. Access to entire report Given my findings and comments above, I would respectfully suggest that the interests of both Queensland Rail and Watpac (as well as the interest of the Queensland public in being more fully informed) might best be served if Queensland Rail were to elect to now disclose the Weathered Howe report in its entirety. To do so would give a properly balanced view of the safety concerns that have been raised, and the expert opinion offered by Weathered Howe in assessing the validity of those concerns. Queensland Rail is able to take such action either in the exercise of the discretion conferred on it by s.28(1) of the FOI Act (see Re Norman and Mulgrave Shire Council [1994] QICmr 13; (1994) 1 QAR 574 at p.577, paragraph 13), or pursuant to the discretion reserved to it by s.14 of the FOI Act, to disclose information otherwise than under the FOI Act. However, that is an issue for Queensland Rail to consider, as I have no jurisdiction to make a decision concerning those parts of the Weathered Howe report which are not in issue in the present review for the reason explained at paragraph 10 above. DECISION I affirm the decision under review (being the decision made by Mr K Buckley on behalf of the respondent on 2 May 1995) that the matter in issue (more fully described at paragraph 11 above) is not exempt matter under the FOI Act, and that the Gold Coast Bulletin has a right to be given access to it under the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

SJ and Ors and Department of Communities [2006] QICmr 26 (28 September 2007)

SJ and Ors and Department of Communities [2006] QICmr 26 (28 September 2007) Office of the Information Commissioner Decision and Reasons for Decision Application Numbers: 210263, 210264, 210265, 210266, 210267, 210268, 210269, 210270, 210271, 210272, 210273, 210274 Applicants: SJ and Ors Respondent: Department of Communities Third Party: The Courier Mail Decision Date: 28 September 2007 Catchwords: FREEDOM OF INFORMATION – section 45(1)(c) Freedom of Information Act 1992 (Qld) – compliance notices - ‘document of an agency’ – ‘business, professional, commercial or financial affairs’ – public interest balancing test – reverse FOI Contents Background ................................................................................................................. 2 Steps taken in the external review process ................................................................ 2 Matter in issue ............................................................................................................. 4 Findings......................................................................................................................... 4 Decision ...................................................................................................................... 11 Reasons for Decision Background 1. The external review applicants seek review of twelve decisions of the Department of Communities (the Department) to partially disclose to the Courier-Mail compliance notices issued to child care centres managed by them. As the same issues arise in each of the twelve decisions, this decision is made in respect of all twelve external review applications. 2. On 30 January 2007 the Courier-Mail applied to the Department for access under the Freedom of Information Act 1992 (Qld) (FOI Act) to the following information: Copies of any compliance notices issued during 2006 or 2007 Copies of any suspension or revocation notices issued during 2006 or 2007. 3. The Department processed the application and identified twelve compliance notices which relate to the applicants. Those twelve notices form the matter in issue in this external review (Compliance Notices). 4. The Department made an original decision. The applicants sought internal review of that decision and on 8 June 2007, the Department made its internal review decision to partially release the Compliance Notices to the Courier-Mail. 5. On 3 July 2007 the applicants applied to the Information Commissioner for external review of the Department’s internal review decision dated 8 June 2007. Steps taken in the external review process 6. By letter dated 11 July 2007 this Office sought copies of the Compliance Notices and other relevant documentation from the Department. 7. By letter dated 11 July 2007 this Office wrote to the Courier-Mail inviting it to become a participant in the external review. 8. By letter dated 20 July 2007 the Courier-Mail confirmed that it wished to participate in the review. On 25 July 2007 this Office granted the Courier-Mail participant status and advised the applicants accordingly. 9. This Office received copies of relevant documentation from the Department on 24 July 2007 and undertook a careful analysis of its content. 10. This Office then sought clarification of factual matters from the Department including the numbers of child care centres located within each of the Department’s regions and the number of centres for which each authorised officer of the Department is responsible. 11. By emails dated 30 July 2007 and 8 August 2007 the information requested was received from the Department. 12. By letters dated 8 August 2007 I conveyed a preliminary view to the applicants and the Department that information identifying the applicants, contained in the Compliance Notices, was exempt from disclosure under section 45(1)(c) of the FOI Act. I sought further submissions from these parties if they did not accept my preliminary view. 13. By letter dated 29 August 2007 the applicants submitted that the Compliance Notices are not valid compliance notices and on this basis fall outside the scope of the Courier-Mail’s application. The applicants referred to ‘ample’ yet unspecified authority in support of their submissions and queried whether this Office required them to specify relevant case law. 14. By email dated 31 August 2007 the Department made submissions objecting to part of the preliminary view, specifically that the name of the ‘region’ and ‘authorised officer’ set out in the Compliance Notices was not exempt from disclosure under the FOI Act. The Department submitted that this information is exempt from release because: • “each of the authorised officers in each region is directly linked to a limited number and defined set of child care centres...” • “releasing the Compliance Notices with the identifying information relating to departmental officers/offices could indirectly identify the child care centres concerned.” 15. By email dated 31 August 2007 this Office sought further clarification from the Department with regard to its further submissions. 16. By email dated 4 September 2007 the Department made further submissions as requested in respect of its claim for exemption of the names of authorised officers, their job title and the relevant region from which the Compliance Notice was issued. These submissions related to how the relevant centres might be able to be identified if these details were released. 17. By letter dated 5 September 2007 I wrote to the applicants confirming the preliminary view and advising that if they wished to make further submissions including in respect of supporting authority, they should do so by 14 September 2007. 18. On 12 September 2007 a staff member of this Office phoned the Department to discuss the preliminary view and the Department’s further submissions. The Department was advised of my further preliminary view that: • the name of authorised officers (in this particular circumstance) is exempt from disclosure under section 45(1)(c) of the FOI Act as release could identify the relevant centre • given the large number of child care centres in each region, the regional office is not exempt from disclosure. 19. By letter dated 12 September 2007 I conveyed to the Courier-Mail the preliminary view that the Compliance Notices were partially exempt from disclosure under section 45(1)(c) of the FOI Act and invited the Courier-Mail to make further submissions if it did not agree with the view. 20. By letter dated 14 September 2007 the applicants provided this Office with their further submissions. 21. On 18 September 2007 the Department advised by telephone that it accepted my preliminary view, as discussed on 12 September 2007, and did not wish to make further submissions. 22. By letter dated 18 September 2007 the Courier-Mail sought an extension of time in which to provide submissions and requested clarification of aspects of my preliminary view. 23. By letter dated 19 September 2007 I advised the Courier-Mail of the considerations I had taken into account when forming my preliminary view as requested. I also granted the Courier-Mail an extension of time in which to provide its further submissions. 24. By letter dated 27 September 2007 the Courier-Mail advised that it did not accept the preliminary view and submitted that: • on balance, the public interest favours disclosure of information that would identify the external review applicants • release of the information could not reasonably be expected to have an adverse effect on the business, financial etc affairs of the external review applicants 25. In making this decision I have taken the following into account: • the Courier-Mail’s FOI application dated 30 January 2007 • the Compliance Notices (which comprise the matter in issue) • the initial decision of the Department dated 14 May 2007 • the internal review decision dated 8 June 2007 • correspondence from the external review applicants to the Department setting out the applicants’ objections to the release of the Compliance Notices dated 3 April 2007, 30 May 2007, 1 June 2007 and 5 June 2007 • the applicants’ applications for external review • the applicants’ letter to this Office dated 29 August 2007 objecting to the preliminary view • the applicants’ letter to this Office dated 14 September 2007 objecting to the preliminary view and providing submissions • advice received from the Department on 30 July 2007 regarding the number of child care centres within each region • advice received from the Department on 8 August 2007 regarding the number of child care centres for which each authorised officer has responsibility • the Department’s submissions dated 31 August 2007 • the Department’s submissions dated 4 September 2007 • the Courier-Mail’s letter dated 18 September 2007 • the Courier-Mail’s submissions dated 27 September 2007 • relevant sections of the FOI Act and applicable case law. Matter in Issue 26. The matter in issue in this external review comprises 12 Compliance Notices issued by the Department to the applicants (Matter in Issue). Findings Does the Matter in Issue comprise ‘documents of an agency’ 27. In summary, the applicants submit that the Matter in Issue: • is invalid • was issued by the Department other than in accordance with the requirements of the Child Care Act 2002 (Qld) (CC Act). • does not fall within the scope of the Courier-Mail’s FOI application as it does not comprise valid compliance notices. 28. I have carefully considered the applicants’ submissions and the case law to which I have been referred. 29. The FOI Act applies to ‘documents of an agency’ and ‘official documents of a Minister’[1]. 30. I also note that the object of the FOI Act is to extend as far as possible the right of the community to access to information held by Queensland government[2]. 31. Section 7 of the FOI Act defines ‘document’ as including: a) a copy of a document; and b) a part of, or extract from, a document; and c) a copy of a part of, or extract from, a document. 32. Section 7 also refers to the definition of ‘document’ set out in section 36 of the Acts Interpretation Act 1954 (Qld) (AI Act), which includes— a) any paper or other material on which there is writing; and b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and c) any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device). 33. A ‘document of an agency’ or ‘document of the agency’ is defined in section 7 of the FOI Act as ‘a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes— a) a document to which the agency is entitled to access; and b) a document in the possession or under the control of an officer of the agency in the officer’s official capacity. 34. Section 8(1) of the FOI Act provides that ‘agency means a department, local government or public authority.’ 35. Based on the provisions set out above, any question as to the validity of the Matter in Issue is irrelevant for the purposes of this external review under the FOI Act. 36. This Office’s jurisdiction as set out in the FOI Act, does not extend to considerations of a document’s ‘validity’. If a document exists and is a document of an agency, it is accessible under the FOI Act subject to any relevant exemption. 37. As the Matter in Issue is entitled Compliance Notices and has been issued by the Department as such, they are Compliance Notices for the purposes of this external review and fall within the scope of the Courier-Mail’s FOI application. 38. In summary, after carefully considering all of the information available to me including the applicants’ submissions, I am satisfied that: • there is no legal requirement that the Matter in Issue meet any threshold test relating to its creation, rather, its status as a ‘document’ for the purposes of the FOI Act derives from the specific and relevant provisions of the FOI Act and the AI Act, as set out above • the Matter in Issue in this external review comprises ‘documents of an agency’ as defined by the FOI Act and is therefore responsive to the relevant FOI application • this Office has jurisdiction to conduct this external review. 39. Having made this finding, I must now consider whether any of the material contained in the Matter in Issue is exempt from disclosure under section 45(1)(c) of the FOI Act. Section 45(1)(c) of the FOI Act 40. Section 45(1)(c) provides: 45 Matter relating to trade secrets, business affairs and research (1) Matter is exempt matter if— (c) its disclosure— (i) would disclose information (other than trade secrets or information mentioned in paragraph (b)) concerning the business, professional, commercial or financial affairs of an agency or another person; and (ii) could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of such information to government; unless its disclosure would, on balance, be in the public interest. 41. In respect of this exemption provision, the applicants submit that: • if the relevant notices are considered to be Compliance Notices under section 142 of the CC Act, and therefore subject to the FOI Act and within the scope of the request by the Courier-Mail, they are fully exempt from disclosure under section 45(1)(c) of the FOI Act • certain competitors of the applicants are not subject to regulation under the CC Act which unfairly prejudices the applicants. 42. In respect of this exemption provision the Department submits that parts of the Matter in Issue are exempt from disclosure under section 45(1)(c) of the FOI Act, including: • the addressee and address appearing on the notice as it identifies the applicants • the licence details as they identify the applicants • references to names of centres or persons connected with centres as these details identify the applicants • the name of the Department’s authorised officers as this could identify the relevant centre and the applicants • the signature block of the officer issuing the notice (i.e. signature, job title and region) as it may identify the applicants • the Department’s ‘footer’ as it discloses the region in which the notice was issued. 43. In respect of this exemption provision the Courier-Mail submits that: • there is not a reasonable expectation that the applicants’ business, professional, commercial or financial affairs would be adversely affected if the Matter in Issue was released in full • even if a reasonable expectation could be established, the public interest considerations favouring disclosure outweigh those designed to protect commercially sensitive information. 44. I will consider each of the elements relevant to section 45(1)(c) of the FOI Act in turn. (a) Information concerning business, professional, commercial or financial affairs 45. The first element in the test for exemption under section 45(1)(c) of the FOI Act is that the information in issue must actually concern the business, professional, commercial or financial affairs of the agency or business operator. 46. In Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9 (30 May 1994) (Cannon) the Information Commissioner set out at paragraph 81 that: The words “business, professional, commercial or financial” are hardly apt to establish distinct and exclusive categories; there must in fact be substantial overlap between the kinds of affairs that would fall within the ambit of the ordinary meanings of the words “business”, “commercial” and “financial”, in particular. The common link is to activities carried on for the purpose of generating income or profits... 47. Further, as set out in Boully and Department of Natural Resources; Stevenson Financial Corp. Pty Ltd & Anor (Third Parties) [1998] QICmr 1 (3 March 1998) at paragraph 62: It is not sufficient that the matter in issue has some connection with a business, or has been provided to an agency by a business, or will be used by a business in the course of undertaking its business operations. The matter in issue must itself be information about business, commercial or financial affairs, in order to satisfy the first element of the test for exemption under s.45(1)(c). 48. In Johnson and Queensland Transport; Department of Public Works (Third Party) [2004] QICmr 1 (5 January 2004), the Information Commissioner explained at paragraph 50 that: I consider that Parliament's intention in enacting the s.45(1)(c) exemption was to provide a means by which the general right of access to documents in the possession or control of government agencies could be prevented from causing unwarranted commercial disadvantage to: (a) individuals who offer professional services to the public on a fee for service basis (see Re Pope and Queensland Health [1994] QICmr 16 (18 July 1994)at paragraph 29); (b) private sector business operators (whether they be individuals, partnerships, or corporations); and (c) government agencies which function on a business model to generate income from the provision of goods or services. 49. The Matter in Issue comprises information including that which identifies the relevant child care centres by their name, address and licence details, the names of persons employed at or connected to particular child care centres, and the names of the Department’s authorised officers responsible for the relevant child care centres and the regions in which the centres operate. 50. After carefully considering all of the information available to me, I am satisfied that: • disclosure of some of the Matter in Issue would disclose information concerning the business or commercial affairs of the applicants on the basis that it directly concerns a commercial enterprise or business pursued by the applicants in an organised way for the purpose of profit or gain[3]. • the following parts of the Matter in Issue discloses such information (Identifying Information): o addressee details o licence details o authorised officer’s name, signature and job title o name of or reference to a person connected to a centre or name of or reference to a centre itself • disclosure of the remaining Matter in Issue, including the region, would not disclose information concerning the business or commercial affairs of the applicants, nor information which could identify the applicants and therefore does not qualify for exemption from disclosure under the FOI Act. 51. In the ordinary course, the name of a government employee (in this case an authorised officer of the Department) acting in a professional capacity would not be exempt from disclosure. 52. However, I note the Department’s submissions that: • “each of the authorised officers in each region is directly linked to a limited number and defined set of child care centres...” • “releasing the Compliance Notices with the identifying information relating to departmental officers could indirectly identify the child care centres concerned.” 53. In the present circumstances, I am satisfied that the names of the authorised and issuing officers comprise Identifying Information as disclosure could lead to identification of the relevant child care centres. 54. On this same basis, I consider that the issuing officers’ position titles (where they appear in relevant signature blocks) also form part of the Identifying Information as revealing the position title would, in turn, identify the relevant authorised officer. (b) Adverse effect reasonably expected from disclosure 55. The next element for consideration is whether disclosure of the Identifying Information could reasonably be expected to have an adverse effect on the business, commercial or financial affairs of the applicants. 56. The Information Commissioner considered the phrase ‘could reasonably be expected to’ at paragraphs 62 to 63 of Cannon: The phrase "could reasonably be expected to” ...: ... calls for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist. It is appropriate to record what was said by the Full Court of the Federal Court in Searle's case [Searle Australia Pty Ltd v Public Interest Advocacy Centre [1992] FCA 241; 108 ALR 163 (Searle)] (at p.176) about the comparable test in s.43(1)(b) of the Commonwealth FOI Act: In the application of s.43(1)(b), there would ordinarily be material before the decision maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable. 57. In summary, the Information Commissioner made the following observations in relation to section 45(1)(c): • an adverse effect under section 45(1)(c) will almost invariably be financial in nature, whether directly or indirectly (e.g. an adverse effect on an entity’s ‘business reputation or goodwill ... is feared ultimately for its potential to result in loss of income or profits, through loss of customers’) (at paragraph 82 of Cannon) • if information is already in the public domain or is common knowledge in the industry, it would ordinarily be difficult to show that disclosure of the information under FOI could reasonably be expected to have an adverse effect (paragraph 83 of Cannon) • in most instances the question of whether disclosure of information could reasonably be expected to have an adverse effect will turn on whether the information is capable of causing competitive harm to the relevant entity. A relevant factor is whether it enjoys a monopoly position or whether it operates in a commercially competitive environment (paragraph 84 of Cannon). 58. The Courier-Mail submits that the decision to exempt matter (the Identifying Information) is based on an unreasonable expectation and could be considered merely speculative. 59. On the information available to me, I am satisfied that: • the Identifying Information is neither in the public domain nor is it common knowledge • the applicants operate in a commercially competitive environment and I consider that it is more than merely speculative to conclude that release of the Identifying Information would cause damage to their reputations • disclosure of the Identifying Information could therefore reasonably be expected have an adverse financial effect on the business, commercial or financial affairs of the applicants. 60. Given my finding that disclosure of the Identifying Information could reasonably be expected to cause an adverse effect on the business, commercial or financial affairs of the applicants, it is unnecessary to consider whether disclosure would prejudice the future supply of information to government. Public Interest Balancing Test 61. The final matter for consideration is whether disclosure of the Identifying Information is in the public interest. 62. In relation to the public interest balancing test, the Courier-Mail relevantly submits that: • there is a public interest consideration favouring disclosure that provides an understanding of how the Department carries out its licensing and compliance functions...such public accountability is fundamental to all government agencies which perform functions on behalf of the community. • disclosure of issues of general concern can also assist the community to make decisions concerning their children’s welfare particularly with respect to health and safety. 63. I consider that the accountability and transparency of government is a public interest consideration favouring disclosure of the Identifying Information. In other words, disclosure of information about how government functions are conducted can enhance the accountability of agencies and individual officers in the performance of their official functions. 64. Against this, I must balance the public interest in maintaining the secrecy of sensitive commercial information held by government agencies about business operators which, among other things, could benefit competitors and adversely affect the relevant businesses. 65. I note that the Identifying Information comprises a small proportion of information contained in the Compliance Notices. 66. After carefully weighing the public interest considerations set out above, and the submissions of the parties, I am satisfied that: • there is a public interest consideration favouring non-disclosure as release of details which identify or which could reasonably be expected to identify relevant childcare centres may damage the applicants’ reputation and/or benefit the applicants’ competitors • in respect of the Identifying Information, the public interest consideration favouring non-disclosure (which is intended to protect commercially sensitive information held by government about business operators) outweighs the public interest consideration favouring disclosure • release of the majority of the information contained in the notices (subject to exemption of the Identifying Information) provides transparency and accountability of government by demonstrating how the Department and its officers perform compliance functions. Provision of further information to the Courier-Mail 67. I note that the Courier-Mail, in its submissions dated 27 September 2007, also states that: other than the information contained in your letters, the Courier-Mail has not been provided with evidence to support the notion that release of this information (the Identifying Information) would cause any adverse effect on the businesses concerned. Further the Courier-Mail has not been provided with any supporting documentation or evidence from the external review applicants. 68. In circumstances such as this, where revealing information which could identify the applicants would reveal matter claimed to be exempt, I have not been able to provide the Courier-Mail with any addition material. In any event, I note that there is very minimal overlap between the issues raised by the applicants and those raised by the Courier-Mail. Conclusion 69. I am satisfied that release of the Identifying Information would disclose information that is properly characterised as information: • concerning the business, commercial or financial affairs of the applicants • which could reasonably be expected to have an adverse effect on those affairs thereby establishing a public interest consideration favouring non-disclosure. 70. After carefully considering the public interest considerations for and against disclosure of the Identifying Information, I am satisfied that the arguments in favour of disclosure do not outweigh the considerations favouring non-disclosure. 71. In summary, I find that only the Identifying Information qualifies for exemption under section 45(1)(c) of the FOI Act, namely: • addressee details • licence details • authorised officer’s name, signature and job title • name of or reference to a person connected to a centre or name of or reference to a centre itself. Decision 72. I vary the decision of Ms Cynthia Irvine of the Department made on 8 June 2007, by finding that: • the Matter in Issue in this external review comprises ‘documents of an agency’ as defined by the FOI Act and is therefore responsive to the relevant FOI application • disclosure of the Identifying Information could reasonably be expected have an adverse effect on the business, commercial or financial affairs of the applicants • in respect of the Identifying Information, public interest considerations favouring non-disclosure outweigh public interest considerations favouring disclosure • the Identifying Information qualifies for exemption from disclosure under section 45(1)(c) of the FOI Act • the remainder of the Matter in Issue does not qualify for exemption from disclosure under the FOI Act. 73. I have made this decision as a delegate of the Information Commissioner, under section 90 of the Freedom of Information Act 1992 (Qld). ________________________ F Henry Assistant Commissioner Date: 28 September 2007[1] Section 21 of the FOI Act[2] Section 4(1) of the FOI Act[3] Re Stewart and Department of Transport [1993] QICmr 6 (9 December 1993) at para 103

queensland

court_judgement

Queensland Information Commissioner 1993-

Australian Rainforest Conservation Society Inc and Queensland Treasury [1996] QICmr 5; (1996) 3 QAR 221 (9 April 1996)

Australian Rainforest Conservation Society Inc and Queensland Treasury [1996] QICmr 5; (1996) 3 QAR 221 (9 April 1996) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96005Application S 176/94 Participants: AUSTRALIAN RAINFOREST CONSERVATION SOCIETY INC Applicant QUEENSLAND TREASURY Respondent DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - matter in issue comprising handwritten notes, and parts of formal minutes, of meetings of the Charter Preparation Committee appointed under the Government Owned Corporations Act 1993 Qld to develop a charter for the corporatisation of the Forest Service of the Department of Primary Industries - matter in issue comprising deliberative process matter falling within the terms of s.41(1)(a) of the Freedom of Information Act 1992 Qld - whether disclosure of the matter in issue would, on balance, be contrary to the public interest - consideration of public interest factors weighing for and against disclosure - application of s.41(1) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.26, s.34(2)(f), s.34(2)(g), s.36(1), s.36(1)(f), s.36(1)(g), s.41(1), s.41(1)(a), s.41(1)(b), s.81Acts Interpretation Act 1954 Qld s.27BGovernment Owned Corporations Act 1993 Qld s.16, s.17, s.19, s.23, s.26, s.28, s.29(1), s.34, s.37(2), s.38, s.39, s.42(1)Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re [1993] QICmr 2; (1994) 1 QAR 60Trustees of the De La Salle Brothers and Queensland Corrective Services Commission, Re (Information Commissioner Qld, Decision No. 96004, 4 April 1996, unreported) DEClSION I set aside that part of the decision under review (being the internal review decision made on behalf of the respondent by Mr M Lawrence on 14 October 1994) which relates to the matter described at paragraph 7 of my reasons for decision. In substitution for it, I decide that the matter described at paragraph 7 of my reasons for decision is not exempt matter under s.41(1) of the Freedom of Information Act 1992 Qld, and that, in accordance with s.21 of the Freedom of Information Act 1992 Qld, the applicant has a right to be given access to that matter.Date of Decision: 9 April 1996...............................................F N ALBIETZINFORMATION COMMISSIONER OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 96005Application S 176/94 Participants: AUSTRALIAN RAINFOREST CONSERVATION SOCIETY INC Applicant QUEENSLAND TREASURY Respondent REASONS FOR DECISION Background1. The applicant (also referred to in these reasons for decision as "the Society") seeks review of the respondent's decision to refuse it access under the Freedom of Information Act 1992 Qld (the FOI Act) to documents relating to preparatory work for the proposed corporatisation of the Department of Primary Industry's Forest Service (the Forest Service). The nature of the corporatisation process provided for in the Government Owned Corporations Act 1993 Qld is explained at paragraphs 12-15 below. The only matter remaining in issue in this external review (after concessions by both participants) consists of passages from the formal minutes of meetings of the Charter Preparation Committee (CPC), established to assist in the corporatisation of the Forest Service, and handwritten notes taken at those meetings, from which the formal minutes were developed. The respondent contends that the matter remaining in issue is exempt matter under s.41(1) of the FOI Act. 2. By letter dated 21 March 1994, the Society applied to the Department of Primary Industries (the DPI) for all documents relating to corporatisation of the Forest Service. Without limiting the scope of its application, the Society specified some of the categories of documents sought. Minutes of meetings of the CPC was one of the categories specified.The Society's FOI access application was transferred in part to Queensland Treasury under s.26 of the FOI Act. The initial decision was made on behalf of Queensland Treasury by Ms F Smith on 26 September 1994. Ms Smith identified more than 140 documents as falling within the terms of the Society's FOI access application. Ms Smith decided to give access in full to some 70 documents, to give access in part to 17 documents, and to deny access to the remaining documents. Among the matter released in part were minutes of CPC meetings, and the handwritten notes from which they were drawn. Ms Smith determined that matter to which access was not granted was exempt under one or more of s.36(1), s.38, s.41(1), s.44(1), s.45(1) and s.46(1) of the FOI Act.3. By letter dated 3 October 1994, the Society applied for internal review of Ms Smith's decision. The internal review decision was made by Mr M Lawrence of Queensland Treasury on 14 October 1994. Mr Lawrence affirmed Ms Smith's decision on slightly varied grounds. By letter dated 28 November 1994, the Society applied for external review by the Information Commissioner, under Part 5 of the FOI Act, of Mr Lawrence's decision.The external review process4. I first obtained and examined the several hundred pages of documents which comprised or contained the matter that was in issue at the commencement of this external review. I then requested that Queensland Treasury identify the specific paragraphs of s.36(1) upon which it relied to contend that matter in issue was exempt. After receiving that information, a member of my staff had further discussions with Queensland Treasury in relation to its claims for exemption under s.36(1).5. As a general observation, I consider it important that agencies state as specifically as possible the exemption provision or provisions under which they determine matter to be exempt. It is often not sufficient merely to identify a section or subsection. For example, section 36(1) consists of seven separate exemption provisions, and decision-makers should clearly identify in their decisions the specific exemption provisions claimed to apply to particular documents, or parts of documents, as well as explaining (according to the requirements imposed by s.27B of the Acts Interpretation Act 1954 Qld, read in conjunction with s.34(2)(f) and (g) of the FOI Act) the basis on which the exemption provisions are claimed to be applicable. In addition, I note that agencies frequently rely on s.36(1)(f) or s.36(1)(g) (which cover drafts, and copies or extracts, respectively, of matter which is exempt under earlier paragraphs of s.36(1)) without identifying the earlier paragraph of s.36(1) which is claimed to be relevant and explaining the basis on which the test for exemption under the earlier paragraph is claimed to have been satisfied. This is a prerequisite for a draft, or a copy or extract, of such matter to be exempt under s.36(1)(f) or s.36(1)(g), respectively. I consider that s.34(2)(f) of the FOI Act requires explanation of the reasons for refusal of access in at least this level of detail.6. Returning to the present external review, after the discussions with Queensland Treasury,I wrote to the Society identifying the matter in issue according to subject categories, and asking the Society to indicate the categories to which it wished to pursue access. In the same letter, I expressed the preliminary view that some (but not all) of the matter which Queensland Treasury claimed to be exempt under s.36(1) was exempt matter under either s.36(1)(c), s.36(1)(f) or s.36(1)(g) of the FOI Act. In response to my letter, the Society significantly narrowed the number of documents to which it sought access, a step which has hastened the resolution of this external review. With regard to two of the documents then remaining in issue, I consulted third parties who indicated that they did not object to the release of documents recording information supplied by them. With the agreement of Queensland Treasury, those documents were released to the Society.7. With respect to the matter then remaining in issue, I wrote to Queensland Treasury conveying my preliminary view in relation to its claimed exemptions under s.36(1)(e), s.40(d) and s.41(1) of the FOI Act, and inviting it to lodge submissions and/or evidence in support of any claim for exemption which it wished to maintain. In response, Queensland Treasury agreed to release further matter, but maintained its contention that the balance (listed below) is exempt matter under s.41(1) of the FOI Act. Queensland Treasury indicated that it did not wish to submit any further evidence regarding this external review, and stated that it would rely on the reasons previously given. The only matter remaining in issue, therefore, is parts of CPC minutes, and corresponding parts of the handwritten notes from which they were drawn, as described in the following table: Document No. Description Page No. Matter in Issue 75 and 86 Minutes of CPC meeting on 27/10/93 2 Last paragraph 5 Fourth paragraph 7,8 The whole 9 Second paragraph 10 The whole 12 Last paragraph 13 First 5 paragraphs 96 Minutes of CPC meeting on 2/12/93 1 Fourth paragraph 3 Last 4 paragraphs (and preceding heading) 4 First 8 paragraphs 107 and 130 Minutes of CPC meeting on 27/1/94 3 Last 2 paragraphs (and preceding heading) 4,5,6 The whole 7 First 3 paragraphs 55 Handwritten notes of meeting on 27/10/93 Parts corresponding to matter in issue in 75 & 86 110 Handwritten notes of meeting on 27/1/94 Parts corresponding to matter in issue in 107 & 130 Section 41(1) of the FOI Act8. Section 41(1) of the FOI Act provides: 41.(1) Matter is exempt matter if its disclosure--(a) would disclose--(i) an opinion, advice or recommendation that has been obtained, prepared or recorded; or(ii) a consultation or deliberation that has taken place;in the course of, or for the purposes of, the deliberative processes involved in the functions of government; and(b) would, on balance, be contrary to the public interest.9. A detailed analysis of s.41 of the FOI Act can be found in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at pp.66-72, where, at p.68 (paragraphs 21-22) I said:21. Thus, for matter in a document to fall within s.41(1), there must be a positive answer to two questions:(a) would disclosure of the matter disclose any opinion, advice, or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, (in either case) in the course of, or for the purposes of, the deliberative processes involved in the functions of government? and(b) would disclosure, on balance, be contrary to the public interest?22. The fact that a document falls within s.41(1)(a) (ie. that it is a deliberative process document) carries no presumption that its disclosure would be contrary to the public interest. ...10. An applicant for access is not required to demonstrate that disclosure of deliberative process matter would be in the public interest; an applicant is entitled to access unless an agency can establish that disclosure of the relevant deliberative process matter would be contrary to the public interest. In Re Trustees of the De La Salle Brothers and Queensland Corrective Services Commission (Information Commissioner Qld, Decision No. 96004, 4 April 1996, unreported),I said at paragraph 34:The correct approach to the application of s.41(1)(b) of the FOI Act was analysed at length in my reasons for decision in Re Eccleston, where I indicated (see p.110; paragraph 140) that an agency or Minister seeking to rely on s.41(a) needs to establish that specific and tangible harm to an identifiable public interest (or interests) would result from disclosure of the particular deliberative process matter in issue. It must further be established that the harm is of sufficient gravity when weighed against competing public interest considerations which favour disclosure of the matter in issue, it would nevertheless be proper to find that disclosure of the matter in issue would, on balance, be contrary to the public interest.Application of s.41(1) to Charter Preparation Committee minutes11. While Queensland Treasury has released the bulk of the minutes of CPC meetings, it maintains that some parts of the minutes of three meetings are exempt matter under s.41(1) of the FOI Act.Before considering this claim, I will briefly refer to relevant provisions of the statutory regime for "corporatisation", and the steps undertaken towards corporatisation of the Forest Service.Government Owned Corporations12. In May 1993, the Government Owned Corporations Act 1993 Qld (the GOC Act) was enacted. The meaning of "corporatisation" and the objectives of the Act are set out at sections 16 and 17 of the GOC Act, which provide:Meaning of "corporatisation" 16. "Corporatisation" is a structural reform process for nominated government entities that--(a) changes the conditions and (where required) the structure under which the entities operate so that they operate, as far as practicable, on a commercial basis and in a competitive environment; and(b) provides for the continued public ownership of the entities as part of the process; and(c) allows the State, as owner on behalf of the people of Queensland, to provide strategic direction to the entities by setting financial and non-financial performance targets and community service obligations.Objectives of corporatisation 17. The objectives of corporatisation are to improve Queensland's overall economic performance, and the ability of the Government to achieve social objectives, by--(a) improving the efficiency and effectiveness of GOCs; and(b) improving the accountability of GOCs.13. The objectives of corporatisation are to be achieved through application of four key principles which are detailed in s.19 of the GOC Act. These are: clarity of objectives, management autonomy and authority, strict accountability for performance, and competitive neutrality.14. Chapter 2 of the GOC Act sets out the machinery for creating a GOC. A government entity must first become a "candidate GOC" (s.23). Candidate GOCs are nominated by regulation made by the Governor in Council (s.26). A candidate GOC will normally become a full GOC only following the preparation and implementation of a Corporatisation Charter (s.29(1)).Section 28 provides that a Corporatisation Charter of a candidate GOC:... sets out the steps by which, and the basis on which--(a) a candidate GOC is to become a GOC or is to change its type to a company GOC; and(b) the key principles of corporatisation, and their elements, are to be implemented.15. The responsible Ministers of a candidate GOC may require the preparation of a draft Corporatisation Charter (s.34). The responsible Ministers may also appoint a Charter Preparation Committee to prepare a draft Corporatisation Charter (s.38). The candidate GOC is required to cooperate with the CPC (s.37(2)). A CPC is responsible for the conduct of its own business but must comply with any direction given by the responsible Ministers (s.39). The CPC must give a copy of the draft Corporatisation Charter to the responsible Ministers (s.42(1)).16. The Forestry Service was duly nominated as a candidate GOC. The responsible Ministers were the Treasurer and the Minister for Primary Industries. A CPC of seven members was appointed. It consisted of five representatives of government (three from the DPI, one from Queensland Treasury and one from the former Office of Cabinet), an industry representative and an external consultant specialising in environmental economics. The members of the CPC undertook work towards the preparation of a draft Corporatisation Charter over a number of months and the CPC met on a several occasions. Handwritten notes were taken at those meetings and formal minutes produced after each meeting. (It should be noted that at some time after the lodgment of this external review application, the Forest Service was removed from the list of candidate GOCs.)Deliberative process material17. I am satisfied that the formal minutes of CPC meetings fall within the terms of s.41(1)(a) of the FOI Act. The minutes record the deliberations of the CPC and the advice and opinions of members working towards the goal of preparing a draft Corporatisation Charter for consideration by the responsible Ministers.The public interest18. With respect to the application of s.41(1)(b) of the FOI Act, the only material I have received from Queensland Treasury comprises the comments made by Mr Lawrence in his internal review decision. With respect to s.41(1) of the FOI Act, Mr Lawrence stated:I have considered that releasing the matter would serve the public interest by allowing individuals to make informed comment on Government business. allowing individuals access to all documentation pertaining to a particular matter.Conversely, I have considered that release of the matter would not be in the public interest because If this type of matter were to be released it may affect ultimately the information that can be obtained for the purposes of deliberation. The matter concerned, if generally considered to be in the public domain, may not be made as readily available, hence limiting the scope of any such deliberations.I have considered the above and have decided that the matter is exempt under section 41(1) of the Act and that release of that matter, on balance, would not be in the public interest.19. In its application for external review, the Society stated:The request relates to the issue of corporatisation of the Department of Primary Industries Forest Service. This is clearly a matter of major public interest. In particular, there are potentially very serious environmental implications with respect to the proposed corporatisation of wood production from native forests. Documents released under the request clearly show that officers involved in steering the corporatisation process are concerned about the response of conservation groups. The released documents do nothing to allay conservation concerns. For example, the minutes of a meeting of the Forestry Charter Preparation Committee (28 September 1993) record Dr David James alluding to "the need to ensure that commercial activity is not inhibited by excessively disruptive environmental regulation". In response, Mr Terry Johnston, Director, DPI Strategic Policy Unit, "explained the distinction between the Department of Environment & Heritage's (DEH's) and DPI's regulatory roles in Queensland which he felt provided adequate safeguard's against such an occurrence".20. The first question I must ask is whether there are any public interest considerations which weigh against disclosure. Essentially, what Queensland Treasury contends is that if the information contained in those parts of the minutes which have been withheld from disclosure were made available to the public, the future free flow of information might be disrupted. In this case, it is possible to discern two sources of advice and information to which Queensland Treasury may be referring. The first is input from officers of the public service who are members of the CPC. The second is input from members of the CPC drawn from outside the public service.21. With its reference to disruption to the future free flow of information, Queensland Treasury seeks to invoke what I have referred to in previous decisions as the 'candour and frankness' argument. I discussed the validity of the 'candour and frankness' argument with respect to the advice and opinion of public servants in Re Eccleston at pp.103-107, paragraphs 124-135.At paragraphs 132-134, I said:132. I consider that the approach which should be adopted in Queensland to claims for exemption under s.41 based on the third Howard criterion (ie. that the public interest would be injured by the disclosure of particular documents because candour and frankness would be inhibited in future communications of a similar kind) should accord with that stated by Deputy President Todd of the Commonwealth AAT in the second Fewster case (see paragraph 129 above): they should be disregarded unless a very particular factual basis is laid for the claim that disclosure will inhibit frankness and candour in future deliberative process communications of a like kind, and that tangible harm to the public interest will result from that inhibition.133. I respectfully agree with the opinion expressed by Mason J in Sankey v Whitlam that the possibility of future publicity would act as a deterrent against advice which is specious or expedient or otherwise inappropriate.It could be argued in fact that the possibility of disclosure under the FOI Act is, in that respect, just as likely to favour the public interest. 134. Even if some diminution in candour and frankness caused by the prospect of disclosure is conceded, the real issue is whether the efficiency and quality of a deliberative process is thereby likely to suffer to an extent which is contrary to the public interest. If the diminution in previous candour and frankness merely means that unnecessarily brusque, colourful or even defamatory remarks are removed from the expression of deliberative process advice, the public interest will not suffer. Advice which is written in temperate and reasoned language and provides justification and substantiation for the points it seeks to make is more likely to benefit the deliberative processes of government. In the absence of clear, specific and credible evidence, I would not be prepared to accept that the substance or quality of advice prepared by professional public servants could be materially altered for the worse, by the threat of disclosure under the FOI Act. 22. Queensland Treasury has not provided any evidence to justify a claim of this type. It has offered no explanation as to why the matter remaining in issue would be regarded by the public servants involved as any more sensitive (and its disclosure any more likely to inhibit future candour and frankness) than the matter which has already been provided to the Society. The public servants on the CPC would no doubt have recognised that they were performing an important public function with regard to the future of the Forest Service and the DPI, and the future of plantation and native forests in Queensland. I find it difficult to believe that these officers or other public servants in similar positions would have refrained, or would in future refrain, from frankly discussing issues of such public significance, merely because minutes of their discussions might at some stage be made public. I am not satisfied that disclosure of the CPC minutes would reduce the candour and frankness of public servants to such an extent that the efficiency and quality of the deliberative processes undertaken by similar committees would materially suffer, with consequent harm to the public interest in the effective working of government. 23. As to the question of reduced input from representatives of the community, and/or particular interest groups, who serve on similar committees, I accept that there is a public interest in maintaining consultation with, and input from, committee members drawn from outside the public service. However, I am not satisfied that input from committee members of that kind would be diminished in future by the release of the matter in issue. The two members of the CPC not drawn from the public service were serving on a publicly established committee dealing with a matter of significant public interest to Queensland. One was a paid consultant, whom the people of Queensland have every right to expect would fully and frankly participate in the proceedings of the CPC, regardless of whether or not those proceedings are made public.I am not satisfied that a significant number of suitably qualified persons would be dissuaded from performing roles of such public significance, or would refrain from making a full contribution to such a committee, if the matter remaining in issue (of which only a small part comprises inputs, of no particular sensitivity, from the non-government members of the CPC) were to be disclosed. 24. On the case presented by Queensland Treasury (which carries the onus, under s.81 of the FOI Act, of establishing that its decision was justified, or that I should give a decision adverse to the applicant), I am not satisfied that there is any public interest consideration weighing against disclosure of the matter in issue. However, even if some public interest consideration weighing against disclosure, of the kinds canvassed above or some other kind, could be demonstrated,I consider that there are substantial public interest considerations favouring disclosure of the matter in issue. 25. First, there is the public interest in enhancing the accountability of government. Sections 16 and 17 of the GOC Act (see paragraph 12 above) reinforce the government's role as owner of government enterprises on behalf of the people of Queensland, and the idea of accountability as an objective of the corporatisation process. In his second reading speech to the GOC Bill, the then Treasurer indicated that the facilitative mechanisms for creation of GOCs were "essential for the success of the overall corporatisation agenda", and stressed that the government's approach to corporatisation would continue to be a consultative one throughout the corporatisation process (Hansard, 12 May 1993, p.2711).26. The CPC was a committee established under the GOC Act to advise on a draft Corporatisation Charter for the Forest Service. All but one of its members were public servants, or otherwise publicly remunerated. The Corporatisation Charter was central to the corporatisation process. It was the role of the CPC to consider not only the procedural elements of transition of the Forest Service to a GOC, but also to consider substantive issues dealing with the scope of operations of the GOC, for example, to what extent it would have involvement in the area of native forests. Its role was to consider every facet of corporatisation, including the relationship between, and the respective roles of, the new GOC and the DPI. It was a committee established and funded by the public, which was intended to make recommendations relating to matters of significant public interest.27. Disclosure of the matter in issue would give insight into the CPC's operations, including the options it discussed. It would also give insight into the operations of the various government Departments who provided representatives to the CPC. I do not consider that the fact that the Forest Service has (whether temporarily or permanently) been removed from the list of candidate GOCs, reduces the significance of the public interest in enhancing the accountability of government in this instance. (Queensland Treasury has not indicated to me the reason for that development, or whether it is intended to renominate the Forest Service at a later date.) The CPC was a publicly established committee and there is a public interest in members of the community having access to its minutes in order that they may be informed about, and consider the efficacy of, its operations.28. In addition, the matter in issue would also provide valuable insights into issues relating to the conservation, use and management of forests in Queensland. It would give the public access to the views of public servants, and a publicly remunerated consultant, with considerable experience in these areas. I am sure that access to this information would be of assistance in future debate, not only relating to possible corporatisation, but also relating to forestry policy in Queensland in general. In this sense, disclosure would further the public interest in promoting informed community debate relating to the government's forest policy in the future.29. I consider that there are very strong public interest considerations weighing in favour of disclosure of the matter in issue. In terms of s.41(1)(b) of the FOI Act, I am not satisfied that disclosure of the matter remaining in issue from the CPC minutes would, on balance, be contrary to the public interest, and I find that it is not exempt matter under s.41(1) of the FOI Act.Application of s.41(1) to handwritten notes30. Queensland Treasury contends that those parts of documents 55 and 110 from which the matter in issue in the formal minutes was drawn, are also exempt matter under s.41(1) of the FOI Act.The handwritten notes are by no means a transcript of proceedings at the CPC meetings. They are rough notes made during the course of meetings in order to serve, no doubt, as an aide-memoire for the preparation of the formal minutes. The notes are in point form and contain many abbreviations. They are frequently difficult to understand. In one sense they contain more detail than the formal minutes, but this detail is often difficult to unravel, given the abbreviated nature of the information in the notes. Nevertheless, it is my estimation that careful perusal of the notes could provide some information about what took place at the meetings additional to the information contained in the formal minutes.31. I accept that there may be cases where it could be argued that disclosure of rough notes of a meeting would be contrary to the public interest. Notes taken in haste by a person at a meeting may well be very abbreviated. They may list keywords and may omit significant passages or ideas. An officer preparing formal notes may rely heavily on his or her recollection of the meeting to supplement the rough notes. In such circumstances, there may be cases where rough notes would positively mislead readers as to what took place at a meeting. In a case of that type an agency might be in position to claim that disclosure of a particular passage would be contrary to the public interest. However, for such a claim to be successful, there would have to be clear evidence that disclosure would positively mislead readers, and further that this situation could not be easily corrected by disclosure of other information, or perhaps by the tendering of an explanation with the notes.32. In this case, Queensland Treasury has not suggested that such a situation has arisen, and from my examination of the handwritten notes I cannot readily identify such a possibility. The notes add, to some extent, to the record of discussions which took place within the CPC. For similar reasons to those discussed above in relation to the formal minutes, I am not satisfied that disclosure of the matter in issue in the handwritten notes would be contrary to the public interest, and I find that it is not exempt matter under s.41(1) of the FOI Act.Conclusion33. For the reasons stated above, I set aside that part of the decision under review in which Mr Lawrence decided that the matter listed at paragraph 7 above is exempt matter under s.41(1) of the FOI Act. I find that the matter listed at paragraph 7 is not exempt matter under s.41(1), and that the Society has a right to be given access to it under the FOI Act.................................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Deery Hotels Pty Limited and Department of Justice and Attorney-General [2012] QICmr 55 (29 October 2012)

Deery Hotels Pty Limited and Department of Justice and Attorney-General [2012] QICmr 55 (29 October 2012) Last Updated: 27 August 2013 Decision and Reasons for Decision Application Number: 310911 Applicant: Deery Hotels Pty Limited Respondent: Department of Justice and Attorney-General Decision Date: 29 October 2012 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - EXEMPT INFORMATION - application for correspondence between the Office of Liquor and Gaming Regulation and Queensland Police Service in relation to licensed venues - objections to disclosure raised by owner of a venue on the basis that information is exempt under schedule 3, of the Right to Information Act 2009 (Qld) - whether access to information may be refused under sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - CONTRARY TO PUBLIC INTEREST - information concerning liquor-related incidents - issues of public safety, accountability and regulation of licensed venues - impact of disclosure on the business affairs of a licensed venue - whether disclosure of the information would, on balance, be contrary to the public interest - whether access to information may be refused under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - DISCLOSURE DECISION - ONUS ON EXTERNAL REVIEW - whether objecting participant has established that a decision not to disclose information is justified or that the Information Commissioner should give a decision adverse to the access applicant - section 87(2) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary An application was made to the Department of Justice and Attorney-General (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to correspondence between the Office of Liquor and Gaming Regulation (OLGR)[1] and the Liquor Enforcement and Proactive Strategy (LEAPS) coordinator at the Queensland Police Service (QPS) in relation to certain licensed venues. The Department contacted the owners of the relevant venues, including the external review applicant (Applicant), to seek their views on disclosure of the information it had located in response to the application. The Applicant objected to information about its venue being disclosed. The Department decided to grant access to the information on the basis that it was not exempt or contrary to the public interest to disclose under the RTI Act.[2] The Applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision to disclose information. The Applicant submitted that information relating to its venue is exempt and/or contrary to the public interest to disclose and therefore, should not be released under the RTI Act. On external review, the Applicant emphasised that disclosing information about ‘alleged incidents’ at its venue would be unlikely to advance government accountability and would instead, significantly prejudice its business affairs by damaging the venue’s reputation. For the reasons set out below, the Department’s decision to disclose information relating to the Applicant’s venue is affirmed as the information is not exempt and nor would its disclosure, on balance, be contrary to the public interest under the RTI Act. Background LEAPS is a program which involves QPS working with OLGR with a view to ensuring compliance with legislation and regulations concerning licensed venues. QPS officers who attend or become aware of liquor-related incidents involving licensed venues create a report and forward this to the QPS LEAPS Coordinator. The LEAPS Coordinator then sends the information to OLGR which assesses it as part of its regulatory activities.[3] Significant procedural steps relating to the application and external review are set out in the Appendix to these reasons Reviewable decision The decision under review is the Department’s internal review decision dated 21 December 2011 granting access to information under the RTI Act. Material considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). Information in Issue The information in issue in this review (Information in Issue) consists of two spreadsheets, prepared by the QPS LEAPS Coordinator and sent to OLGR, in accordance with LEAPS processes.[4] The spreadsheets set out: date, time and location of incidents recorded by QPS officers as having occurred at, or in the vicinity of, the Applicant’s venue a summary of the facts relating to the incidents, including nature of any offence(s), any resulting arrests and/or description of any injuries sustained; and an indication as to any substance(s) the involved individuals were observed as having been affected by, and level of intoxication (where applicable). The Information in Issue does not include the names of any individuals involved in the incidents. Issues for determination In this review the Applicant has the onus of establishing that access to the Information in Issue should be refused.[5] The Applicant has raised the following grounds for refusal of access in its submissions: (i) the Information in Issue is exempt information;[6] or (ii) disclosure of the Information in Issue would, on balance, be contrary to the public interest.[7] The Applicant made extensive submissions to OIC in support of its view that the Information in Issue should not be disclosed[8] and in making my decision in this review, I have carefully considered all of the submissions. Some submissions did not relate directly to the issues for determination in this review, for example, they did not go to the requirements for establishing the exemptions claimed or were unrelated to the test for applying particular public interest factors. Accordingly, such submissions are not referred to in these reasons for decision as they do not relate to the issues for determination, as set out above. To support a number of its exemption claims and public interest arguments, the Applicant contends that individuals involved in the incidents can be identified from the Information in Issue. As this issue arises for consideration throughout these reasons, I have made a preliminary finding on whether individuals are identifiable from the Information in Issue and have then referred to this finding, throughout the reasons, where applicable. Findings The Applicant generally submitted that the RTI Act does not intend for all information which government possesses to be made publicly available and therefore, disclosure of the Information in Issue would be in conflict with the purpose and objects of the legislation.[9] The RTI Act provides a general right of access to information in the possession or under the control of Queensland government agencies.[10] While the legislation excludes certain documents and entities from the application of the RTI Act[11], I am satisfied that the Information in Issue is not subject to any of these exclusions. Accordingly, I find that the Information in Issue is in the possession of the Department and is therefore, subject to the RTI Act access scheme. Are individuals identifiable from the Information in Issue? No, for the reasons that follow. As set out in paragraph 10 above, the Information in Issue does not name any individuals involved in the incidents. The Information in Issue only refers to individuals in generic terms, eg. ‘victim’ or ‘suspect’. Having carefully reviewed the Information in Issue, I am also satisfied that any personal details of individuals which appear in the Information in Issue, eg. descriptions of injuries sustained, are not of such a unique nature that they could reasonably be expected to be used to ascertain the identity of any individuals involved in the incidents. The Applicant contends that media articles could be used in conjunction with the Information in Issue to identify individuals. The Applicant points to a particular incident referred to in the Information in Issue which it considers would identify the victim and suspect.[12] I acknowledge that incidents occurring at the Applicant’s venue may have been the subject of media reports and that some reported incidents may have similarities to those referred to in the Information in Issue. However, given the absence of individual names and/or other uniquely personal details from the Information in Issue, I do not consider the identity of individuals could reasonably be ascertained using media reports. For the above reasons, I am satisfied that any individuals involved in the incidents cannot be identified from the Information in Issue and also, that it is not reasonable to expect that individuals’ identities could be ascertained using the Information in Issue and/or other publicly available material. Is the Information in Issue exempt information? No, for the reasons that follow. Relevant law Access should be given to a document unless disclosure would, on balance, be contrary to the public interest.[13] The right of access is subject to some limitations, including grounds on which access may be refused.[14] One ground for refusing access is where a document comprises exempt information.[15] Schedule 3 of the RTI Act sets out the type of information which Parliament has considered to be exempt as its disclosure would, on balance, be contrary to the public interest. Analysis The exemptions raised by the Applicant in this review are set out in the Appendix to these reasons. Schedule 3, section 6(a) - contempt of court The Information Commissioner has previously explained[16] that the: concept of contempt of court is based on the protection and maintenance of public confidence in the effective administration of justice; and public disclosure of matter that has the tendency to interfere, or is intended to interfere, with the pending fair trial of a criminal or civil proceeding will amount to a contempt of court. The Applicant submits that the Information in Issue: easily identifies suspected offenders and victims and would therefore, jeopardise a fair trial for potential suspects contains unsubstantiated allegations which have not been determined by a court and the series of events described is only one source’s account of events; and identifies incidents of a criminal nature which may be subject to criminal proceedings, and if disclosed, there is a reasonable expectation that it would adversely affect the impartiality of jurors and/or judicial officers. I acknowledge that the Information in Issue contains allegations which may have not yet been determined by a court. However, as I have found that individuals could not reasonably be identified from the Information in Issue, I consider that any pending criminal or civil proceedings associated with the incidents could not be connected to the Information in Issue with any level of certainty. For this reason, I am not satisfied that disclosure could interfere with any such proceeding to constitute contempt of court. I therefore find that the Information in Issue is not exempt under schedule 3, section 6(a) of the RTI Act. Schedule 3, section 6(b) - contrary to an order or direction The Applicant submits that: there is a real possibility that an order has been made or direction given by a royal commission or commission of inquiry or a person or body having power taking evidence on oath to which public disclosure would be contrary; and the decision-maker is compelled to check and ensure that no such orders have been made or directions given prior to any disclosure being contemplated. The Applicant has not provided any supporting evidence to show that there has been an order made or direction given by a royal commission or commission of inquiry, or by a person or body having power to take evidence on oath, not to disclose the Information in Issue. As the onus is on the Applicant to establish that a decision not to disclose the Information in Issue on the basis of this exemption is justified[17] and in the absence of any available evidence to support its submission, I find that the Information in Issue is not exempt under schedule 3, section 6(b) of the RTI Act. Schedule 3, section 10(1)(a) - prejudice to an investigation The Applicant submits that: all of the Information in Issue relates to contraventions or possible contraventions of the law, largely of an allegedly criminal nature, some or all of which are likely to be subject to investigation and/or court proceedings the Information in Issue arguably allows for the identification of suspects and victims and contains a significant number of unsubstantiated allegations; and if the Information in Issue is disclosed, it could reasonably be expected to impact adversely on the ability of QPS to discharge its duties. For this exemption to apply, there must be evidence of an investigation. The Applicant has not, however, provided any evidence to show that investigations are currently being conducted by QPS (or any other law enforcement agency) in relation to the incidents. I acknowledge that some of the incidents may be the subject of QPS investigations into alleged criminal offences. However, in the absence of any evidence as to specific investigations and in view of my findings at paragraphs 15-18 above, I am satisfied that the Applicant has not established the requisite level of prejudice to satisfy this exemption. I therefore find that the Information in Issue is not exempt under schedule 3 section 10(1)(a) of the RTI Act. Schedule 3, section 10(1)(b) - reveal a confidential source The Applicant submits that the Information in Issue identifies a number of officers and could enable the identity of victims, suspects, security personnel, employees of the Applicant and witnesses to be ascertained, many of which are likely to be confidential sources of information. For this exemption to apply, a confidential source of information must exist in relation to the enforcement or administration of the law.[18] There is no evidence available to OIC to demonstrate that any individuals involved in the incidents provided information to QPS officers confidentially. Even if I had been satisfied on this point, for the reasons set out at paragraphs 15-18 above, I do not consider that disclosure of the Information in Issue could reasonably be expected to enable the identity of any individuals to be ascertained. I therefore find that the Information in Issue is not exempt under schedule 3 section 10(1)(b) of the RTI Act. Schedule 3, section 10(1)(c) - endanger a person’s life or physical safetySchedule 3, section 10(1)(d) - serious act of harassment or intimidation The Applicant submits that it could reasonably be expected that a person who has divulged information or taken action against a person of interest, whose identity is reasonably determinable from this information, may reasonably fear their physical safety is in danger. For the same reasons, the Applicant submits that disclosure of the Information in Issue could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation. I acknowledge that there may be cases in which witnesses to, and/or victims of, criminal offences, may have well-founded concerns of the nature submitted by the Applicant. However, in view of my findings at paragraphs 15-18 above that individuals are not identifiable from the Information in Issue, I do not consider that the Information in Issue could be used for the purpose of committing acts which may endanger a person’s life or physical safety and/or constitute serious harassment or intimidation. Accordingly, I do not consider that the outcomes contemplated by these exemptions could rea[19]nably be expected to19 occur through disclosure of the Information in Issue. I therefore find that the Information in Issue is not exempt under schedule 3 section 10(1)(c) or (d) of the RTI Act. Schedule 3, section 10(1)(e) - prejudice a fair trial The Applicant submits that disclosure would impact adversely on the impartiality of jurors and/or judicial officers as the Information in Issue identifies suspects and victims and discloses incidents of an allegedly criminal nature in the context of unsubstantiated accounts which have not been determined by a court. A ‘person’s fair trial’ only refers to a criminal trial and does not extend to civil proceedings.[20] The phrase ‘impartial adjudication of a case’ is wide enough to extend to civil proceedings or any case that is formally adjudicated by a decision maker.[21] For the reasons set out at paragraph 24 above, I am satisfied that the Information in Issue could not reasonably be expected to prejudice any criminal or civil proceedings relating to the incidents and is therefore, not exempt under schedule 3 section 10(1)(e) of the RTI Act. Schedule 3, section 10(1)(f) and (i) - prejudice methods, systems or procedures The Applicant submits that releasing the Information in Issue will: negatively impact the important relationship between licensees, their staff and QPS, as licensees would be less likely to contact QPS in relation to liquor-related incidents; and prejudice the effectiveness of the LEAPS project because voluntary participants would no longer cooperate to as full an extent, thereby decreasing the accuracy of the information obtained by LEAPS and the effectiveness of its efforts to address liquor-related issues or predict trends. The Information in Issue records suspected offences which have occurred at, or in the vicinity of the Applicant’s venue. I am satisfied that the attendance of QPS officers at licensed venues, either at the request of the venue, or through other intelligence sources, constitutes (i) a lawful method for preventing, detecting and dealing with contraventions or possible contraventions of the law and/or (ii) a system for the protection of persons and property.[22] The Liquor Act 1992 (Qld) (Liquor Act) places a number of obligations on licensed venues in relation to safety and security, for example: licensees are required to maintain a safe environment for their patrons and staff[23] licensees must ensure liquor is served, supplied and promoted in a way that is compatible with minimising harm from the use of liquor and preserving the peace and good order of the neighbourhood of the premises;[24] and venues must keep a register about each incident at the licensed venue (i) in which a person is injured or (ii) requiring a person to be removed from the venue.[25] In view of the above legislative requirements and the regulatory environment in which licensed premises operate, I consider it is reasonable to expect that licensees would notify QPS of any incidents at their venue requiring QPS attention to ensure the safety of their venue, staff and patrons. In my view, maintaining open and regular communication with a law enforcement agency would be advantageous to a licensee as it would support the venue in managing and responding to liquor-related incidents, provide an added level of protection for staff and patrons and generally, enhance venue safety. For these reasons, I am not persuaded that the disclosure of information under the RTI Act would lead to licensees being reluctant to contact QPS about liquor-related incidents.[26] For the above reasons, I am not satisfied that it is reasonable to expect that the relevant methods, systems and/or procedures could be prejudiced through disclosure of the Information in Issue. Accordingly, I find that the Information in Issue is not exempt under schedule 3, section 10(f) or (i) of the RTI Act. Would disclosure, on balance, be contrary to the public interest? No, for the reasons that follow. Relevant law An agency may refuse access to information under the RTI Act where its disclosure would, on balance, be contrary to the public interest.[27] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[28] and explains the steps that a decision-maker must take[29] in deciding the public interest as follows: (i) identify any irrelevant factors and disregard them (ii) identify relevant public interest factors favouring disclosure and nondisclosure (iii) balance the relevant factors favouring disclosure and nondisclosure; and (iv) decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Analysis (i) Irrelevant factors The Applicant has questioned the intentions of the access applicant for seeking access to the Information in Issue and the use to which the Information in Issue may be put once released. [30] The RTI Act provides that the conduct of the access applicant which may result from disclosure is an irrelevant factor in deciding the public interest.[31] I also consider that the access applicant’s reasons for requesting information under the RTI Act are irrelevant when assessing the public interest.[32] For the above reasons, I have not taken the Applicant’s submissions on this issue into account. I do not consider any other irrelevant factors arise in this case. (ii) Factors favouring disclosure The RTI Act recognises that the public interest will favour disclosure of information where disclosure could reasonably be expected to: promote open discussion of public affairs and enhance the government’s accountability[33] contribute to positive and informed debate on important issues or matters of serious interest;[34] and reveal environmental or health risks or measures relating to public health and safety.[35] OLGR is responsible for regulating Queensland’s liquor industry and its development, within a socially responsible framework, and in a way that is compatible with minimising harm caused by alcohol abuse.[36] As part of its regulatory role, OLGR records liquor-related incidents as reported by QPS officers, whether or not breach action against the licensee/venue has been taken, to enable OLGR to identify any trends at licensed premises that may require proactive negotiations with the licensee and to reduce the likelihood of significant incidents in the future.[37] OLGR performs this part of its functions with the cooperation of QPS officers, through the LEAPS program. The Information Commissioner has previously recognised that it is essential for the public to have confidence in the way a regulatory agency performs its functions.[38] Given the nature of the Information in Issue, as described at paragraph 9 above, I consider that disclosure would allow the community to scrutinise QPS’ response to liquor-related incidents and the way such incidents are communicated to OLGR, for the purpose of it performing its regulatory activities relating to liquor and licensed venues. For these reasons, I am satisfied that disclosure would enhance government accountability and promote open discussion of public affairs. The occurrence of liquor-related incidents at licensed premises is an issue of serious interest and the impact this issue has on the community is well-recognised.[39] I consider that disclosure of the Information in Issue would allow members of the public to scrutinise the nature and frequency of liquor-related incidents reported by QPS in relation to the Applicant’s venue and the actions taken by QPS at the time of the incident. I am satisfied that this would reveal measures relating to public safety and would contribute to positive and informed debate on matters of serious interest to the community. The Applicant argues strongly against the weight to be given to the above public interest factors on the basis that the Information in Issue describes alleged incidents which occurred some time ago and does not discuss the role of OLGR or QPS, or measures taken, to ensure safety or contribute to accountability.[40] The Applicant also submits that because the venue has a low incident rate in comparison to the number of patrons who attend the venue, the weight of these factors should be further reduced.[41] I acknowledge that the age of the information potentially reduces its utility for the purpose of public discussion. However, OLGR remains the regulating body for licensed premises and OLGR has confirmed that information about liquor-related incidents continues to be communicated between QPS and OLGR in the context of the LEAPS program, to assist OLGR in performing its regulatory functions. Accordingly, I am satisfied that disclosure of the Information in Issue, despite its date range, could still reasonably be expected to enhance government accountability, contribute to discussion and debate within the community on matters of serious interest and reveal measures relating to public safety. In my view, whether the number of liquor-related incidents reported in relation to a licensed venue is high or low, disclosure will still allow the public to see the way in which incidents are reported by QPS and communicated to OLGR. Accordingly, I am satisfied that a venue’s incident rate does not decrease the public interest in enhancing the accountability of the law enforcement agency and regulatory body in relation to their responsibilities concerning liquor-related incidents and licensed premises. For the reasons set out above, I afford the public interest factors identified at paragraph 50 significant weight in favour of disclosure. (iii) Factors favouring nondisclosure The Applicant has raised numerous public interest factors in schedule 4 of the RTI Act which it considers favour nondisclosure of the Information in Issue.[42] The Applicant’s primary concern is that disclosure of the Information in Issue will prejudice its business affairs and damage its reputation. [43] The Applicant submits that disclosure would lead to decreased patronage and financial implications for the venue. The Information in Issue describes liquor-related incidents recorded by QPS as having occurred at, or in the vicinity of the Applicant’s venue. While I am prevented from describing the particular nature of the Information in Issue in these reasons[44], the information refers generally to the behaviour of venue patrons and their level of intoxication, any suspected criminal offences and any violence involved in the incident. I consider that it is reasonable to expect that the Applicant’s business and/or financial affairs could suffer some level of prejudice through disclosure of this type of information as some members of the public may be less inclined to patronise the Applicant’s venue to avoid exposure to such incidents. Accordingly, I find that this public interest factor applies in this case. However, I afford this factor only moderate weight on that basis that members of the public are generally aware that liquor-related incidents occur in many licensed venues and still choose to attend the venues. I also consider that a venue’s history of liquor-related incidents is only one factor considered by potential patrons in selecting a venue to attend. I acknowledge that the Information in Issue is about allegations of criminal conduct which at the time of recording had not been tested in court. However, as no individuals are identified in the Information in Issue, I find that the public interest factor in schedule 4, part 3, item 6 of the RTI Act does not apply in this case. For the reasons set out at paragraph 24 above, I find that disclosure of the Information in Issue could not reasonably be expected to impede the administration of justice for a person, or generally and therefore find that the public interest factors in schedule 4, part 3, items 8 and 9 of the RTI Act do not apply in this case. For the reasons set out at paragraph 43 above, I find that disclosure could not reasonably be expected to prejudice the flow of information to a law enforcement or regulatory agency and that therefore, the public interest factor in schedule 4, part 3, item 13 of the RTI Act does not apply in this case. There is no evidence available to indicate that the Information in Issue was communicated confidentially, either to QPS by persons involved in the incidents or between QPS and OLGR. I am therefore not satisfied the Information in Issue is confidential and accordingly, find that the public interest in schedule 4, part 3, item 16 does not apply in this case. For the reasons set out in paragraphs 15-18 above, I am not satisfied that the Information in Issue identifies individuals or that any identities could reasonably be ascertained from the Information in Issue. Accordingly, I find that disclosure of the Information in Issue would not reveal th[45]personal information45 of any individual and that therefore, the public interest factor in schedule 4, part 4, item 6 of the RTI Act does not apply in this case. The Applicant did not make any specific submissions to support the application of the public interest factors concerning prejudice to intergovernmental relations and prejudice to security, law enforcement and public safety. As the onus is on the Applicant to establish that a decision not to disclose the Information in Issue is justified[46] and in the absence of any evidence to support the application of these factors, I find that they do not apply in this case. (iv) Balancing the public interest Enhancing the accountability of regulatory and law enforcement agencies which deal with liquor-related incidents in relation to licensed premises is a factor carrying significant weight in favour of disclosure of the Information in Issue. Given that the occurrence of such incidents raises issues of public safety, I am also satisfied that disclosure of the Information in Issue would lead to open discussion of public affairs and positive and informed debate on matters of serious interest. Weighing against these factors is the prejudice to the Applicant’s business and/or financial affairs which may result from disclosure of the Information in Issue, however, I am satisfied that this carries only moderate weight in this case in view of the general level of public awareness of the occurrence of liquor-related incidents in licenced premises. On balance, I am satisfied that the public interest favours disclosure in this case and therefore, find that disclosure of the Information in Issue would not be contrary to the public interest. DECISION For the reasons set out above, I affirm the Department’s decision to grant access to the Information in Issue on the basis that it is not exempt information and that disclosure would not, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ K Shepherd Assistant Information Commissioner Date: 29 October 2012 APPENDIX Significant procedural steps Date Event 8 August 2011 The Department received the access application. 27 September 2011 The Department consulted with the Applicant under section 37 of the RTI Act about disclosure of the relevant information to the access applicant and invited to Applicant to identify any objections to disclosure. 12 October 2011 The Applicant notified the Department that it objected to disclosure of the relevant information and provided submissions supporting its case. 25 October 2011 The Department issued its initial decision to the Applicant, deciding to disclose information in relation to the Applicant’s venue. 31 October 2011 The Applicant applied to the Department for internal review. 28 November 2011 The Department affirmed its initial decision. 21 December 2011 OIC received the external review application. 13 January 2012 The Department provided OIC with relevant documents including the Information in Issue. 19 January 2012 OIC received the Applicant’s further submissions. 24 February 2012 OIC sought clarification from the Department in relation to the Information in Issue. 30 April 2012 – 22 May 2012 OIC issued a written preliminary view to the Applicant that there is no basis on which the Information Commissioner can set aside the Department’s decision on the Information in Issue. OIC invited the Applicant to provide submissions supporting its case if it did not accept the preliminary view. 28 June 2012 The Applicant advised OIC it did not accept the preliminary view and lodged submissions in response. 20 July 2012 OIC telephoned OLGR to obtain information about the LEAPS program as it relates to OLGR’s role in regulating licensed venues. 31 July 2012 OIC provided the Applicant with an update on the status of the external review. 27 August 2012 OIC provided the Department with an update on the status of the external review and asked the Department to convey the status of the review to the access applicant. 21 September 2012 OIC provided the Applicant with a further update on the status of the external review. 28 September 2012 The Department received the access application. Schedule 3 of the RTI Act - Exempt information 6 Information disclosure of which would be contempt of court or Parliament Information is exempt information if its public disclosure would, apart from this Act and any immunity of the Crown— (a) be in contempt of court; or (b) be contrary to an order made or direction given by— (i) a royal commission or commission of inquiry; or (ii) a person or body having power to take evidence on oath; or ... 10 Law enforcement or public safety information (1) Information is exempt information if its disclosure could reasonably be expected to— (a) prejudice the investigation of a contravention or possible contravention of the law (including revenue law) in a particular case; or (b) enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained; or (c) endanger a person’s life or physical safety; or (d) result in a person being subjected to a serious act of harassment or intimidation; or (e) prejudice a person’s fair trial or the impartial adjudication of a case; or (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 (including revenue law); or ... (i) prejudice a system or procedure for the protection of persons, property or the environment; or ... Schedule 4 of the RTI Act - Factors for deciding the public interest Part 3 Factors favouring nondisclosure in the public interest Disclosure of the information could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct. Disclosure of the information could reasonably be expected to prejudice security, law enforcement or public safety. Disclosure of the information could reasonably be expected to impede the administration of justice generally, including procedural fairness. Disclosure of the information could reasonably be expected to impede the administration of justice for a person. ... Disclosure of the information could reasonably be expected to prejudice the flow of information to the police or another law enforcement or regulatory agency. Disclosure of the information could reasonably be expected to prejudice intergovernmental relations.... Disclosure of the information could reasonably be expected to prejudice an agency’s ability to obtain confidential information.... Part 4 Factors favouring nondisclosure in the public interest because of public interest harm in disclosure 6 Disclosing personal information (1) Disclosure of the information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person, whether living or dead. [1] OLGR is part of the portfolio of the Attorney-General and Minister for Justice. For the purpose of section 14 of the RTI Act, the agency which deals with requests for information held by OLGR is the Department of Justice and Attorney General.[2] The Department also sought QPS’ views on disclosure. The Department has confirmed to OIC that QPS initially objected to disclosure of information and sought internal review of the Department’s decision to disclose information. QPS did not however, apply to OIC for external review and therefore, they were not involved in the review process. [3] See Commissioner’s Circular 27/2010 – Drink Safe Precincts and Banning Orders, 2 December 2010 at page 2 (available at http://www.police.qld.gov.au/Resources/Internet/rti/policies/documents/Circular%2027-2010.pdf).[4] As described at paragraph 5 above. [5] Under section 87(2) of the RTI Act, the participant in an external review who opposes a disclosure decision (defined in section 87(3)(a) of the RTI Act) has the onus of establishing that a decision not to disclose the information is justified or that the Information Commissioner should give a decision adverse to the access applicant.[6] Under sections 47(3)(a) and 48 and schedule 3 of the RTI Act. [7] Under sections 47(3)(b) and 49 of the RTI Act. [8] Submissions to OIC dated 24 February 2012 and 20 July 2012. I have also considered the Applicant’s RTI Objection Form, and accompanying letter dated 12 October 2011, submitted to the Department in response to the consultation process. [9] Submissions to OIC dated 24 February 2012 and 20 July 2012. [10] Section 23 of the RTI Act. See also sections 12 and 14 of the RTI Act. [11] See sections 11 and 17 and schedules 1 and 2 of the RTI Act. [12] Submissions to the Department dated 12 October 2011. I am unable to set out the details of the Applicant’s submission on this issue as it refers to information claimed to be exempt and/or contrary to public interest – see section 108 of the RTI Act. [13] Section 44(1) of the RTI Act. This is referred to as the pro-disclosure bias in deciding access to documents. [14] Section 47(2) of the RTI Act provides that these grounds are to be interpreted narrowly and an agency may give access to a document even if a ground on which access may be refused applies. [15] The grounds for refusal of access are listed in section 47(3) of the RTI Act. Section 47(2) of the RTI Act provides that these grounds are to be interpreted narrowly. [16] In Henderson and Department of Education (Unreported, Queensland Information Commissioner, 22 July 1997) at [23] in the context of the equivalent provision in section 50 of the repealed Freedom of Information Act 1992 (Qld) (FOI Act).[17] See paragraph 11 above.[18] McEniery and the Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349 in the context of the equivalent provision in section 42(1)(b) of the repealed FOI Act. [19] The phrase ‘could reasonably be expected to’ requires that the expectation is reasonably based and not irrational, absurd or ridiculous (Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97 at [106]) nor merely a possibility (Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744). Whether the expected consequence is reasonable requires an objective examination of the relevant evidence (Murphy at [45-47]). It is not necessary for a decision-maker ‘to be satisfied upon a balance of probabilities’ that disclosing the document will produce the anticipated prejudice, or, as in this case, a public good (Sheridan and South Burnett Regional Council & Others (Unreported, Queensland Information Commissioner, 9 April 2009)). Importantly, the expectation must arise as a result of disclosure, rather than from other circumstances (Murphy at [54]).[20] Uksi and Redcliffe City Council; Cook (Third Party) [1995] QICmr 18; (1995) 2 QAR 629 (Uksi) at [34]. [21] Uksi at [35].[22] I have also considered whether the communication of the liquor-related incidents by QPS officers to OLGR is a system, method or procedure for the purpose of these exemptions. I am satisfied that this aspect of the LEAPS program does not meet the necessary requirements as the purpose of the communications is to assist OLGR in its regulatory activities, eg. identifying trends at licensed premises. I consider this aspect of the LEAPS program is relevant to the public interest factors relating to accountability, discussed at paragraphs 50-57 below. [23] Section 148A(1)(a) of the Liquor Act.[24] Section 148A(1)(b) of the Liquor Act.[25] Section 142AI(1)(a) of the Liquor Act. [26] Even if I was persuaded on this point, I am satisfied that licensees are not the only source of intelligence for QPS in relation to liquor-related incidents. I consider that victims, patrons and even venue staff, would still be likely to contact QPS to attend such incidents, notwithstanding the disclosure of related information under the RTI Act. [27] Section 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. [28] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant in a particular case. [29] Section 49(3) of the RTI Act.[30] Submissions to OIC dated 24 February 2012 and 20 July 2012. [31] Schedule 4, part 1, item 3 of the RTI Act. [32] In State of Qld v Albietz, Information Commissioner (Qld) & Anor [1996] 1 Qd R 215, de Jersey J noted at [219] “... the Freedom of Information Act does not confer any discretion on the Information Commissioner, or the Supreme Court, to stop disclosure of information because of any particular motivation in the applicant”. Although this decision was made in the context of the repealed FOI Act, I consider the reasoning equally applies when considering applications under the RTI Act. [33] Schedule 4, part 2, item 1 of the RTI Act. [34] Schedule 4, part 2, item 2 of the RTI Act. [35] Schedule 4, part 2, item 14 of the RTI Act.[36] http://www.olgr.qld.gov.au/aboutUs/index.shtml. [37] http://www.police.qld.gov.au/Resources/Internet/rti/policies/documents/Circular%2027-2010.pdf [38] See Kenmatt Projects Pty Ltd and Building Services Authority (Unreported, Queensland Information Commissioner, 27 September 1999) at [47] and Seven Network (Operations) Limited and Redland City Council; A third party (Unreported, Queensland Information Commissioner, 30 June 2011) at [25].[39] See, for example, Law, Justice and Safety Committee, ‘Inquiry into Alcohol-Related Violence – Final Report (Report No. 74)’, March 2010 at http://www.parliament.qld.gov.au/ documents/TableOffice/TabledPapers/2010/5310T1903.pdf; Queensland Government, ‘Queensland Government Response to Law, Justice and Safety Committee’s final report into alcohol-related violence’, 27 August 2010 at http://www.parliament.qld.gov.au/ documents/Committees/LJSC/2009/alcohol-related-violence/responseReport74.pdf); Ministerial Council on Drug Strategy, ‘National Alcohol Strategy 2006-2009 – Towards Safer Drinking Cultures’, May 2006 at http://www.alcohol.gov.au/internet/alcohol/ publishing.nsf/Content/B83AD1F91AA632ADCA 25718E0081F1C3/$File/nas-06-09.pdf).[40] Page 2 and 5 of Applicant’s submission to OIC dated 20 July 2012. [41] Page 4 of Applicant’s submission to the Department dated 12 October 2011. [42] These are listed in the Appendix.[43] Submission to OIC dated 20 July 2012. [44] Due to the operation of section 108 of the RTI Act – see footnote 12 above.[45] As defined in section 12 of the Information Privacy Act 2009 (Qld). [46] See paragraph 11 above.

queensland

court_judgement

Queensland Information Commissioner 1993-

X19 and Metro South Hospital and Health Service [2020] QICmr 12 (26 February 2020)

X19 and Metro South Hospital and Health Service [2020] QICmr 12 (26 February 2020) Last Updated: 12 May 2020 Decision and Reasons for Decision Citation: X19 and Metro South Hospital and Health Service [2020] QICmr 12 (26 February 2020) Application Number: 314483 Applicant: X19 Respondent: Metro South Hospital and Health Service Decision Date: 26 February 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - medical records of deceased parent - personal information and privacy - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Metro South Hospital and Health Service (MSHHS) under the Right to Information Act 2009 (Qld) (RTI Act) for access to her late mother’s medical records held by the Princess Alexandra Hospital. MSHHS located 3700 pages and decided[2] to refuse access to all pages on the basis that disclosure would be contrary to the public interest. The applicant applied[3] to the Office of the Information Commissioner (OIC) for external review of MSHHS’ decision. I have decided to affirm MSHHS’ decision. Background The applicant’s mother passed away in July 2017 while admitted at the Princess Alexandra Hospital. The applicant stated that she is seeking access to her mother’s medical records in order to understand if and how any health conditions of her mother may affect her and her family.[4] Reviewable decision The decision under review is MSHHS’ decision dated 20 February 2019. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). I have also had regard to the Human Rights Act 2019 (Qld),[5] particularly the right to seek, receive and impart information.[6] I consider a decision-maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the RTI Act.[7] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act.[8] Information in issue The information in issue (Information in Issue) consists of 3700 pages of medical records of the deceased. Issue for determination The issue for determination is whether, on balance, disclosure of the Information in Issue would be contrary to the public interest under sections 47(3)(b) and 49 of the RTI Act. Relevant law The RTI Act gives a person the right to be given access to documents of an agency.[9] However, this right of access is subject to other provisions of the RTI Act, including the grounds on which an agency may refuse access to documents.[10] Relevantly, an agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[11] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. The RTI Act identifies various factors that may be relevant to deciding the balance of the public interest[12] and explains the steps that a decision-maker must take[13] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the Information in Issue would, on balance, be contrary to the public interest. Findings Irrelevant factors No irrelevant factors apply in the circumstances of this matter and I have consequently taken no irrelevant factors into account in considering whether, on balance, disclose of the Information in Issue would be contrary to the public interest. Factors favouring disclosure Family Medical History Information The applicant submitted[14] that accessing information about her late mother’s diagnoses and treatment may assist and benefit the ongoing management of her and her family’s health affairs. I have considered whether these submissions give rise to any public interest in favour of disclosure of the Information in Issue. There may be a public interest in ensuring, where there is a familial health issue, that historical medical information is not lost, and therefore the best and most efficient health care is provided to patients in successive generations. However, there are provisions under other legislation that facilitate access to relevant health information in certain circumstances.[15] Such provisions would allow the applicant’s medical practitioner to obtain pertinent family medical history information from MSHHS and thus ensure efficient and appropriate care of the applicant and her family. Consequently, I consider that the public interest raised by the applicant’s submissions in this regard has low weight in the circumstances of this matter. Personal information factors The RTI Act identifies two public interest factors relevant in this case which favour the disclosure of information where the information is ‘personal information’, namely: schedule 4, part 2, item 7 of the RTI Act which provides that it will be in the public interest to disclose personal information where the information is the applicant’s personal information (Applicant’s Information Factor): and schedule 4, part 2, item 9 of the RTI Act which provides that it will be in the public interest to disclose personal information where the information relates to a person who has died and both of the following apply—(a) the information would, if the person were alive, be personal information of the person; (b) the applicant is an eligible family member of the person (Eligible Family Member Factor). Section 12 of the Information Privacy Act 2009 (Qld) (IP Act) defines ‘personal information’ for the purpose of the RTI Act as, information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. Applicant’s Information Factor I have carefully read the Information in Issue. This public interest factor only has application to a very small amount of the Information in Issue. The applicant’s personal information (her name) appears in the medical record in a number of places where the deceased’s relationship with the applicant is noted. The personal information of the applicant is intertwined with the personal information of the deceased to such an extent that it cannot be disclosed without also disclosing the personal information of the deceased and its excision would be of little utility. Accordingly, I afford low weight to the Applicant’s Information Factor. Eligible Family Member Factor Apart from the small amount of information that is the personal information of persons other than the deceased and the applicant (addressed later in this decision), the balance of the Information in Issue is the personal information of the applicant’s deceased mother. As noted at paragraph 18, the RTI Act recognises that there is a public interest in favour of disclosure of a deceased individual’s personal information in circumstances where the applicant is an eligible family member of the deceased. To be satisfied that the Eligible Family Member Factor applies in favour of disclosure of the Information in Issue, I must determine; firstly, whether the information would, if the deceased were alive, be their personal information; and, secondly, whether the applicant is an eligible family member of the deceased. Medical records of the nature of the Information in Issue in this review have long been held by the Information Commissioner to be personal information for the purpose of the RTI and IP Acts.[16] Having reviewed the Information in Issue I am satisfied that it would, given that it is the medical record of the deceased, if the deceased were alive, be their personal information, as it meets the definition of personal information in the IP Act. Thus, what remains is to determine if the applicant is an eligible family member for the purpose of the Eligible Family Member Factor. Schedule 5 of the RTI Act defines an eligible family member in a hierarchical way as follows: eligible family member, of a deceased person, means— (a) a spouse of the deceased person; or (b) if a spouse is not reasonably available—an adult child of the deceased person; or (c) if a spouse or adult child is not reasonably available—a parent of the deceased person; or (d) if a spouse, adult child or parent is not reasonably available—an adult sibling of the deceased person; or (e) if a spouse, adult child, parent or adult sibling is not reasonably available and the deceased person was not an Aboriginal person or Torres Strait Islander—the next nearest adult relative of the deceased person who is reasonably available; or (f) if a spouse, adult child, parent or adult sibling is not reasonably available and the deceased person was an Aboriginal person or Torres Strait Islander—a person who is an appropriate person according to the tradition or custom of the Aboriginal or Torres Strait Islander community to which the deceased person belonged and who is reasonably available. A person described in item 1 is not reasonably available if— (a) a person of that description does not exist or is deceased; or (b) a person of that description can not be reasonably contacted; or (c) a person of that description is unable or unwilling to act as the eligible family member of the deceased person for the purposes of this Act. In the course of the external review I obtained a copy of the Death Certificate of the deceased.[17] The Death Certificate shows that the deceased was widowed at the date of her death. Thus, the person noted at Item 1(a) above is ‘not reasonably available’ by virtue of item 2(a) of the above definition. In terms of item (1)(b), the Death Certificate shows that the applicant is an adult child of the deceased. I am therefore satisfied on the evidence before me that: the applicant is an adult child of the deceased; that item (1)(b) of the eligible family member definition is satisfied; and that, the Eligible Family Member Factor in favour of disclosure is enlivened for consideration. Based on the evidence available to me,[18] it is clear that the applicant was living interstate and therefore, by virtue of her lack of proximity, was not closely involved with the deceased’s health care prior to her death. This is not to say that the applicant was disinterested in her mother’s care. Indeed, it is evident from the applicant’s submissions that she had telephone contact with her mother and siblings. However, the applicant was not involved in a sufficiently detailed way in the day to day health care decisions concerning her mother to reduce the prejudice to the deceased’s privacy in disclosure of the Information in Issue. Additionally, certain entries in the deceased’s medical record lend weight to the conclusion that this public interest factor should be given low weight.[19] In these circumstances I give low weight to the Eligible Family Member Factor. Other factors favouring disclosure I have carefully considered all other public interest factors favouring disclosure listed in schedule 4, part 2 of the RTI Act and can identify no other factors that apply in the circumstances of this review. Factors favouring nondisclosure Personal information factors The RTI Act contains three factors favouring nondisclosure which are enlivened in the circumstances of this review: firstly, where disclosure of information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person, whether living or dead (Harm Factor); [20] secondly, where disclosure of the information could reasonably be expected to prejudice the protection of an individual’s right to privacy (Protection of Right to Privacy Factor);[21] and finally, where the information is about a person who has died and all of the following apply— the information would, if the person were alive, be personal information of the person; the applicant is an eligible family member of the person; the disclosure of the information could reasonably be expected, if the person were alive, to impact on the person’s privacy (Eligible Family Member Privacy Factor).[22] Harm Factor The Information in Issue contains sensitive personal information of the deceased. Disclosing the sensitive personal information of the deceased could reasonably be expected to result in a public interest harm, namely, a reduction in public confidence in the health system and a reduction in the ability of public hospitals to provide health care effectively and efficiently. The effective delivery of health care services and the efficient operation of health services rely upon full and frank disclosure by patients. The risk in disclosing personal information of the type in issue in this review is that patients would no longer engage in an open and frank relationship with health care providers if they felt that information they provided would be disclosed to others. This lack of candour may compromise their own health and the ability of the health care system to provide proper care effectively and efficiently. [23] Given the sensitive and private nature of the Information in Issue, and health records generally, the public interest harm to the efficient and effective delivery of public health care that could reasonably be expected to result from disclosure of the Information in Issue would be substantial. Therefore, this Harm Factor is deserving of significant weight in circumstances such as those present in this review. Protection of Right to Privacy Factor A public interest favouring nondisclosure will apply if disclosure of the Information in Issue is likely to prejudice the protection of an individual’s right to privacy.[24] The concept of ‘privacy’ is not defined in either the IP Act or the RTI Act. However, it can be regarded as the right of an individual to preserve their personal sphere free from interference from others.[25] A small amount of the Information in Issue is the personal information of individuals other than the applicant and the deceased, such as relatives and acquaintances, including their identities, contact details and residential circumstances. Most of this information is personal information which the individuals themselves did not volunteer. Moreover, even where information was volunteered by these persons, circumstances indicate that it was provided in the expectation of it being used by medical staff to assist with the care and treatment of the deceased and would not otherwise be disclosed. I consider that disclosure of the small amount of the Information in Issue which concerns persons other than the applicant and the deceased, would be to interfere with the right of those persons to keep their personal sphere free from interference by others. Accordingly, I consider that the public interest factor in favour of nondisclosure to protect an individual’s right to privacy applies in the circumstances of this matter to the small amount of information about individuals other than the applicant and the deceased, and given the personal nature of the information this factor carries significant weight. Eligible Family Member Privacy Factor This factor favouring nondisclosure applies where: the personal information is of a deceased individual the applicant is an eligible family member of the deceased person; and the disclosure of the information could reasonably be expected to impact on the deceased person’s privacy if the deceased person were alive. Relevantly, this factor is worded almost identically to the factor favouring disclosure discussed above at paragraph 21, the only difference being the last element. It is the presence of this last element that polarises this public interest against disclosure, and requires an assessment of the impact on the deceased’s privacy as if they were alive. As has already been established in this decision: the applicant is an eligible family member of the deceased according to the definition of eligible family member as set out in schedule 5 of the RTI Act; and the Information in Issue is the personal information of the deceased, being medical records which by their very nature contain sensitive, private information about individuals’ personal circumstances, care and health. Therefore, what remains to be considered for this factor favouring nondisclosure to apply is whether disclosure of the Information in Issue could reasonably be expected, if the deceased were alive, to impact on her privacy. The Information in Issue has not been disclosed and remains private. Given my observations on the nature of the familial connection between the applicant and deceased, the applicant’s involvement in the deceased’s health care and the wishes of the deceased above, I consider that disclosing the Information in Issue in the circumstances of this review would be to allow a significant level of intrusion into a private aspect of the deceased’s personal sphere and would amount to a significant impact on the privacy of the deceased, were she alive. Consequently, I conclude that due to the nature and sensitivity of the Information in Issue and the prejudice to the privacy of the deceased, were she alive, the Eligible Family Member Privacy Factor favouring nondisclosure carries significant weight. Balancing the public interest For the reasons explained, I give: low weight to the public interest in favour of disclosure to ensure the best and most efficient intergenerational health care; low weight to the public interest factor favouring disclosure of the small amounts of Information in Issue that are the applicant’s personal information; low weight to the public interest factor favouring disclosure to the applicant as an eligible family member; and significant weight to each of the three public interest factors favouring nondisclosure of the Information in Issue. Thus, on balance, the significant weight of the public interest factors which favour nondisclosure of the Information in Issue in this case outweigh the public interest factors favouring disclosure. Therefore, I find that disclosure of the Information in Issue would, on balance, be contrary to the public interest under section 49 of the RTI Act. DECISION I affirm the decision under review. I find that access to the Information in Issue may be refused under section 47(3)(b) and section 49 of the RTI Act as its disclosure would, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Assistant Information Commissioner CorbyDate: 26 February 2020 APPENDIX Significant procedural steps Date Event 27 February 2019 OIC received the application for external review. 1 March 2019 OIC notified MSHHS and the applicant that the application for external review had been received and requested procedural documents from MSHHS. 6 March 2019 OIC received the requested documents from MSHHS. 10 March 2019 OIC received submissions from the applicant. 2 April 2019 OIC notified MSHHS and the applicant that the application for external review had been accepted. 28 May 2019 OIC called the applicant and gave an oral preliminary view that she may be refused access to her mother’s medical records. The applicant provided OIC with her submissions via email. 22 July 2019 OIC conveyed a written preliminary view to the applicant, advising that access to her mother’s medical records may be refused on the basis that disclosure would be contrary to the public interest. The applicant advised OIC that she rejected the preliminary view. 23 July 2019 OIC notified MSHHS that the applicant rejected the preliminary view and requested that MSHHS provide the Information in Issue. 24 July 2019 MSHHS provided the Information in Issue to OIC by courier. 26 July 2019 OIC called the applicant to clarify issues and concerns that she had raised. 28 July 2019 OIC received further submissions from the applicant in support of her status as an ‘eligible family member’. 15 October 2019 OIC received a call from the applicant, advising of her objection and requesting that OIC issue a decision. 7 November 2019 The applicant forwarded a medical letter to OIC. [1] Access application dated 12 January 2019.[2] Decision dated 20 February 2019.[3] External review application dated 27 February 2019. [4] In her email applying for external review dated 27 February 2019 at 3:54pm; email from applicant to OIC dated 10 March 2019 8:22am; and in a telephone conversation with OIC on 28 May 2019 following which the applicant provided a copy of a letter from her psychiatrist and a Centrelink medical certificate.[5] Referred to in these reasons as the HR Act, and which came into force on 1 January 2020.[6] Section 21 of the HR Act. [7] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [11].[8] I also note the observations made by Bell J in XYZ at [573] on the interaction the Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) that ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[9] Section 23 of the RTI Act. [10] Set out in section 47 of the RTI Act. [11] Under sections 47(3)(b) and 49 of the RTI Act. [12] Schedule 4 of the RTI Act lists factors that may be relevant when deciding whether disclosure of information would, on balance, be contrary to the public interest. This list is not exhaustive and therefore, other factors may also be relevant in a particular case.[13] Section 49(3) of the RTI Act.[14] See footnote 4. [15] Under the Hospital and Health Boards Act 2011 (Qld), specifically part 7. [16] See for example, Keogh and Department of Health (Unreported, Queensland Information Commissioner, 31 August 2010).[17] Provided by MSHHS by email on 6 March 2019 together with a copy of the applicant’s application for access and MSHHS’ decision.[18] The applicant’s written submission dated 28 July 2019 and oral submissions in telephone discussions on 28 May 2019 and 15 October 2019 and the Information in Issue.[19] I am precluded by the operation of section 108 of the RTI Act from disclosing the content of the entries as to do so would reveal the Information in Issue.[20] Schedule 4, part 4, section 6 of the RTI Act.[21] Schedule 4, part 3, item 3 of the RTI Act.[22] Schedule 4, part 3, item 5 of the RTI Act.[23] I note in this regard that the Health Service clearly conveys to patients an expectation that medical records are confidential and that patient privacy is maintained: ‘We know you need to trust your health provider before you give them sensitive personal information. You can expect that we will deal with all personal information in an ethical, lawful and confidential way.Your health information will only be discussed or made available to those who are involved in your care.’ https://metrosouth.health.qld.gov.au/patients-and-visitors/your-time-in-hospital/medical-records-and-confidentiality. See also: https://publications.qld.gov.au/dataset/health-information-privacy. [24] Schedule 4, part 3, item 3 of the RTI Act. [25] See 0P5BNI and Department of National Parks, Recreation, Sport and Racing (Unreported, Queensland Information Commissioner, 12 September 2013); Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [27] paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 11 August 2008, at paragraph 1.56.

queensland

court_judgement

Queensland Information Commissioner 1993-

Q93 and Department of Transport and Main Roads [2020] QICmr 70 (25 November 2020)

Q93 and Department of Transport and Main Roads [2020] QICmr 70 (25 November 2020) Last Updated: 25 March 2021 Decision and Reasons for Decision Citation: Q93 and Department of Transport and Main Roads [2020] QICmr 70 (25 November 2020) Application Number: 315199 Applicant: Q93 Respondent: Department of Transport and Main Roads Decision Date: 25 November 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - EXEMPT INFORMATION - applicant seeks the name and address of the person who reported allegedly smoky vehicle - whether disclosure would reveal information that could reasonably be expected to identify a confidential source of information in relation to the enforcement or administration of the law - whether information is exempt from disclosure under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 and schedule 3, section 10(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 Information Privacy Act 2009 (Qld) (IP Act) for all documents relating to complaints made in relation to her vehicle, including ‘smoky vehicle program complaints’ or ‘not roadworthy complaints’ over a 12 month period.[2] The Department located three pages in response to the application and released two full pages and part of one page to the applicant. It refused access to the name and address of the individual who made a notification of a smoky vehicle to the Department (Complainant Information).[3] This information was refused on the basis that its disclosure could reasonably be expected to enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained. The applicant applied for internal review[4] of the Department’s decision. On internal review[5] the Department upheld its original decision to refuse access to the Complainant Information,[6] and located and released a further ten pages. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision, ‘seeking notice of whether the notifier... was a police officer, and their name or confirmation that it was [Person X] or [Person Y].’ [7] For the reasons set out below, I affirm the Department’s decision to refuse access to the Complainant Information under section 67(1) of the IP Act and sections 47(3)(a) and section 48 of the Right to Information Act 2009 (Qld) (RTI Act).[8] Reviewable decision The reviewable decision is the Department’s internal review decision dated 18 February 2020. Evidence considered Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes and the Appendix). Generally, decision makers must have regard to the Human Rights Act 2019 (Qld) (HR Act). However, section 11(1) of the HR Act provides that ‘[a]ll individuals in Queensland have human rights’ (my emphasis). Given the applicant resides in a State other than Queensland, I have not had direct regard to the HR Act. I have, of course, observed and respected the law prescribed in the IP and RTI Acts in making this decision. In doing so, my decision can be construed as ‘respecting and acting compatibly with’ the rights prescribed in the HR Act.[9] Accordingly, had it been necessary for me to have regard to the HR Act in this review, the requirements of section 58(1) of that Act would be satisfied, and the following observations of Bell J about the interaction between the Victorian analogues of Queensland’s IP and RTI Acts and HR Act would apply: ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[10] Information in issue The only information in issue is the Complainant Information, being the name and address of the individual who made a notification of a smoky vehicle to the Department. Issue for determination The issue for determination is whether access to the Complainant Information may be refused on the basis that disclosure could reasonably be expected to enable the identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained.[11] Relevant law Under the IP Act, a person has a right to be given access to documents of an agency to the extent they contain the individual’s personal information.[12] That right is subject to certain limitations set out in the IP Act and RTI Act. One such limitation is that an agency may refuse access to a document to the extent it comprises exempt information.[13] Relevantly, information is exempt if its disclosure could reasonably be expected to enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained.[14] In evaluating this exemption, a decision maker must also consider the exceptions outlined in schedule 3, section 10(2) of the RTI Act, in accordance with the comments of Chief Justice Holmes in Commissioner of the Police Service v Shelton & Anor:[15] an agency cannot reach the view necessary...in relation to information which may be exempt under sch 3 s 10 without a consideration of the documents the subject of the application to ascertain whether they fall within s 10(2). Applicant’s submissions The applicant submitted that she considered the informant to be one of two police officers and that she requires this information to:[16] ...prosecute agencies for systemic and egregious human rights abuses which are based on protected attributes, hate based persecution and abuse of power...using public office and directing large numbers of public servants to use their position to persecute. The applicant has also indicated that she wishes to ‘join the name of the person to a lawsuit already afoot’.[17] To the extent that these submissions raise for consideration the exceptions set out in schedule 3, section 10(2) of the RTI Act, this is addressed at paragraph 33 below. To the extent that the applicant’s submissions raise public interest arguments in favour of disclosure, I am not able to take these into account.[18] The categories of exempt information set out in schedule 3 of the RTI Act represent the types of information which Parliament has already decided, would, on balance, be contrary to the public interest to disclose. As such, once the requirements of an exemption have been established, the RTI Act does not allow for the analysis of applicable public interest factors, no matter how compelling an applicant may consider their arguments to be. Although I am not able to formally consider these matters, in effort to promote settlement of the review,[19] OIC wrote to the applicant to confirm that the Complainant Information was not either of the two names she had included in her external review application.[20] However, the applicant was not satisfied with this, and continued to seek access to the Complainant Information. The applicant contends that she has been unable to participate in a ‘written only process’ and that this process has been used by OIC ‘to cause [her] disadvantage and deception’.[21] The procedure to be followed on external review is, subject to the IP Act, within the discretion of the Information Commissioner.[22] To ensure procedural fairness,[23] OIC routinely issues a written preliminary view to an adversely affected party. This allows the party to understand the case against them and allows them to provide information in reply supporting their case. During this review, our Office twice conveyed a written preliminary view to the applicant.[24] The applicant provided written submissions in response.[25] In these circumstances, I am satisfied that the applicant has been afforded procedural fairness throughout the review process and has been given reasonable opportunities to put forward her views, of which she has availed herself. Findings Information will be exempt under schedule 3, section 10(1)(b) of the RTI Act if: there exists a confidential source of information the information supplied is in relation to the enforcement or administration of the law disclosure of the information in issue could reasonably be expected[26] to enable the existence or identity of the confidential source of information to be ascertained;[27] and none of the exceptions to the exemption apply. I consider each of these factors are satisfied in this case, as set out below. Is the source of the information confidential? Yes, for the following reasons. A confidential source of information supplies information on the understanding that their existence or identity will remain confidential.[28] This understanding may arise as a result of an express agreement between the parties.[29] Alternatively, the surrounding circumstances may indicate an implicit mutual understanding of confidentiality of the identity of the source between the parties.[30] There is no evidence before me to indicate that an express assurance of confidentiality was given by the Department in this case. It is therefore necessary to consider the surrounding circumstances to determine whether a mutual understanding of confidentiality of the identity of the source can be implied. In evaluating this issue, I have considered the information on the Department’s website relating to smoky vehicles.[31] When a user logs on to the website and follows the prompts to submit an online report about a smoky vehicle, the following statement appears at the top of the electronic form: Transport and Main Roads collects the information supplied by you for the purpose of assisting the department in detecting smoky vehicles on our roads. This information is required under the Transport Operations (Road Use Management) Act 1995. Only authorised officers have access to this information. Your personal details will not be disclosed to any third party without your consent, unless required by law. I also consider the source could reasonably expect to remain confidential given that the Department is able to independently verify whether or not a vehicle is smoky without revealing the identity of the complainant (and, in most cases, without the necessity of contacting them for further information). In this regard, I note the Information Commissioner’s previous comments that:[32] The most common situation in which a source of information and the agency receiving the information could reasonably expect that confidentiality could be preserved in respect of the identity of the source, is where the information provided can be independently verified by the agency's own investigators, or the source draws the agency's attention to the existence of physical or documentary evidence which speaks for itself (i.e. which does not require any direct evidence from the source to support it). Thus a person may inform the proper authority that a neighbour is illegally carrying on an unlicensed business from the neighbour's premises, and that investigators can observe this for themselves if they visit the premises at certain hours; or a source may alert the revenue authorities to precisely where they may discover the second set of accounting records which will establish that a business has been fraudulently understating its income. This accords with the Department’s initial decision, in which it stated that it ‘does not generally reveal the identity of a notifier unless it is necessary or relevant to the management of the information being provided. This is in accordance with the complaints handling process, which aims to handle information in line with privacy obligations.’[33] Having regard to all the circumstances outlined above, I am satisfied there is an implied mutual understanding of confidentiality between the Department and the source who reported the smoky vehicle regarding the source’s name and address.[34] Was the information supplied in relation to the enforcement or administration of the law? Yes, the information was provided to the Department for the enforcement or administration of regulation 291(1) of the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld). Would disclosure of the Complainant Information be reasonably expected to enable the identity of the confidential source of information to be ascertained? Yes, because the Complainant Information comprises the name and address of the person who reported the applicant’s vehicle to the Department. Do any of the exceptions apply? The applicant contends that reporting her vehicle was an act of intimidation, harassment, persecution and stalking by police, and that it was a false complaint from a police officer (or other public servant) as retaliation for reports/complaints that she has made:[35] Police can pull over the vehicle themselves. They did not because it was a false complaint in a series of falsified propaganda about me, designed to malign and persecute me. I have considered this submission in light of the exception in schedule 3, section 10(2)(a) of the RTI Act, which provides that information is not exempt if it consists of matter revealing that the scope of a law enforcement investigation has exceeded the limits imposed by law. Other than the applicant’s unsubstantiated allegations, there is no information or evidence before me that supports this contention. In any event, the nature of the Complainant Information is such that it is not capable of revealing the scope of any law enforcement investigation. It consists only of the name and address of a complainant. I have also considered the remaining exceptions listed in schedule 3, section 10(2) of the RTI Act and do not consider that any apply to the Complainant Information. DECISION As a delegate of the Information Commissioner,[36] I affirm the Department’s decision to refuse access to the Complainant Information under section 67(1) of the IP Act, and section 47(3)(a), section 48 and schedule 3, section 10(1)(b) of the RTI Act. S MartinAssistant Information Commissioner 25 November 2020 APPENDIX Significant procedural steps Date Event 19 February 2020 The applicant applied for external review. 13 March 2020 The Office of the Information Commissioner (OIC) wrote to the applicant and the Department, and accepted the application for external review. OIC requested the information in issue from the Department. 13 March 2020 The Department provided the information in issue to OIC. 1 June 2020 OIC wrote to the applicant concerning procedural issues (including in relation to the applicant’s other external reviews) 5 June 2020 OIC conveyed a preliminary view to the applicant, and to promote settlement, also confirmed that the Complainant Information was not comprised of either of the two names the applicant had raised in her external review application.[37] 30 June 2020 OIC issued a closure letter to the applicant as she had not responded to the preliminary view in the timeframe provided. The applicant then contested OIC’s closure of the review. 2 July 2020 OIC conveyed the preliminary view to the applicant again, in the body of an email as requested. 6 July 2020 The applicant provided submissions. 3 September 2020 OIC updated the applicant concerning the review. 4 September 2020 The applicant raised concerns about OIC’s processes. [1] On 23 December 2019.[2] The 12 months prior to the date of the application.[3] Decision dated 21 January 2020.[4] Confirmed by the Department on 23 January 2020.[5] Decision issued 18 February 2020.[6] The Department also considered the application of schedule 3, section 10(1)(f) of the Right to Information Act 2009 (Qld). However, given my findings it is not necessary for me to consider this alternative reason for refusal.[7] On 19 February 2020.[8] Because the information is exempt under schedule 3, section 10(1)(b) of the RTI Act.[9] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. [10] XYZ at [573]. [11] Section 67(1) of the IP Act, sections 47(3)(a) and 48, and schedule 3, section 10(1)(b) of the RTI Act.[12] Section 40 of the IP Act.[13] Under section 67(1) of the IP Act, sections 47(3)(a) and 48 of the RTI Act.[14] Schedule 3, section 10(1)(b) of the RTI Act.[15] [2020] QCA 96 at [47] per Holmes CJ.[16] Emails received on 30 June 2020 and 6 July 2020.[17] Email dated 6 July 2020.[18] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. These submissions raise for consideration factors favouring disclosure under schedule 4, part 2 of the RTI Act, including, for example, that disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official, or could reasonably be expected to advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies. The applicant’s submissions concerning the lawsuit give rise to the factors concerning the administration of justice. [19] As required under section 103(1) of the IP Act.[20] OIC letter to applicant dated 5 June 2020, and email to the applicant on 2 July 2020.[21] Submissions dated 4 September 2020.[22] Section 108(1)(a) of the IP Act. [23] As required by section 110 of the IP Act and common law. [24] Once by letter on 5 June 2020, and once, as requested by the applicant, in the body of an email on 2 July 2020.[25] By email on 6 July 2020.[26] The phrase ‘could reasonably be expected to’ requires an objective consideration of all the relevant evidence and consideration of whether the expectation is reasonably based. A reasonable expectation is not irrational, absurd or ridiculous. Sheridan and South Burnett Regional Council and Others [2009] QICmr 26 (9 April 2009) at paragraphs [189]-[193] referring to Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97; see also Nine Network Australia Pty Ltd and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 14 February 2012) at [31].[27] McEniery and Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349 (McEniery) at [16]. McEniery considered the application of section 42(1)(b) of the Freedom of Information Act 1992 (Qld), identical in terms to schedule 3, section 10(1)(b) of the RTI Act, and has been relied upon in subsequent decisions applying schedule 3, section 10(1)(b) of the RTI Act, including 94HQWR and Queensland Police Service [2014] QICmr 45 (10 November 2014) (94HQWR) at [16]-[31] and Shirirone Pty Ltd and Department of Agriculture, Fisheries and Forestry [2014] QICmr 46 (18 November 2014) at [13]-[45].[28] McEniery at [20]-[22].[29] McEniery at [35].[30] McEniery at [50].[31] Department of Transport and Main Roads, ‘Report Smoky Vehicle’, Queensland Government (Web page) <https://www.service.transport.qld.gov.au/reportsmokyvehicle/application/EnterDetails.xhtml?dswid=4146> accessed on 21 October 2020.[32] McEniery at [27].[33] Dated 21 January 2020.[34] 94HQWR at [18]-[23].[35] Submission dated 6 July 2020.[36] Under section 139 of the IP Act.[37] The Department was consulted regarding this settlement proposal.

queensland

court_judgement

Queensland Information Commissioner 1993-

Gapsa and Department of Transport and Main Roads [2013] QICmr 25 (6 September 2013)

Gapsa and Department of Transport and Main Roads [2013] QICmr 25 (6 September 2013) Last Updated: 7 August 2014 Decision and Reasons for Decision Application Number: 311159 Applicant: Gapsa Respondent: Department of Transport and Main Roads Decision Date: 6 September 2013 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - GROUNDS ON WHICH ACCESS MAY BE REFUSED – CONTRARY TO PUBLIC INTEREST INFORMATION – an agency may refuse access to a document to the extent the document comprises information the disclosure of which would, on balance, be contrary to the public interest – workplace investigation documents – whether disclosure would, on balance, be contrary to the public interest – sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Department of Transport and Main Roads (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a workplace investigation report, statements and documents provided by relevant people, the applicant’s response to the allegations against him and the investigator’s findings. The Department located 398 pages and 22 audio recordings which responded to the application and decided to grant access to 5 pages in full and 5 pages in part and refuse access to 388 pages and the 22 audio recordings in full on the grounds that disclosure would be contrary to the public interest. On internal review, the Department made the same decision. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision to refuse access to 388 pages of the investigation report and its attachments. On external review the Department agreed to release a further 225 pages either in full or in part to the applicant. For the reasons set out below, I am satisfied that the public interest favouring open discussion of public affairs and enhancing the government’s accountability, revealing the reason for a government decision or any background or contextual information that informed that decision and the applicant having access to his personal information is outweighed by the public interest favouring nondisclosure because of individuals’ right to privacy and the prejudice to the Department’s management function. Therefore, access to the information under consideration in this review is refused on the basis that its disclosure would, on balance, be contrary to the public interest. Background 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 Department’s internal review decision dated 6 September 2012. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). Information in issue The information in issue in this review is information provided by complainants and other departmental officers throughout the course of the investigation into allegations made against the applicant,[2] including the evidence provided by those individuals, summaries of interviews, emails and other documents evidencing and/or documenting their complaints. Issues for determination The issue for determination in this review is whether access to the Information in Issue can be refused on the basis that its disclosure would, on balance, be contrary to the public interest.[3] Would disclosure of the Information in Issue, on balance, be contrary to the public interest? Yes, for the reasons that follow. Relevant law Under section 23 of the RTI Act, a person has a right to be given access to documents of an agency, subject to a number of exclusions and limitations, including grounds for refusal of access. These grounds are contained in section 47 of the RTI Act. Relevantly, access may be refused to information the disclosure of which would, on balance, be contrary to the public interest under section 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[4] and explains the steps that a decision-maker must take[5] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Findings No irrelevant factors arise in the circumstances of this case. Enhance government accountability and reveal reasons for a decision If disclosing information could reasonably be expected to enhance the government's accountability[6] or reveal the reason for a government decision and any background or contextual information that informed the decision,[7] it is relevant to consider these public interest factors favouring disclosure. I am satisfied that there is a public interest in government agencies being accountable for properly investigating workplace disputes.[8] In this case, disclosure of the Information in Issue would to some extent further these public interest factors as it would enable the applicant to assess the findings of the investigator against the evidence relied on. This would assist him to further understand the Department’s decision. However, the applicant has now received a significant amount of information on external review which furthers these public interest factors, including: background information the allegations against the applicant legislation, policy and procedures considered during the investigation summary of findings made by the investigator the investigator’s analysis and conclusion evidence relied on summaries of the applicant’s own evidence; and the investigator’s statement of systemic issues within the work unit and the investigator’s recommendations. Given the nature of the Information in Issue (ie that it is witness statements and personal information of complainants), I am satisfied that the information will not significantly further promote enhance the government’s accountability or reveal the reasons for a decision. I am satisfied that the Department has now provided the applicant with a significant amount of information relevant to his access application and I consider that these public interest factors have been significantly advanced by the release of that information. I am also satisfied that disclosure of the Information in Issue would do little to further advance these public interest factors. Therefore, I give these factors little weight. Administration of justice and fair treatment of individuals In the applicant’s application for internal review[9] the applicant stated that: [he believes] that by ... being lawfully provided... with a copy of the [Information in Issue he] will be in a position to assess if [he has] received fair treatment. If disclosure of information could reasonably be expected to contribute to the administration of justice generally or to the administration of justice for a person, including procedural fairness, it is relevant to consider this public interest factor favouring disclosure.[10] In the context of workplace investigations, procedural fairness requires, amongst other things, that a person is adequately informed of the allegations against them and the outcome of those allegations, including where appropriate information about the evidence relied on. Similarly, if disclosing information could reasonably be expected to advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies, it is relevant to consider this public interest factor favouring disclosure. However, this public interest factor does not require a decision maker to ensure that an applicant is provided with sufficient information to enable that applicant to be subjectively satisfied that he or she received fair treatment. I am satisfied, from reviewing the information that has been released to the applicant, including the information released to the applicant on external review, that the applicant has been afforded procedural fairness as he has been provided with the substance of the allegations, the summary of findings made by the investigator and the investigator’s analysis and conclusion and the applicant participated in the investigation process which is now complete. Further, the allegations against the applicant were found to be unsubstantiated. Given the information already released to the applicant and the nature of the Information in Issue (ie witness statements and personal information of complainants, rather than information about the way in which the investigation was conducted), I am satisfied that disclosure of the Information in Issue will not further advance the fair treatment of the applicant in his dealings with the Department. Therefore, it is my view that these public interest factors do not arise for consideration. Possible deficiencies, misconduct or negligent, improper or unlawful conduct and incorrect or misleading information In his application for internal review[11] the applicant stated: ...[that he has] concerns in relation to the false allegations that [he] had faced and the complaint management process to which [he was] subjected. ...[he] believe[s] that the [Information in Issue is] likely to assist [him] to clarify and identify further concerns that [he has] in relation to maladministration in the Department... On external review[12] the applicant also submitted that: ...[The] Investigation Report demonstrates no compliance with any standards for the investigation of workplace issues... ... when the evidence provided is tested there will be most likely more evidence that [he] will be able to disprove as being false, malicious or vexatious. ...Throughout the whole investigation, which lasted approximately seven (7) months, management was largely unaccountable for its detrimental actions towards [him]... [The Department] did not provide [him] with a head of power for the investigation... ...the multiple complaints from various staff did not even constitute an “employee complaint” as defined in Directive No.08/10 Managing employee complaints... ...the Legal and Prosecution Services Branch... failed to ensure proper compliance with any statutory regulations relating [to] proper employee complaints management. It is not my role to determine whether there has been any maladministration or wrongdoing on the part of an agency in conducting workplace investigations. The role of the OIC is limited to a merits review of government agencies’ decisions under the RTI Act. However, the RTI Act recognises that the following public interest factors favouring disclosure may arise in certain circumstances: disclosure of the information could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official[13] disclosure of the information could reasonably be expected to reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct;[14] and disclosure of the information could reasonably be expected to reveal that the information was— - incorrect - out of date - misleading - gratuitous - unfairly subjective; or - irrelevant.[15] I have set out the information the Department agreed to release to the applicant on external review in paragraph 17 above. I am satisfied that the applicant has now been provided with sufficient information to allow or assist inquiry into possible deficiencies in the conduct or administration of the Department or an official in the conduct of the investigation of allegations made against him. I have carefully reviewed the Information in Issue and I am satisfied that disclosure of that information could not reasonably be expected to further any of the three public interest factors set out above. Therefore, I afford these factors no weight in the circumstances. Applicant’s personal information If disclosing information could reasonably be expected to disclose the personal information of the individual applying for that information, a public interest factor favouring disclosure arises.[16] As some of the Information in Issue, including the applicant’s name and references to events to which he was a party, is the applicant’s personal information, this factor is relevant here.[17] This factor warrants significant weight. However, the nature of this information is such that it is not possible to separate the applicant’s personal information from the personal information of others. In other words, the relevant information cannot be disclosed to the applicant without disclosing personal information of other individuals. Therefore, the relevant privacy interests of other people (which I discuss below) must be balanced against the public interest in disclosing to the applicant his personal information. Right to privacy and personal information If disclosing the information could reasonably be expected to prejudice the protection of an individual’s right to privacy it will be relevant to consider this public interest factor favouring nondisclosure.[18] The RTI Act also provides that if disclosing information will disclose the personal information of another person, disclosure could reasonably be expected to cause a public interest harm.[19] The Information in Issue includes information about opinions, thoughts and feelings provided by complainants and other Departmental officers which has not been provided to the applicant and is not capable of being de-identified. This information is the personal information of people other than the applicant. Since disclosure of the Information in Issue would disclose the personal information of other people, I am satisfied that disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy and cause a public interest harm. Given the nature of this information, significant weight should be afforded to these public interest factors favouring nondisclosure. Management or assessment of agency staff If disclosing information could reasonably be expected to have a substantial effect on the management or assessment by an agency of the agency’s staff or prejudice an agency’s management function, a public interest factor favouring nondisclosure arises.[20] In the applicant’s application for internal review the applicant stated that the allegations made against him were false. I am not in a position to express an opinion about whether or not the statements made about the applicant are false. In any event, while I acknowledge that people can make false allegations to government agencies about public servants, there is a very strong public interest in protecting the free flow of information concerning the conduct and competency of public servants, even where this may result in an agency investigating false allegations. This is because the Department relies on information from public servants and/or members of the public in order to become aware of, and if necessary resolve, any issues concerning the conduct and competency of public servants. The applicant also submitted on external review[21] that: ...the Legal and Prosecution Services Branch... failed to ensure proper compliance with any statutory regulations relating [to] proper employee complaints management. Therefore, the argument to protect [the Department’s] industrial relations and human resource management function is false as officers with those responsibilities did not comply with mandatory statutory obligations. I am not in a position to express an opinion about whether or not the Department properly conducted the investigation in light of its statutory obligations, nor is it my role to do so. However, I have carefully reviewed the Information in Issue and I am satisfied that it is not of a type to assist the applicant in determining whether or not the Department properly conducted the workplace investigation. Further, in investigations such as this, information is usually provided by witnesses on the understanding that the information will be used for the purposes of the investigation and any subsequent disciplinary action only. Information received is ordinarily treated confidentially, except to the extent that procedural fairness and discipline processes require otherwise. In my view, disclosing the Information in Issue could reasonably be expected to have a detrimental effect on the Department’s management function as disclosing information of this type would tend to discourage individuals from coming forward with relevant information in the future. I am also satisfied that disclosure of this information could reasonably be expected to cause staff to lose confidence in the finalisation of investigations, particularly where allegations are found to be unsubstantiated.[22] This in turn would significantly impact the effectiveness of future investigations. As noted by Assistant Information Commissioner Jefferies in I6XD0H and Department of Community Safety:[23] Although it is reasonable to expect staff to cooperate with investigation processes in the course of their employment, disclosing the transcripts of interviews of other witnesses when it is not required for the investigation and discipline process and after the matter has been finalised would also make staff reluctant to fully participate in future workplace investigations of this nature. This factor has significant weight against disclosure of the Information in Issue. Balancing the relevant public interest factors For the reasons set out above, I afford little weight to the public interest factors in enhancing the government’s accountability and revealing the reason for a government decision or any background or contextual information that informed that decision and I afford significant weight to the public interest factor in the applicant having access to his personal information. Balanced against these factors favouring disclosure of the Information in Issue are the following factors favouring nondisclosure, to which I afford significant weight: the Information in Issue is the personal information of others and its disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy and cause a public interest harm; and disclosure of the Information in Issue could reasonably be expected to prejudice the Department’s management function. Having balanced the relevant factors in this case, I consider the public interest in nondisclosure of the Information in Issue outweighs the public interest factors favouring disclosure. DECISION For the reasons set out above, I vary the decision under review and find that disclosure of the Information in Issue is, on balance, contrary to the public interest. I have made this decision as a delegate of the Acting Information Commissioner, under section 145 of the RTI Act. ________________________ Lisa Meagher Acting Assistant Information Commissioner Date: 6 September 2013 APPENDIX Significant procedural steps Date Event 5 July 2012 The Department received the access application. 8 August 2012 The Department decided to refuse access to the Information in Issue. 13 August 2012 The Department received the applicant’s application for internal review of its decision dated 8 August 2012. 6 September 2012 The Department again decided to refuse access to the Information in Issue. 7 September 2012 OIC received the applicant’s application for external review of the Department’s decision dated 6 September 2012. 18 September 2012 OIC notified the applicant in writing that the external review application had been accepted. OIC notified the Department that the external review application had been accepted and asked the Department for a copy of the Information in Issue. The Department provided OIC with a copy of the Information in Issue. 7 November 2012 OIC sought further information from the Department. 12 November 2012 The Department provided OIC with the requested information. 18 April 2013 OIC conveyed to the Department the view that disclosure of some of the investigation report and its attachments is not, on balance, contrary to the public interest and invited the Department to make submissions if it did not agree with the view. 8 May 2013 The Department advised OIC that it did not accept OIC’s view and provided written submissions. 28 May 2013 OIC sought further information from the Department. 20 June 2013 The Department provided OIC with further written submissions and agreed to release some information to the applicant. 11 July 2013 OIC conveyed to the Department its view that further information could be released to the applicant as its disclosure is not, on balance, contrary to the public interest. 1 August 2013 The Department advised that it accepted OIC’s view. 12 August 2013 OIC conveyed a view to the applicant on the refusal of access issue. 23 August 2013 The Department provided the applicant with a copy of the information it agreed to release on external review. 2 September 2013 The applicant advised OIC that he objected to OIC’s view in part. [1] By access application dated 5 July 2012.[2] The applicant did not contest OIC’s view that it was contrary to the public interest to disclose information about allegations made against another subject officer. Therefore, I have not considered that information in this decision.[3] Sections 47(3) (b) and 49 of the RTI Act. [4] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. [5] Section 49(3) of the RTI Act.[6] Schedule 4, part 2, item 1 of the RTI Act. [7] Schedule 4, part 2, item 11 of the RTI Act. [8] I6XD0H and Department of Community Safety (Unreported, Queensland Information Commissioner, 26 June 2012) at [31].[9] Dated 13 August 2012.[10] Schedule 4, part 2, item 16 of the RTI Act. [11] Dated 13 August 2012.[12] By emails dated 2 September 2013 and 3 September 2013.[13] Schedule 4, part 2, item 5 of the RTI Act. [14] Schedule 4, part 2, item 6 of the RTI Act. [15] Schedule 4, part 2, item 12 of the RTI Act. [16] Schedule 4, part 2, item 7 of the RTI Act. [17] Section 12 of the Information Privacy Act 2009 (Qld) defines ‘personal information’ 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.[18] Schedule 4, part 3, item 3 of the RTI Act. [19] Schedule 4, part 4, section 6 of the RTI Act. [20] Schedule 4, part 4, section 3(c) of the RTI Act. [21] By email dated 3 September 2013.[22] Daw and Queensland Rail (Unreported, Queensland Information Commissioner, 24 November 2010) at [17].[23] (Unreported, Queensland Information Commissioner, 26 June 2012) at [6].

queensland

court_judgement

Queensland Information Commissioner 1993-

Myers, TD & PA and Queensland Treasury [1995] QICmr 6; (1995) 2 QAR 470 (21 April 1995)

Myers, TD & PA and Queensland Treasury [1995] QICmr 6; (1995) 2 QAR 470 (21 April 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 235 of 1993COMMISSIONER (QLD) ) (Decision No. 95006) Participants: T D and P A MYERS Applicants - and - QUEENSLAND TREASURY Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - applicants challenging sufficiency of search for documents falling within the terms of the applicants' FOI access application - whether there are reasonable grounds for believing that the requested documents exist and are in the possession or under the control of the respondent - whether the search efforts made by the respondent to locate the requested documents have been reasonable in all the circumstances of the case -meaning of "document of an agency" within s.7 of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.7, s.52 Freedom of Information Act 1982 Vic Stamp Act 1894 Qld s.4, s.23(1), s.23A, s.26(3), s.28, First Schedule cl. 3Birrell and Victorian Economic Development Corporation, Re (1989) 3 VAR 358Cannon and Australian Quality Egg Farms Limited, Re (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported)Shepherd and Department of Housing, Local Government & Planning, Re (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported)Smith and Administrative Services Department, Re [1993] QICmr 3; (1993) 1 QAR 22 DECISIONThe decision under review (being the decision made on behalf of the respondent by Mr Michael Sarquis on 14 December 1993 to the effect that there are no documents in the possession or control of the respondent that fall within the terms of the applicants' FOI access application dated 30 September 1993) is affirmed.Date of Decision: 21 April 1995 ...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 235 of 1993COMMISSIONER (QLD) ) (Decision No. 95006) Participants: T D and P A MYERS Applicants - and - QUEENSLAND TREASURY Respondent REASONS FOR DECISIONBackground1. The applicants seek review of the respondent's decision that no documents can be located in the possession or control of Queensland Treasury which fall within the terms of the applicants' FOI access application dated 30 September 1993.2. Mr and Mrs Myers applied under the Freedom of Information Act 1992 Qld (the FOI Act) to the Office of State Revenue (a division of Queensland Treasury) for access to various documents concerning shares held by them in a company, Jurycastle Pty Ltd (Jurycastle). In their FOI access application, Mr and Mrs Myers described themselves as being shareholders of Jurycastle and stated that they believed their shares in that company had been disposed of without their knowledge or authority. Mr and Mrs Myers allege that their shares were transferred to Graham John Swain and Lorraine Barbara Swain (the Swains). The substance of the applicants' FOI access application is expressed in the following terms: Our request is we want the document showing the change of shareholding with signature signing our shareholding over to Swain. We have not signed any documents regarding sale of our shares.3. It is understandable that the applicants would consider that a document recording a transfer of a shareholding in a private company ought to have been lodged with the Office of State Revenue, since s.26(3)(b) of the Stamp Act 1894 Qld requires every instrument chargeable with stamp duty under that Act to be lodged in the Stamp Duty Office (the predecessor to the Office of State Revenue) within one month after execution of the document, unless an extension of time is given. Section 4 of the Stamp Act, read with clause (3) of the First Schedule of that Act, "Conveyance or Transfer", provides that a conveyance or transfer of shares is assessable to stamp duty on a basis proportionate to the value of the shares being transferred (referred to as ad valorem assessment). Section 28 of the Stamp Act provides that the Office of State Revenue shall retain possession of any instrument chargeable with stamp duty and which is unstamped or insufficiently stamped, until the stamp duty payable, and any penalty and costs, has been paid.4. Queensland Treasury's initial decision was made by Ms Anthea Derrington on 25 November 1993. Her decision detailed the searches and inquiries made to locate any documents falling within the terms of the applicants' FOI access application. It indicated that the Office of State Revenue conducted a comprehensive search of the computer system which records all stamp duty lodgements. Those searches are described in Ms Derrington's decision letter as follows: The search revealed that a number of unspecified documents had been lodged by Jurycastle Pty Ltd. A number of attempts were then made to locate those documents, including documents which were lodged on 17 July 1992, which should have been placed on a file. The file in question was recorded as awaiting assessment in stamps team 3, however, team 3 advised that the file was no longer there. In addition team 3 is no longer allocated new files of the nature of the file in question. An unsuccessful search was also conducted of matter held in team 7. A search was then conducted of all relevant storage areas for finalised files. An electronic mail message was also sent to all Brisbane officers of the Office of State Revenue on 13 October 1993 requesting assistance in locating the file. All relevant No Further Action correspondence bundles were also searched for a period covering in excess of 12 months, however, a bundle dated 20 October 1992 could not be located. A further electronic mail message was issued to all Brisbane officers requesting assistance in locating the October bundle, however, the bundle was not found. As the missing file has not been able to be found, it is impossible to determine from the computer record the nature of the documents lodged. For example they could refer to a mortgage, purchase of property or a lease, etc.5. Ms Derrington went on to observe that: It would be misleading to state that the document you sought could not be found as there is no record that such information had ever been provided to the Office of State Revenue. 6. Ms Derrington also referred to inquiries made of other agencies, which were unable to provide any assistance: The Australian Securities Commission stated that the Commission only retains current shareholder information which is obtained from annual returns and no historical information is maintained. In summary, it has not been possible to establish that the information which you seek is, or has ever been, kept within a division of Queensland Treasury. Notwithstanding these comments, as the Queensland Treasury decision-maker in this matter, I decided on 24 November to refuse access to your request. In taking this action you will be able to pursue your appeal rights under the Act and a copy of those rights is attached for your information.7. By letter dated 26 November 1993, the applicants applied for internal review under s.52 of the FOI Act, saying: ... we are not satisfied with the search to date. We are very concerned at our shares being disposed of without our authority and knowledge and wish to find the documents relating to this matter.8. Queensland Treasury's internal review decision was made by Mr Michael Sarquis on 14 December 1993. Mr Sarquis' decision letter stated that he requested the Executive Director of the Office of State Revenue to undertake a further, more comprehensive search for the information to which Ms Derrington referred in her letter of 25 November 1993. That search involved the following steps:? the "no further action" bundle of 20 October 1992, which previously could not be found, was located and examined? all relevant stamp duty assessing teams in the Office of State Revenue were contacted and requested to conduct a physical search of their areas for documents relating to the applicants' FOI access application? the area of the Office of State Revenue termed "section 28" (if documents have been lodged for assessment, and further information is required before the documents are assessed for stamp duty, those documents are retained in the area known as "section 28", so named after s.28 of the Stamp Act, the terms of which are set out at paragraph 3 above) which includes areas for storage of files described as the "cellar" and abeyance areas, was re-examined? the counter services area relating to "awaiting payments" matters was re-examined? the "no further action" clerk was contacted.9. Mr Sarquis reported that these searches and inquiries failed to locate any matter relating to the documents requested in the applicants' FOI access application, and failed to establish that any such documents do in fact exist. On this basis, Mr Sarquis decided to affirm Ms Derrington's initial decision.10. The applicants applied, by letter dated 16 December 1993, for external review under Part 5 of the FOI Act.Principles applicable to "sufficiency of search" cases11. As I indicated in paragraphs 12-61 of my decision in Re Smith and Administrative Services Department (Information Commissioner Qld, Decision No. 93003, 30 June 1993, now reported at [1993] QICmr 3; (1993) 1 QAR 22) and in paragraphs 14-15 of my decision in Re Cannon and Australian Quality Egg Farms Limited (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported), I have jurisdiction to conduct an external review where an applicant, who has applied to an agency for access to a document, subsequently complains that access to the document has been denied because of the agency's failure to locate and deal with the document in its response to the relevant FOI access application. As I indicated in Re Smith and Re Cannon, I have jurisdiction to conduct an external review on the question of the "sufficiency of search" conducted by the agency, even if there are no other issues raised (e.g. claims that requested documents are exempt under Part 3, Division 2 of the FOI Act).12. I explained the principles applicable to "sufficiency of search" cases in my decision in Re Shepherd and Department of Housing, Local Government & Planning (Information Commissioner Qld, Decision No. 94007, 18 April 1994, unreported) at paragraphs 18 and 19, as follows: 18. It is my view that in an external review application involving 'sufficiency of search' issues, the basic issue for determination is whether the respondent agency has discharged the obligation, which is implicit in the FOI Act, to locate and deal with (in accordance with Part 3, Division 1 of the FOI Act) all documents of the agency (as that term is defined in s.7 of the FOI Act) to which access has been requested. It is provided in s.7 of the FOI Act that: "'document of an agency' or 'document of the agency' means a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes - (a) a document to which the agency is entitled to access; and (b) a document in the possession or under the control of an officer of the agency in the officer's official capacity;" 19. In dealing with the basic issue referred to in paragraph 18, there are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency (as that term is defined in s.7 of the FOI Act); and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.Searches and inquiries made during the external review process13. In the present case, it was necessary (in accordance with the principles set out above) to conduct an independent inquiry as to whether Queensland Treasury had possession or control of any documents falling within the terms of Mr and Mrs Myers' FOI access application.14. The Deputy Information Commissioner wrote to the applicants on 20 December 1993 requesting that they provide an explanation of the basis on which they believed that Queensland Treasury had possession or control of documents which relate to the alleged unauthorised disposal of the applicants' shares in Jurycastle, together with copies of any documents in their possession which demonstrated that Queensland Treasury has possession or control of documents of that kind.15. The applicants responded by letter dated 22 December 1993, saying: ... we advise that letter dated 25 November 1993 signed by Anthea Derrington ... confirms that the Queensland Treasury Department does hold documents that relate to Jurycastle lodged on or about the time when our shares could have been disposed of and that the file appears to have gone astray within the Treasury Department system.16. This is a reference to that part of Ms Derrington's decision letter set out in paragraph 4 above which indicates that documents concerning Jurycastle were lodged on 17 July 1992 but that these documents could not be located by Queensland Treasury. I accepted that these circumstances afforded a sufficient prima facie indication that there may be reasonable grounds to believe that the documents requested by the applicants were in the possession of the respondent, so as to justify detailed searches and inquiries.17. In January 1994, the Assistant Information Commissioner telephoned one of the applicants, Mr Terry Myers, in order to obtain some of the factual background to the transaction to which the documents, which the applicants believe should be held by Queensland Treasury, relate. Mr Myers indicated that he and his wife held shares in Jurycastle, and realised that shares had been divested from them when they inspected records of the Australian Securities Commission which recorded shares being transferred from them to the Swains. The relevant documents from the Australian Securities Commission were subsequently forwarded to my office.18. The annual return lodged with the Australian Securities Commission in respect of Jurycastle for the financial year ended 30 June 1990 records Mr and Mrs Myers as each owning nine ordinary shares in Jurycastle. Identical details are recorded in a company extract for Jurycastle obtained from the Australian Securities Commission on 27 November 1991. The annual return lodged with the Australian Securities Commission in respect of Jurycastle for the financial year ended 30 June 1992 (which contains a declaration as to the completeness and correctness of the information contained in it, signed by Graham John Swain, as Director, on 25 January 1993), records a deletion of the names of Mr and Mrs Myers from the list of shareholders and from the list of Directors. This, prima facie, suggests that a transfer of Mr and Mrs Myers' shareholding in Jurycastle was effected (or at least was regarded by officeholders of Jurycastle as having been effected, and was recorded as such) at some time between 30 June 1991 and 30 June 1992. As noted at paragraph 3 above, an instrument effecting a conveyance or transfer of shares would ordinarily have been required to be lodged for assessment and payment of stamp duty.19. The Assistant Information Commissioner arranged for an inspection to be undertaken at the Office of State Revenue, so that a search of the records system of the Office of State Revenue could be carried out for documents concerning Jurycastle, or for that matter, any of the other potential parties to the transaction alleged by the applicants to have occurred, including the applicants themselves, the Swains, and the secretary to the company (who was a solicitor who also performed legal services for the company).20. It was established that the computerised record system of the Office of State Revenue became operational at the end of 1991. Under the guidance of the Assistant Information Commissioner, a search was conducted under the name Jurycastle. This revealed a record of a document having been lodged on or about 17 July 1992, and having been assigned to team 3. The details recorded were not sufficient to disclose whether the documents lodged in respect of Jurycastle on 17 July 1992 related to a transfer of shares, or some other kind of transaction. 21. The computerised record system of the Office of State Revenue also identified a finalised transaction concerning Jurycastle, which related to the transfer of a mortgage. This clearly did not concern the transaction the subject of the applicants' FOI access application.22. During the Assistant Information Commissioner's attendance at the Office of State Revenue, the searches detailed in Ms Derrington's initial decision were retraced, with the same negative result. As it was possible that documents concerning a share transfer might have been passed to the Compliance section of the Office of State Revenue for recovery of stamp duty assessed, but not paid, an inquiry was made with that section, but it also produced a negative result. A follow-up inquiry on 12 August 1994 confirmed that the Compliance section did not have physical possession of any document falling within the terms of the applicants' FOI access application. 23. After the inspection of the records system of the Office of State Revenue proved fruitless, the solicitor who had also been the company secretary of Jurycastle was interviewed by telephone in order to determine whether he had information which would identify the existence of documents the subject of the FOI access application. The background facts as far as they could be independently established were explained to the solicitor, and he was asked whether he could shed any light on the nature of the documents lodged on behalf of Jurycastle on 17 July 1992. He explained that Jurycastle was the owner of an island off the Queensland coast, and that Jurycastle had gone into liquidation. There had been a conditional contract for sale of the island which had not proceeded to finalisation, and the solicitor had been involved in attempting to transfer legal ownership of the island from the prospective purchaser back to Jurycastle. There had been litigation over this very issue, and the solicitor referred to a relevant decision given by White J of the Supreme Court of Queensland, in which an order was made that the prospective purchaser of the island do all things necessary to enable a conveyance of the island back to Jurycastle. In the context of such a transfer, the solicitor had written to the Office of State Revenue asking if it was possible for the island to be transferred back to Jurycastle without having to pay stamp duty twice. The solicitor believed that this was the reference that the Office of State Revenue had to the assessment pending, being the documents lodged on 17 July 1992. 24. A copy of the reasons for decision of White J given on 22 June 1992 in the action commenced by Supreme Court Writ No. 673 of 1992 was obtained. This decision sets out some of the history of the conditional contract for the sale of the island, most of which is irrelevant for present purposes, apart from the fact that the conditional contract for the sale of the island was dated 25 August 1991. What is of significance is that the Supreme Court issued a mandatory injunction requiring the prospective purchaser (who it appears was entitled to treat the conditional contract as rescinded, when the relevant condition had not been fulfilled) to sign all necessary documents to enable a conveyance of the island (back to Jurycastle) to be made.25. I forwarded to Mr and Mrs Myers a copy of White J's reasons for decision, and conveyed my preliminary view that the content of that decision supported the history of events as described by the solicitor, which in turn supported the view that the documents lodged with the Office of State Revenue on 17 July 1992 did not concern the transaction the subject of the Myers' FOI access application. Mr and Mrs Myers did not respond to that preliminary view.26. I consider that the existence of the Supreme Court's Order supports the solicitor's belief that the documentation lodged on 17 July 1992 was the request to transfer the island back to Jurycastle, without the need to pay stamp duty twice, for these reasons:(a) the timing of the Order of White J, being 22 June 1992, makes it more probable than not that the documentation of 17 July 1992 was consequent upon the Order;(b) the content of the Order is similar in nature to the solicitor's explanation of the purpose of the documentation of 17 July 1992; and(c) the timing of the documentation of 17 July 1992 is more consistent with the solicitor's explanation than the possibility that the documentation relates to the transfer of shares, which one would expect would pre-date the contract for the sale of the island (25 August 1991), especially given my findings about an agreement dated 19 August 1991 referred to later in these reasons for decision.27. I am therefore satisfied, on the balance of probabilities, that the documentation lodged at the Office of State Revenue on 17 July 1992 did not relate to a change of shareholding in Jurycastle, and did not, therefore, fall within the terms of the applicants' FOI access application. 28. During the course of the telephone conversation with the solicitor referred to in paragraph 23 above, the solicitor indicated that there should be a record in the Office of State Revenue of a transaction in which a mortgage in favour of Jurycastle was transferred. This confirmed the transaction identified in the name of Jurycastle during the inspection conducted at the Office of State Revenue (see paragraph 21 above).29. As to the share transaction itself, the solicitor indicated that he was aware of an agreement between the applicants and the Swains, whereby shares were transferred from the applicants to the Swains, but knew nothing about assessment of stamp duty for that transaction. The solicitor also stated that he had at no time received instructions to lodge the transfer for assessment of stamp duty. In fact, the solicitor indicated that he was not even aware of the transfer agreement until quite some time after the transaction occurred, when he had received some information from the Queensland Law Society (which had been provided to the Law Society by the applicants).30. By letter dated 1 February 1994, I conveyed to the applicants the results of the searches and inquiries undertaken up to that date, and my preliminary view that the Office of State Revenue does not hold any documents concerning a transfer of shares from the applicants to the Swains.31. The applicants responded by letter dated 14 February 1994, indicating that they did not accept my preliminary views, and stating that they refuted the solicitor's contention that the applicants had a copy of documents dealing with the transfer of shares. The applicants stated that they had never executed or signed a transfer of their shares in Jurycastle to any person at all.32. Following receipt of the applicants' letter, the Assistant Information Commissioner contacted Mr Terry Myers. In relation to the existence of a share transfer agreement, Mr Myers said that the only document in his possession was a document dated 19 August 1991, which was an agreement to sell shares in Jurycastle, on the condition that the island in which Jurycastle had an interest was sold, and that Mr and Mrs Myers receive $50,000 cash for their shares. Mr Myers said that the island concerned was never sold and he had received no money for his shares since November 1990.33. Mr Myers was requested to forward to my office copies of the documents held by him described in the telephone conversation referred to in the preceding paragraph. The applicants subsequently forwarded copies of three documents as follows:? a document described as an "agreement" dated 28 July 1991, the effect of which is not clear, but which appears to provide that, upon a contract of sale of the island being duly executed, Jurycastle would credit the applicants with the sum of $50,000, with a further $50,000 being paid from the balance of purchase monies for the island, due in two years or earlier according to the contract for the sale of the island? a document described as an "agreement" dated 19 August 1991, but which appears to provide that, in return for the acceptance of $100,000 for their shareholding in the island concerned, the applicants would "agree to withdraw from the Directorship and Shareholding of Jurycastle Pty Ltd and have no more claims whatsoever"? a document described as an "agreement" dated 14 October 1991, the effect of which appears to be that Jurycastle, described in the agreement as the "vendor" would pay to the applicants $50,000 on 14 October 1991, with a further sum of $50,000 to be paid to them upon finalisation of the sale of the island or 14 October 1993, whichever first occurred.34. The "agreements" dated 28 July 1991 and 19 August 1991 are poorly drafted so far as providing a clear statement of the intentions of the parties, and the intended legal effects of the agreements. The "agreement" of 14 October 1991 is more regular, in form and substance. What is of significance, however, is that the "agreement" of 19 August 1991 purports to require the applicants to withdraw from their directorship and shareholding of Jurycastle upon the occurrence of certain events. The document is deficient in that it does not specify to whom their shares were to be transferred.35. Based on the information provided to me by the applicants and by the solicitor who acted as the secretary to Jurycastle, it appeared to me that the "agreement" of 19 August 1991 was the document regarded by the remaining officeholders of Jurycastle as authorising the transfer of the applicants' shareholding in Jurycastle. Whether the "agreement" was legally capable of causing that result is not a question falling within my jurisdiction.36. After the "agreements" had been received from the applicants, the Assistant Information Commissioner spoke again to Mr Terry Myers, expressing the view that the agreement of 19 August 1991 appeared to have been treated as authorising the transfer of the applicants' shareholding in Jurycastle, but that no evidence could be found to suggest that either this document, or any document recording the transfer of shares from the applicants to the Swains, had ever come into the possession or control of the Office of State Revenue. 37. The applicants then wrote to me indicating that they insisted that the matter be investigated to the fullest extent. This letter was taken as an indication that the applicants did not intend to accept the views expressed to them, but wished this matter to proceed to a formal decision.38. I then obtained a copy of the documents sent by the applicants to the Queensland Law Society (see paragraph 29 above). While examination of those documents shed some light on the applicants' version of events concerning sale of the island, there is nothing in them which might tend to show that documents effecting a change of shareholding in Jurycastle ever came into the possession of the Office of State Revenue.39. This view was conveyed to Mr and Mrs Myers by letter dated 15 September 1994. Mr and Mrs Myers' response, in their letter of 26 September 1994, discloses a misunderstanding of my function as Information Commissioner: On reading your letter of the 15 September 1994 we would come to the following conclusions: ... 2. The Stamp Duties Office should be advised that documents were never lodged in relation to the stamping of share transfers from Myers to other parties. 3. Alternatively or in addition to that, that the Office of Stamp Duties be instructed to issue a Notice to produce documents pursuant to Section 23 of the Stamp Act 1894. 4. That the Commissioner makes a recommendation that Myers be re-instated to their share entitlement as no documented evidence has been presented which proves that the shares were transferred by Terrence and Patricia Myers.40. This discloses that Mr and Mrs Myers' principal concern is to have corrected the substance of what they consider to be an improper transaction. However, my jurisdiction is limited to that which Parliament has conferred under Part 5 of the FOI Act: in this case, to determine whether documents falling within the terms of the Myers' FOI access application are in the possession or under the control of the respondent. I have no jurisdiction to deal with issues of the kind raised in paragraphs 3 and 4 of the Myers' letter to me dated 26 September 1994.41. Since the applicants had rejected the preliminary views conveyed to them, and in the hope of removing any doubt as to whether a document had been forwarded to the Office of State Revenue recording a transfer of shares in Jurycastle, I wrote to Mr Graham Swain, as a Director of Jurycastle, asking him whether such a document was ever lodged for assessment of stamp duty payable and, if so, where and when such a document was lodged.42. Mr Swain responded by letter dated 10 November 1994. He did not directly answer the question as to whether an instrument recording a change of shareholding in Jurycastle had been lodged for assessment of stamp duty. Rather, he referred me to the fact that Jurycastle was in liquidation, and that the liquidator holds all books and documentation relating to Jurycastle. Significantly, Mr Swain confirmed my preliminary view that it was the agreement of 19 August 1991 which had resulted in the transfer of shares.43. Having regard to Mr Swain's confirmation that it was the agreement of 19 August 1991 that had been treated as effecting the transfer of shares from Mr and Mrs Myers, it was possible that the agreement had been lodged for assessment of stamp duty at any time after that date, i.e. at a time prior to the commencement of the computerised record system referred to in paragraph 20 above. Inquiries were made of the Office of State Revenue about the system of recording transactions prior to the introduction of the computerised system. The Office of State Revenue informed me that the previous system had involved the allocation of a numeric lodgement number to every file received in the office on "file lodgement slips" which provided information such as the receipt number, documents delivered and the history of the file. The Office of State Revenue referred to the difficulty in conducting a search of the file lodgement slips because there were approximately 500 to 800 lodgements per day at the relevant time.44. Section 26(3)(b) of the Stamp Act provides that instruments charged with stamp duty "shall be lodged in the Stamp Duties Office at Brisbane, Rockhampton, Townsville or Cairns" within one month of the execution of such instruments. Given the location of the island referred to in paragraph 23 above, and the addresses of the parties to the agreement of 19 August 1991, I considered that it was possible that a document recording a transfer of shares in Jurycastle may have been lodged at Rockhampton after 19 August 1991. I did not consider that it was reasonable to expect that such a document would have been lodged in centres other than Brisbane or Rockhampton. The Office of State Revenue informed me that its computerised records system, which commenced operation at the end of 1991, records transactions lodged at all centres in Queensland. However, before that time each centre retained its own records system. I requested that a search be made of the records system at the Rockhampton office of the Office of State Revenue for any document recording a transfer of shares in Jurycastle.45. On 16 December 1994, the Office of State Revenue informed me that searches had been made as follows:Brisbane? the "Section 28" records for the period August-November 1991 were searched;? a further search for the documentation lodged at the Office of State Revenue on 17 July 1992, by the lodgement number assigned to that documentation was conducted;? the "no further action" bundles for August-November 1991 were searched;? a search was conducted at the Counter Services - Awaiting Payments section.Rockhampton? a manual search was conducted through a recovery registry of the Rockhampton office which records files for the period prior to the introduction of the computerised system. This registry records information concerning the following categories of files: "Section 28" files, miscellaneous correspondence, first and final notices issued to recover stamp duty owing;? files and records in the sections known as "Abeyance" and "Awaiting Payments" were also searched.The Office of State Revenue described all of those searches as "both intensive and time consuming but, unfortunately, unsuccessful".46. The results of these inquiries were conveyed to the applicants, again with the opportunity for them to reply on those matters. The applicants did so by letter dated 25 January 1995 which went into some detail concerning their grievances with officers of Jurycastle, but provided no new information relevant to the issues which are within my jurisdiction to determine under Part 5 of the FOI Act.Application of "sufficiency of search" principles47. Having set out at length the extensive inquiries made in this review, it remains to apply the principles set out in paragraph 19 of my decision in Re Shepherd (see paragraph 12 above). The first question is whether there are reasonable grounds for believing that the documents, to which the applicants have sought access, exist and are documents of the respondent agency (according to the definition of the term "document of an agency" in s.7 of the FOI Act). 48. It appears that documents do exist which deal with a change of shareholding in Jurycastle. Those documents, or copies of them, being the "agreement" dated 28 July 1991, and the "agreement" dated 19 August 1991 (referred to in paragraph 33 above) are in the applicants' possession. It appears to me that these are the instruments which were treated by officers of Jurycastle as affording authority for the transfer of Mr and Mrs Myers' shareholding in Jurycastle, as recorded in documents lodged with the Australian Securities Commission for the financial year ended 30 June 1992 (see paragraph 18 above). Whether or not those agreements were legally effective for that purpose is not an issue which falls within my jurisdiction under Part 5 of the FOI Act.49. I am satisfied, however, based on the exhaustive searches described above, that neither the documents referred to in the preceding paragraph, nor any documents which fall within the terms of the applicants' FOI access application dated 30 September 1993, have come into the possession or under the control of Queensland Treasury.50. Although the point was not raised by the respondent, it does seem to me to be arguable that, even if the documents which the applicants seek had been lodged with the Office of State Revenue for assessment and payment of stamp duty, the documents would not thereby have become documents in the possession or under the control of the respondent, within the definition of "document of an agency" in s.7 of the FOI Act. In Re Birrell and Victorian Economic Development Corporation (1989) 3 VAR 358 at pp.376-7, Jones J (President) of the Victorian Administrative Appeals Tribunal made the following observations on the meaning of the words "a document in the possession of an agency" in the definition of the phrase "document of an agency" in the Freedom of Information Act 1982 Vic: The meaning of possession will vary according to the context in which it is used. Thus, in Yeates v Hoare [1981] VicRp 91; [1981] VR 1034 at 1037, Kaye J said when considering "possession" in relation to criminal sanctions: It is notorious that, apart from any statutory definition, there is no definitive meaning of the word "possession" where it is used in a statute which provides criminal sanctions for breach of its provisions. The meaning to be attributed to such an expression depends upon the context in which it appears and the policy of the statute disclosed by its provisions read as a whole: DPP v Brooks [1974] AC 862 at 865, per Lord Diplock. In Warner v Metropolitan Police Commissioner [1969] 2 AC 256 at 304; [1968] 2 All ER 356 at 387, Lord Pearce said: "One must, therefore, attempt from the apparent intention of the Act itself to reach a construction of the word "possession" which is not so narrow as to stultify the practical efficacy of the Act or so broad that it creates absurdity or injustice." In this case the meaning of possession must be considered in the context of the FOI Act and, in particular, in the light of the scheme and object of that Act. ... ... ... It follows, in my view, that a situation could arise where an agency has mere custody of documents that would not amount to possession and therefore the documents would not be subject to the FOI Act ... .51. If the last-mentioned view of Jones J is correct, it seems to me to be arguable that Queensland Treasury has mere custody of documents lodged with it for assessment and payment of stamp duty. The property in a document lodged would remain with the party (to the transaction evidenced in the document) which had lodged it. That party would retain the right to possession and control of the document lodged, which Queensland Treasury would be obliged to return, once satisfied that the applicable stamp duty had been paid. If a dispute arises over payment of stamp duty, Queensland Treasury may retain custody of a document for an extended period, but its entitlement to custody of the document would ordinarily only be for the limited purpose of satisfying itself that the amount of stamp duty properly payable is, in fact, paid. (If, on the other hand, Queensland Treasury was entitled to take and retain, for its own administrative purposes, copies of documents lodged for assessment and payment of stamp duty, the position in respect of such copies would be different. A copy of a document retained by Queensland Treasury for its own administrative purposes would no doubt be a document in its possession or control for the purposes of the FOI Act.) As I have noted above, the issue was not argued by the participants in this case, and I do not wish to express any concluded view in respect of it.52. If that argument were correct, it would probably be the case that the applicants' FOI access application was misconceived from the beginning. Even if not misconceived, it was always something of a long shot. If an agreement of the kind sought by the applicants had been lodged for assessment and payment of stamp duty, and there were no irregularities in its processing, the agreement would have remained in the physical possession of Queensland Treasury for only a very short period of time, before it was returned to the party which had lodged it. All that Queensland Treasury would have retained would have been some rather brief details as a record of the lodgement, and the payment of duty. An applicant seeking such a document under the FOI Act would either need extremely fortuitous timing with the lodgement of an FOI access application, or else the benefit of some irregularity or dispute attending the assessment of stamp duty payable, which caused Queensland Treasury to retain the relevant documents for an extended period, or perhaps to make copies of the relevant document for its own administrative purposes.53. Nothing of that kind occurred in the present case, in which the results of my investigation make it clear that there is no evidence to suggest that the documents which the applicants seek were ever lodged with the respondent. Indeed, were it not for the fact that the respondent's initial searches had disclosed that a number of unspecified documents had been lodged by Jurycastle on 17 July 1992 and their whereabouts could not be accounted for, I doubt that I would have been prepared to commit such a significant amount of resources on the part of my staff and the staff of the respondent, to the searches and investigations undertaken in this case.54. Strictly speaking, it is unnecessary to consider the second question posed in paragraph 19 of Re Shepherd (see paragraph 12 above). However, for the sake of completeness, I record my conclusion that the search efforts made by the agency, and by my staff, to locate documents falling within the terms of Mr and Mrs Myers' FOI access application, have been reasonable in all the circumstances of this case. The searches made by Ms Derrington and Mr Sarquis were retraced by the Assistant Information Commissioner and in themselves were extensive and painstaking. During the course of this external review, further inquiries were made by my staff of persons outside the respondent agency (mostly directed to ascertaining the nature of the documents lodged on 17 July 1992) and further searches have been made by staff of the Office of State Revenue at my request. All the searches and inquiries have produced a negative result. Conclusion55. I affirm the decision of the internal reviewer, Mr M Sarquis, dated 14 December 1993, that there are no documents in the possession or control of Queensland Treasury that fall within the terms of the applicants' FOI access application dated 30 September 1993.................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Cameron and Queensland Police Service [2012] QICmr 41 (7 August 2012)

Cameron and Queensland Police Service [2012] QICmr 41 (7 August 2012) Last Updated: 28 May 2013 Decision and Reasons for Decision Application Number: 310733 Applicant: Cameron Respondent: Queensland Police Service Decision Date: 7 August 2012 Catchwords: ADMINISTRATIVE LAW – INFORMATION PRIVACY ACT – ACCESS TO INFORMATION – REFUSAL OF ACCESS – applicant sought information about complaints he made to the Queensland Police Service – whether disclosure of the information is, on balance, contrary to public interest – section 67(1) of the Information Privacy Act 2009 (Qld) and section 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) – whether the information is exempt from disclosure – section 67(1) of the Information Privacy Act 2009 (Qld) and section 47(3)(a) and 48 and schedule 3, section 10(4) of the Right to Information Act 2009 (Qld) – whether the information is unlocatable – section 67(1) of the Information Privacy Act 2009 (Qld) and section 47(3)(e) and 52(1)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied[1] to the Queensland Police Service (QPS) for access to all records in relation to complaints made by him between May 2005 and May 2011 (Access Application).[2] QPS located 445 documents, including 1 CD containing CCTV footage,[3] and decided[4] to release 115 documents in full and 222 documents in part. Access to the remaining 108 documents, including the CCTV footage, was refused on the basis that it was exempt from disclosure or that the information was a duplicate copy, irrelevant to, or outside the scope of the Access Application. The applicant sought external review of QPS’s decision to refuse access and submitted that further CCTV footage and tape recordings of conversations responsive to the Access Application should have been located. During the course of the external review, QPS located and released further information sought by the applicant. In accordance with section 67(1) of the Information Privacy Act 2009 (Qld) (IP Act), QPS’s decision is varied and access is refused to: 10 full pages, 223 part pages and tape recordings on the ground that the information was obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in the performance of the prescribed functions of the prescribed crime body under sections 47(3)(a) and 48 and schedule 3, section 10(4) of the Right to Information Act 2009 (Qld) (RTI Act) 10 part pages on the ground that disclosure of the information is, on balance, contrary to public interest under sections 47(3)(b) and 49 of the RTI Act; and CCTV footage on the ground that the document has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but the document cannot be found under sections 47(3)(e) and 52(1)(b) of the RTI Act. Background Significant procedural steps relating to the application are set out in Appendix A to this decision. Reviewable decision The decision under review is QPS’s decision dated 29 July 2011. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and appendices). Information in issue The relevant information remaining in issue in this external review comprises: Category A Information—10 full pages,[5] 223 part pages[6] and the Tape Recordings[7] which relate to the investigations of three complaints made by the applicant Category B Information—10 part pages[8] which relate to the investigation of a fourth complaint made by the applicant; and Category C Information—the CCTV Footage[9] which relates to the investigation of the first complaint made by the applicant. Category A Information QPS refused access to the Category A Information on the following basis:[10] disclosure could reasonably be expected to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law[11] the information was given in the course of an investigation of a contravention or possible contravention of the law and the information was given under compulsion under an Act that abrogated the privilege against self-incrimination;[12] and disclosure would, on balance, be contrary to public interest.[13] After carefully considering all relevant information before me, I am satisfied that schedule 3, section 10 of the RTI Act (CMC Exemption)[14] applies to the Category A Information. Relevant law The RTI Act[15] allows an agency to refuse access to information which was obtained, used or prepared for an investigation by the Crime and Misconduct Commission (CMC), or another agency (such as QPS), in the performance of the prescribed functions of the CMC. The prescribed functions of the CMC are the crime function, the intelligence function and the misconduct function.[16] Relevantly, the CMC’s misconduct function includes ensuring that a complaint about misconduct is dealt with in an appropriate way.[17] The CMC must perform its misconduct function having regard to the principles of cooperation, capacity building, devolution and the public interest.[18] Specifically, the principle of devolution provides that 'action to prevent and deal with misconduct in a unit of public administration should generally happen with the unit'.[19] The CMC can perform its misconduct function in several ways, including by doing one or more of the following: assessing information about misconduct referring complaints to a public official to be dealt with by the public official; and/or performing its monitoring role for police misconduct or official misconduct.[20] The Crime and Misconduct Act 2001 (Qld) (CM Act) defines ‘misconduct’ to include ‘official misconduct or police misconduct'.[21] The term ‘official misconduct’ is defined in the CM Act[22] as follows: ... conduct that could, if proved, be— (a) a criminal offence; or (b) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or was the holder of an appointment. The term ‘police misconduct’ is defined in the CM Act[23] as follows: ... conduct, other than official misconduct, of a police officer that— (a) is disgraceful, improper or unbecoming a police officer; or (b) shows unfitness to be or continue as a police officer; or (c) does not meet the standard of conduct the community reasonably expects of a police officer. If it is suspected that a complaint involves or may involve police misconduct or official misconduct under the CM Act, the CMC must be notified.[24] QPS must deal with a complaint about police misconduct or official misconduct (if the CMC refers the complaint back to it), in the way it considers most appropriate, subject to the CMC’s monitoring role.[25] Does the CMC Exemption apply in the circumstances? The following requirements must be satisfied in order to establish that the CMC Exemption applies: the Category A Information was obtained, used or prepared for an investigation the investigation was conducted by a prescribed crime body or other agency; and the investigation was in the performance of the prescribed functions of the prescribed crime body. In summary, having reviewed the Category A Information located by QPS in relation to this external review, including the transcripts of the Tape Recordings,[26] I find that: pages 1 to 193 relate to a complaint received by the CMC from the applicant on 5 May 2005 pages 194 to 364 and the Tape Recordings relate to a complaint made by the applicant and referred to the CMC by QPS under section 40 of the CM Act on 16 January 2008 pages 365 to 414 relate to a complaint received by the CMC from the applicant on 8 April 2008 the complaints were assessed by the CMC as possibly involving an allegation of official misconduct or police misconduct which was suitable for QPS to deal with the investigations were conducted by the Ethical Standards Command unit of QPS (QPS ESC); and outcome advice only was to be provided to the CMC upon completion of the investigations. On the basis of the matters set out above, I am satisfied that the requirements of the CMC Exemption are met in this case. Does the exception in schedule 3, section 10(6) of the RTI Act apply? The Category A Information will not be exempt under the CMC Exemption where: the information is about the applicant; and the investigation has been finalised.[27] Correspondence provided to the applicant by QPS regarding the outcome of the relevant investigations confirms that they have been finalised. Therefore, for the exception to the CMC Exemption to apply in this case, the Category A Information must be about the applicant. The word ‘about’ is neither defined in the RTI Act nor the Acts Interpretation Act 1954 (Qld). The Macquarie Dictionary[28] defines ‘about’ as ‘of; concerning; in regard to ... connected with’. The CMC Exemption[29] and its exception identified above[30] are equivalent to provisions in the repealed Freedom of Information Act 1992 (Qld) (FOI Act).[31] In the Explanatory Memorandum to the Bill[32] which inserted the CMC Exemption and its exception[33] into the FOI Act, the purpose of these sections was described as follows: ... a new exemption which exempts information obtained, used or prepared for investigations by the Crime and Misconduct Commission (CMC) or another agency. The exemption is only to apply where the investigation is in performance of the CMC’s crime function and misconduct functions ... This exemption is to apply to the information obtained, used or prepared in the course of the investigation and the consideration of, and reporting of the investigation. This exemption does not apply if a person seeks information about themselves, including personal, professional, business and work-related information. However, a person can only receive such information once the investigation has been finalised. For example, and subject to the other exemptions in the FOI Act, a person could receive information about allegations made against them, information given about them in the course of an interview and conclusions made about them in a report. [emphasis added] The debate following the Second Reading speech[34] in respect of the Bill which introduced the CMC exemption and its exception makes it clear that Parliament intended that access to the investigation reports would be available only to the person being investigated. That is, mainly public officials (investigated under the CMC’s misconduct function) and criminals (investigated under the CMC’s crime function), i.e., people who are the subject of the investigation. The CMC’s misconduct functions include ensuring that a complaint about misconduct is dealt with in an appropriate way.[35] As discussed above, the CMC can perform this misconduct function by referring a complaint about misconduct to a public official[36] who has a responsibility to deal with the complaint. Investigations such as that carried out by QPS ESC in relation to the applicant's complaints are concerned with establishing whether official misconduct or police misconduct have occurred under the CM Act. While it can be said that the Category A Information came into existence as the result of the applicant's actions (that is, the making of the complaints), that does not in and of itself render the Category A Information about the applicant.[37] Rather, the Category A Information is about the individuals whom the applicant's allegations concern. Accordingly, I find that while the investigations have been finalised, the Category A Information is not information about the applicant and therefore, the exception to the CMC Exemption in schedule 3, section 10(6) of the RTI Act does not apply in this case. Conclusion On the basis of the matters set out above, I am satisfied that: In relation to the Category A Information there is sufficient evidence to establish that the CMC performed its misconduct function in relation to the investigations, by referring the matters to QPS to be dealt with subject to the CMC’s monitoring role. The Category A Information was obtained, used or prepared by QPS ESC, in the performance of the CMC’s misconduct function subject to the CMC’s monitoring role with the requirement that the CMC be advised of the outcome. The Category A Information comprises exempt information under schedule 3, section 10(4) of the RTI Act and is not subject to the exception in schedule 3, section 10(6) of the RTI Act. As I have found that the Category A Information is exempt, it is not necessary for me to consider the other claims QPS have made. Category B Information QPS refused access to the Category B Information on the basis that disclosure would, on balance, be contrary to public interest.[38] Relevant law Sections 47(3)(b) and 49 of the RTI Act allows an agency to refuse access to documents where disclosure of information would, on balance, be contrary to public interest. In determining whether disclosure of the Category B Information would, on balance, be contrary to public interest I must:[39] identify and disregard irrelevant factors identify factors favouring disclosure of the information in the public interest identify factors favouring nondisclosure of the information in the public interest balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to public interest. Where does the balance of the public interest lie in this matter? I am satisfied that release of the Category B Information would, on balance, be contrary to public interest for the reasons that follow. I have examined the irrelevant factors in schedule 4, part 1, of the RTI Act and do not consider that any irrelevant factors arise here. Factors favouring disclosure and nondisclosure of information in the public interest After carefully considering all of the information before me, I am satisfied that the public interest factors favouring nondisclosure include that disclosure of the Category B Information could reasonably be expected to: cause a public interest harm by disclosing the personal information of a person, whether living or dead;[40] and prejudice the protection of an individual’s right to privacy.[41] I have not identified any factors favouring the disclosure of the Category B Information. Balancing the factors favouring disclosure and nondisclosure in the public interest The Category B Information comprises details such as a date of birth, employment details (payroll and registration numbers) and personal opinions of third parties relevant to the investigation of a complaint made by the applicant. The applicant does not seek names and addresses. However, he argues that, ‘... the evidence, statements and opinions expressed are of great concern to the public interest.’[42] Some of the Category B Information relates to employees of QPS. There is generally minimal or no harm in disclosing routine workplace information of public servants. However, information which is not wholly related to the routine day to day work activities of a public service officer is considered non routine personal work information, including information relating to complaints made by or about a public service officer.[43] After carefully considering the Category B Information, I am satisfied that: the information about QPS employees does not comprise their routine personal work information the information to which the applicant has been refused access contains personal information which, if disclosed, could reasonably be expected to cause a public interest harm by revealing the personal information of the relevant person and prejudicing that person’s privacy; and I consider that significant weight should be given to these factors favouring nondisclosure. Given the above, I am satisfied that the release of the Category B Information would not advance the public interest in any significant way and disclosure of the Category B Information would, on balance, be contrary to the public interest. Category C Information During the course of the external review, the applicant submitted that additional information should have been located by QPS. In particular, the applicant submits that CCTV footage for 3 May 2005 at the Beenleigh Watchhouse (CCTV Footage) should exist. Relevant law 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.[44] 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 (PDE). [45] In PDE, the Information Commissioner said that:[46] ... [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[47] 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.[48] 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 QPS? The applicant has submitted[49] that the documents released to him by QPS confirm that the CCTV Footage exists.[50] In addition, the applicant has stated that “...QPS appear to be doing all they can to protect the discovery of its unethical & unprofessional behaviour, by way of destroying, losing or denying any incriminating evidence”. 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. QPS have submitted that:[51] enquiries with the Beenleigh Watchhouse established that the retention period for CCTV recordings is 60 days unless otherwise required (e.g., for investigations or court proceedings) the CCTV Footage was not held at the Beenleigh Watchhouse the investigating officer advised that the initial complaint was received on 5 May 2005 but that the investigations ceased due to the complaint being interwoven with court proceedings. The investigation was re-opened on 30 July 2007 and finalised in September 2007. At the finalisation of the investigation, all documentation was provided to ESC. The investigating officer could not confirm if this included the CCTV footage enquiries with ESC identified that all evidence in relation to completed investigations are lodged to the Central Exhibits Facility according to administrative and legislative requirements searches of COMPASS (complaint/investigation) documents revealed that no CCTV footage had been received and that there was no note or record on file to indicate the location or existence of the footage if the investigating officer held the CCTV footage, it would be attached to their property list in QPRIME. Checks on QPRIME located over 800 entries but failed to locate the CCTV footage relevant to the complaint; and following searches conducted for a previous application under the now repealed FOI Act, access was refused to the CCTV Footage on the basis that it was considered to not exist or could not be located. In relation to these searches, QPS stated:[52] The above searches proved negative in locating the CCTV footage. [QPS] consider in the circumstances that reasonable searches have been undertaken for the requested document and have determined that the requested document does not exist. Following a request for further information about searching the QPS ESC hard copy file and whether enquiries had been made with the relevant prosecution authority for the CCTV Footage, QPS submitted that:[53] an examination of archive box BNE 0095 1787, which is listed on the records system as containing the complaint file, failed to locate the complaint file. It is unknown where the file is now located as there is no other reference on the recordkeeping system to an alternative location an examination of the QPS ESC tape index for the complaint file only identifies an audio tape of an interview between the applicant and Detective Inspector Hutchinson it is reasonable to surmise that if the CCTV Footage was supplied to QPS ESC by the Detective Inspector, it would have been recorded on the tape index; and an examination of located documents relating to the prosecution record, including a returned exhibits form dated 26 March 2007 and the QP9 Brief of Evidence, do not identify the CCTV Footage being used as an exhibit for prosecution purposes. On the basis of the above additional searches, QPS have submitted that the CCTV Footage cannot be located despite reasonable searches having been conducted.[54] Are there reasonable grounds to be satisfied that the CCTV Footage is unlocatable? 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. While I accept that the CCTV Footage did exist, I am satisfied that QPS’s searches have been carried out in a systematic way taking into account the factors identified in the PDE decision. Accordingly, having carefully reviewed QPS’s submissions, together with the submissions lodged by the applicant, I am satisfied that: QPS has taken all reasonable steps to locate the CCTV Footage; and access to the CCTV Footage can be refused on the basis that it is unlocatable.[55] DECISION I vary the Decision of the Queensland Police Service dated 29 July 2011 by finding that, in accordance with section 67(1) of the IP Act, access is refused to: 10 full pages, 223 part pages and the Tape Recordings on the ground that the information was obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in the performance of the prescribed functions of the prescribed crime body under sections 47(3)(a) and 48 and schedule 3, section 10(4) of the RTI Act 10 part pages on the ground that disclosure of the information is, on balance, contrary to public interest under sections 47(3)(b) and 49 of the RTI Act; and the CCTV Footage on the ground that the document has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but the document cannot be found under sections 47(3)(e) and 52(1)(b) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________Assistant Information Commissioner Corby Date: 7 August 2012 APPENDIX A Significant procedural steps Date Event 3 May 2011 The Queensland Police Service (QPS) receives the applicant’s request for access dated 29 April 2011 (Access Application). 29 July 2011 QPS locates 445 documents, including 1 CD containing CCTV footage, and decides to release some information. Access to the remaining information was refused as: disclosure of the information would, on balance, be contrary to public interest the information is exempt from disclosure the information is outside the scope of the Access Application; and the information comprises a duplicate copy of information already considered. 15 August 2011 OIC receives the applicant’s application for external review dated 12 August 2011. 25 August 2011 OIC advises the applicant and QPS that the application has been accepted for review. 13 September 2011 OIC receives a copy of the relevant documents from QPS. 16 September 2011 OIC contacts QPS in relation to the CCTV footage which should have been provided with the relevant documents. 16 September 2011 The applicant advises OIC staff that the most important aspect of the external review is the CCTV footage, in particular CCTV footage for 3 May 2005. 22 September 2011 OIC receives the CCTV footage from QPS. A review of the CCTV footage by OIC staff reveals that it is in relation to 12/13 November 2007 only. 28 September 2011 OIC conveys a written preliminary view to QPS in relation to the CCTV footage for 12/13 November 2007 and requests QPS to conduct further searches for CCTV footage relating to the applicant’s time at Beenleigh Watchhouse on 3 May 2005. QPS is asked to respond to the preliminary view and request for further searches by 12 October 2011. 28 September 2011 OIC provides the applicant with a written update about the external review process. 30 September 2011 OIC provides the applicant with a verbal update about the external review process. The applicant advises that he is also seeking CCTV footage in relation to December 2007. 13 October 2011 QPS verbally advises OIC that it agrees to release the CCTV footage for 12/13 November 2007 and that the CCTV footage for 3 May 2005 cannot be located. QPS requests an extension of time to provide a written submission. 14 October 2011 OIC grants QPS an extension until 28 October 2011 to provide a written submission. 19 October 2011 OIC receives QPS’s written submission in response to the preliminary view about CCTV footage for 12/13 November 2007 and the request for further searches about CCTV footage for 3 May 2005. 2 November 2011 OIC requests QPS to release the CCTV footage for 12/13 November 2007 to the applicant. 3 November 2011 OIC advises the applicant in writing that following a review of the records of the applicant’s telephone conversations with OIC staff, OIC will not engage in any further telephone contact with the applicant for the remainder of the review process. Any further contact with OIC must be made in writing. 10 November 2011 QPS advises OIC that the CCTV footage for 12/13 November 2007 has been forwarded to the applicant by correspondence dated 10 November 2011. 11 November 2011 OIC writes to the applicant confirming that as QPS have released the CCTV footage for 12/13 November 2007 in full, OIC will not consider it further in this review. OIC also provides the applicant with an update about the remaining issues in this review. 24 November 2011 OIC receives the applicant’s submission dated 22 November 2011 in which he confirms that he has received the CCTV footage for 12/13 November 2007 and advises that he is still seeking access to: CCTV footage for 3 May 2005 at Beenleigh Watchhouse and 9/10 October 2007* at Southport Watchhouse; and all correspondence between QPS and OIC concerning his requests. * A review of the Access Application shows that the applicant is seeking access to documents regarding an incident at Southport watch house on or about 9/10 December 2007. 29 November 2011 OIC writes to QPS requesting QPS to conduct further searches for CCTV footage for 9/10 December 2007 at Southport Watchhouse and provide a submission to OIC by 13 December 2011. 9 December 2011 QPS verbally advises OIC that CCTV footage has been located for Southport Watchhouse and that a written submission has been forwarded. 14 December 2011 OIC receives QPS’s written submission dated 9 December 2011. QPS advises that the CCTV footage has been submitted to QPS’s Electronic Recording Studio for enhancement and editing. QPS advises that it has no concerns about the edited footage being released. 19 December 2011 QPS verbally advises OIC that the editing of the CCTV footage for 9/10 December 2007 is to remove personal information of third parties present in the footage prior to releasing the footage to the applicant. 21 December 2011 OIC provides the applicant with a written update about the external review process, advising that additional CCTV footage for 9/10 December 2007 has been located and that QPS has agreed to release it following editing to remove and/or obscure images which would identify other people. 13 January 2012 QPS advises OIC that the CCTV footage for 9/10 December 2007 is ready for release and that it expects that it will be posted to the applicant by correspondence dated 16 January 2012. 30 January 2012 OIC receives written confirmation from QPS that the CCTV footage for 9/10 December 2007 was forwarded to the applicant by correspondence dated 16 January 2012. 8 February 2012 The applicant leaves a message on OIC’s answering machine: requesting access to all correspondence between OIC and QPS regarding the handling of this external review indicating that he has not received the CCTV footage for 9/10 December 2007 from QPS; and raising concerns about the handling of the external review. 8 February 2012 OIC sought and received verbal confirmation from QPS that the CCTV footage for 9/10 December 2007 was posted to the applicant’s Post Office box on 16 January 2012. 8 February 2012 OIC writes to the applicant: advising that as an access application may not be made to the Information Commissioner, his request for all correspondence between OIC and QPS cannot be processed advising that the CCTV footage for 9/10 December 2007 was posted to the applicant by QPS on 16 January 2012. The applicant was requested to provide written confirmation that he had now received this CCTV footage; and providing a written update about the external review process. 10 February 2012 The applicant leaves a message on OIC’s answering machine advising he has: received documents and CCTV footage from QPS; and not received CCTV footage for 3 May 2005 and this is the footage that he wants. 10 February 2012 OIC conveys a written preliminary view to the applicant that QPS is entitled to refuse access to CCTV footage for 3 May 2005 at Beenleigh watch house on the basis that QPS have taken all reasonable steps to locate the CCTV footage for 3 May 2005 and there are reasonable grounds to be satisfied that it does not exist or cannot be found. The applicant is invited to provide a submission by 24 February 2012 if he does not accept the preliminary view. 22 February 2012 OIC receives the applicant’s submission advising that he does not accept the preliminary view about the sufficiency of the searches conducted by QPS to locate CCTV footage for 3 May 2005. The applicant also requests an update about the processing of the remaining issues in this review and requests all correspondence between OIC and QPS concerning him. 23 February 2012 The applicant leaves a message on OIC’s answering machine confirming that he sent his submission by fax and post on 21 February 2012. The applicant advises that he is concerned about the timeframe of this review. 27 February 2012 OIC writes to the applicant: responding to his concerns about timeframes providing copies of submissions made by QPS regarding the further searches undertaken to locate CCTV footage responsive to the Access Application confirming that as the applicant does not agree with the preliminary view about the sufficiency of searches conducted by QPS to locate CCTV footage for 3 May 2005, that his submissions will be considered in a formal decision confirming that an access application may not be made to the Information Commissioner providing copies of OIC guidelines on Process and requirements and Informal resolution; and providing an update about the external review process. 16 March 2012 QPS provides OIC with a schedule of documents responsive to the Access Application. 26 March 2012 OIC writes to the applicant in response to a message left on OIC’s answering machine on 19 March 2012: about OIC’s decision to cease telephone contact with the applicant confirming that an access application may not be made to the Information Commissioner about not being able to respond to an enquiry as OIC’s file does not contain correspondence to the applicant dated 19 October 2011; and providing the applicant with an update about the external review process. 11 May 2012 OIC provides the applicant with a written update about the external review process. 17 May 2012 OIC conveys a written preliminary view to QPS about refusal of access. OIC invites QPS to provide a submission by 31 May 2012 if the preliminary view is not accepted. 5 June 2012 OIC receives QPS’s submission dated 31 May 2012. QPS submits that, in the alternative to exemptions relied upon in its decision, that some of the information is exempt under schedule 3, section 10(4) of the Right to Information Act 2009 (CMC Exemption). 18 June 2012 The applicant contacts OIC asking if OIC has received correspondence from a Member of Parliament on his behalf. 18 June 2012 OIC writes to the applicant advising that no correspondence has been received from a Member of Parliament on his behalf and reminding him of the direction made that OIC will not engage in phone contact with him for the remainder of the review. 21 June 2012 OIC receives correspondence dated 19 June 2012 from Mr Jon Krause, MP, Member of Parliament attaching correspondence from the applicant dated 18 June 2012. In the applicant’s correspondence he raises specific concerns about: the timeframe of this review the disappearance of CCTV footage for 3 May 2005 at Beenleigh watch house the Access Application requested all recorded conversations (specifically all calls recorded by QPS to Inspector Hutchinson etc) and these have not been provided; and OIC refusing to provide him with any documentation about him and the OIC process. 21 June 2012 OIC writes to Mr Krause, MP confirming receipt of his correspondence. 21 June 2012 OIC writes to the applicant confirming receipt of correspondence from Mr Krause, MP and advising that the concerns raised in his correspondence to OIC dated 18 June 2012 will be addressed in correspondence to be posted to him on or before 29 June 2012. 22 June 2012 OIC requests QPS to provide: further information in support of the CMC exemption claimed a submission about searches undertaken to locate tape recordings of conversations responsive to the Access Application; and an edited copy, removing information claimed to be exempt, of its submission dated 31 May 2012 which can be provided to the applicant. 26 June 2012 QPS confirms that the applicant’s complaint of 11 May 2009 was not subject to the jurisdiction of the CMC and advises that enquiries are being made about relevant tape recordings. 27 June 2012 OIC writes to QPS confirming the request for further information in relation to the CMC exemption claim and requesting a submission about sufficiency of search about the tape recordings and CCTV footage for 3 May 2005. In addition, QPS is requested to provide the applicant with the additional information agreed to be release. 28 June 2012 QPS provides further information in support of the CMC exemption claim. 29 June 2012 OIC writes to the applicant: providing an overview of the steps taken to date in relation to this external review responding to concerns raised in the applicant’s correspondence to OIC dated 18 June 2012; and providing a written preliminary view on some of the remaining issues in this external review.OIC invites the applicant to provide a submission by 13 July 2012 if the preliminary view is not accepted. 6 July 2012 QPS advises OIC that: the additional information has been forwarded to the applicant by correspondence dated 3 July 2012 the applicant has submitted a further access application to QPS requesting “All QPS recordings, CCTV footage and correspondence between the QPS and Jason Adrian CAMERON” which is currently being processed; and QPS had located tape recordings of conversations as requested by the applicant. 9 July 2012 OIC receives correspondence dated 5 July 2012 from Mr Jon Krause, MP, Member of Parliament attaching correspondence from the applicant dated 3 July 2012. In the applicant’s correspondence, he advises that he does not accept the preliminary view. 10 July 2012 OIC writes to Mr Krause, MP confirming receipt of his correspondence. 11 July 2012 OIC verbally confirms with QPS that the sufficiency of search issues in relation to tape recordings and CCTV footage for 3 May 2005 will need to be addressed in this external review despite the applicant’s subsequent access application for this information. QPS agreed to provide a submission as requested 17 July 2012 OIC writes to QPS seeking a response by 20 July 2012 to the requests contained in correspondence dated 27 June 2012 in relation to sufficiency of search. 20 July 2012 QPS provides a submission in relation to sufficiency of search about the CCTV footage for 3 May 2005. 24 July 2012 QPS provide a further submission in relation to sufficiency of search about the CCTV footage for 3 May 2005. 24 July 2012 OIC conveys a verbal preliminary view to QPS that information comprising the last sentence of document 439 does not comprise deliberative process information and that disclosure would not, on balance, be contrary to public interest. QPS is invited to provide a submission if the view is not accepted.OIC also request that, in relation to the issue of tape recordings, QPS provide a submission: detailing the searches undertaken for tape recordings responsive to the Access Application and any tape recordings located and/or why tape recordings cannot be located; and in relation to located tape recording/s, advising whether QPS propose to release the tape recording/s to the applicant or setting out reasons why QPS consider that access should not be given. 30 July 2012 OIC receives a further submission from QPS dated 25 July 2012. QPS: accept the preliminary view that the last sentence of document 439 does not comprise deliberative process information and that disclosure would not, on balance, be contrary to public interest provide details of tape recordings located and indicate whether QPS is prepared to release the information to the applicant; and provide further details about the searches undertaken for the CCTV footage for 3 May 2005. 1 August 2012 OIC requests QPS to release to the applicant the last sentence of document 439 and the tape recordings QPS indicted could be released. APPENDIX B Schedule 3, section 10 of the Right to Information Act 2009 (Qld) relevantly provides: 10 Law enforcement or public safety information ... (4) Also, information is exempt information if it consists of information obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in the performance of the prescribed functions of the prescribed crime body. ... (6) However, information is not exempt information under subsection (4) or (5) in relation to a particular applicant if— (a) it consists of information about the applicant; and (b) the investigation has been finalised. ... (9) In this section— ... misconduct functions see the Crime and Misconduct Act 2001, section 33. prescribed crime body means— (a) the Crime and Misconduct Commission; or (b) the former Criminal Justice Commission; or (c) the former Queensland Crime Commission. prescribed functions means— (a) in relation to the Crime and Misconduct Commission—the crime function, the intelligence functions and the misconduct functions; and ... [1] By application dated 29 April 2011.[2] QPS sought clarification from the applicant who advised that the complaints relate to incidents which occurred on 3 May 2005, 12/13 November 2007, 9/10 December 2007 and between 26 January and 10 March 2009.[3] A review of the CCTV footage by OIC staff on 22 September 2011 revealed that it relates to 12/13 November 2007.[4] Dated 29 July 2011.[5] Comprising documents 273-278, 311-313, and 315.[6] Comprising documents 1, 3 6-12, 16-17, 28, 33-35, 37, 47-48, 52-55, 70, 77-78, 81-82, 86-89, 91-96, 99-108, 114-124, 127-150, 153, 155, 158, 160, 162-163, 165-166, 175, 181-182, 188-189, 191-192, 194-196, 202-204, 206, 210, 212, 216-217, 224, 226, 228, 230-242, 258-262, 264, 271, 279-290, 294, 296-309, 314, 316, 322-349, 351-352, 355-356, 358, 361-363, 365-367, 376-377, 379-389, 391-397, 404, 406, and 409-410.[7] Comprising electronic records of interviews of three third parties by Inspector Ziebarth.[8] Comprising documents 416, 418-419, 423, 432-433, 437, 439, 441 and 445.[9] Comprising CCTV footage for 3 May 2005 at the Beenleigh Watchhouse.[10] With the exception of the Tape Recordings which were located as a result of further searches conducted during the course of the external review.[11] Sections 47(3)(a) and 48 and schedule 3, section 10(1)(f) of the RTI Act.[12] Sections 47(3)(a) and 48 and schedule 3, section 10(3) of the RTI Act.[13] Sections 47(3)(b) and 49 of the RTI Act.[14] Sections 47(3)(a) and 48 and schedule 3, section 10 of the RTI Act. The relevant parts of schedule 3, section 10 are set out in Appendix B.[15] Section 67(1) of the IP Act provides that access to a document may be refused on the same basis upon which access to a document could be refused under section 47 of the RTI Act.[16] Schedule 3, section 10(9) of the RTI Act.[17] Section 46(2)(b) of Crime and Misconduct Act 2001 (Qld) (CM Act).[18] Section 33(b) and section 34 of CM Act.[19] Section 34(c) of CM Act.[20] Section 35 of CM Act.[21] See the Dictionary in Schedule 2 of the CM Act. [22] Section 15 of CM Act.[23] See the Dictionary in Schedule 2 of the CM Act.[24] Sections 37 and 38 of CM Act.[25] Sections 42(2) and 44(2) of the CM Act.[26] Located at pages 279 to 290, 296 to 309 and 325 to 346 of the documents located by QPS.[27] Schedule 3 section 10(6) of the RTI Act. [28] Macquarie Dictionary Online www.macquariedictionary.com.au. [29] Schedule 3 section 10(4) of the RTI Act[30] Schedule 3 section 10(6) of the RTI Act. [31] Sections 42(3A) and 42(3B) of the FOI Act. Inserted by the Freedom of Information and Other Legislation Amendment Act 2005 (Qld) which commenced on 31 May 2005. [32] Freedom of Information and Other Legislation Amendment Bill 2005 (Qld).[33] Schedule 3 sections 10(4) and 10(6) of the RTI Act. Sections 42(3A) and 42(3B) of the FOI Act. [34] Which occurred on 11 and 25 May 2005. See in particular page 1634 of Hansard for this period.[35] Section 33 of the CM Act.[36] Section 35(1)(b) of the CM Act.[37] See McKay at paragraphs 80 and 81. [38] Sections 47(3)(b) and 49 of the RTI Act.[39] Section 49(3) of the RTI Act.[40] Schedule 4, part 4, item 6 of the RTI Act. [41] Schedule 4, part 3, item 3 of the RTI Act. [42] Submission dated 3 July 2012.[43] Office of the Information Commissioner Guideline—Routine personal work information of public servants. [44] Under section 52(1) of the RTI Act.[45] 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. [46] At paragraph 34.[47] See PDE at paragraph 37.[48] At paragraph 49.[49] Submission dated 22 February 2012.[50] In particular, page 26 comprises a Compass Summary Report which contains details of an email dated 4 May 2005 which confirms that the CCTV Footage was secured by Acting Senior Sergeant King.[51] Submission dated 19 October 2011.[52] Submission dated 19 October 2011.[53] Submissions dated 24 and 25 July 2012.[54] Submission dated 20 July 2012. This submission was made subject to the search of the QPS ESC hardcopy file, details of which were provided in the submission dated 24 July 2012.[55] In accordance with sections 47(3)(e) and 52(1)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

M83 and Queensland Police Service [2020] QICmr 49 (9 September 2020)

M83 and Queensland Police Service [2020] QICmr 49 (9 September 2020) Last Updated: 26 October 2020 Decision and Reasons for Decision Citation: M83 and Queensland Police Service [2020] QICmr 49 (9 September 2020) Application Number: 315356 Applicant: M83 Respondent: Queensland Police Service Decision Date: 9 September 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL TO DEAL - EXEMPT INFORMATION - applicant seeking access to investigation file concerning their complaint - whether application is expressed to relate to all documents containing information of a stated kind or relating to a stated subject matter - whether all of the documents to which the application relates would comprise exempt information - whether section 59 of the Information Privacy Act 2009 (Qld) applies REASONS FOR DECISION Summary The applicant applied[1] to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) for the following documents containing their personal information:[2] (i) the ESC investigation file concerning the applicant’s complaint;[3] and (ii) entries about the applicant in a police officer’s notebook. Although QPS did not make a decision within the timeframe prescribed by the IP Act, QPS located and released some of the requested information to the applicant.[4] QPS also notified the applicant that it had decided to refuse to deal with the part of the application seeking the investigation file (Part One of the application).[5] The applicant applied to the Office of the Information Commissioner (OIC) for an external review of QPS’s deemed decision with respect to Part One of the application.[6] For the reasons set out below, I set aside the decision QPS is deemed to have made refusing access to the information remaining in issue and find that section 59 of the IP Act applies to Part One of the application, as all the requested documents appear to comprise exempt information under schedule 3, section 10(4) of the RTI Act. Reviewable decision and evidence considered The decision under review is the deemed decision QPS is taken to have made under section 66 of the IP Act. The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including the footnotes and Appendix). 7. I have also had regard to the Human Rights Act 2019 (Qld),[7] particularly the right to seek and receive information.[8] I consider a decision-maker will be ‘respecting’ and ‘acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the IP Act and the RTI Act.[9] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between equivalent pieces of Victorian legislation:[10] ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’.[11] The significant procedural steps taken during the external review process are set out in the Appendix. Issue for determination The issue to be determined is whether Part One of the application may be the subject of a refusal to deal decision under section 59 of the IP Act. Relevant law If an access application is made to an agency under the IP Act, the agency should deal with the application unless this would not be in the public interest.[12] Section 59 of the IP Act sets out one of the circumstances in which it would not be in the public interest to deal with an access application, namely where: 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 it appears to the agency that all of the documents to which the application relates are comprised of exempt information.[13] Relevantly, information will qualify as exempt if it consists of information obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in the performance of the prescribed functions of the prescribed crime body (Prescribed Crime Body Exemption).[14] Schedule 3, section 10(6) of the RTI Act excludes the operation of the Prescribed Crime Body Exemption if the investigation has been finalised and the relevant information is about the applicant. If an agency relies on section 59 of the IP Act, it is not required to identify any or all of the documents that would be relevant to the access application.[15] However, in the circumstances of a specific case, it may be appropriate and necessary to consider the relevant documents to be satisfied that every relevant document comprises exempt information.[16] External review by the Information Commissioner[17] is merits review, which is an administrative reconsideration of a case.[18] As such, the Information Commissioner has the power to decide any matter in relation to an application that could have been decided by the agency, under the IP Act.[19] After conducting an external review of a decision, the Information Commissioner must make a decision affirming, varying, or setting aside and making a decision in substitution for, the decision under review.[20] Findings Is Part One of the application expressed to relate to all documents, or to all documents of a stated class, that contain information of a stated kind, or relate to a stated subject matter? Yes, for the reasons that follow. Part One of the application seeks all documents in the ESC’s file about its investigation of the applicant’s complaint. I am satisfied that this part of the application relates to all documents that relate to a stated subject matter, that is, information relating to the investigation of a specific complaint. Accordingly, the first limb of section 59 of the IP Act is satisfied. Does it appear that all of the documents to which Part One of the application relates comprise exempt information? For the reasons set out below, it appears that all of the documents requested in Part One of the application comprise exempt information under the Prescribed Crime Body Exemption and therefore, the second limb of section 59 of the IP Act is satisfied. As I have noted above, information will be subject to the Prescribed Crime Body Exemption if: (i) the information was obtained, used or prepared for an investigation (ii) the investigation was conducted by a prescribed crime body, or another agency, in the performance of a prescribed function of the prescribed crime body; and (iii) the exception to the exemption does not apply. With respect to the first requirement, I note that the terms ‘obtained, used and prepared’ are not defined in the IP Act, the RTI Act or Acts Interpretation Act 1954 (Qld) so they must be given their ordinary meaning. I have carefully considered the Requested Documents and I am satisfied that they are all documents ESC obtained, used and/or prepared for the investigation of the applicant’s complaint. The scope of the application is effectively limited to those documents that form the ESC investigation file into the applicant’s complaint. In considering the second requirement, I note that the RTI Act recognises that the Crime and Corruption Commission (Commission) is a ‘prescribed crime body’; and the Commission’s corruption functions are ‘prescribed functions’.[21] Chapter 2, Part 3 of the Crime and Corruption Act 2001 (Qld) (CC Act) identifies the Commission’s corruption functions and sets out the principles to be applied by the Commission when performing those functions.[22] Relevantly: the principles to be applied by the Commission include ‘devolution’, which is where the Commission refers a complaint back to an agency to investigate, subject to the Commission’s monitoring role; and section 35(1)(c) of the CC Act confirms that the Commission may perform its corruption functions by undertaking a monitoring role for police misconduct.[23] The applicant submits that they did not complain about corruption[24] and the investigation found no official misconduct.[25] The Commission’s corruption functions are not limited to corruption investigations and explicitly include its monitoring role of police misconduct. Having carefully considered the Requested Documents[26] and seeking specific submissions from QPS to confirm that this particular ESC investigation was subject to the monitoring role of the Commission, I am satisfied that the requested documents comprise information obtained, used or prepared by QPS in the performance of the Commission’s prescribed functions. I have also considered where, under schedule 3, section 10(6) of the RTI Act, the exception to the Crime Body Exemption will apply if the investigation has been finalised and the information is about the applicant.[27] The applicant submits that the investigation is finalised and it consists of information about them.[28] I find that the investigation has been finalised, however I am not satisfied that the requested documents are about the applicant. The word ‘about’ in schedule 3, section 10(6) of the RTI Act, as a matter of law, is a ‘non-technical term defined according to its natural and ordinary meaning.’[29] In this matter, the applicant is the complainant and not the subject of the allegations or the investigation. I am satisfied that the documents on the ESC investigation file, while they may have been brought about by the applicant’s complaint, are not about the applicant—they are about the individuals who were the subject of the complaint.[30] To the extent these documents contain information about the applicant, this information is intertwined with information about others in such a way that it cannot be practically separated and I do not consider such intertwined personal information to be ‘about’ the applicant in the circumstances. Conclusion For these above reasons, I find section 59 of the IP Act applies because Part One of the application is expressed to relate to all documents of a stated subject matter and all of the Requested Documents appear to comprise exempt information under the Prescribed Crime Body Exemption. Public interest considerations The applicant has put forward a number of public interest arguments favouring disclosure of the ESC investigation file.[31] The applicant has explained that, as the complainant, they are seeking more information about how the complaint was handled and what information was considered by the investigators. I acknowledge that the IP Act is to be administered with a pro-disclosure bias and the grounds for refusal are to be interpreted narrowly.[32] However, when information qualifies as exempt information, as is the case here, I am precluded from taking other considerations into account. Parliament has determined that disclosure of exempt information would, on balance, be contrary to the public interest in all instances.[33] Accordingly, while the applicant has raised compelling arguments for why further information should be provided to them, I am unable to consider these arguments in relation to the disclosure of exempt information.DECISION For the above reasons, I set aside the decision QPS is deemed to have made refusing access to the Requested Information and find that section 59 of the IP Act applies to Part One of the application. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.S MartinAssistant Information Commissioner Date: 9 September 2020 APPENDIX Significant procedural steps Date Event 26 April 2020 OIC received the application for external review. 18 May 2020 OIC advised the applicant and QPS that the external review application had been accepted and asked QPS to provide further information. 27 May 2020 OIC received the requested information from QPS. 22 July 2020 OIC requested, and received, further information from QPS. 29 July 2020 OIC conveyed a preliminary view to the applicant and invited the applicant to provide submissions if they did not accept the preliminary view. 4 August 2020 OIC received the applicant’s written submissions. 11 August 2020 OIC received the applicant’s further submissions, in a conversation with the applicant. [1] Application dated 15 November 2019. [2] By email dated 10 December 2019 the applicant narrowed the scope of the application to these two categories.[3] ‘ESC’ is the Ethical Standards Command unit within QPS. The applicant identified the requested complaint file by reference to a specific file number. [4] QPS located 156 pages and refused access to 5 pages and portions of information on 113 pages on the ground that disclosure would, on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) (RTI Act). QPS also deleted irrelevant information appearing within the released pages. [5] Decision dated 6 April 2020. [6] On 26 April 2020. Therefore, the full and partial refusal of information in response to Part 2 is not in issue in this review. [7] Referred to in these reasons as the HR Act, and which came into force on 1 January 2020. [8] Section 21 of the HR Act. [9] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111]. [10] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [11] XYZ at [573]. [12] Section 58(1) of the IP Act. [13] Exempt information is information the disclosure of which Parliament has considered would, on balance, be contrary to the public interest. Schedule 3 to the RTI Act identifies the types of information which comprise exempt information. [14] Schedule 3, section 10(4) of the RTI Act. [15] Section 59(2) of the IP Act. [16] In this review, I have examined all of the documents located by QPS in response to Part One of the application (Requested Documents).[17] Or delegate. [18] This can be described as ‘stepping into the shoes’ of the primary decision-maker, to determine what is the correct and preferable decision. [19] Section 118(1)(b) of the IP Act. However, this does not apply to the discretion in section 64(4) of the IP Act to give access to a document to which access can be refused, as the Information Commissioner does not have power to direct that access be given to a document which is exempt or contrary to public interest to disclose: section 118(2) of the IP Act.[20] Section 123(1) of the IP Act. [21] Schedule 3, section 10(9) of the RTI Act. [22] These principles are set out in section 34 of the CC Act. [23] Details of the monitoring role for police misconduct are set out in section 47 of the CC Act and ‘police misconduct’ is defined in schedule 2 of the CC Act. [24] External review application. [25] Submissions received 4 August 2020. [26] As section 121 of the IP Act relevantly prevents the Information Commissioner from disclosing information that is claimed to be exempt information, I am unable to provide a detailed description of the Requested Documents in these reasons for decision. [27] If the exception is found to apply, the requested documents cannot comprise exempt information under the Prescribed Crime Body Exemption, and therefore, section 59 of the IP Act cannot apply. [28] External review application. [29] Darlington v Office of The Information Commissioner & Queensland Police Service [2015] QCATA 167 (Darlington) at [52]. [30] Darlington at [56]-[58]. [31] External review application and submissions received 4 and 11 August 2020. [32] Sections 64(1) and 67(2)(a) of the IP Act. [33] Section 48(2) of the RTI Act. As noted above, the information Commissioner also has no discretion to direct that access be given to exempt information (section 118(2) of the IP Act). Refer also to Dawson-Wells v Office of the Information Commissioner & Anor [2020] QCATA 60 at [17]- [18] and BL v Office of the Information Commissioner & Anor [2012] QCATA 149 at [13] and [15].

queensland

court_judgement

Queensland Information Commissioner 1993-

Price and Nominal Defendant [1999] QICmr 19 (24 November 1999)

Price and Nominal Defendant [1999] QICmr 19 (24 November 1999) Price & Nominal Defendant (S 97/97, 24 November 1999, Information Commissioner Albietz) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.- 4. These paragraphs deleted. REASONS FOR DECISION Background The applicant seeks review of a decision by the Nominal Defendant to refuse him access to certain documents held by it and by its former solicitors. Some of the documents in issue relate to the legal proceedings between the applicant and the Nominal Defendant that were described in paragraph 3 of my reasons for decision in Re Price and Nominal Defendant (Information Commissioner Qld, Decision No. 99003, 30 June 1999, unreported) but were documents that came into existence after the lodgment by the applicant of the FOI access application dealt with in my earlier decision (and to which I will refer as the "previous access application"). Other documents sought by the applicant relate to the processing of the previous access application, and the external review application in respect of it (no. S 2/95). By letter dated 1 April 1997, the applicant applied to Queensland Treasury for access to the following: "all documents of the agency created in relation to my Freedom of Information applications and related to the application"; "all documents of the agency related to myself. To include all Ministerial contact including the last Government and their advisers"; "an answer to my earlier request of the Agency to furnish the work details and names of persons listed on documents of the agency and their rank"; "a breakdown of the Solicitors, Counsel and loss assessors used by the Nominal Defendant since 1988"; and "a breakdown list of cases that went to loss assessors e.g. when there were no police reports available". On 2 April 1997, parts 1, 3, 4 and 5 of that access application were transferred to the Nominal Defendant pursuant to s.26 of the FOI Act. On 12 May 1997, Ms L Anderson, the Insurance Commissioner, made a determination in respect of those parts. Ms Anderson decided to grant access to some documents falling within the terms of part 1 of the application, but refused access to nine documents, and to part of one document, on the basis that they comprised exempt matter under s.43(1) of the FOI Act. She also refused access to part of another document on the basis that it was outside the scope of the access application. In relation to parts 3, 4 and 5 of the access application, Ms Anderson refused access to information on the basis that it would require the Nominal Defendant to create new written documents, and that it was unable to do so using equipment currently available to it. Ms Anderson also relied on s.28(2) of the FOI Act as a further reason for refusing to deal with those parts of the access application. As no internal review was available from the decision of Ms Anderson as principal officer (see s.52(3) of the FOI Act), the applicant applied to me, by letter dated 16 June 1997, for review, under Part 5 of the FOI Act, of Ms Anderson's decision. External review process The documents containing the matter in issue were obtained and examined. During this review, the Nominal Defendant agreed to accept my preliminary view as to which of the documents of its former solicitors and its loss assessors, that were created after 17 October 1994 (the date of lodgment of the applicant's previous FOI access application dealt with in external review no. S 2/95), fell within the terms of the access application dated 1 April 1997, and were "documents of the agency". The Nominal Defendant has disclosed to the applicant a number of documents from its own file, the solicitors' file, and the loss assessors' file that were initially in issue. There are no further documents on the loss assessors' file in issue in this external review. A conference was held with Mr L Meteyard of the Nominal Defendant to seek information about parts 3, 4 and 5 of the access application. In relation to part 3, it was agreed that the Nominal Defendant would provide to the applicant copies of that part of its Annual Reports which set out relevant staff members. In a letter to this Office dated 19 February 1999, the Nominal Defendant advised that it had done so but that for 1993/94, the Nominal Defendant's Annual Report formed part of Queensland Treasury's Annual Report with no separate listing of Nominal Defendant staff. This was because the Nominal Defendant did not exist as a statutory corporation in its own right until 1 September 1994. My staff confirmed that, in dealing with that part of the access application not transferred to the Nominal Defendant pursuant to s.26 of the FOI Act, Queensland Treasury provided the applicant with a list of relevant staff, which covered the 1993/94 period, and included the Queensland Treasury FOI decision-makers involved in dealing with the previous access application. As part 3 of the access application dated 1 April 1997 has been satisfactorily dealt with, and the applicant has not taken specific issue with it, I will not consider part 3 further in this review. In relation to parts 4 and 5 of the access application dated 1 April 1997, Mr Meteyard expressed a concern that to provide the information sought would involve considerable time and effort in obtaining information to create a new document. However, in an attempt to answer part 4 of the access application, the letter dated 19 February 1999 provided a list of firms of solicitors that had acted for the Nominal Defendant since 1988. That letter also attached a list of counsel and loss assessors who were, at the time of the letter, regarded as preferred suppliers (which, Mr Meteyard informed a member of my staff, was obtained through his having undertaken a "provider query" of the Nominal Defendant's computer database). The letter outlined the difficulties involved in locating information about counsel and loss assessors who had provided services to the Nominal Defendant prior to late 1994 and in compiling any of the information that the applicant sought in relation to part 5 of his access application. A further meeting with Mr Meteyard to discuss part 5 of the access application revealed that some of the information requested by the applicant could, with some effort described later in these reasons, be obtained from the database. I gave the applicant a copy of the Nominal Defendant's letter dated 19 February 1999 and informed him of my preliminary view: as to which of the documents remaining in issue were "documents of the agency", and my further view that those which were "documents of the agency" all qualified for exemption under s.43(1) of the FOI Act; that the Nominal Defendant was entitled, under s.28(2) of the FOI Act, to refuse to deal with parts 4 and 5 of his access application dated 1 April 1997, except to the limited extent discussed at paragraph 24 below. The applicant responded by contesting my preliminary views and requesting a conference with participants to clarify matters. I replied to the applicant by letter stating that I did not regard a conference as a productive exercise as the matters raised could be readily and easily dealt with by the applicant in writing. I extended the time within which the applicant could provide submissions and/or evidence. In a further letter to the applicant (responding to subsequent correspondence from him relating to this and his numerous other external review applications), I reiterated the issues I had invited him to address. The applicant responded that he had already provided me with affidavit evidence and submissions of improper conduct and fraud by agencies, including the Nominal Defendant and its solicitors. Indeed, in the course of external review no. S 2/95, the applicant provided a lengthy submission dated 28 August 1995 and also presented to this Office an extremely large bundle of documents which included affidavits that he had filed in the High Court during legal proceedings in which he was involved before it. The applicant has not, however, responded to the matters raised concerning parts 4 and 5 of his access application, despite being given ample opportunity to do so. In making my decision, I have taken into account the abovementioned submissions of the applicant dated 28 August 1995, and further submissions and documents provided by the applicant on 26 March 1999. Creation of documents from a computer database Parts 4 and 5 of the access application dated 1 April 1997 are framed as requests for access to information rather than access to documents already in existence in the possession or control of the Nominal Defendant. Essentially, the Nominal Defendant would be required to create new documents in order to provide the relevant information. In paragraphs 6-9 of Re Pearce and Queensland Rural Adjustment Authority and Others (Information Commissioner Qld, Decision 99008, 4 November 1999, unreported), I said: The ordinary and natural meaning of the words used by the legislature in s.21 and s.25 of the FOI Act makes clear that the right of access conferred by the FOI Act is not a right of access to information per se, but a right of access to information contained in the form of documents which exist in the possession or control of a particular agency or Minister, at the time that a valid access application under s.25 of the FOI Act is lodged with that agency or Minister. The natural corollary to this is that an agency or Minister is not obliged by the terms of the FOI Act to create a new document in order to provide information requested by an access applicant - an agency or Minister is only obliged to locate existing documents in its possession or control, which fall within the terms of a valid access application under s.25 of the FOI Act (and to make the decisions, in respect of any documents thus located, that are required under the provisions of the FOI Act). There is only one exception to that general statement of principle to be found in the FOI Act. It is the one provided for in s.30(1)(e) of the FOI Act, which is, in turn, subject to a significant qualification. Section 30(1)(e) of the FOI Act provides: 30.(1) Access to a document may be given to a person in one or more of the following forms— ... (e) if— (i) the application relates to information that is not contained in a written document held by the agency; and (ii) the agency could create a written document containing the information using equipment that is usually available to it for retrieving or collating stored information; providing a written document so created. Section 30(1)(e)(i) and s.30(1)(e)(ii) set out the two pre-conditions which, if satisfied, will oblige an agency, at the request of an access applicant, to create a document in order to provide information specified in an FOI access application. Firstly, s.30(1)(e) only applies when the access application relates to information that is not contained in a written document held by the agency. The most obvious example of this is the storage of information in a computer database. Secondly, s.30(1)(e)(ii) requires an examination, in the particular circumstances of a given case, of a factual issue as to whether the relevant agency could create a written document, containing the information requested in the FOI access application, using equipment that is usually available to it for retrieving or collating stored information. The term "usually available" imposes a significant qualification on the entitlement of an FOI access applicant to seek specific information from a computer database or other repository of stored information. It means, in effect, that it must be possible to retrieve or collate the information requested by an FOI access applicant using equipment (including computer programs or software) already in place, or otherwise usually available, to undertake the performance of the agency's functions. In other words, s.30(1)(e) imposes no requirement on an agency to obtain additional equipment or re-program existing equipment, or (for example) write a specific program to enable a database to be interrogated, in order to respond to an FOI access application. Mr Meteyard has explained that the list of counsel and loss assessors was compiled through interrogating the Nominal Defendant's database. However, the limitation on the information that can be obtained is that the database was created only after the Nominal Defendant was established as a separate corporation (September 1994) and there were some slight teething problems until integrity in the information stored on the database was achieved after a few months of operation. The applicant's request for a list of counsel and loss assessors has been satisfied (with as much accuracy as the database can provide) back to approximately late 1994. The data did not exist before that period, and to obtain the information sought by the applicant, from 1989 to late 1994, would require manual searches of individual files held by the Nominal Defendant. In relation to part 5 of the access application, Mr Meteyard explained that the type of query that would be required to generate a "breakdown of cases that went to loss assessors, eg. when there were no police reports available" is more complex and an external information technology consultant would have to be retained to perform the relevant query. A consultant has been contacted and has informed Mr Meteyard that she estimates that her charges for that task would be between $100-$300, depending upon the difficulty of the query and the time taken. Thus, some of the information sought by the applicant does exist, albeit stored on a computer database, but is again subject to the limitation that the information was only entered into the databases after September 1994. Prior to that time, a manual search of the Nominal Defendant's files would need to be undertaken. Section 7(1) of the Freedom of Information Regulation 1992 Qld (the FOI Regulation) provides that an applicant must pay a charge for access to a document that does not concern the applicant's personal affairs. Section 29(3) of the FOI Act provides that any charge that is, by regulation, required to be paid by an applicant before access to a document is given is to be calculated in accordance with a number of principles, one of which is that a charge may be made for the reasonable cost incurred by an agency in providing a written document under s.30(1)(e) of the FOI Act. These provisions set out the basis for making a charge for the reasonable costs incurred by an agency in creating, from computer records, a document which does not concern the applicant's personal affairs. The applicant was informed of the possible costs involved in obtaining the information and asked to advise whether he wished to pursue access to it. He has not responded to that question. I am satisfied that the Nominal Defendant is entitled to charge for the reasonable costs incurred by it in obtaining the services of an information technology consultant to undertake the relevant database inquiry to respond to part 5 of the access application dated 1 April 1997. The information sought by the applicant does not concern the applicant's personal affairs. There is nothing before me to suggest that a charge of $300 to carry out this task would be unreasonable. The applicant is therefore entitled to access to a document that could be created by interrogating the Nominal Defendant's database to provide such information retained on the database as falls within part 5 of the applicant's FOI access application dated 1 April 1997, provided the applicant is prepared to pay the reasonable costs of access. Under s.29(7) of the FOI Act and s.11 of the FOI Regulation, the Nominal Defendant may require the Defendant to pay a 20% deposit before it undertakes the work in question. Application of s.28(2) of the FOI Act Section 28(2) provides: 28(2) If — (a) an application is expressed to relate to all documents, or to all documents of a specified class, that contain information of a specified kind or relate to a specified subject matter; and (b) it appears to the agency or Minister dealing with the application that the work involved in dealing with the application would, if carried out— (i) substantially and unreasonably divert the resources of the agency from their use by the agency in the performance of its functions; or (ii) interfere substantially and unreasonably with the performance by the Minister of the Minister functions; having regard only to the number and volume of the documents and to any difficulty that would exist in identifying, locating or collating the documents within the filing system of the agency or the office of the Minister; the agency or Minister may refuse to deal with the application. The Nominal Defendant outlined, in its letter dated 19 February 1999, the type of manual searches and difficulties involved to deal completely with part 4 (which would be necessary to provide the information sought back to 1989), and with any of part 5 of the access application, if the applicant did not agree to pay the reasonable costs of the database inquiry. Parts 4 and 5 of the access application are far-reaching, and part 5 is not defined by any timeframe. The Nominal Defendant has indicated that to carefully search through the thousands of files opened since 1989 to ascertain the names of loss assessors and counsel, and claim files where loss assessors were appointed, would be extremely time consuming. In situations where files are stored off-site, there would be significant retrieval costs involved. The applicant has been provided with a copy of the Nominal Defendant's letter dated 19 February 1999, which contained a list of all firms of solicitors that have acted for the Nominal Defendant since 1988. The Nominal Defendant advised that if part 4 of the applicant's access application dated 1 April 1997 had to be construed to mean each individual solicitor from those firms who had provided legal assistance to the Nominal Defendant, there would be considerable difficulty in identifying from its own files the names of those individual solicitors, and a strong likelihood that the firms of solicitors would no longer have files dating back to January 1989 to be able to ascertain that information. I am satisfied that the Nominal Defendant has carefully addressed the difficulties it would have, with its small number of staff, in identifying, locating and collating all of the requested documents and has demonstrated that to do so would significantly interfere with its operations for a considerable period of time. The Nominal Defendant's function is to manage compulsory third party claims associated with unidentified and uninsured vehicles, and it is funded by a levy on third party insurance premiums paid by vehicle owners. I am satisfied that the Nominal Defendant would experience a substantial and unreasonable diversion of its resources (funded by the public) in performing that function, if it were to take the steps required to process parts 4 and 5 of the access application (other than those addressed in paragraph 24 above), having regard only to the number and volume of the documents requested, and to the difficulties that would exist in identifying, locating or collating the documents within the filing system of the Nominal Defendant. I find that, pursuant to s.28(2) of the FOI Act, the Nominal Defendant is entitled to refuse to deal with parts 4 and 5 of the access application dated 1 April 1997, beyond the steps discussed in paragraph 24 above concerning interrogation of its computer database for the period from late 1994. Documents of the agency For a document to be subject to access under s.21 and s.25 of the FOI Act, it must be a "document of the agency", i.e., of the agency which is dealing with the FOI access application. Section 7 of the FOI Act relevantly provides: In this Act— ... "document of an agency' or "document of the agency" means a document in the possession or under the control of an agency, or the agency concerned, whether created or received in the agency, and includes— (a) a document to which the agency is entitled to access; and (b) a document in the possession or under the control of an officer of the agency in the officer's official capacity. The ruling test imposed by the definition of "document of an agency" is comprised in the words "in the possession or under the control of an agency". The remaining words of the definition illustrate, rather than extend, the ruling test. In Re Holt and Education Queensland [1998] QICmr 4; (1998) 4 QAR 310, I decided that the word "possession" in the above definition is properly to be construed as meaning physical possession rather than legal possession. A document in the physical possession of an agency (or of an officer of an agency in the officer's official capacity), whether created or received in the agency, is a "document of the agency" for the purposes of the FOI Act. A document not in the physical possession of an agency will nevertheless be a "document of the agency" for the purposes of the FOI Act, if it is under the control of the agency (or under the control of an officer of the agency in the officer's official capacity). Included in the concept of documents which are under the control of an agency are documents to which the agency is entitled to access. This concept is apt to cover a document in respect of which an agency has legal ownership, and hence a right to obtain possession, even though the document is not in the physical possession of the agency. The words "under the control" convey the concept of a present legal entitlement to control the use or physical possession of a document, as exists in the case of documents held on behalf of a principal by the principal's agent, or documents held by a bailee on behalf of the owner of the documents. In the context of the obligations placed on an agency, by the FOI Act, in respect of "documents of the agency" (including the manner in which an agency is obliged to deal with a document of the agency in response to an application under the FOI Act), I consider that, for a document to be one which is under the control of an agency (or one in respect of which an agency is entitled to access), the agency must have a present legal entitlement to take physical possession of the document (at least for so long as necessary to discharge all of the agency's obligations under the FOI Act in respect of the document). The Schedule attached to these reasons for decision sets out those documents appearing on the file of the solicitors to the Nominal Defendant which remain in issue. In Re Price and Nominal Defendant at paragraphs 21-28, I said that, in the context of a solicitor and client relationship, a determination as to those documents in respect of which a client has a legal entitlement to ownership is based on the contract of retainer between the solicitor and client. At paragraph 22, I said that the judgment of the New South Wales Court of Appeal in Wentworth v De Montfort (1988) 15 NSWLR 348 set out the relevant principles for determining what documents on a solicitor's file are documents in respect of which the client has a legal right to possession. At paragraphs 29-52, I applied the principles in that case to the various categories of documents in issue on the solicitors' file. My findings are directly applicable here and I will discuss the categories that are relevant below. In the attached schedule, I have indicated in the "Decision" column those documents which are not "documents of the agency" by the letters "NDA". Correspondence between the Nominal Defendant and its solicitors At paragraphs 32-34 of Re Price and Nominal Defendant, I found that original letters and facsimile transmissions to the solicitors from the Nominal Defendant and file copies of letters from the solicitors to the Nominal Defendant were not "documents of the agency" for the purposes of the FOI Act. For the same reasons, I find that documents on the solicitors' file which comprise correspondence between the Nominal Defendant and its solicitors are not "documents of the agency" (i.e., the Nominal Defendant) for the purposes of the FOI Act. Records of telephone attendances on the Nominal Defendant At paragraph 35 of Re Price and Nominal Defendant, I found that those documents were not "documents of the agency" for the purposes of the FOI Act. I find that, in this external review, records of telephone attendances on the Nominal Defendant are not "documents of the agency" for the purposes of the FOI Act. Internal records and memoranda of the solicitors as to work done or work to be done The solicitors' file contains diary notes of intra-office communications and records of facsimile transmissions. At paragraph 46 of Re Price and Nominal Defendant, I concluded that those documents were created by the solicitors for their own benefit and were not owned by the client. For the reasons given at paragraphs 47-48 of Re Price and Nominal Defendant, I find that excerpts of rules with annotations, drafts and file copies of court documents, and notes made about the taxation by the solicitors on the solicitors file, belong to the solicitors and not the client. None of the documents on the solicitors' file falling into this category are documents of the Nominal Defendant for the purposes of the FOI Act. However, the printout of the Department of Lands search (S521), was made for the benefit of the Nominal Defendant in relation to issuing court proceedings against the applicant in relation to its costs. Thus, I find that S521 is a "document of the agency" for the purposes of the FOI Act. Correspondence with, and records of, telephone attendances on third parties At paragraph 36 of Re Price and Nominal Defendant, I said that whether any particular document in this category belongs to the client or to the solicitor depends upon a number of factors and, in particular, whether the predominant purpose of the communication was for the benefit of the solicitor or the client. I consider that correspondence with, and records of telephone attendances on, the solicitors' service agents, were undertaken for the purpose of the Nominal Defendant issuing court proceedings against the applicant in relation to its costs. Thus, those communications were predominantly for the benefit of the Nominal Defendant. I therefore find that the documents on the solicitors' file representing such communications are "documents of the agency" for the purposes of the FOI Act. Application of s.43(1) of the FOI Act Nominal Defendant's file The documents remaining in issue on the Nominal Defendant's file that are claimed to be exempt under s.43(1) of the FOI Act are documents 19, 25, 29, 32, 42, and parts of documents 7 and 8. Section 43(1) of the FOI Act provides: 43(1) Matter is exempt matter if it would be privileged from production in a legal proceeding on the ground of legal professional privilege. The s.43(1) exemption turns on the application of those principles of Australian common law which determine whether a document, or matter in a document, is subject to legal professional privilege. The grounds on which a document can attract legal professional privilege are fairly well settled in Australian common law. In brief terms, legal professional privilege attaches to confidential communications between lawyer and client for the sole purpose of seeking or giving legal advice or professional legal assistance, and to confidential communications made for the sole purpose of use, or obtaining material for use, in pending or anticipated legal proceedings (see Re Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 at pp.51-52 (paragraph 82), which sets out a summary of the principles established by the High Court authorities of Grant v Downs [1976] HCA 63; (1976) 135 CLR 674, Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500, Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475, and Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54). There are qualifications and exceptions to that broad statement of principle, which may, in a particular case, affect the question of whether a document attracts the privilege, or remains subject to the privilege; for example, the principles with respect to waiver of privilege (see Re Hewitt and Queensland Law Society Inc and Legal Ombudsman [1998] QICmr 23; (1998) 4 QAR 328 at paragraphs 19-20 and 29), and the principle that communications otherwise answering the description above do not attract privilege if they are made in furtherance of an illegal or improper purpose (see Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 71 ALJR 327). Many of my comments in Re Price and Nominal Defendant at paragraphs 59-68 are equally applicable to the documents in issue in this matter. Documents 19, 25, 29, 32 and part of document 7 comprise correspondence between the Nominal Defendant and its solicitors. Similarly to my findings in paragraphs 64-68 of Re Price and Nominal Defendant, I consider that each of those documents was brought into existence for the sole purpose of seeking or giving professional legal advice or assistance in relation to the Nominal Defendant's participation in the external review process in application for review no. S 2/95. I find that those documents attract legal professional privilege, and so qualify for exemption under s.43(1) of the FOI Act. Document 42 is a draft letter to the Crown Solicitor prepared by the Nominal Defendant's solicitors. Material created by a solicitor in fulfilment of his engagement "is the result of the solicitor's mind working upon and acting as professional adviser with reference to" material communicated to him confidentially in his professional capacity (Kennedy v Lyell [1883] 23 Ch D 387 at 407) and, as such, will by its very nature tend to reveal the content of that advice: see also Re Norman and Mulgrave Shire Council [1994] QICmr 13; (1994) 1 QAR 574 p.581. I find that document 42 attracts legal professional privilege and qualifies for exemption under s.43(1) of the FOI Act. The matter claimed to be exempt in document 8 is the same matter as that which was in issue in a related application for external review no. S 101/97, which has now been finalised. It is page 5 of a statement of Mr Daniel Morgan prepared by the Nominal Defendant's loss assessors during the time when legal proceedings were on foot between the Nominal Defendant and the applicant. The remainder of document 8 (to which the applicant has obtained access) is an internal memorandum within the Nominal Defendant's office concerning submissions that it proposed to make during the previous external review process concerning no. S 2/95. I have been informed by Queensland Treasury and by the Nominal Defendant that the page of Daniel Morgan's statement was inadvertently caught up in the memorandum during the processing of the applicant's access application. In my reasons for decision in Re Price and Nominal Defendant, I found that the statements taken by the loss assessors for use in legal proceedings between the Nominal Defendant and the applicant (the page in issue in document 8 forming part of one such statement) attracted legal professional privilege. Any copies of such statements, or copies of parts of such statements, also attract legal professional privilege and qualify for exemption under s.43(1). I find that the part of document 8 comprising a copy of page 5 of Mr Morgan's statement to the loss assessors is exempt matter under s.43(1) of the FOI Act. Solicitors' file I have found that only the correspondence with, and records of telephone attendances on, the service agents, plus the Department of Lands search printout, are documents of the Nominal Defendant for the purposes of the FOI Act (see paragraphs 40 and 41 above). Communications with service agents In Trade Practices Commission v Sterling [1979] FCA 33; (1979) 36 FLR 244 (at pp.245-266), Lockhart J said that legal professional privilege extends to: (a) Any communication between a party and his professional legal adviser if it is confidential and made to or by the professional adviser in his professional capacity and with a view to obtaining or giving legal advice or assistance; notwithstanding that the communication is made through agents of the party and the solicitor or the agent of either of them. .... I consider that correspondence, and file notes of conversations, between the solicitors and their service agents, constitute or record communications made for the sole purpose of instituting costs proceedings between the Nominal Defendant and the applicant. I find that they attract legal professional privilege and qualify for exemption under s.43(1) of the FOI Act. Printout of Department of Lands search In Trade Practices Commission v Sterling, Lockhart J said that legal professional privilege also extends to: (d) Notes, memoranda, minutes or other documents made by the client or officers of the client or the legal adviser of the client of communications which are themselves privileged, or containing a record of those communications, or relate to information sought by the client's legal adviser to enable him to advise the client or to conduct litigation on his behalf. ... The solicitors obtained the Department of Lands search for the sole purpose of providing advice to the Nominal Defendant concerning anticipated legal proceedings, and hence it attracts legal professional privilege. Therefore, the printout qualifies for exemption under s.43(1) of the FOI Act. Improper purpose exception As with his previous application for review no. S 2/95, the applicant has alleged that there has been a tort, fraud and/or improper conduct by the Nominal Defendant, and, therefore, the documents on the Nominal Defendant's file and on the solicitors' file cannot qualify for legal professional privilege. I considered the 'improper purpose exception' at some length in Re Murphy and Queensland Treasury (No. 2) (Information Commissioner Qld, Decision No. 98009, 24 July 1998, unreported), at paragraphs 31-42. At paragraphs 35, 36 and 37, I considered the judgments in Kearney and Propend Finance concerning the evidentiary onus on a person contesting the existence of legal professional privilege to demonstrate a prima facie case that the relevant communications were made in furtherance of an illegal or improper purpose. At paragraph 38, I drew the following principles from those cases: To displace legal professional privilege, there must be prima facie evidence (sufficient to afford reasonable grounds for believing) that the relevant communication was made in preparation for, or furtherance of, some illegal or improper purpose. Only communications made in preparation for, or furtherance of, the illegal or improper purpose are denied protection, not those that are merely relevant to it (see Butler v Board of Trade [1970] 3 All ER 593 at pp.596-597). In other words, it is not sufficient to find prima facie evidence of an illegal or improper purpose. One must find prima facie evidence that the particular communication was made in preparation for, or furtherance of, an illegal or improper purpose. Knowledge, on the part of the legal adviser, that a particular communication was made in preparation for, or furtherance of, an illegal or improper purpose is not a necessary element (see R v Cox and Railton (1884) 14 QBD 153 at p.165; R v Bell: ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at p.145); however, such knowledge or intention on the part of the client, or the client's agent, is a necessary element. I note also that, in the recent Federal Court of Australia decision of Freeman v Health Insurance Commission and Ors (1998) 157 ALR 333, Finkelstein J said (at p.342): Notwithstanding the submissions made by the applicant, I do not believe that the exception should be extended so that the privilege is lost if there is an inadvertent abuse of statutory power. .... Legal professional privilege is an important right and the public interest does not require it to be lost except by conduct which is morally reprehensible. ... if the exception was now to be extended to cover inadvertent conduct it might endanger the basis of the privilege. There was a successful appeal against aspects of Finkelstein J's judgment (see Health Insurance Commission and Anor v Freeman (1998) 158 ALR 26), but no issue was taken with the above statement of principle. The documents remaining in issue are very similar in nature to those considered by me in Re Price and Nominal Defendant. The applicant has sought to rely on the submissions he has previously placed before me regarding the 'improper purpose exception'. In particular, there is before me a lengthy submission and a large bundle of documents, including affidavits filed by him in the High Court of Australia, in order to show prima facie evidence that the documents in issue were brought into existence in preparation for, or furtherance of, an illegal or improper purpose. As I stated in Re Price and Nominal Defendant at paragraph 81, those submissions are repetitious and attempt to weave a net of conspiracy between many public officials, members of the legal profession, the police and the courts against the applicant (for further explanation, see my discussion in paragraphs 82-83 of that decision). Those submissions are based merely on the applicant's assertion, unsupported by any credible, independent, corroborative evidence. What must be shown to invoke the 'improper purpose exception' to legal professional privilege is prima facie evidence of a course of action by the Nominal Defendant or its agents adopted with knowledge of wrongdoing. Nothing in any of the material provided to this office by the applicant, or in the documents in issue in this case (or other cases presently before me involving the applicant), amounts to prima facie evidence that the documents in issue in this case were brought into existence in preparation for, or furtherance of, an illegal or improper purpose. Application of s.44(1) of the FOI Act Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. The Nominal Defendant claims that part of document 1 on the Nominal Defendant's file does not fall within the terms of the access application, as it relates to details of banking transactions concerning persons other than the applicant. Indeed, that part of the document representing other persons' transactions has nothing to do with the applicant or his dealings with the Nominal Defendant and, therefore, appears to fall outside the scope of the applicant's access application. In any event, that information comprises information concerning the personal affairs of persons other than the applicant. The applicant has not provided me with any submissions on this point and I am unable to discern any public interest considerations of any substance that would favour disclosure of that information to the applicant. I find that matter to be exempt under s.44(1) of the FOI Act. DECISION Given that further documents have been located in the course of the review, I vary the decision under review (being the decision dated 12 May 1997 made on behalf of the Nominal Defendant by Ms L Anderson) by finding that: the applicant is entitled to have a document created, in accordance with s.30(1)(e) of the FOI Act, listing the information referred to at paragraph 24 above for the period since late 1994, subject to payment of all reasonable charges (including a deposit); the agency is otherwise entitled to refuse to deal further with parts 4 and 5 of the access application dated 1 April 1997, pursuant to s.28(2) of the FOI Act; the documents listed "NDA" in the attached Schedule are not "documents of the agency" as defined in s.7 of the FOI Act, and hence are not subject to the application of the FOI Act; the documents and parts of documents identified at paragraphs 40, 41 and 42 above are exempt matter under s.43(1) of the FOI Act; and the matter identified at paragraph 61 above is exempt matter under s.44(1) of the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Robbins and Brisbane North Regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30 (19 August 1994)

Robbins and Brisbane North Regional Health Authority [1994] QICmr 19; (1994) 2 QAR 30 (19 August 1994) Last Updated: 28 February 2001 OFFICE OF THE INFORMATION ) S 220 of 1993COMMISSIONER (QLD) ) (Decision No. 94019) Participants: DR STEVEN JOHN ROBBINS Applicant - and - BRISBANE NORTH REGIONAL HEALTH AUTHORITY Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - deemed refusal of access to requested documents pursuant to s.79(1) of the Freedom of Information Act 1992 Qld - respondent subsequently agreeing to give access to requested documents - applicant dissatisfied with extent of access given - two further documents discovered and access given - applicant's attempt to unilaterally expand the scope of the initial FOI access application not permitted.Freedom of Information Act 1992 Qld s.25(2), s.27(4), s.27(4)(b), s.27(7), s.27(7)(b), s.51, s.52, s.71(1)(b), s.73(3), s.79, s.79(1), s.89(1)Cannon and Australian Quality Egg Farms Limited, Re (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported)Pope and Queensland Health, Re (Information Commissioner Qld, Decision No. 94016, 18 July 1994, unreported) DECISION1. The decision under review (being the respondent's deemed refusal of access, pursuant to s.79(1) of the Freedom of Information Act 1992 Qld, to documents requested in the applicant's FOI access application dated 8 October 1993) is set aside.2. In substitution for it, I decide that the applicant may be given access under the Freedom of Information Act 1992 Qld to all documents which fall within the terms of his FOI access application dated 8 October 1993 and I am satisfied that those documents consist of the 16 pages attached to the letter of 8 December 1993 from the respondent to the applicant, plus the two letters from Dr Pope to the National Health and Medical Research Council dated 28 April 1993 and 1 June 1993 which are referred to in the fourth paragraph of the Deputy Information Commissioner's letter to the applicant dated 12 January 1994.Date of Decision: 19 August 1994...........................................................F N ALBIETZINFORMATION COMMISSIONEROFFICE OF THE INFORMATION ) S 220 of 1993COMMISSIONER (QLD) ) (Decision No. 94019) Participants: DR STEVEN JOHN ROBBINS Applicant - and - BRISBANE NORTH REGIONAL HEALTH AUTHORITY Respondent REASONS FOR DECISION1. Dr Robbins applied to me by letter dated 29 November 1993 for external review of a "deemed refusal" of access by the Brisbane North Regional Health Authority (the Authority) to documents which Dr Robbins had requested in an FOI access application dated 8 October 1993, but to which he had received no response.2. Section 79(1) of the Freedom of Information Act 1992 Qld (the FOI Act) relevantly provides as follows: 79.(1) Subject to this section, if - (a) an application has been made to an agency or Minister under this Act; and (b) the time period provided in section 20(2), 27(4) or 57 has ended; and (c) notice of a decision on the application has not been received by the applicant; the principal officer of the agency or the Minister is, for the purpose of enabling an application to be made to the Commissioner under section 73, taken to have made a decision on the last day of the relevant time period refusing - (d) ... (e) to grant access to the document; or (f) ...3. Essentially, s.79(1) provides that if the time limit specified by s.27(4) of the FOI Act for responding to an FOI access application has expired without the applicant receiving notice of a decision, then the principal officer of the agency concerned is taken to have made a decision refusing access. A decision of a principal officer refusing access to a document is a decision which I have jurisdiction to investigate and review pursuant to s.71(1)(b) of the FOI Act. The significance of providing that the deemed refusal of access is taken to have been made by the principal officer of the agency concerned is that it permits an application for review to be made direct to the Information Commissioner, i.e., without first making an application for internal review under s.52 of the FOI Act (cf. s.73(3) of the FOI Act).4. Section 27(4) and s.27(7) provide as follows: 27.(4) If the agency or Minister fails to decide an application and notify the applicant under section 34 within - (a) the appropriate period; or (b) if action is required under section 51 in relation to the application - a period equal to the appropriate period plus 15 days; the agency or Minister is taken to have refused access to the document to which the application relates at the end of the period. 27.(7) In this section - "appropriate period" means - (a) in relation to an application to an agency or Minister for a document that - (i) came into existence more than 5 years before the commencement of this Part; and (ii) does not concern the personal affairs of the applicant; 60 days after the application is received by the agency or Minister; or (b) in relation to any other application - 45 days after the application is received by the agency or Minister.5. Accompanying his application for external review, Dr Robbins enclosed a copy of his FOI access application, dated 8 October 1993, the relevant portion of which is as follows: Citing the Freedom of Information Act, I am writing to request all copies of correspondence concerning me and/or my research activities and/or the administration of research projects funded by the National Health and Medical Research Council (NH&MRC) which name me as Chief Investigator and which have been sent to the NH&MRC, its officers or representatives by (1) Dr C B Campbell, Regional Director of the [respondent], or (2) Dr J H Pope, Director of the Sir Albert Sakzewski Virus Research Centre of the Royal Children's Hospital during the period of 18 September 1989 to present.6. Dr Robbins' application for external review was lodged some 47 days after his FOI access application was received by the Authority on 13 October 1993. This is outside the basic time limit of 45 days specified in the FOI Act for responding to an FOI access application (see s.27(7)(b) of the FOI Act), but in order to determine whether I had jurisdiction to conduct an external review, I considered it prudent to inquire of the Authority whether it had undertaken consultations under s.51 of the FOI Act, which would have extended the time limit to 60 days (see s.27(4)(b) of the FOI Act).7. A member of my staff contacted the Authority's FOI Co-ordinator, Mr B Evans, on 2 December 1993. Mr Evans apologised for the delay in processing Dr Robbins' FOI access application which he said had been caused by difficulties in obtaining relevant files. He said he had obtained those files and would examine them to extract the requested documents and decide whether any claims of exemption should be made. At that time, it appeared that if consultation was required in accordance with s.51 of the FOI Act, and it could be undertaken and a decision made before the expiry of 60 days, i.e. by 13 December 1993, the Authority would still be within the statutory time limit for responding to Dr Robbins' FOI access application. That would mean that Dr Robbins was not entitled to make an application to the Information Commissioner based on a deemed refusal of access under s.79 of the FOI Act, and the Information Commissioner would lack jurisdiction accordingly. On the other hand, if consultation under s.51 was not required, Dr Robbins' application for review was valid, enlivening the Information Commissioner's jurisdiction under s.79 (and Part 5 generally) of the FOI Act, and rendering the Authority functus officio. Since, even on the latter scenario, the Authority would be required to indicate its position on the documents in issue, Mr Evans was requested to complete his examination of the relevant files and inform my office of the Authority's position.8. The Authority had determined by 7 December 1993 that it was prepared to give Dr Robbins access to all requested documents, and that consultation under s.51 of the FOI Act was not necessary. The Authority accepted that Dr Robbins' application for review was valid, therefore vesting jurisdiction in the Information Commissioner, and sought instruction from my office as to how it should proceed. The Authority was authorised to give Dr Robbins access to the requested documents. This it did by a letter to Dr Robbins dated 8 December 1993. That letter indicated that Mr Evans had identified a total of 16 pages which fell within the terms of Dr Robbins' FOI access application, and access under the FOI Act was given by forwarding copies of those pages as attachments to the letter of 8 December 1993.9. Subsequently, on 20 December 1993, the Deputy Information Commissioner wrote to Dr Robbins noting the contents of the letter of 8 December 1993 by which the Authority had given to Dr Robbins access to requested documents. Given the response of the Authority, Dr Robbins was asked to indicate whether he was satisfied with that response, and if so, whether he wished to withdraw his application for external review. 10. Dr Robbins replied by letter dated 28 December 1993. In that letter, Dr Robbins indicated that following telephone conversations with officers of the Administrative Law and Litigation Branch of the National Health and Medical Research Council (the NH&MRC), it was clear to him that he had not been provided with items of correspondence requested in his FOI access application. He identified these as: (1) Correspondence sent to the NH&MRC from a third officer of the BNRHA [the Brisbane North Regional Health Authority] and SASVRC [Sir Albert Sakzewski Virus Research Centre], Dr Karen Trenfield (an officer employed on my NH&MRC research grant and covered in my request as "all correspondence ... from any representative from these two agencies [BNRHA or SASVRC]"). (2) Copies of correspondence sent by Dr J H Pope to the NH&MRC Secretariat (referred to in page 10 of the documentation provided by Mr Evans).11... Dr Robbins indicated that he was not satisfied with the response that he had received from the Authority and wished to have his application for external review processed accordingly.12. Dr Robbins' letter of 28 December 1993 was forwarded to the Authority for response. Mr Evans responded on behalf of the Authority by letter dated 11 January 1994. Mr Evans responded to the two issues raised in Dr Robbins' letter of 28 December 1993 as follows:(a) as to the question of correspondence sent to the NH&MRC by Dr Karen Trenfield, Mr Evans referred to the precise terms of Dr Robbins' FOI access application (set out above at paragraph 5) which requested correspondence sent to the NH&MRC by either Dr Campbell or Dr Pope, and which made no mention of Dr Trenfield, nor of "any representative from these two agencies [BNRHA or SASVRC]"; and(b) concerning the correspondence which Dr Robbins contended had not been provided to him (as referred to on page 10 of the documents which were provided to him) Mr Evans indicated that he had contacted Dr Pope, who advised that he had forwarded three letters (dated 18 March, 28 April and 1 June 1993) and a facsimile transmission (dated 6 October 1993) to the NH&MRC concerning Dr Robbins. Mr Evans indicated that he had been unable to locate two of those four documents in his earlier examination of the Authority's files. However, he had been provided with copies of those documents by Dr Pope. Having examined them, he noted that Dr Pope's letter to the NH&MRC dated 18 March 1993 and the facsimile transmission of 1 October 1993 had previously been forwarded to Dr Robbins under cover of the Authority's letter dated 8 December 1993. He advised that the Authority was also prepared to give Dr Robbins access to the other two documents, i.e. Dr Pope's letters to the NH&MRC dated 28 April 1993 and 1 June 1993.13. On 12 January 1994, the Deputy Information Commissioner forwarded a letter to Dr Robbins (which also enclosed the Authority's response dated 11 January 1994) in the following terms: In response to one of the matters raised in your letter of 28 December 1993, namely, that correspondence from Dr Karen Trenfield to the National Health and Medical Research Council (NHMRC) is within the terms of your original FOI access request, the Authority contends that correspondence sent to the NHMRC from Dr Trenfield is outside the terms of your original FOI request, since the terms of your original FOI request specifically request correspondence to the NHMRC from two sources, namely Dr Campbell and Dr Pope. Based on the terms of your original FOI request, a copy of which you provided to me under cover of your letter of 29 November 1993, it is my preliminary view that the contention of the Authority is correct. The phrase you have referred to in inverted commas in the paragraph numbered (1) of your letter of 28 December 1993 does not appear in your original FOI request. The Authority, however, has turned up two additional pieces of correspondence from Dr Pope to the NHMRC, being letters dated 28 April 1993 and 1 June 1993. The Authority is prepared to release those documents to you, and I have now authorised release by the Authority of those documents to you. I have suggested that the FOI Co-Ordinator of the Authority, Mr Bill Evans, liaise with you as to the form of access to those documents that you prefer. Once you have had access to the two additional documents from the Authority, I request your response as to whether there is now any issue outstanding in the course of this external review. If there are now no issues outstanding, I request that you provide to me your written confirmation that you wish to withdraw your application for external review on the basis that your original FOI access request has now been satisfied.14. No response to that letter was received from Dr Robbins, and on 22 March 1994, I forwarded a further letter to Dr Robbins (at the address for service of notices which had been nominated in his application for review dated 29 November 1993) asking him to identify and explain the nature of any issues arising from his application for external review which he considered were still to be determined. I subsequently received a letter from Dr Robbins relating to another case before me in which Dr Pope was the applicant and Dr Robbins was a third party (see Re Pope and Queensland Health (Information Commissioner Qld, Decision No. 94016, 18 July 1994, unreported)). That letter was forwarded from an address in the State of Kansas in the United States of America, but did not say whether Dr Robbins had moved permanently to that address. On 7 April 1994, I wrote to Dr Robbins at the Kansas, USA address, in the follows terms: Please note that in respect of your appeal in my file reference no. S 220/93, I forwarded a letter dated 22 March 1994 to your Ashgrove post office box address. Since it appears that you were in the USA at the time that letter was forwarded, I have enclosed a further copy of it for your reference, and I would appreciate your response as soon as practicable. Please advise me of your contact address for future correspondence.15. Dr Robbins did not respond to that letter, and indeed no further correspondence has been received from Dr Robbins in relation to this external review (or others in which he was a participant).16. I am satisfied (for the reasons explained in the first paragraph of the letter quoted at paragraph 13 above) that Dr Robbins in effect attempted to extend the scope of his initial FOI access application by seeking correspondence from Dr Trenfield to the NH&MRC. In Re Cannon and Australian Quality Egg Farms Limited (Information Commissioner Qld, Decision No. 94009, 30 May 1994, unreported), at paragraph 10, I indicated that the interpretation of an FOI access application is not necessarily to be approached in the same manner as the interpretation of a statute or legal document, and in cases where the terms of an FOI access application are ambiguous it will rarely be appropriate to apply legal construction techniques in preference to consulting with the author of the words to clarify the author's intended meaning and agree upon more precise wording for the terms of the FOI access application. In this case, however, on any reasonable construction of Dr Robbins' FOI access application, it cannot be interpreted as applying to correspondence from Dr Trenfield to the NH&MRC. Dr Robbins specifically requested copies of correspondence from Dr Pope and Dr Campbell to the NH&MRC. There was no ambiguity in Dr Robbins' FOI access application that required clarification in this respect.17. It is not possible for an applicant to unilaterally extend the terms of an FOI access application at the external review stage. The terms in which the FOI access application was framed will already have set the parameters for an agency's response under Part 3 of the FOI Act, and in particular set the direction of the agency's search efforts to locate all documents of the agency which fall within the terms of the FOI access application (see Re Cannon at paragraph 8). Section 25(2) provides that an FOI access application must provide such information concerning the document sought as is reasonably necessary to enable a responsible officer of the agency or the Minister to identify the document. (There would appear to be no impediment to the terms of an FOI access application being extended by agreement, and there is, of course, nothing to prevent an applicant from making a fresh application for access to matter which falls outside the scope of an earlier FOI access application.)18. On the facts of this case, I am satisfied that:(a) correspondence sent by Dr Trenfield (if any) to the NH&MRC is outside the scope of Dr Robbins' FOI access application dated 8 October 1993; and(b) Dr Robbins has now been allowed access to all documents falling within the scope of his FOI access application dated 8 October 1993.19. Technically, the decision which I am reviewing is the deemed refusal of the Authority to give the applicant access to the documents requested in the applicant's FOI access application dated 8 October 1993. Section 89(1) of the FOI Act provides as follows: 89.(1) The Commissioner, after conducting a review of a decision (other than a review under section 84), must make a written decision - (a) affirming the decision; or (b) varying the decision; or (c) setting aside the decision and making a decision in substitution for the decision.20. Accordingly, it is appropriate that I set aside the decision under review. In substitution for it, I decide that Dr Robbins may be given access under the FOI Act to all documents which fall within the terms of his FOI access application dated 8 October 1993, and I am satisfied that those documents consist of the 16 pages attached to the letter of 8 December 1993 from the Authority to Dr Robbins, plus the two letters from Dr Pope to the NH&MRC dated 28 April 1993 and 1 June 1993 which are identified in the fourth paragraph of the Deputy Information Commissioner's letter to Dr Robbins dated 12 January 1994........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Volep and Queensland Police Service [2013] QICmr 10 (19 April 2013)

Volep and Queensland Police Service [2013] QICmr 10 (19 April 2013) Last Updated: 27 August 2013 Decision and Reasons for Decision Application Number: 311152 Applicant: Volep Respondent: Queensland Police Service Decision Date: 19 April 2013 Catchwords: ADMINISTRATIVE LAW – RIGHT TO INFORMATION – REFUSAL OF ACCESS – CONTRARY TO PUBLIC INTEREST – applicant seeks access to names and addresses of witnesses to an accident in which he was injured – whether disclosure would, on balance, be contrary to the public interest – sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant sought[1] access from the Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) to the names and addresses of witnesses to a motor vehicle accident in which he was injured. After locating documents containing information responsive to the access application, QPS consulted[2] with seven witnesses to the accident. Two witnesses did not object to their details being released to the applicant. Of the remaining witnesses, one objected[3] to release of their details and the others did not respond to the consultation (Remaining Witnesses). QPS decided[4] to refuse the applicant access to the names and addresses of the Remaining Witnesses.[5] The decision was affirmed on internal review.[6] On external review, the applicant submitted that disclosure of the names and addresses of the Remaining Witnesses would not, on balance, be contrary to the public interest. For the reasons set out below, access to the names and addresses of the Remaining Witnesses is granted on the basis that disclosure would not, on balance be contrary to the public interest. Reviewable decision The decision under review is the internal review decision of QPS dated 20 August 2012. Information in issue The information in issue in this external review is the names and addresses of the Remaining Witnesses (Information in Issue). Issue in this review The issue for determination in this external review is whether the Information in Issue comprises information the disclosure of which would, on balance, be contrary to the public interest. Significant procedural steps Significant procedural steps relating to the application and external review are set out in the Appendix. Evidence considered The evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and appendix). Relevant law Right to access information Under section 23 of the RTI Act, a person has a right to be given access to documents of an agency. However, this right is subject to a number of exclusions and limitations, including grounds for refusal of access. These grounds are contained in section 47 of the RTI Act. Findings Does the Information in Issue comprise information the disclosure of which would, on balance, be contrary to the public interest? No, for the reasons that follow. An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[7] The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[8] and explains the steps that a decision-maker must take[9] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest.[10] Irrelevant factors No irrelevant factors arise on the information before me. Factors favouring disclosure and nondisclosure Enhance government accountability The RTI Act recognises that if disclosing information could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability, a factor favouring disclosure will arise.[11] The applicant submits[12] that: QPS unilaterally decided that charges would not be brought against the driver of the bus the report prepared by QPS of the incident is brief and the substance of the witness statements that were released are not comprehensive some of the evidence is contradictory and confusing and warrants further investigation QPS has not conducted further investigations and the evidence can only be tested after further discussion with all witnesses disclosing the Information in Issue will enable the affected parties to conduct their own investigations and ensure that the necessary evidence can be brought before the court while the report may be adequate for QPS purposes, it is completely inadequate for a consideration of liability in a civil proceeding; and the fact that QPS has determined that they cannot prove criminal charges beyond reasonable doubt does not mean that there are many issues to be determined on assessing apportionment of liability in a civil proceeding. QPS submits[13] that: the report is quite detailed and provides witness accounts, the investigator’s assessment and a thorough reasoning of why criminal charges were not laid against the bus driver; and witness statements of such incidents are often contradictory and confusing and QPS weighs these versions in determining whether to commence proceedings. QPS is responsible for attending and reporting on incidents such as that involving the applicant and, in doing so, must be accountable for discharging those functions. QPS has provided the applicant with information about its investigation, even though this was outside the scope of the access application, which shows details of the witness statements and the steps it took in reaching its conclusion to not commence criminal proceedings. Disclosing the Information in Issue, that is, the names and addresses of the Remaining Witnesses, would not reveal how QPS discharged its functions and I do not consider that QPS’ accountability would be furthered by releasing the Information in Issue. For these reasons, I afford no weight to this factor. Administration of justice If disclosing information could reasonably be expected to contribute to the administration of justice generally or for a person, this gives rise to a factor favouring disclosure.[14] I am satisfied that these factors are relevant. Accordingly, it is necessary to consider the weight to be afforded to these factors in the circumstances of this review. The applicant submits[15] that: if the Information in Issue is not provided, the parties to the dispute will be denied the basic right to be able to contact these witnesses, test their evidence and call them as witnesses at trial as a result, the parties and the court would be denied important witness information which should be submitted for a proper determination of liability in the matter the respondent insurer has not given a full admission of liability the apportionment of liability cannot be appropriately considered solely on the basis of the police report witnesses cannot be subpoenaed because they cannot be identified and there is no way this information can be obtained through any legal process the whole thrust of personal injuries compensation is to resolve claims prior to the commencement of litigation at least seven days before a compulsory conference is held, each party is required to give to the other party a signed certificate to the effect that the party is ready for trial it is a statutory necessity for a personal injuries claimant to be able to obtain the information on witnesses prior to the commencement of any Court proceedings, therefore section 134A of the Evidence Act 1977 (Qld)[16] (Evidence Act) is not relevant; and this substantial injustice is weighed against only a very minor breach of privacy. QPS submits[17] that: disclosing the information may assist the applicant pursue or evaluate whether to pursue a legal remedy and will assist him to make his own inquiries about the accident; but once proceedings have commenced, the applicant could subpoena the witnesses at trial or obtain the Information in Issue from QPS under section 134A of the Evidence Act. The applicant contended that he and the other party in the matter would be denied the ability to call the witnesses at trial and test their evidence if the identity of the witnesses is not disclosed under the RTI Act, and that there is no way that information could be obtained through any legal process. In this case the applicant suffered personal injury in a single vehicle incident involving a bus. He has sought compensation for his injuries in reliance upon the Motor Accident Insurance Act 1994 (MAIA). One of the objects of the MAIA is to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents.[18] Before a claimant under the MAIA can bring a civil action in a court for damages for personal injuries they must participate in a ‘compulsory conference’.[19] Prior to the compulsory conference the parties’ legal representatives must sign a ‘certificate of readiness’.[20] The certificate of readiness must state, among other things, that all witness statements from persons the party intends to call as witnesses at the trial have been obtained.[21] In this case, the Applicant contends that he is precluded from signing the certificate of readiness because he cannot obtain the identities of the witnesses, nor obtain statements upon which he may rely at trial (or in a conference). While QPS have submitted that the applicant could subpoena the witnesses at trial or obtain the Information in Issue from QPS under section 134A of the Evidence Act , the issue for the applicant is that the Information in Issue is required to complete a pre-trial step under the MAIA. It is apparent that the applicant has no means of obtaining the Information in Issue prior to proceeding to a compulsory conference. This precludes the applicant from being able to sign a certificate of readiness which in turn frustrates the object of the MAIA to encourage speedy resolution of personal injury claims. I note that prior to the commencement of the Information Privacy Act 2009 (IPA) the QPS provided witness details such as those in issue in this review to CITEC (the Queensland Government's primary information and communication technology (ICT) service provider) pursuant to section 94 of the Transport Operations (Road Use Management) Act 1995 and section 31(2) of the Motor Accident Insurance Regulation 2004. Those details were accessible by insurance companies and parties to motor vehicle accidents. The introduction of the IPA brought about the removal of the identifying details of witnesses from CITEC. However, this resulted in the difficulties being encountered by the applicant in this case, being encountered by other parties to motor vehicle accidents. The Motor Accident Insurance Commission (the regulatory authority established under the MAIA which is responsible for the management of the Compulsory Third Party (CTP) scheme in Queensland) is aware of the issue arising from the introduction of the IPA and its implications for the operation of the MAIA; and is investigating a solution.[22] I consider that it has been an unintended consequence of the introduction of the IPA to fetter the operation of the MAIA to the detriment of the parties in those matters. I consider that it is in the public interest generally to ensure that the object of the MAIA to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents is supported. Additionally I consider that it is in the public interest to ensure that the applicant in this particular case, be given an opportunity to properly pursue a remedy for personal injuries under the MAIA. For the reasons set out above, I give these factors significant weight. Personal information and privacy It is also relevant to consider whether disclosing the Information in Issue could reasonably be expected to: prejudice the protection of an individuals’ right to privacy;[23] and cause a public interest harm as the information is personal information of another individual.[24] The Information in Issue is the personal information[25] of other individuals, namely the Remaining Witnesses. The Remaining Witnesses are minors who witnessed the accident. Given the nature of the Information in Issue and the context in which it appears, it is also reasonable to expect that its disclosure will prejudice the privacy of the Remaining Witnesses. It is relevant to consider the extent of harm that would flow from disclosing the personal information of the Remaining Witnesses. The applicant submits[26] that: the extent of the harm anticipated from releasing the Information in Issue would be miniscule because (i) the information will not be disclosed to the world at large and (ii) release would simply allow the affected parties to contact the parents of the Remaining Witnesses to discuss evidentiary issues the name and address of an individual is not a significant intrusion in the context of this application there are weekly occurrences where people are releasing their own name and address in the process of living their everyday lives witnesses to an accident should expect that they may be called to give evidence as to what they saw; and the privacy issues are minor compared to the potential injustice to the applicant and insurance companies who have to make decisions based on liability. QPS submits[27] that: disclosure of the Information in Issue is a significant intrusion into the individuals’ privacy the RTI Act does not provide for release of information subject to an undertaking that the information won’t be disclosed to the world at large; and the witnesses provided information to QPS for the purpose of assisting in a criminal investigation and would not have contemplated contact from other parties in relation to civil proceedings. In Marshall and Queensland Police Service,[28] the RTI Commissioner recognised that in appropriate cases, information supplied to QPS will need to be further disseminated or published (so as, for example, to enable further investigation, or for prosecutorial purposes, often in open court) which may reduce the privacy interest attaching to relevant information.[29] I accept that this may be the case in relation to the Information in Issue in this review and that this reduces the weight of the privacy interest to some degree in this case. However, in that decision the RTI Commissioner also explained that members of the community assisting police with inquiries have a legitimate expectation that in doing so, their privacy will be maintained and respected as far as is possible.[30] I consider that in the circumstances of this case, disclosing the Information in Issue under the RTI Act would constitute an intrusion into the witnesses’ privacy. While I acknowledge that individuals often release their own names and addresses to various entities in the process of living their everyday lives, this disclosure is at the discretion of the individual and is often subject to a privacy statement of the entity limiting the use to which the information is put and providing the individual with a legal remedy should the information be used in another manner. I do not consider that this reduces the privacy interest. For the reasons set out above, I afford moderate weight to these factors favouring nondisclosure of the Information in Issue. Balancing the relevant public interest factors In summary, for the reasons set out above: I afford: ○ no weight to the public interest factor relating to promoting open discussion of public affairs and enhancing the Government’s accountability ○ significant weight to the public interest factors relating to the administration of justice for a person and to the administration of justice generally; and ○ moderate weight to the public interest factors relating to the personal information and privacy of witnesses. Having weighed these factors I consider disclosing the Information in Issue would not, on balance, be contrary to the public interest; and access to the Information in Issue is granted under section 47(3)(b) of the RTI Act. DECISION I set aside the internal review decision of QPS dated 20 August 2012 and substitute a decision to grant access to the Information in Issue on the basis that disclosure is not, on balance, contrary to the public interest. I have made this decision as a delegate of the Acting Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Victoria Corby Assistant Information Commissioner Date: 19 April 2013APPENDIX Significant procedural steps Date Event 31 May 2012 QPS receives the access application dated 30 May 2012. 16 July 2012 QPS decides to refuse the applicant access to the names and addresses of witnesses 20 July 2012 The applicant seeks internal review of QPS’s decision dated 16 July 2012. 20 August 2012 QPS affirms its original decision to refuse access. 28 August 2012 OIC receives the applicant’s request for external review of the internal review decision of QPS dated 20 August 2012. 30 August 2012 OIC informs the applicant and QPS that the application for external review has been accepted. 4 September 2012 QPS provides to OIC copies of the documents containing the Information in Issue. 2 November 2012 OIC conveys a view to the applicant that disclosure of the Information in Issue is, on balance, contrary to the public interest. If the view is contested, the applicant is invited to provide a submission by 19 November 2012. 6 November 2012 The applicant provides a submission. 13 December 2012 OIC conveys a view to QPS that disclosure of the Information in Issue is not, on balance, contrary to the public interest. If the view is contested, QPS is invited to provide a submission by 10 January 2013. 21 December 2012 QPS provides a submission. 25 February 2013 OIC conveys a further view to the applicant that disclosure of the Information in Issue is, on balance, contrary to the public interest. If the view is contested, the applicant is invited to provide a submission by 11 March 2013. 11 March 2013 The applicant provides a submission. [1] By access application dated 30 May 2012 and received on 31 May 2012.[2] In accordance with section 37 of the RTI Act.[3] The witnesses’ parent objected on behalf of the child witness.[4] By decision dated 16 July 2012.[5] Internal review decision dated 20 August 2012.[6] By internal review decision dated 20 August 2012 in response to an internal review application dated 20 July 2012.[7] Sections 47(3)(b) and 49 of the RTI Act. [8] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant in a particular case. [9] Section 49(3) of the RTI Act.[10] As to the correctness of this approach, see Gordon Resources Pty Ltd v State of Queensland [2012] QCATA 135.[11] Schedule 4, part 2, item 1 of the RTI Act. [12] Submissions dated 6 November 2012 and 11 March 2013.[13] Submission dated 21 December 2012.[14] Schedule 4, part 2, items 16 and 17 of the RTI Act.[15] Submissions dated 6 November 2012 and 11 March 2013.[16] Section 134A provides that a person who is a party to a civil proceeding may make written applications to an agency to produce documents for inspection that are in the agency’s possession and relevant to an issue in proceedings.[17] Submission dated 21 December 2012.[18] Section 3(e) of the MAIA.[19] Section 51A(1) of the MAIA[20] Section 51B of the MAIA[21] Section 51B(6)(b) of the MAIA[22] Telephone conversation with staff of the Motor Accident Insurance Commission 19 April 2013.[23] Schedule 4, part 3, item 3 of the RTI Act.[24] Schedule 4, part 4, item 6 of the RTI Act.[25] 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.[26] Submissions dated 6 November 2012 and 11 March 2013.[27] Submission dated 21 December 2012.[28] (Unreported, Queensland Information Commissioner, 25 February 2011). [29] At paragraph 28. [30] At paragraph 28.

queensland

court_judgement

Queensland Information Commissioner 1993-

Tooker and Central Queensland Ports Authority [2006] QICmr 30 (23 October 2007)

Tooker and Central Queensland Ports Authority [2006] QICmr 30 (23 October 2007) Office of the Information Commissioner Decision and Reasons for Decision Application Number: 210244 Applicant: Mr P Tooker Respondent: Central Queensland Ports Authority Decision Date: 23 October 2007 Catchwords: FREEDOM OF INFORMATION – whether documents are excluded from the application of the Freedom of Information Act 1992 (Qld) by section 11A – whether documents were received or brought into existence by the respondent in carrying out its commercial activities – Risk Management Committee minutes relating to coal dust Contents Summary....................................................................................................................... 2 Background................................................................................................................... 2 Decision under review................................................................................................... 3 Steps taken in the external review process.................................................................. 3 Matter in issue............................................................................................................... 4 Findings......................................................................................................................... 4 ...... Section 11A of the FOI Act..................................................................................... 4 Activities conducted on a commercial basis................................................ 5 ...... Whether the Matter in Issue was received or brought into existence by the CQPA in carrying out its commercial activities...................................... 8 ...... The applicant’s submissions on public interest considerations............................ 12 ...... The applicant’s submissions on whether the information is ‘commercial in confidence’............................................................................................................. 13 Decision........................................................................................................................ 14 Reasons for Decision Summary 1. I have carefully considered the Matter in Issue in this review, and the submissions and evidence provided by the applicant and the Central Queensland Port Authority (CQPA) in this matter. 2. For the reasons set out at paragraphs 21 – 58 below, I am satisfied that: • the documents sought by Mr Tooker (the applicant) in this review have been received or brought into existence for the purpose of documenting the CQPA’s risk assessment issues relating to coal handling services, and their appropriate commercial management • risk assessment and management of issues relating to coal handling services, a key income earning activity of the CQPA, is a strategic investment by the CQPA to ensure profitability of CQPA services and • the documenting of the CQPA Audit, Compliance and Risk Management Committee’s consideration of the risk assessment of issues, and the appropriate commercial management of such issues, is an activity conducted on a commercial basis. 3. On that basis, I find that the matter in issue is excluded from the application of the Freedom of Information Act 1992 (Qld) (FOI Act) by section 11A of the FOI Act. The CQPA are therefore not required under the FOI Act to provide access to the documents sought by the applicant. Background 4. The applicant made a request under the FOI Act, in a letter dated 4 April 2007, for: a copy of any CQPA Board Risk Committee (or any predecessor to the CQPA Board Risk Committee) minutes relating to coal dust. This request covers the period 1997 – present, and is to include the minutes from any pre-existing committee if the Board Risk Committee was formed later than 1997. 5. Mr G White, Corporate Services Manager, Central Queensland Ports Authority (CQPA) advised the applicant, in a letter dated 18 April 2007, that any commercial activities of the CQPA as a Government Owned Corporation (GOC) are excluded from the FOI Act. 6. In a letter dated 4 May 2007, the applicant applied for an internal review of Mr White’s decision. 7. Mr M Galt, Commercial Services Manager, CQPA, in a letter dated 5 June 2007, affirmed the original decision of Mr White and refused to grant the applicant access to the documents. 8. The applicant wrote to this Office, in a letter dated 6 June 2007, seeking an external review of Mr Galt’s decision under Part 5 of the FOI Act. Decision under review 9. The decision under review is the internal review decision of Mr M Galt dated 5 June 2007 to refuse access to the documents on the basis that: • the documents relate to the commercial activities of the CQPA and are exempt from production under the Transport Infrastructure Act 1996 and • the documents are also exempt from production under the FOI Act as they contain information that is commercially confidential. Steps taken in the external review process 10. On 19 June 2007 I wrote to the CQPA seeking submissions regarding the application of section 11A of the FOI Act to the matter in issue. 11. In a letter dated 4 July 2007, the CQPA provided submissions to this Office relating to the application of section 11A of the FOI Act to the matter in issue. 12. On 16 July 2007 I wrote to the CQPA seeking further submissions on the application of section 11A of the FOI Act to the matter in issue and outlining specific issues to be addressed in those submissions. I also requested that the CQPA provide copies of the matter in issue and other supporting information. 13. In a letter dated 6 August 2007, this Office received further submissions from the CQPA, copies of the matter in issue and other supporting information. 14. Having carefully reviewed the applicant’s external review application, the matter in issue, and the supporting information and submissions provided by the CQPA, I wrote to the applicant on 7 September 2007 advising that I had formed the preliminary view that the matter in issue had been received or brought into existence by the CQPA in carrying out its commercial activities and was therefore excluded from the operation of the FOI Act by section 11A of the FOI Act. In that letter I explained the reasons for my preliminary view and referred to and included the relevant parts of the CQPA’s submissions. I invited the applicant to make submissions if he did not agree with my preliminary view. 15. In a letter dated 14 September 2007, the applicant advised that he did not accept my preliminary view and provided me with submissions in support of his case. The applicant also requested that he be provided with a copy of the submissions made by the CQPA. 16. In letters dated 19 September 2007 and 20 September 2007, the applicant provided me with further submissions and enclosed material for my consideration. 17. On 25 September 2007 I requested the views of CQPA about releasing parts of the CQPA submissions to the applicant. In a letter dated 28 September 2007 the CQPA provided its response, indicating parts of one submission that it considered referred to specific details of the matter in issue. 18. On 28 September 2007 I wrote to the applicant and provided him with a copy of the CQPA’s submissions of 4 July 2007 in full and the CQPA’s submissions of 6 August 2007 in part. Information was removed from the CQPA’s submissions of 6 August 2007 as it made specific reference to, and revealed the contents of, the documents that I considered were excluded from the operation of the FOI Act in accordance with my preliminary view. I invited the applicant to provide any final submissions in this review. 19. The applicant provided this Office with his final submissions by letter dated 3 October 2007. 20. In making my decision in this matter, I have taken the following into account: • the applicant’s FOI application dated 4 April 2007, application for internal review dated 4 May 2007 and application for external review dated 6 June 2007 • Mr White’s initial decision dated 18 April 2007 and Mr Galt’s internal review decision dated 5 June 2007 • the CQPA’s submissions dated 4 July 2007 and 6 August 2007 • the applicant’s submissions dated 14 September 2007, 19 September 2007, 20 September 2007 and 3 October 2007 and • relevant provisions of the FOI Act and the TI Act, and decisions of this Office. Matter in issue 21. The matter in issue in this review comprises CQPA Board Risk Committee (or any predecessor to the CQPA Board Risk Committee) minutes relating to coal dust for the period 1997 to 4 April 2007 (Matter in Issue). Findings Section 11A of the FOI Act 22. Section 11A of the FOI Act provides: 11A Application of Act to GOCs This Act does not apply to documents received, or brought into existence, in carrying out activities of a GOC mentioned in schedule 2 to the extent provided under the application provision mentioned for the GOC in the schedule. 23. Schedule 2 of the FOI Act relevantly states: Schedule 2 Application of Act to GOCs section 11A of the Act GOC Application provision 1 Queensland Rail, or a port authority Transport Infrastructure Act (within the meaning of the 1994, section 486 Transport Infrastructure Act 1994) that is a GOC 24. Section 486 of the Transport Infrastructure Act 1994 (Qld) (TI Act) is applicable and provides as follows: 486 Application of Freedom of Information Act and Judicial Review Act (1) The Freedom of Information Act 1992 does not apply to a document received or brought into existence by a transport GOC in carrying out its excluded activities. (2) The Judicial Review Act 1991 does not apply to a decision of a transport GOC made in carrying out its excluded activities. (3) A regulation may declare the activities of a transport GOC that are taken to be, or are taken not to be, activities conducted on a commercial basis. (4) In this section— commercial activities means activities conducted on a commercial basis. community service obligations has the same meaning as in the Government Owned Corporations Act 1993. excluded activities means— (a) commercial activities; or (b) community service obligations prescribed under a regulation. transport GOC means a GOC whose functions relate mainly to transport. 25. I am satisfied that the CQPA is a port authority that is a GOC within the meaning of the TI Act. 26. The CQPA has not argued that the Matter in Issue was brought into existence in the course of carrying out community service obligations that have been prescribed as excluded activities under a regulation. Accordingly, the question I must determine is whether the Matter in Issue was received or brought into existence by the CQPA in carrying out its activities conducted on a commercial basis. Activities conducted on a commercial basis 27. The applicant has provided me with lengthy submissions in relation to this issue. I have carefully considered those submissions in detail. The submissions may be summarised as follows: • That the intent of the FOI Act was to provide freedom of information and a more narrow interpretation of ‘commercial activities’ is an appropriate interpretation in this context. • The approach that I adopted in forming a preliminary view would mean that any activity undertaken by a GOC (in this case the CQPA) is by definition a commercial activity and that the logical effect of that approach is that all activities of the CQPA are protected from scrutiny under the FOI Act. For example ‘a secretary who takes in a cup of tea to her manager is engaged in a commercial activity’. • The intent of the FOI Act was for non-commercial activities of the CQPA to be covered by the legislation. • ‘Commercial activities’ in this context would therefore extend to normal commercial activities, for example the negotiation of coal contracts or construction contracts but not to normal CQPA Board Risk Committee minutes that relate to CQPA strategy for managing both public and EPA reaction to CQPA environmental pollution/environmental harm. • the actual contents of that portion of the CQPA Board Risk Committee minutes the applicant has sought access to should be examined, and make a clearly reasoned decision on whether those minutes are a ‘commercial activity’. • That as a general principle, each activity within each CQPA function should be considered on its merits and there should be no blanket exemption applied to any function. 28. The applicant’s submissions also included general arguments relating to the purpose and intent of the FOI Act and section 11A of the FOI Act including the following: • ‘... the intent of the FOI Act was to ‘open the books’ to the maximum extent possible...’. • That the applicant’s request is in keeping with the mood of the people as expressed through the media and in keeping with the mood of the government in its effort to return ‘freedom’ to freedom of information. • ‘It is difficult for anyone to participate in government if the government (in this case embodied in a GOC) is making its decisions in secrecy, under the cloak of ‘commercial activities’.’ • ‘... a balance needs to be struck between ‘commercial activity’ and ‘freedom of information’ and that the term ‘commercial activity’ should be given a narrow interpretation and not read to cover the field of all GOC corporate objectives / commercial activity’. • In this case, the FOI Act is ‘being used to conceal potentially embarrassing information’. 29. In his submissions, the applicant also referred to the following material to support his assertions: • articles published in The Australian on 18 September 2007, 19 September 2007 and 20 September 2007 • an article published in The Courier-Mail on 19 September 2007 • the decision of the Information Commissioner in Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 (Eccleston) and • the second reading speech of the Attorney-General Dean Wells for the FOI Act. 30. The CQPA, in its submissions to this Office, stated: The CQPA is a statutory Government Owned Corporation (statutory GOC) with shares held equally by the State Treasurer and Minister for Transport on behalf of the Queensland Government. The CQPA is responsible for funding its own operations and capital works programs. Funds may be derived from day to day operations or from borrowings. Although borrowings are guaranteed by the Queensland Treasurer, CQPA is responsible for the payment of interest at market rates and repayment of principal. ... The Port’s major function is to facilitate the export of resources from Central Queensland (such as coal) and to handle the import of raw material and the export of finished products from the various industries located in and around Gladstone. To this end, the CQPA has the following activities and/or functions: • To establish, manage, and operate effective and efficient port facilities and services in the Port of Gladstone and Port Alma; • To make land available for the establishment, management and operation of effective and efficient port facilities and services in the Ports by other persons, or other purposes consistent with the operation of the Ports; • To provide or arrange for the provision of ancillary services or works necessary or convenient for the effective and efficient operation of the Ports; • To keep appropriate levels of safety and security in the provision and operation of the facilities and services; • To provide other services incidental to the performance of its other functions or likely to enhance the usage of the Ports; and • To perform any other functions conferred on it by legislation. Risk assessment and management is utilised by the CQPA in the pursuance of its activities and functions. 31. The CQPA also submits that its activities and functions are conducted on a commercial basis as the objective of each of those activities is to return a profit and earn a commercial rate of return. No regulation has been made under section 486(3) of the TI Act declaring activities of the CQPA that are taken to be, or are taken not to be, activities conducted on a commercial basis. 32. As set out above, section 486(4) of the TI Act defines ‘commercial activities’ as ‘activities conducted on a commercial basis’. No other definition of ‘commercial’ is contained in the TI Act, or in the Acts Interpretation Act 1954 (Qld). 33. The Information Commissioner discussed the application of section 11A of the FOI Act and the meaning of ‘commercial’ in the decision Hansen and Queensland Industry Development Corporation [1996] QICmr 9; (1996) 3 QAR 265 (Hansen). At paragraphs 25 and 26 of that decision the Information Commissioner stated: Major dictionaries give the primary meaning of the adjective "commercial" as "of, connected with, or engaged in, commerce; mercantile" (Collins English Dictionary, Third Aust. Ed), "of, engaged in, bearing on, commerce" (Australian Concise Oxford Dictionary), "of, or of the nature of, commerce" (Macquarie Dictionary). The corresponding primary meaning of the noun "commerce" is "the activity embracing all forms of the purchase and sale of goods and services" (Collins English Dictionary, Third Aust. Ed.), "exchange of merchandise or services ... buying and selling" (Australian Concise Oxford Dictionary), "interchange of goods or commodities" (Macquarie Dictionary)... There is a subsidiary meaning of the adjective "commercial" which may be appropriate to the context of the phrase "activities conducted on a commercial basis" in s.35 of the Queensland Industry Development Corporation Act 1994, that is, "having profit as the main aim" (Collins English Dictionary, Third Aust. Ed.), "capable of returning a profit; ... preoccupied with profits or immediate gains" (Macquarie Dictionary). 34. The applicant has submitted that a narrow interpretation of ‘commercial activities’ is an appropriate interpretation in the context. Section 4 of the FOI Act sets out the object of the FOI Act as follows: 4 Object of Act and its achievement (1) The object of this Act is to extend as far as possible the right of the community to have access to information held by Queensland government. (2) Parliament recognises that, in a free and democratic society— (a) the public interest is served by promoting open discussion of public affairs and enhancing government’s accountability; and (b) the community should be kept informed of government’s operations, including, in particular, the rules and practices followed by government in its dealings with members of the community; and (c) members of the community should have access to information held by government in relation to their personal affairs and should be given a way to ensure the information is accurate, complete, up-to-date and not misleading. (3) Parliament also recognises there are competing interests in that the disclosure of particular information could be contrary to the public interest because its disclosure in some instances would have a prejudicial effect on— (a) essential public interests; or (b) the private or business affairs of members of the community about whom information is collected and held by government. (4) This Act is intended to strike a balance between those competing interests. (5) The object of this Act is achieved by— (a) giving members of the community a right of access to information held by government to the greatest extent possible with limited exceptions for the purpose of preventing a prejudicial effect on the public interest of a kind mentioned in subsection (3); and (b) requiring particular information and documents concerning government operations to be made available to the public; and (c) giving members of the community a right to bring about the amendment of documents held by government containing information in relation to their personal affairs to ensure the information is accurate, complete, up-to-date and not misleading. (6) It is Parliament’s intention that this Act be interpreted to further the object stated in subsection (1) in the context of the matters stated in subsections (2) to (5). 35. Therefore, in summary, Parliament’s intention was that the FOI Act: • extends as far as possible the right of the community to have access to information held by Queensland government in the context of the matters stated in subsections (2) to (5) of section 4 and • strikes a balance between competing interests. 36. For these reasons, Parliament has enacted provisions under which documents are to be considered exempt or under which certain bodies or types of information are to be excluded from the application of the FOI Act. Section 11A of the FOI Act is one of these provisions which, if applicable, means that the FOI Act will not apply to that particular information. 37. I note that the jurisdiction of the Information Commissioner in this matter is to conduct an external review of Mr Galt’s decision, and by applying the provisions of the FOI Act and the TI Act, decide whether the particular Matter in Issue in this case meets the criteria set out in those provisions such that it should be excluded from the application of the FOI Act. Specific exclusions and exemptions to strike the balance between competing interests recognised in section 4 of the FOI Act have been set out in the legislation by Parliament, as noted above. This Office merely applies the law. Whether section 11A of the FOI Act applies to information sought by an applicant is an issue that is determined in accordance with the relevant legislative provisions on a case by case basis, following careful consideration of the documents in issue, submissions of the parties and relevant case law and decisions of this Office. Whether the Matter in Issue was received or brought into existence by the CQPA in carrying out its commercial activities 38. In determining whether the Matter in Issue was received or brought into existence by the CQPA in carrying out activities conducted on a commercial basis, the content of the Matter in Issue is relevant only to the extent that it assists the task of properly characterising the nature of the activity carried out by the CQPA in the course of which the Matter in Issue was brought into existence. 39. It is possible for a document containing information about the CQPA’s commercial activities to have been brought into existence in carrying out an activity that was not conducted on a commercial basis, for example accounting to the shareholding Ministers for the performance of the CQPA’s functions or in carrying out a function of a public regulatory nature. In such a case, the document would be subject to the application of the FOI Act and a decision would be required as to whether any of the matter contained in the documents in issue was exempt matter under any of the exemption provisions in Part 3, Division 2 of the FOI Act. If, on the other hand, the document was brought into existence in carrying out an activity conducted by the CQPA on a commercial basis, the document would be excluded from the application of the FOI Act. 40. In Readymix Holdings Pty Ltd and Port of Brisbane Corporation; Brisbane Mini Mix Pty Ltd (Third Party) (2003) 6 QAR 294, the Information Commissioner determined whether documents relating to the assessment and approval of a development application lodged by a third party in respect of land vested in the Port of Brisbane Corporation were documents received or brought into existence by the Port of Brisbane Corporation in carrying out its commercial activities. In that decision, the Information Commissioner found that in receiving, assessing and approving the third party’s development application, the Port of Brisbane Corporation was carrying out a public regulatory activity, not an activity conducted on a commercial basis. Therefore the documents were not excluded from the operation of the FOI Act by section 11A of the FOI Act. 41. Similarly, in Hansen, the Information Commissioner was required to determine whether documents relating to a review of a decision by the Queensland Industry Development Corporation (QIDC) to terminate the applicant’s employment were documents received or brought into existence by the QIDC in carrying out its commercial activities. In that decision, the Information Commissioner found that the termination of the applicant’s employment and the activities of the QIDC in response to the applicant’s submission disputing the decision to terminate his employment were not activities conducted on a commercial basis. Therefore the documents were not excluded from the operation of the FOI Act by section 11A of the FOI Act. Coal handling services 42. As mentioned above, one of the activities undertaken by the CQPA is to provide coal handling services as part of its functions to facilitate the export of resources from Central Queensland and to handle the import of raw material and the export of finished products from the various industries located in and around Gladstone. 43. I am of the view that the provision of coal handling services is a key activity the CQPA performs in order to return a profit and to achieve its corporate objectives and as such, is a commercial activity. 44. The characterisation of the provision of CQPA coal handling services as a commercial activity does not necessarily lead to the conclusion that the Matter in Issue was received or brought into existence by the CQPA in carrying out its commercial activities. It does however assist in the characterisation of the Matter in Issue. Risk assessment and management of coal handling services 45. The CQPA submitted, in a letter dated 6 August 2007: The Minutes of the Committee and Board meetings were brought into existence for the purpose of documenting the risk assessment issues and their appropriate commercial management. We would submit that the Risk Committee documents, which were the subject of the original FOI request, pertain to the commercial activities of the CQPA, and were brought into existence in the pursuit of that purpose. ... ... the issues dealt with by the Board (particularly as they relate to the Committee reports to the Board) involve the identification and minimisation of the various risks related to the pursuance of the commercial activities of the CQPA, which affect its ability to establish, manage, and operate effective, efficient and safe port facilities and services in the Port of Gladstone and Port Alma. 46. Having carefully examined the Matter in Issue, I am satisfied that such documents relate to coal handling services and have been received or brought into existence for the purpose of documenting the CQPA’s risk assessment issues and their appropriate commercial management. The documents are a record of the Board and/or Risk Management Committee having met to address risk assessment and management issues associated with coal handling services. 47. It is necessary to consider whether the documenting of the CQPA’s risk assessment issues and their appropriate commercial management in relation to coal handling services can be characterised as an ‘activity conducted on a commercial basis’. If it can be characterised as such, then in accordance with section 11A of the FOI Act and section 486 of the TI Act, the FOI Act does not apply to the Matter in Issue. 48. I note the CQPA’s Risk Management Policy is available on its website. Relevantly, paragraph 1.1 contains a policy statement as follows: CQPA is committed to: • Behaving as a responsible corporate citizen protecting employees, clients, contractors, visitors, the community and the general public from unnecessary injury, loss or damage. • Achieving its business objectives by minimising the impact of risks it can meaningfully and realistically control. 49. Further, one of the aims of the risk management system and frameworks the CQPA will put in place, as outlined on page 3 of that document, is to ‘align risk management with business objectives’. 50. The definition of ‘risk’ on page 4 of that document states: Within CQPA, a risk to the business is any action or event that has the potential to impact on the achievement of our business objectives. 51. I am of the view that the management of risks by the CQPA relating to coal handling issues, where coal handling services is a key income earning activity of the CQPA, is an activity that is inextricably linked with achieving its business and commercial objectives. 52. In its submissions to this Office, the CQPA argued that: ... the activities and functions of the CQPA are activities conducted on a commercial basis as the objective of each of those activities is, as identified in the Statement of Corporate Intent, to return a profit and earn a commercial rate of return. Clearly, the assessment of any risks which will affect the ability of CQPA to earn a commercial return and affect profit margins is a direct part of its commercial activities. This is particularly so in the case of the alleged coal dust issues which arise in the conduct of CQPA’s principal income earning business; namely, the conduct of coal handling services at the Port of Gladstone. ... In this case, the risk management assessments undertaken by the CQPA Board and Committee are a strategic commercial investment necessary to reduce or minimise the risks to profitability and the return to its shareholders. 53. In Qantas and Cairns Port Authority (2005 F0268, 15 November 2005), the Information Commissioner found that the Cairns Port Authority's bird and wildlife risk management program for the Cairns International Airport was an activity conducted on a commercial basis. In that case, the Commissioner found that the documents in issue clearly demonstrated that the program was a comprehensive activity carried out on a commercial basis involving a substantial investment by the Authority to manage the significant risks to the Authority's profit margins posed by bird strikes. The Information Commissioner subsequently decided that the documents relating to the program were received or brought into existence by the Authority in carrying out an activity conducted on a commercial basis and were excluded from the application of the FOI Act by section 11A of the FOI Act and section 486 of the TI Act. 54. I am of the view that a system for the management of all risks associated with coal handling services (which would include any alleged issues relating to the risk management of coal dust) is a strategic investment by the CQPA and is part of the CQPA’s commercial activities. As set out above, the CQPA has stated that coal handling services are the ‘principal income earning business’ of the CQPA. Risk management issues relating to coal dust are therefore critical to the success of CQPA coal handling services, and therefore the profitability of the CQPA as a whole. I am of the view that it is clear that the system for risk management of coal dust issues is being undertaken to ensure that such risks are reduced or minimised to ensure business objectives can be achieved, including profitability of the CQPA and return to shareholders. 55. The Information Commissioner considered the application of section 11A of the FOI Act and the characterisation of ‘activities conducted on a commercial basis’ in Re Hansen. In that matter, the QIDC argued that all of its activities were conducted on a commercial basis and that the effect of the exclusion provisions was to afford it a complete exclusion from the application of the FOI Act. The Information Commissioner did not accept this argument and at paragraph 22 commented that: The application of the exclusion provisions requires a determination of the nature of the activity carried out by the QIDC, in the course of which each of the documents in issue was received or brought into existence, and a determination as to whether that activity is a commercial activity of the QIDC, that is, an activity conducted by the QIDC on a commercial basis. 56. At paragraph 28 of that decision, the Information Commissioner held: For reasons already addressed above, I do not consider that the words employed by Parliament in the exclusion provisions contemplate or necessarily require that all activities conducted by a GOC (which, by definition, will necessarily have a commercial orientation) must be characterised as commercial activities. Moreover, the fact that a commercially oriented decision is made in the conduct of an activity does not necessarily make the activity a commercial activity, or an activity conducted on a commercial basis. 57. I agree with the comments in the Information Commissioner’s decision in Re Hansen and I consider that my decision in this review is consistent with those comments. I indicated at paragraph 38 above that it is possible for a document containing information about the CQPA’s commercial activities to have been brought into existence in carrying out an activity that was not conducted on a commercial basis and noted that in such a case, the document would be subject to the application of the FOI Act. I have also given examples at paragraphs 39 and 40 above of instances where the Information Commissioner has decided that section 11A of the FOI Act does not apply. 58. I do not consider, as submitted by the applicant, that the effect of my approach is to effectively exclude all activities of the CQPA from scrutiny under the FOI Act or that this decision would result in all CQPA activity being characterised as a commercial activity. In this case the particular documents sought (the Matter in Issue), which I have carefully examined, relate to risk issues regarding coal handling services, the principal income earning activity of the CQPA. As set out above, I consider that the risk management of such issues is critical to profitability of the CQPA. 59. I am satisfied that the Matter in Issue has been brought into existence for the purpose of documenting the CQPA’s risk management of issues associated with coal handling services, an activity conducted by the CQPA on a commercial basis. I find that the documenting of the CQPA Audit, Compliance and Risk Management Committee’s consideration of the risk assessment of issues, and the appropriate commercial management of such issues, is an activity conducted on a commercial basis. The applicant’s submissions on public interest considerations 60. In his submissions to this Office, the applicant raised issues relating to the public interest in disclosure of the Matter in Issue. His submissions on this point may be summarised as follows: • A decision to not release the information would result in a loss of transparency and may ultimately result in loss of accountability and must be challenged. • ‘Philosophically, the CQPA should seek to conduct its business on an open and transparent basis, without seeking to extend the coverage of ‘commercial activities’ to prevent public scrutiny via Freedom of Information legislation of areas that (in my view) are manifestly not commercial activities.’ • ‘The legislation itself, while not defining the public interest, says that such interest is served ‘by promoting open discussion of public affairs and enhancing government’s accountability.’ ‘... making the requested CQPA Board Risk Committee minutes available would promote open discussion of public affairs and enhance the government’s accountability.’ • Even if it is found that the requested information is a commercial activity, ‘any commercial implication is sufficiently remote from the requested information and at the lower end of the scale and is outweighed in this particular case by public interest considerations.’ 61. I have carefully considered the applicant’s submissions in relation to this issue. In those submissions, the applicant also referred to a previous decision of this Office, Eccelston, in which the Information Commissioner considered and discussed in some detail public interest issues. However, in that case the concept of the ‘public interest’ was discussed in the context of exemption provisions contained in the FOI Act. The Information Commissioner noted that the majority of exemption provisions in Part 3 of the FOI Act contained a specific public interest test. 62. The exemption provisions contained in the FOI Act determine when certain information should not be disclosed under the FOI Act. Some of these exemption provisions incorporate a public interest balancing test and require that a decision maker must weigh up the public interest considerations both in favour of and against disclosing the information. 63. Section 11A of the FOI Act, however, is an exclusionary provision and provides that the FOI Act does not apply to certain information. Where section 11A of the FOI Act applies, the Information Commissioner does not have jurisdiction to consider whether the information should be disclosed to an applicant under Part 3 of the FOI Act. Section 11A of the FOI Act does not include a specific public interest balancing test. 64. As set out above, in this case I have found that section 11A of the FOI Act applies to the Matter in Issue. Therefore, there is no requirement to consider whether information should be disclosed to an applicant under Part 3 of the FOI Act. The applicant’s submissions on whether the information is ‘commercial in confidence’ 65. In his submissions to this Office dated 3 October 2007, the applicant argued, in summary, that: • The CQPA has said that all of its activities and functions are exempt from the FOI Act by virtue of the commercial in confidence exemption. • The CQPA has released commercially sensitive information in the past and therefore the CQPA has, by its own actions, established that such information is not necessarily covered by the commercial in confidence exemption. • There is no consistency in the CQPA approach and its decision to release commercially sensitive information is almost a matter of whim. • I should determine that the Board Risk Committee minutes, as they relate to coal dust, are not commercial in confidence. 66. I have carefully considered the applicant’s submissions in relation to this issue. 67. The CQPA, in its submissions to this Office dated 4 July 2007, submitted that, as an alternative to section 11A of the FOI Act, it relied on the following exemption provisions of the FOI Act: • section 45: matter relating to trade secrets, business affairs and research • section 49: matter affecting financial or property interests or • section 46: matter communicated in confidence. 68. The CQPA has not made specific submissions to this Office on the exemption provisions referred to above as it has relied, primarily, on section 11A of the FOI Act. As I am satisfied that section 11A of the FOI Act applies to the Matter in Issue in this review, it is not necessary for me to address the other exemption provisions the CQPA rely on in the alternative and those provisions are not relevant to this decision. 69. Any consideration of whether the information is ‘commercial in confidence’ and whether the CQPA has released information in the past that the applicant claims is commercially sensitive in nature is not relevant to my decision as to whether the Matter in Issue in this review is excluded from the application of the FOI Act under section 11A. Decision 70. I affirm the decision of Mr M Galt, Commercial General Manager, CQPA, dated 5 June 2007, by finding that the Matter in Issue is excluded from the operation of the FOI Act by section 11A of the FOI Act. ________________________ R Rangihaeata Acting Information Commissioner Date: 23 October 2007

queensland

court_judgement

Queensland Information Commissioner 1993-

Q52 and Legal Services Commission [2020] QICmr 22 (17 April 2020)

Q52 and Legal Services Commission [2020] QICmr 22 (17 April 2020) Last Updated: 4 August 2020 Decision and Reasons for Decision Citation: Q52 and Legal Services Commission [2020] QICmr 22 (17 April 2020) Application Number: 314662 Applicant: Q52 Respondent: Legal Services Commission Decision Date: 17 April 2020 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - complaint documents about a solicitor to the Queensland Legal Services Commission - applicant is neither the solicitor, the subject of complaint nor the complainant - personal information and privacy - accountability and transparency - administration of justice - revealing incorrect information - inquiry into possible deficiencies - fair treatment - prejudice business affairs - prejudice free flow of information to regulatory agencies - whether disclosure would, on balance, be contrary to the public interest - whether access to information may be refused under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NONEXISTENT DOCUMENTS - purported attachments to a complaint letter - how agency is to be satisfied purported attachments do not exist - whether access may be refused under sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Legal Services Commission (LSC) under the Right to Information Act 2009 (Qld) (RTI Act) for access to 17 items listed in a letter from the LSC and addressed to another individual concerning a complaint.[1] LSC refused access to all 17 items on the basis that disclosure would, on balance, be contrary to the public interest.[2] The LSC also refused access to certain attachments to one of the items on the basis that they were nonexistent.[3] The applicant applied to the Information Commissioner for external review of LSC’s decision.[4] For the reasons set out below, I affirm LSC’s decision. Background Significant procedural steps taken during the external review are set out in the Appendix. The background to this matter is that a solicitor made a complaint (on behalf of his client) about another solicitor by letter to LSC (Complaint Letter). LSC investigated and ultimately dismissed the complaint. Written notice of this decision was given to the subject of the complaint (Decision Letter). Seventeen items were listed on page 2 of the Decision Letter, including the Complaint Letter and its purported attachments. These documents (with the exception of some that have now been excluded by the applicant) are the information in issue in the review. The applicant was not the subject of the LSC complaint or the complainant, but rather, was a client of one of the solicitors involved in the complaint. Broadly speaking, the nature of the complaint was that a solicitor had acted for both the applicant’s company and another party to a property transaction, and that this amounted to a conflict of interest. The applicant has submitted that there was never any property transaction,[5] that the complaint was vexatious and baseless,[6] and that misleading information was provided to LSC.[7] He has submitted that he seeks the information to make a complaint to the Victorian Legal Services Commissioner (VLSC)[8] about the complainant solicitor.[9] Reviewable decision The decision under review is LSC’s decision dated 27 May 2019. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including in footnotes and the Appendix). During the review, the applicant has made extensive submissions about the background to the matter, his concerns about the information provided to LSC by the complainant and related allegations of wrongdoing.[10] I acknowledge that the background to the matter is of great importance to the applicant, and that his allegations are serious in nature and raise complex legal questions. In my reasons for decision, I have referred to the applicant’s submissions to the extent that they are relevant to the issues for my consideration. I have also had regard to the Human Rights Act 2019 (Qld),[11] particularly the right to seek and receive information.[12] I consider a decision-maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the RTI Act.[13] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act. Information in issue During the external review, the applicant advised OIC that he no longer requires six of the 17 items listed in the Decision Letter.[14] Of the remaining 11 items in issue, most are comprised of correspondence to LSC from the complainant solicitor, including the Complaint Letter and its purported attachments. Issues for determination The issues for determination are whether: access to the information in issue may be refused because its disclosure would, on balance, be contrary to the public interest;[15] and access to the attachments to the Complaint Letter may be refused because they are nonexistent.[16] Contrary to public interest information Relevant law Access to information may be refused under the RTI Act if its disclosure would, on balance, be contrary to the public interest.[17] The term ‘public interest’ is not defined in the legislation, but is generally accepted to refer to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. A public interest consideration is generally common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests.[18] A decision-maker is required to take specific steps in reaching a decision on disclosure[19] and various factors may be relevant to deciding where the balance of the public interest lies.[20] I have explained my assessment of the relevant public interest factors below. Findings Irrelevant factors I have not taken any irrelevant factors into account in reaching my decision. Factors favouring disclosure There is a general public interest in advancing access to government-held information, and the RTI Act is administered with a ‘pro-disclosure bias’,[21] meaning that an agency should decide to give access to information, unless giving access would, on balance, be contrary to the public interest. The information in issue identifies the applicant, in some cases, by name, and in some cases as the sole director of a company related to the issues in dispute.[22] This gives rise to a factor in favour of disclosure, being the interest in an individual obtaining access to their own personal information.[23] In terms of the weight to be attributed to this factor, I accept the applicant’s involvement in the factual background to the complaint,[24] and I have considered his submission that ‘[t]he complaint revolves around a transaction [his] company is claimed to be involved in, that never occurred’.[25] However, I find that the nature of the information in issue is such that it does not integrally involve him or his personal sphere. He is not the complainant, and nor is he the subject of the complaint. Accordingly, I afford this factor low weight. The applicant contends that LSC relied on false information[26] and that there were failings in its investigation. Given these submissions, I consider that disclosure could reasonably be expected to: enhance LSC’s accountability[27] inform the community of LSC’s operations;[28] and reveal the reason for LSC’s decision and the background or contextual information that informed the decision.[29] In terms of the weight of these factors, I acknowledge that the applicant seeks the information relied on by LSC, and that this would provide him with a more complete picture of the investigation. However, the applicant has a copy of the Decision Letter,[30] which sets out the reasons for LSC’s decision in detail. The applicant himself considers that the Decision Letter contains a summary of all the provided information and that ‘[t]here is no information in the requested documents that [he does] not already have’.[31] While the applicant contends that LSC’s accountability and transparency would be enhanced by disclosure of the information in issue, his submissions suggest that he seeks to hold private individuals (certain solicitors and others) to account. The applicant notes:[32] Is not the broader public interest best served by transparency and accountability , the reason the OIC exists I would have thought. Solicitors have in this complaint breached numerous rules of the uniform code of conduct. How can you NOT give significant weight to the release of documents that make false representations which your own guidelines for making submissions say is an offence. How can it be an offence to mislead the OIC, but misleading the QLSC be of NO consequence. To the extent the desire to hold private individuals to account is relevant to a factor favouring disclosure, it is considered in the paragraph below. However, I do not consider that it enhances the weight to be attributed to factors concerning LSC’s accountability, transparency, or understanding its operations or the background to its decision. The applicant has also made submissions to the effect that LSC may wish to cover up the investigation because it was ‘botched’.[33] I acknowledge that having access to the documents requested by the applicant would give greater transparency around the information that was made available to the LSC in its investigation process. Having considered the submissions advanced by the applicant, the nature of the information in issue and the information already available to the applicant, I afford these factors moderate weight. In terms of the applicant’s desire to hold certain individuals to account, the applicant submits that the LSC complaint was ‘part of a fraud that cost me my home, and millions of dollars’.[34] The applicant has provided extensive submissions concerning the background to this.[35] For the relevant purposes under the RTI Act, it is sufficient to note that the applicant alleges wrongdoing by certain solicitors (and others) and wishes to make a complaint to the VLSC concerning the matter. Accordingly, I have considered whether disclosure of the information in issue could reasonably be expected to contribute to the administration of justice for the applicant.[36] While I understand the applicant’s desire to collect as much information as possible to support his intended complaint to VLSC, this is not the test required to be applied in relation to this factor. Rather, it must be considered whether:[37] loss or damage or some kind of wrong has been suffered, in respect of which a remedy is, or may be, available under the law the applicant has a reasonable basis for seeking to pursue the remedy; and disclosure of the information in issue would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available, or worth pursuing. I acknowledge the applicant’s submission that he requires the Complaint Letter to provide to the VLSC, and that the Decision Letter is not sufficient for this purpose.[38] However, the nature of the Complaint Letter and the other information in issue is that it contains a disputed series of events. This can be contrasted with cases where there is a clear nexus between the applicant’s ability to pursue a remedy and the disclosure of information, such as where the identity of an individual is required in order to pursue or assess a claim.[39] Having said this, I acknowledge that the VLSC may require information from the applicant in order to conduct a preliminary assessment of a complaint, and may close a complaint if a complainant has not responded, or has responded inadequately, to a request for further information.[40] Given these circumstances, in relation to the applicant’s proposed VLSC complaint, I attribute the administration of justice factor moderate weight.[41] In terms of more general legal proceedings, the applicant has indicated he is not involved in any current court actions that would enable him to avail himself of third party disclosure rules,[42] but he has also submitted that there are ‘... significant damages to be recouped by a legal remedy that the release of the requested material would assist.’ The applicant has provided extensive submissions concerning concurrent civil proceedings and a criminal investigation.[43] Having considered these submissions and the information provided, I am not satisfied that disclosure of the particular information in issue in this matter would assist the applicant to pursue any remedy (or to evaluate whether a remedy is available, or worth pursuing). Accordingly, in relation to more general legal proceedings, I do not consider the administration of justice factor carries any significant weight. While this may be frustrating for the applicant, as he wishes to build a comprehensive picture of events as against the relevant individuals, I consider the Information Commissioner’s observations in Phyland and Department of Police[44] are relevant: The RTI Act was not, however, designed to serve as an adjunct to court processes, but to comprise a stand-alone mechanism for enabling public access to government-held information. Obviously, the applicant is entitled to elect to pursue access under the right of access conferred by the RTI Act. In doing so, however, she must accept the qualifications upon and limitations to that right imposed by the Act itself.... The applicant submits that disclosure of the information in issue would ‘allow an erroneous perception, based on lies, to be rectified’.[45] A factor favouring disclosure arises where disclosure of the information could reasonably[46] be expected to reveal that the information was incorrect.[47] Having considered the applicant’s submissions, I acknowledge that he is strongly of the view that certain factors relied upon in LSC’s Decision Letter are false. This is a matter in dispute, and not an issue I am able to decide in this process. Relevantly, LSC considered conflicting submissions made for and on behalf of the complainant and the subject of the complaint. In these circumstances, I consider it unlikely that the information in issue will provide a high degree of insight into the factual background to the matter. At best, it may allow the applicant to better understand the position of the solicitors involved. Accordingly, I afford this factor low weight. The applicant refers to the LSC investigation as ‘botched’.[48] A factor favouring disclosure arises when disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency.[49] The wording of this factor is broad, as it applies to ‘possible’ deficiencies. While I am not persuaded that there were any deficiencies in the LSC’s investigations, I acknowledge that disclosure of the information may allow or assist the applicant to develop a more fulsome understanding of the matters relied on by LSC. For this reason, it may allow or assist inquiry into any possible deficiencies. Accordingly, I afford this factor low weight. Factors favouring nondisclosure A public interest factor favouring nondisclosure arises if disclosing information could reasonably be expected to prejudice the flow of information to the police or another law enforcement or regulatory agency.[50] LSC is a regulatory agency that bears responsibility for enforcing the Legal Profession Act 2007 (Qld) by regulating legal practice in Queensland and facilitating the regulation of legal practice nationally.[51] I consider there is a very strong public interest in protecting the free flow of information to regulatory authorities such as LSC.[52] This is supported by previous decisions of the Information Commissioner about the flow of information to regulatory agencies.[53] LSC relies on complaints to be alerted to and investigate the conduct of legal practitioners and initiate disciplinary proceedings where appropriate. Disclosing complaint information provided to LSC could reasonably be expected to discourage individuals from coming forward to make complaints to LSC and give LSC evidence in investigations. This would impede the free flow of information to LSC and would significantly prejudice LSC’s ability to effectively discharge its enforcement function. The weight of this factor is not reduced by the applicant’s submission that certain information provided to LSC in relation to this complaint was fictitious or erroneous. The Information Commissioner has previously considered a similar submission in O’Connor and Legal Services Commission:[54] The applicant contends that LSC ‘had the wool pulled over their eyes’ by the third party and it is in the public interest to prevent false information being taken into account in investigations. While making no finding about the veracity of the information provided by the third party, it is, however, generally recognised that there is a very strong public interest in protecting the free flow of information to law enforcement or regulatory agencies, even where this may result in an agency investigating false and/or unsubstantiated matters. Accordingly, I find that this factor favouring nondisclosure applies and I afford it significant weight. The same analysis applies here. Accordingly, this factor carries significant weight in favour of nondisclosure. I also consider that the information in issue contains information the disclosure of which could reasonably be expected to: prejudice the fair treatment of the individuals named in the Decision Letter, and it contains unsubstantiated allegations of misconduct, and unlawful, negligent or improper conduct[55] prejudice individuals’ privacy and disclose their personal information;[56] and prejudice the relevant firms’ private, professional, commercial or financial affairs.[57] The nature of the information in issue is such that it contains unsubstantiated allegations, some of which were not considered in detail in LSC’s decision. These allegations could reasonably be expected to prejudice the fair treatment of individuals named in the Decision Letter, prejudice their privacy, reveal their personal information[58] and prejudice the commercial affairs of the relevant firms, and of third parties involved in the underlying transactions. In this case, I acknowledge that the applicant is aware of the background to the matter, and the parties involved. However, given the sensitivity of the information provided in the course of the LSC’s investigation, I consider these factors carry significant weight in the circumstances. Balancing the public interest In the circumstances of this case, I attribute low to moderate weight to each of the factors favouring disclosure. On the other hand, I have attributed significant weight to the factors concerning fair treatment of third-party individuals, prejudice to their privacy/disclosure of their personal information and prejudice to their business affairs. Finally, the public interest factor concerning the free flow of information to LSC carries significant weight, and in the circumstances of the review, tips the balance of the public interest in favour of nondisclosure. I therefore consider that the factors favouring nondisclosure outweigh the factors favouring disclosure, and access to the information in issue may be refused on the basis that disclosure would, on balance, be contrary to the public interest. Nonexistent information One of the items requested by the applicant in the access application was the ‘complaint and attachments’.[59] LSC refused access to the ‘attachments’ on the basis that they were non-existent.[60] In submissions to OIC, LSC explained[61] that the reference to attachments was inadvertently included as a result of ‘typographical error as parties often provide attachments to the LSC or formed part of the template document with the reference not being deleted’. There is no reference in the Complaint Letter itself to any ‘attachments’, and LSC did not locate any during searches of its physical and electronic file. I have considered the applicant’s submissions that tax invoices may have been attached to the Complaint Letter, but I am not able to identify any basis for this.[62] I am satisfied with this explanation and the searches conducted by LSC, and I consider that it has taken reasonable steps to locate any attachments. Accordingly, I find that access may be refused under section 47(3)(e) of the RTI Act,[63] on the basis that the attachments are nonexistent. DECISION I affirm LSC’s decision to refuse access to the information in issue under section 47(3)(b) and 47(3)(e) of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Assistant Information Commissioner 17 April 2020 APPENDIX Significant procedural steps Date Event 12 June 2019 OIC received the applicant’s external review application. 14 June 2019 OIC requested preliminary documents from LSC. 17 June 2019 OIC received a written submission from the applicant. 19 June 2019 OIC received the requested preliminary documents from LSC. 8 July 2019 OIC notified the applicant and LSC that the application for external review had been accepted and requested further information from LSC. 18 July 2019 OIC received the requested further information and a submission from LSC. 28 August 2019 OIC received a written submission from the applicant. 15 November 2019 OIC conveyed a written preliminary view to the applicant. 29 November 2019 OIC received a written submission from the applicant. 3 December 2019 OIC received a submission from the applicant by telephone. 7 January 2020 OIC received a written submission from the applicant. 17 January 2020 OIC received a written submission from the applicant. OIC received a submission from the applicant by telephone. 31 January 2020 OIC received a written submission from the applicant. 10 February 2020 OIC received a written submission from the applicant. 16 March 2020 OIC received a written submission from the applicant. 17 March 2020 OIC received a written submission from the applicant. 11 April 2020 OIC received further information from the applicant. [1] Access application dated 13 April 2019.[2] LSC decision dated 27 May 2019.[3] LSC decision dated 27 May 2019.[4] External review application dated 12 June 2019.[5] Submission with external review application dated 11 June 2019.[6] Submission with external review application dated 11 June 2019 and submission dated 17 January 2020.[7] Submission dated 17 June 2019.[8] The applicant may also have made a complaint to the New South Wales Legal Services Commissioner but it is unclear whether he wishes to use the 17 documents in any such complaint.[9] Submission dated 29 November 2019.[10] The dates on which the applicant made their submissions are set out in the Appendix.[11] Referred to in these reasons as the HR Act, and which came into force on 1 January 2020.[12] Section 21 of the HR Act. [13] XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) at [573]; Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[14] Applicant’s submission dated 6 January 2020.[15] Section 47(3)(b) and 49(1) of the RTI Act.[16] Section 47(3)(e) and 52(1)(a) of the RTI Act.[17] Sections 47(3)(b) and 49 of the RTI Act.[18] However, there are some recognised public interest considerations that may apply for the benefit of an individual.[19] Section 49(3) of the RTI Act. The steps include: disregarding any irrelevant factors, identifying relevant factors favouring disclosure and nondisclosure and balancing the relevant factors.[20] Including the non-exhaustive list of factors in schedule 4 of the RTI Act.[21] Section 44(1) of the RTI Act.[22] The applicant describes the company as ‘my company’ in his external review application dated 11 June 2019.[23] Schedule 4, part 2, item 7 of the RTI Act.[24] As noted in the application for external review dated 11 June 2019 and submissions dated 6 January 2020.[25] Submissions dated 17 January 2020.[26] Submissions dated 17 January 2020.[27] Schedule 4, part 2, item 1 of the RTI Act.[28] Schedule 4, part 2, item 3 of the RTI Act.[29] Schedule 4, part 2, item 11 of the RTI Act.[30] Access application to LSC dated 13 April 2019.[31] Submissions to OIC on 7 January 2020.[32] Submissions dated 17 January 2020.[33] Submission dated 17 January 2020.[34] Submission dated 17 January 2020.[35] As set out in the attached Appendix.[36] Schedule 4, part 2, item 17 of the RTI Act.[37] Willsford and Brisbane City Council (1996) 5 QAR 368. This decision involved the owner of a car who collided with a dog, who was seeking information which would identify the owner of the dog, in order to take steps to assess whether she was in a position to recover damages.[38] Applicant’s submission dated 6 January 2020.[39] EF9TO8 and Department of Transport and Main Roads [2016] QICmr 19 (3 June 2016), where the application required the registered garaging address of a vehicle to pursue a lawful remedy.[40] Schedule 1, chapter 5 of the Legal Profession Uniform Law Application Act 2014 (Vic), in particular sections 276 and 277.[41] Along with the factors concerning advancing fair treatment of individuals in accordance with the law in their dealings with agencies, and the contribution to administration of justice generally: schedule 4, part 2, items 10 and 16 of the RTI Act.[42] Applicant’s submission dated 17 January 2020.[43] Submissions to OIC on 7 January 2020, 17 January 2020, 31 January 2020, 10 February 2020, 16 and 17 March 2020. On 11 April 2020 the applicant provided more than 1,700 pages of material related to a concurrent civil action to OIC.[44] (Unreported, Queensland Information Commissioner, 31 August 2011), at [24].[45] Applicant’s submission dated 11 June 2019. [46] The Information Commissioner has found that a decision maker must distinguish ‘between what is merely possible ... and expectations which are reasonably based’ and for which ‘real and substantial grounds exist’: B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at [154]- [160].[47] Schedule 4, part 2, item 12(a) of the RTI Act.[48] Submissions dated 6 January 2020 and 17 January 2020.[49] Schedule 4, part 2, item 5 of the RTI Act.[50] Schedule 4, part 3, item 13 of the RTI Act.[51] Section 3 of the Legal Profession Act 2007 (Qld).[52] Schedule 4, part 3, item 13 of the RTI Act.[53] P6Y4SX and Queensland Police Service [2015] QICmr 25 (11 September 2015) at [29]; Gregory and Queensland Police Service [2014] QICmr 48 (12 November 2014) at [25]; P6Y4SX and Department of Police (Unreported, Queensland Information Commissioner, 31 January 2012) at [37].[54] [2015] QICmr 10 (29 April 2015) at [30] (footnotes omitted). [55] Giving rise to a nondisclosure factor under schedule 4, part 3, item 6 of the RTI Act.[56] Schedule 4, part 3, item 3 and schedule 4, part 4, section 6 of the RTI Act.[57] Schedule 4, part 3, item 2 of the RTI Act.[58] The term ‘personal information’ is broader than names, addresses and contact details. It 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 material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[59] This was the first of 17 items listed in the Decision Letter.[60] Under section 47(3)(e) of the RTI Act.[61] By submission dated 18 July 2019.[62] Submissions dated 17 January 2020.[63] And section 52(1)(a) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

F60XCX and Queensland Ombudsman [2014] QICmr 28 (13 June 2014)

F60XCX and Queensland Ombudsman [2014] QICmr 28 (13 June 2014) Last Updated: 21 January 2015 Decision and Reasons for Decision Citation: F60XCX and Queensland Ombudsman [2014] QICmr 28 (13 June 2014) Application Number: 311860 Applicant: F60XCX Respondent: Queensland Ombudsman Decision Date: 13 June 2014 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - information relating to the handling of the applicant’s complaint by the Queensland Ombudsman including unsubstantiated allegations about other individuals and information provided by a witness - 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) and section 67(1) of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Queensland Ombudsman (Ombudsman) under the Information Privacy Act 2009 (Qld) (IP Act) for all documents containing his personal information including information on a number of the Ombudsman’s files. The Ombudsman located the relevant documents and refused access to information relating to a witness and unsubstantiated allegations on the basis that its disclosure would, on balance, be contrary to the public interest under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) (RTI Act). The applicant applied to the Office of the Information Commissioner (OIC) for external review of the decision to refuse access to the relevant information. For the reasons set out below, the decision under review is affirmed and access to the relevant information can be refused as its disclosure would, on balance, be contrary to the public interest. Background The applicant made a complaint to the Ombudsman about issues arising from his employment with another agency and the actions of a particular officer. The Ombudsman: notified the applicant that it had decided to not further investigate the complaint under section 23(1)(f) of the Ombudsman Act 2001 (Qld) as further investigation was unnecessary or unjustifiable provided the applicant with reasons for its decision[1] did not notify the agency or the subject officer that the complaint had been received and did not put the allegations to the subject officer or the agency for response; and did not make any finding about whether the allegations made by the applicant were substantiated or unsubstantiated. The applicant considers that the Ombudsman did not formally commence an investigation but merely collected information and documents relevant to his complaint.[2] The applicant intends to apply for internal review of the Ombudsman’s decision to not further investigate his complaint and believes that the Information in Issue is relevant to his internal review application.[3] Significant procedural steps relating to the external review are set out in the appendix to these reasons. Reviewable decision The decision under review is the Ombudsman’s internal review decision dated 2 December 2013. Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and appendix). Issue for determination The Ombudsman located 315 pages relevant to the access application and decided to: grant full access to 180 pages refuse access to 81 pages and 16 part pages on the basis that disclosure would, on balance, be contrary to the public interest; and exclude 11 pages and 27 part pages from consideration on the basis that the information was outside the scope of, or irrelevant to, the access application. A number of issues were informally resolved on external review.[4] The remaining issue for determination is whether access to information can be refused under section 67(1) of the IP Act on the basis that its disclosure would, on balance, be contrary to the public interest under the RTI Act. Information in issue The information in issue (Information in Issue) comprises 81 full pages and 16 part pages relating to a complaint the applicant made to the Ombudsman and can be described as: internal case management documents, file notes and emails which record details of internal discussions and preliminary analysis of the complaint draft letters to the officer who was the subject of the complaint and the relevant agency; and file notes containing information provided by a witness in relation to the complaint. Relevant law Under the IP Act, an individual has a right to be given access to documents of an agency to the extent the documents contain the individual’s personal information. However, this right is subject to limitations, including grounds for refusal of access.[5] An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.[6] The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[7] and explains the steps that a decision-maker must take[8] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosing the information in issue would, on balance, be contrary to the public interest. Findings I have considered the irrelevant factors in schedule 4 of the RTI Act and am satisfied that none of them arise in the circumstances of this case. I will now consider the relevant factors favouring disclosure and nondisclosure. Accountability, transparency, fair treatment and the administration of justice I have considered whether disclosing the Information in Issue could reasonably be expected to:[9] enhance the Ombudsman’s accountability[10] reveal the reason for the Ombudsman’s decision and any background or contextual information that informed the decision[11] advance the applicant’s fair treatment in his dealings with the Ombudsman;[12] and contribute to the administration of justice for the applicant.[13] In summary, the applicant submits that:[14] The Ombudsman (including its officers) must be accountable to the Government and complainants for how it deals with complaints in the performance of its official functions and, to that end, the Ombudsman must disclose all documents it created which relate to the applicant. The applicant intends to apply for internal review of the Ombudsman’s decision to not further investigate his complaint as he is concerned about how his complaint was dealt with, the conduct of the Ombudsman’s officers and the ‘extraordinary amount of time’ the Ombudsman took to deal with the complaint. The applicant needs the Information in Issue to understand the background or contextual information leading up to the decision not to further investigate the complaint and to prepare his internal review application. The fact that the Ombudsman has given the applicant reasons for not investigating his complaint is irrelevant as the applicant disagrees with those reasons and intends to challenge the reasons on internal review. He has suffered a ‘gross injustice’ as a result of a decision by the subject agency’s relevant officer which has had significant consequences for him and his career and disclosing the Information in Issue will enable him to understand ‘what transpired during the extraordinary period in which the [the Ombudsman] dealt with [his] complaint before deciding not to further investigate [his] complaint’ and assist him in making a ‘cogent argument that the Ombudsman should investigate [his] complaint’. A decision refusing access to the Information in Issue will ‘limit the scope of [his] challenge’ of the Ombudsman’s decision not to further investigate and ‘indirectly facilitate the perpetuation of a gross injustice [he] suffered because of an administrative decision of [the subject agency].’ I consider that disclosing the Information in Issue would provide the applicant with a more comprehensive understanding of how the Ombudsman handled the complaint and the reasoning behind its decision to not investigate the complaint further. I acknowledge that the applicant is dissatisfied with the Ombudsman’s decision and would like as much information as possible to prepare his internal review application. I am satisfied that the factors identified at paragraph 17 are relevant. It is now necessary for me to determine the weight to be afforded to them in the circumstances of this external review. The fact that these public interest considerations are relevant does not oblige the Ombudsman to provide the applicant with access to its entire file nor reveal all of its internal discussions about how to deal with the complaint. Rather, these public interest considerations are satisfied by the Ombudsman issuing a decision to the applicant that identifies all considerations taken into account in reaching the decision. The Ombudsman has provided the applicant with detailed reasons for its decision to not investigate the complaint further. The applicant also spoke with officers within the Ombudsman’s office at various stages throughout the handling of the complaint.[15] That the applicant disagrees with the reasons provided by the Ombudsman is not relevant to my findings on this issue and I note that the applicant is entitled to, and intends to, apply for internal review of the decision. The applicant submits that it is ‘inappropriate for [OIC] to consider whether the information I am seeking could be of any assistance to me in preparing my application for internal review of [the Ombudsman’s] decision not to further investigate my complaint’.[16] My findings in this review do not go to this issue. Similarly my findings do not express a view on the appropriateness of the Ombudsman’s decision to not further investigate the applicant’s complaint. As previously noted at paragraph 10, the Ombudsman located 315 pages relevant to the access application and granted the applicant full access to 180 pages and part access to 43 pages. This information comprises: file notes of numerous conversations between staff of the Ombudsman and the applicant correspondence from the Ombudsman to other agencies internal emails between officers of the Ombudsman case management documents; and extracts of legislation and policies. I consider that the release of this information to the applicant furthers the applicant’s understanding of how the Ombudsman handled the complaint and advances these public interest factors. I am satisfied that these factors have been advanced significantly by the information already released to the applicant under the IP Act and the detailed reasons provided in the Ombudsman’s decision issued to the applicant. I have examined the remaining Information in Issue carefully and it is limited in nature. Accordingly, I find that its disclosure would only marginally advance these factors. For these reasons, I afford each of these four factors favouring disclosure low weight. Personal information of the applicant The Information in Issue was created as a result of the applicant’s complaint to the Ombudsman and is generally about the applicant. I am satisfied that much of the Information in Issue therefore comprises his personal information.[17] This gives rise to a factor favouring disclosure.[18] The applicant will be generally aware of some of the Information in Issue where it reflects information he provided to the Ombudsman in support of his complaint or information that has been conveyed to him by the Ombudsman in the reasons for its decision. I note that the applicant disputes this and submits that ‘there is a significant amount of information in issue that is not known to me’.[19] I find that, as the applicant is generally aware of some of the Information in Issue, this reduces the weight of this factor to a degree and I afford this factor moderate weight. Personal information and privacy of other individuals The Information in Issue is also the personal information of other individuals, that is, the subject officer and the witness. Given the nature of this information, and the way in which it is presented within the Information in Issue, it is not possible to separate the applicant’s personal information from the personal information of others. As a result, I have considered whether disclosing the Information in Issue could reasonably be expected to: prejudice the protection of an individual’s right to privacy;[20] and cause a public interest harm as it would disclose personal information of a person.[21] The applicant submits that the subject officer’s right to privacy would not be affected by release of the Information in Issue because he knows the name of the subject officer and, in any event, the name could be deleted from the documents to alleviate any concern about further dissemination of the information.[22] I do not accept this submission. The identity of the subject officer, while known to the applicant, could reasonably be ascertained by other readers from the information released by the Ombudsman and the remaining Information in Issue. Similarly, it is not possible to merely delete the name of the witness. Given the nature of the information provided by the witness, it would be possible for the applicant, and other readers, to identify them. Generally, information relating to the day-to-day work duties and responsibilities of a public service officer may be disclosed under the IP Act, despite it falling within the definition of personal information. However, agency documents can also contain personal information of public servants which is not routine work information.[23] Although the personal information appears in a workplace context, it comprises serious unsubstantiated allegations[24] about the conduct of the subject officer. I consider such information is not related wholly to the routine day-to-day work activities of a public service officer and is not routine personal work information. It is then relevant to consider the extent of the harm that could result from disclosing the personal information of other individuals under the IP Act. The Information in Issue is sensitive and personal in nature. I consider its disclosure under the IP Act would be a significant intrusion into the privacy of the subject officer and witness. Further, I find that the extent of the public interest harm that could be anticipated from disclosure is significant. I have taken into account the fact that the applicant made the complaint and therefore, some of the Information in Issue will be generally known to him. In view of this, and given the nature of the information and the context in which it appears, I afford moderate weight to these two factors favouring nondisclosure. Prejudice the fair treatment of individuals A factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct.[25] Firstly, I am satisfied the Information in Issue is about allegations of misconduct or unlawful, negligent or improper conduct. The Information in Issue contains allegations about the subject officer which were made by the applicant in his complaint to the Ombudsman. It also includes allegations made by a witness which were relevant to the applicant’s complaint. Given the nature of the allegations (which I cannot identify in any more details in these reasons),[26] I am satisfied they relate to misconduct or unlawful, negligent or improper conduct. The applicant submits that ‘the subject allegations are not my allegations. Rather, they are allegations made by [the Ombudsman’s] officers in the course of dealing with my complaint. My rights should not be prejudiced simply because [the Ombudsman’s] officers chose to make ‘allegations’ about the [subject officer]’.[27] The applicant’s submission on this issue is misconceived. As noted above, the allegations were made by the applicant and a witness. The fact that the allegations may be contained in documents created by officers of the Ombudsman based on information supplied by the applicant and witness does not alter this. Secondly, I must consider whether the allegations are unsubstantiated. The applicant submits that: [28] for this factor to apply, the allegations must have been ‘fully and impartially investigated by a competent body and a formal finding reached by the body that the allegation is unsubstantiated’ the Ombudsman has made no such finding in this case; and the applicant’s interpretation of this factor is supported by OIC’s decision in Troiani and Queensland Police Service (Troiani).[29] In Troiani, the relevant allegations were investigated by the agency and findings were made that they could not be substantiated. In applying this factor in Troiani, the Assistant Information Commissioner said:[30] 27. The Information in Issue includes references to individuals who were the subject of the allegations made by the applicant’s late husband in relation to unlawful activity. As set out in paragraph 17 of these reasons, QPS found that the allegations could not be substantiated as no evidence of fraud or other criminal activity was discovered in the investigation. 28. The RTI Act provides if disclosure could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of unlawful conduct, this will give rise to a public interest factor favouring nondisclosure. 29. Given the nature of the Information in Issue and QPS’ findings in relation to the allegations, I consider this factor applies in this case. I am satisfied that the public interest weighs strongly against disclosure as the Information in Issue relates to unsubstantiated allegations and has the potential to adversely affect the reputations of the relevant individuals. I do not accept that these comments in Troiani support the applicant’s contention. The decision in Troiani was based on the particular facts and circumstances of that case. The Assistant Commissioner’s findings do not limit the application of this factor to circumstances where an allegation has been unsubstantiated as a result of a formal finding. In this case, the Ombudsman’s investigation did not proceed to a point where any findings were made on the substance of the allegations. The Ombudsman decided to not further investigate the complaint as it was unnecessary or unjustifiable. That is, no formal finding was made that the allegations were either substantiated or unsubstantiated. As a result, and in the absence of any positive finding by the Ombudsman that the allegations are substantiated, I am satisfied that the allegations in this case are unsubstantiated. The applicant submits that, as he made the allegations, there is no reason for the Information in Issue to not be released to him subject to the deletion of the subject officer’s name.[31] I accept that the applicant is aware of the substance of the allegations he made and the identity of the subject officer and I consider this reduces the weight of this factor to some degree in relation to that information. I have previously addressed why the name of the subject officer cannot be deleted from the Information in Issue at paragraph 29. There is no evidence before me that the applicant is aware of the information provided by the witness. The applicant submits that he seeks access to the Information in Issue for the purpose of preparing his application for internal review of the Ombudsman’s decision and has no intention of disseminating or republishing the Information in Issue.[32] I note that it is not possible to place restrictions on the use, dissemination or republication of information released under the IP Act. In OKP and Department of Communities[33] the Information Commissioner explained that a decision-maker should not assume that disclosure of information to an applicant is disclosure to the ‘world at large’ but should not exclude from consideration evidence about the intended or likely extent of dissemination of information by the applicant. I have taken into account the applicant’s submission on his intended use of the information. However, I have not excluded the possibility that the Information in Issue could be disseminated further as permitted under the IP Act. The applicant submits that release of the information would have no effect on the reputation of the subject officer and would not prejudice their fair treatment because:[34] what OIC describes as ‘allegations’ are not ‘allegations in the true sense of that expression’ and are ‘merely issues identified by [the Ombudsman’s] officers’ and ‘contained in documents created by [the Ombudsman’s] officers’ the allegations have not been investigated by any relevant body nor has the body made any findings; and the documents have no ‘legal standing’ and simply contain issues that the Ombudsman was proposing to raise with the subject agency. The basis for the applicant’s contention that the ‘allegations’ are not ‘allegations in the true sense of that expression’ is unclear and I do not accept this submission. As I have explained previously, I am satisfied that the Information in Issue contains unsubstantiated allegations. I do not accept the applicant’s submission that no prejudice would result because the allegations have not been investigated and have no legal standing. The Information in Issue contains views about issues relevant to the Ombudsman’s complaint handling process that was then at a preliminary, or at least incomplete, stage. Those views were not the views ultimately arrived at by the Ombudsman; the Ombudsman decided to not further investigate the complaint. The subject officer and agency were not notified by the Ombudsman that a complaint had been made. Accordingly, the comments in the Information in Issue were not tempered by a consideration of any information that could have been provided by the subject officer or agency. I have carefully considered the Information in Issue and the serious nature of the allegations which have not been substantiated. I am of the view that its disclosure could reasonably be expected to adversely affect the reputation of the subject officer which in turn would prejudice their fair treatment. For these reasons, I afford moderate weight to this factor. Reveal or substantiate that an agency or official has engaged in official misconduct or negligent, improper or unlawful conduct A factor favouring disclosure will arise where disclosing information could reasonably be expected to reveal or substantiate that an agency or official has engaged in official misconduct or negligent, improper or unlawful conduct.[35] I have addressed some of the applicant’s submissions on this issue previously. The applicant also submits that:[36] he is concerned about the conduct of the Ombudsman and its officers in dealing with the complaint this factor should be applied on the basis that the agency or official in question is the Ombudsman or an officer of the Ombudsman the Information in Issue could form the basis for him to make a complaint on the ground that the Ombudsman or its officers have engaged in misconduct or negligent, improper or unlawful conduct; and it is not OIC’s role to determine or express an opinion about whether an agency or agency official has engaged in official misconduct or negligent, improper or unlawful conduct. It is open for a decision-maker to consider the application of this factor when undertaking a public interest balancing test under the RTI Act. A decision-maker will consider whether there is a reasonably based expectation that disclosing information could reveal or substantiate that an agency or official has engaged in official misconduct or negligent, improper or unlawful conduct. Given the applicant’s submissions and the nature of the Information in Issue, I have considered this factor but I am satisfied that it does not apply to the Information in Issue for the following reasons. As previously explained, no finding by the Ombudsman has been made about the allegations and they have not been substantiated. Therefore, disclosing the Information in Issue will not reveal or substantiate that the subject agency or the subject officer has engaged in the type of conduct identified. As a result, I do not consider this factor applies in relation to the subject officer or the subject agency. I note the applicant’s concerns about the conduct of the Ombudsman and its officers in dealing with his complaint. Accordingly, I have also considered whether this factor applies in relation to the Ombudsman or its officers. Based on my review of the available information, and despite the applicant’s concerns, there is no evidence before me to suggest that this factor applies in relation to the Ombudsman or its officers. Deficiencies in the conduct or administration of an agency or official Given the nature of the applicant’s concerns about the subject agency and officer and the Ombudsman’s handling of his complaint, I have also considered whether disclosing the Information in Issue could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official.[37] The applicant submits:[38] it is not for OIC to decide whether there were possible deficiencies in the conduct or administration of the Ombudsman or its officers in dealing with his complaint he should have access to the Information in Issue so that he can personally consider whether there were deficiencies in the conduct or administration of the Ombudsman or its officers in dealing with his complaint; and any reasonable person would question what the Ombudsman has to hide. It is open for a decision-maker to consider the application of this factor when undertaking a public interest balancing test under the RTI Act. A decision-maker will consider whether there is a reasonably based expectation that disclosing information could allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official. Given the applicant’s submissions and the nature of the Information in Issue, I have considered this factor. Based on my review of the available information, and despite the applicant’s concerns, there is no evidence before me to suggest that this factor applies in relation to the Information in Issue. Deliberative process information The RTI Act recognises that a public interest factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice a deliberative process of government (Nondisclosure Factor).[39] The RTI Act also provides that disclosing information could reasonably be expected to cause a public interest harm through disclosure of an opinion, advice or recommendation that has been obtained, prepared or recorded or a consultation or deliberation that has taken place in the course of, or for, the deliberative processes involved in the functions of government (Harm Factor).[40] Once it is established that the Information in Issue is deliberative process information, the Harm Factor will apply. It is then relevant to consider the nature and extent of the public interest harm that may result through disclosure.[41] For the Nondisclosure Factor to apply, a reasonable expectation of prejudice to the relevant deliberative process must be established. The Information Commissioner has previously referred with approval to the following comments in considering the meaning of ‘deliberative processes’ involved in the functions of an agency:[42] The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action. In short, the deliberative processes involved in the functions of an agency are its thinking processes - the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action... It by no means follows, therefore, that every document on a departmental file will fall into this category. ... Furthermore, however imprecise the dividing line may first appear to be in some cases, documents disclosing deliberative processes must, in our view, be distinguished from documents dealing with the purely procedural or administrative processes involved in the functions of an agency... 59. The applicant submits that information is not deliberative process information merely because it would reveal the discussions and deliberations of the Ombudsman’s officers in deciding how to deal with the complaint or because the information has been created by a public servant.[43] The applicant also submits that the fact that a document is a deliberative process document carries no presumption that its disclosure would be contrary to the public interest.[44] I have addressed the operation of these two factors at paragraphs 55 to 58 above and the public interest balancing test at paragraphs 14 and 15 above. 60. The Ombudsman did not rely on these factors in the initial decision or internal review decision. However, the following reasons from the Ombudsman’s internal review decision are relevant to these factors: The draft letters are a series of working drafts of the same letter that were prepared for internal discussion purposes by an officer and which contain, among other things, proposed opinions and recommendations. The statements, upon which the proposed opinions and recommendations were based, were not tested. The officers the subject of your complaint were not interviewed and the allegations were not put to them for a response. ... The draft statements and proposed opinions and recommendations represent one possible scenario. Ultimately, following further internal discussions and analysis of the contractual arrangements that existed between [the applicant] and the [subject] agency, a decision was made that the investigation should be concluded and reasons were given for that decision. I am satisfied that the draft letters together with the remaining Information in Issue comprise an opinion, advice or recommendation that has been obtained, prepared or recorded in the course of, or for, the deliberative processes involved in the functions of government. The Information in Issue goes directly to the thinking process of the relevant officers and reveals their opinions, advice and recommendations in deciding how to deal with the complaint. I am satisfied the Information in Issue does not deal with purely procedural or administrative processes. Accordingly, the Harm Factor applies to the Information in Issue. It is now relevant for me to consider the nature and extent of the public interest harm that may result through disclosing the Information in Issue and whether a reasonable expectation of prejudice to the relevant deliberative process is established. The applicant submits that:[45] • disclosing the Information in Issue would not cause a public interest harm and could not reasonably be expected to prejudice the public interest• there is no basis for a claim that disclosing the Information in Issue would inhibit candour and frankness in future communications within the Ombudsman; and • even if such candour and frankness would be inhibited, the efficiency and quality of the deliberative process is unlikely to suffer to an extent which is contrary to the public interest. I consider officers of the Ombudsman must be permitted to canvass all possibilities and make subjective evaluations on the information before them without concern that such comments, assessments and recommendations will be disclosed. The Information Commissioner has previously recognised that there is a public interest in government being able to make informed decisions in the course of carrying out its functions and in doing so, to have access to the widest possible range of information and advice without fear of interference.[46] However, I consider it is relevant that the Ombudsman’s handling of the applicant’s complaint is complete. I am satisfied that this reduces the extent of harm that disclosure could reasonably be expected to cause to the Ombudsman’s deliberative processes. I have also considered whether disclosing the Information in Issue would prejudice the substance or quality of future deliberations by the Ombudsman. I find it reasonable to expect that the Ombudsman would be required to consider matters, such as those set out in the Information in Issue, to ensure a complaint of this nature was dealt with thoroughly and appropriately. Therefore, I do not consider that the quality of the Ombudsman’s deliberations in the future would be likely to suffer to such an extent that would be contrary to the public interest if the Information in Issue were disclosed. For the reasons set out above, I find that: the Harm Factor applies but there is no specific or tangible harm to the relevant deliberative processes of the Ombudsman that could reasonably be expected to be caused by disclosure therefore, the Harm Factor carries low weight in favour of nondisclosure; and the Nondisclosure Factor does not apply as disclosure could not reasonably be expected to prejudice the Ombudsman’s deliberative processes. Prejudice the flow of confidential information I have considered whether disclosing the information provided by a witness could reasonably be expected to: prejudice the Ombudsman’s ability to obtain confidential information;[47] and cause a public interest harm as it consists of information of a confidential nature that was communicated in confidence and its disclosure could reasonably be expected to prejudice the future supply of information of this type.[48] The Ombudsman explained in its initial decision (which it affirmed on internal review) that this information: is about its dealings with a witness is confidential; and was communicated in confidence to the Ombudsman. It is clear on its face that this information is highly sensitive and was communicated in confidence to the Ombudsman. There is a strong public interest in protecting the supply of confidential information from witnesses to agencies such as the Ombudsman and disclosing this type of witness information under the IP Act would discourage individuals from coming forward with such information in future. This in turn would significantly prejudice the Ombudsman’s ability to obtain confidential information. In my view, if the Ombudsman’s investigation had continued, it is possible that this information would have been disclosed to the subject officer. However, this did not occur in this case and I am of the view that the information remains confidential. For these reasons, I afford moderate weight to these factors which favour nondisclosure of the witness information. The applicant submits that it is appropriate for OIC to obtain the witness’ consent for the information to be released to him.[49] As OIC’s position is that disclosing this information would, on balance, be contrary to the public interest, it is not appropriate for OIC to contact the third party as the applicant contends.[50] Balancing the relevant factors The IP Act is to be administered with a pro-disclosure bias meaning that access to information should be granted unless giving access would, on balance, be contrary to the public interest.[51] I consider that disclosing the Information in Issue would provide the applicant with a more comprehensive understanding of the information considered by the Ombudsman which informed its decision to not investigate the complaint further. However, in my view, these factors have been significantly advanced by the extent of information already made available to the applicant. The remaining Information in Issue is limited in nature and I afford low weight to the factors favouring disclosure. Although some of the Information in Issue comprises the applicant’s personal information, as he is the complainant it is mostly known to him. The personal information of other individuals within the Information in Issue is sensitive and its disclosure under the IP Act would be a significant intrusion into the privacy of these other individuals. I afford moderate weight to each of the factors relating to personal information and privacy. I am satisfied that disclosing the Information in Issue could reasonably be expected to prejudice the fair treatment of individuals. I afford moderate weight to this factor as the allegations are serious and unsubstantiated and their unrestricted disclosure could adversely affect the reputation of the subject officer. The Information in Issue comprises deliberative process information which gives rise to the relevant Harm Factor. However, as I am unable to identify specific or tangible harm to the relevant deliberative processes of the Ombudsman that could reasonably be expected to be caused by disclosure, the Harm Factor carries low weight. I afford moderate weight to the two factors relating to the flow of confidential information provided by the witness and find that disclosing that part of the Information in Issue would significantly prejudice the Ombudsman’s ability to obtain confidential information. In this case and, for the reasons set out in this decision, I find that the factors favouring nondisclosure of the Information in Issue outweigh the factors favouring disclosure and that access to the Information in Issue can be refused. DECISION For the reasons set out above, I affirm the decision under review and find that access to the Information in Issue can be refused under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act on the basis that its disclosure would, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________ L Lynch Assistant Information Commissioner Date: 13 June 2014 APPENDIX Significant procedural steps Date Event 20 October 2013 The Ombudsman received the access application under the IP Act. 21 October 2013 The Ombudsman issued a decision to the applicant. 5 November 2013 The applicant applied for internal review of the decision. 2 December 2013 The Ombudsman issued an internal review decision affirming the initial decision. 21 December 2013 OIC received the applicant’s external review application. 23 December 2013 OIC asked the Ombudsman to provide a number of procedural documents by 7 January 2014. The Ombudsman requested an extension of time until 15 January 2014 to provide the requested documents. 24 December 2013 OIC granted the Ombudsman the requested extension of time. 29 December 2013 OIC received submissions from the applicant. 13 January 2014 OIC received the requested documents from the Ombudsman. 16 January 2014 OIC notified the applicant and the Ombudsman that it had accepted the external review application and requested the Ombudsman provide OIC with a copy of the documents in issue by 31 January 2014. 20 January 2014 OIC received a copy of the documents in issue from the Ombudsman. 20 March 2014 OIC conveyed its preliminary view to the Ombudsman in relation to a small amount of information on one page. The Ombudsman accepted the preliminary view and agreed to release the additional information to the applicant. 27 March 2014 OIC conveyed its preliminary view to the applicant in relation to the remaining information and invited him to provide submissions supporting his case by 11 April 2014 if he did not accept the preliminary view. OIC asked the Ombudsman to release the additional information to the applicant by 4 April 2014. 30 March 2014 The applicant notified OIC that he did not accept OIC’s preliminary view and provided submissions supporting his case. The applicant also requested an extension of time until 28 April 2014 to provide further submissions supporting his case and raised a number of procedural issues. 31 March 2014 OIC granted the applicant the requested extension of time and addressed the relevant procedural issues. 3 April 2014 The applicant telephoned OIC and provided further submissions supporting his case and raised procedural issues in relation to the preliminary view. 4 April 2014 OIC addressed the procedural issues with the applicant in writing. 10 April 2014 The applicant telephoned OIC and raised procedural issues relating to the preliminary view. 11 April 2014 The Ombudsman notified OIC the additional information had been released to the applicant. 14 April 2014 The applicant wrote to OIC and raised a procedural issue relating to the preliminary view. 15 April 2014 OIC addressed the procedural issues with the applicant in writing. 24 April 2014 The applicant telephoned OIC and raised procedural issues relating to the preliminary view. OIC received written submissions from the applicant. 12 May 2014 The applicant wrote to OIC and raised a procedural issue relating to the preliminary view. 13 May 2014 OIC addressed the procedural issue with the applicant in writing. [1] By letter dated 3 June 2013. [2] Applicant’s submissions dated 29 December 2013. The applicant made submissions to the Ombudsman and OIC on various occasions as identified in the appendix to this decision. I have carefully considered these submissions and note that some issues raised by the applicant are repeated throughout his submissions. The footnotes to this decision do not reference each instance where an issue was raised. [3] Applicant’s submissions dated 24 April 2014. [4] The applicant accepted OIC’s preliminary view that certain information could be excluded from consideration under section 88 of the IP Act as it was irrelevant to the access application. The Ombudsman accepted OIC’s preliminary view that there was no basis to refuse access to a small amount of information on page 54 and released this information to the applicant. [5] Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent it could refuse access to the document under section 47 of the RTI Act, were the document to be the subject of an access application under the RTI Act. [6] Section 47(3)(b) and 49 of the RTI Act. [7] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant. [8] Section 49(3) of the RTI Act.[9] The term ‘could reasonably be expected to’ requires an expectation that is reasonably based, that is, neither absurd, irrational or ridiculous, nor merely a possibility. Whether the expected consequence is reasonable requires an objective examination of the relevant evidence. It is not necessary for a decision-maker to be satisfied upon the balance of probabilities that disclosing the document will produce the anticipated harm. The expectation must arise as a result of the disclosure, rather than from other circumstances. See Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 and Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009). [10] Schedule 4, part 2, item 1 of the RTI Act.[11] Schedule 4, part 2, item 11 of the RTI Act. [12] Schedule 4, part 2, item 10 of the RTI Act. [13] Schedule 4, part 2, item 17 of the RTI Act. [14] Applicant’s submissions dated 24 April 2014. [15] Internal review decision dated 2 December 2013. [16] Applicant’s submissions dated 24 April 2014. [17] Personal information is defined in section 12 of the IP Act as information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. [18] Schedule 4, part 2, item 7 of the RTI Act. [19] Applicant’s submissions dated 24 April 2014. [20] Schedule 4, part 3, item 3 of the RTI Act. [21] Schedule 4, part 4, section 6(1) of the RTI Act. [22] Applicant’s submissions dated 24 April 2014.[23] Underwood and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 18 May 2012) at paragraph 60. [24] The applicant does not accept this and has provided submissions on this issue which I will address below. I do not consider these submissions reduce the weight of these factors. [25] Schedule 4, part 3, item 6 of the RTI Act. [26] Section 121(3) of the IP Act provides that OIC must not include information that is claimed to be exempt or contrary to the public interest in the reasons for decision on external review. [27] Applicant’s submissions dated 24 April 2014. [28] Applicant’s submissions dated 24 April 2014. [29] (Unreported, Queensland Information Commissioner, 21 August 2012). [30] At paragraphs 27-29. [31] Applicant’s submissions dated 24 April 2014. [32] Applicant’s submissions dated 24 April 2014. [33] (Unreported, Queensland Information Commissioner, 9 July 2009) at paragraphs 119-131 referring to the Victorian Court of Appeal decision in Victoria Police v Marke [2008] VSCA 218.[34] Applicant’s submissions dated 24 April 2014.[35] Schedule 4, part 2, item 6 of the RTI Act. [36] Applicant’s submissions dated 24 April 2014. [37] Schedule 4, part 2, item 5 of the RTI Act. [38] Applicant’s submissions dated 24 April 2014. [39] Schedule 4, part 3, item 20 of the RTI Act. [40] Schedule 4, part 4, item 4 of the RTI Act. [41] In Trustees of the De La Salle Brothers and Queensland Corrective Services Commission [1996] QICmr 4; (1996) 3 QAR 206 at paragraph 34 the Information Commissioner considered, in the context of the exemption relating to deliberative process information in the repealed Freedom of Information Act 1992 (Qld), that ‘specific and tangible harm to an identifiable public interest (or interests) would result from disclosure’. I consider that this is a relevant consideration when applying the Harm Factor under the RTI Act. [42] Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at paragraphs 28-30 citing with approval the definition given in Re Waterford and Department of Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588 at page 606. The Information Commissioner’s decision involved the repealed Freedom of Information Act 1992 (Qld) but the comments are relevant to the application of these factors under the RTI Act. [43] Applicant’s submissions dated 24 April 2014.[44] Applicant’s submissions dated 24 April 2014.[45] Applicant’s submissions dated 24 April 2014.[46] Metcalf and Maroochy Shire Council (Unreported, Queensland Information Commissioner, 19 December 2007) at paragraph 47. [47] Schedule 4, part 3, item 16 of the RTI Act. [48] Schedule 4, part 4, item 8(1) of the RTI Act. [49] Applicant’s submissions dated 29 December 2013. [50] OIC is required to take reasonable steps to notify a person of the likely release of information if documents are likely to be released and the release may reasonably be expected to be of concern to the person: section 110(4) of the IP Act. Furthermore, OIC does not have discretion to release information if it is established that its disclosure would be contrary to the public interest: section 118(2) of the IP Act. [51] Section 64 of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Gordon Resources Limited and Department of Employment, Economic Development and Innovation and BHP - Billiton Mitsubishi Alliance Coal Operations Pty Ltd (Third Party) [2011] QICmr 39 (21 September 2011)

Gordon Resources Limited and Department of Employment, Economic Development and Innovation and BHP - Billiton Mitsubishi Alliance Coal Operations Pty Ltd (Third Party) [2011] QICmr 39 (21 September 2011) Last Updated: 1 February 2012 Decision and Reasons for Decision Application Number: 310147 Applicant: Gordon Resources Limited Respondent: Department of Employment, Economic Development and Innovation Third Party: BHP-Billiton Mitsubishi Alliance Coal Operations Pty Ltd Decision Date: 21 September 2011 Catchwords: RIGHT TO INFORMATION – APPLICATION FOR ACCESS TO INFORMATION - REFUSAL OF ACCESS – applicant sought information about royalty returns lodged with the Department of Employment, Economic Development and Innovation – whether disclosure of the information would, on balance be contrary to the public interest - section 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary The applicant made an access application[1] under the Right to Information Act 2009 (Qld) (RTI Act) to the Department of Employment, Economic Development and Innovation (Department) for: Documents relating to the royalty return provided by BHP-Billiton/Mitsubishi Alliance (BMA) for the September 2008 quarter for the Gregory-Crinum coal mine. In particular information relating to the private royalty payable for the following land; Lot 8 on RP615390 and Lot 10 on RP615394 and Lot 12 on RP616394 in which Gordon Resources Ltd own a 50% interest. The assessment for the September 2008 Quarter of royalty payable made by the chief executive pursuant to regulation 44. The access application arises in the context of an alleged overpayment of private royalty to the applicant for the September 2008 quarter by BHP-Billiton Mitsubishi Alliance Coal Operations Pty Ltd (BMA). The applicant submits that its attempts to obtain information to verify the accuracy of BMA’s assessment of the alleged overpayment have been unsuccessful, and therefore it has resorted to the RTI process.[2] The Department identified ten pages responsive to part 1 of the access application (Documents in Issue) and, after consulting with a relevant third party, decided[3] to refuse access to those pages on the basis that disclosure would, on balance, be contrary to the public interest. With regard to part 2 of the access application, the Department explained that no assessment had been undertaken for the relevant quarter and accordingly decided that no responsive documents existed. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department's decision.[4] As a result of informal resolution processes, some parts of the Documents in Issue were eliminated from consideration in this review.[5] In relation to the remaining parts of the Documents in Issue, having considered all submissions and information before me, I am satisfied that: access to some information[6] may be refused,[7] on the basis that its disclosure would, on balance, be contrary to the public interest; and the balance of information[8] should be released to the applicant, as its disclosure would not, on balance, be contrary to the public interest. Reviewable decision The decision under review is the Department’s decision dated 2 March 2010. Information in Issue During the course of the external review, the applicant: accepted[9] that the Department did not hold any documents responsive to part 2 of the access application accepted[10] OIC’s preliminary view[11] that some information[12] in the Documents in Issue is irrelevant[13] to the access application; and confirmed[14] that it did not wish to pursue access to the personal information of the BMA employee who signed the royalty return in the Documents in Issue.[15] Further, the Department and BMA[16] accepted[17] OIC’s preliminary view that some information should be released to the applicant.[18] Accordingly, OIC asked the Department to provide this information to the applicant.[19] The parts of the Documents in Issue that remain in issue for the purpose of this decision are parts of pages 5, 8 and 10. Specifically, this information comprises: BMA Information[20]—for example, tonnage, revenue, applicable royalty rates, deductions (including port charges) and rail freight; and Aggregate Private Royalty Information[21]—figures regarding the total of royalties payable to all relevant private land holders presented as aggregate amounts. Issues in this review The applicant does not accept OIC’s preliminary view[22] that disclosure of the BMA Information would, on balance, be contrary to the public interest[23] and has provided submissions in support of its case.[24] BMA does not accept OIC’s preliminary view[25] that the Aggregate Private Royalty Information should be released to the applicant and has provided submissions in support of its case.[26] Therefore, the issues for determination are whether disclosure of the BMA Information and the Aggregate Private Royalty Information would, on balance, be contrary to the public interest. Significant procedural steps Significant procedural steps relating to the application and external review are set out in the Appendix. Evidence relied upon In reaching this decision, I have taken the following into account: the applicant’s access application, application for external review and supporting material the Department’s decision submissions provided by the applicant, the Department and BMA file notes of telephone conversations between OIC staff and representatives of the applicant, OIC staff and Department staff, and OIC staff and BMA file notes of a meeting between OIC staff and Department staff the Documents in Issue a KPMG Report dated 15 February 2010 (KPMG Report)[27] relevant provisions of the RTI Act and the Mineral Resources Act 1989 (Qld) (MR Act) ‘Determination of Coal Royalty Min 140’ Policy[28] issued by the Department of Mines and Energy[29] (Policy 140); and previous decisions of the Information Commissioner of Queensland and other relevant case law as identified in this decision. The law Under section 23 of the RTI Act, a person has a right to be given access to documents of an agency. However, this right is subject to a number of exclusions and limitations, including grounds for refusal of access. These grounds are contained in section 47 of the RTI Act. Relevantly, sections 47(3)(b) and 49 of the RTI Act provide a ground for refusal of access where disclosure of information would, on balance, be contrary to the public interest. In determining whether disclosure of the information sought would, on balance, be contrary to the public interest I must:[30] identify and disregard irrelevant factors identify factors favouring disclosure of the information in the public interest identify factors favouring nondisclosure of the information in the public interest balance the relevant factors favouring disclosure and nondisclosure decide whether disclosure of the information would, on balance, be contrary to public interest. Findings Irrelevant factors The Department notes that disclosure of a small amount of the Aggregate Private Royalty Information[31] could reasonably be expected to result in the applicant misinterpreting or misunderstanding the information, due to an error in the title for that information.[32] This factor is irrelevant to my decision regarding whether disclosure of the Documents in Issue would, on balance, be contrary to the public interest. No other irrelevant factors arise on the information before me. Factors favouring disclosure of the information in issue I have carefully considered the applicant’s submissions[33] regarding public interest factors favouring disclosure of the BMA Information and Aggregate Private Royalty Information. Open discussion and accountability On the information before me, I am satisfied that disclosure of the BMA Information and the Aggregate Private Royalty Information could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability,[34] because the information enables consideration of the State’s level of oversight regarding royalties payable to it and to private royalty recipients. This comprises a factor favouring disclosure of the BMA Information and the Aggregate Private Royalty Information. Information regarding royalty payments not otherwise available The applicant’s submissions[35] include the following background information: the applicant holds a 50% interest in three properties on which the Gregory-Crinum Coal mine (Mine) is situated the Mine is owned and operated by BMA the applicant has a private mineral royalty right in minerals extracted from the Mine, as each of the three properties in which it has a 50% interest comprise freehold land granted prior to May 1910 BMA is responsible for lodging royalty returns with the State under section 320(4) of the MR Act. The applicant advises that it made the access application that is the subject of this external review because its other attempts to obtain information to verify the accuracy of an alleged overpayment for the September 2008 quarter have been unsuccessful. While Policy 140 provides a prescribed formula and valuation methodology for royalty payments, without specific data it provides no assistance to the applicant in assessing the private royalty payable for a particular quarter. The applicant submits, and the Department has confirmed,[36] that: the applicant cannot compel the relevant Minister to exercise his discretion to conduct an audit of a royalty return there are no statutory obligations on BMA to provide specific data or information used to calculate royalties payable to private royalty recipients;[37] and there is no contractual arrangement between the applicant and BMA that provides the applicant with rights to verify the accuracy of royalty information provided to the State, and no incentive for BMA to enter such an arrangement. The applicant advises that an informal arrangement exists between it and BMA, where KPMG verifies the accuracy of the private royalty returns each quarter and provides a letter of assurance to the applicant. The KPMG Report states that private land holders were overpaid in the September 2008 quarter because of an incorrect split between private/government tonnage used in the royalty calculations, and errors in the calculation of allowable deductions.[38] However, the information provided under this arrangement has not satisfied the applicant’s concerns about the alleged overpayment for the September 2008 quarter. In summary, the applicant submits that there is no apparent method for a private royalty recipient to obtain information to verify an alleged overpayment, and therefore justify offsets against subsequent quarters’ royalties, under the current statutory and policy framework. On the information before me, I am satisfied that there is a public interest factor favouring disclosure of the Aggregate Private Royalty Information and the BMA Information because disclosure would respectively provide a private royalty recipient with further information regarding aggregate private royalty payment amounts assessed as being payable, and figures used in calculations leading to such amounts, in circumstances where there is no other mechanism enabling a private royalty recipient to obtain such information. In this regard, I note that if the BMA Information and the Aggregate Private Royalty Information were released, the applicant could check the internal accuracy of the mathematics applied to figures in various line items to calculate figures in other relevant line items. I also note that the Aggregate Private Royalty Information in particular would enable the applicant to cross-check that information against figures in the KPMG report, and the initial amount it actually received from BMA (which was offset over subsequent quarters). Administration of justice The applicant seeks to verify the accuracy of the alleged overpayment in dispute. In this regard, I am satisfied that disclosure of the BMA Information and the Aggregate Private Royalty Information could reasonably be expected to contribute to the administration of justice generally,[39] by avoiding unnecessary litigation in circumstances where a commercial dispute has the potential to be resolved between the relevant parties. There is a public interest in disclosure of information that may avoid placing unnecessary burden on the court system and its related public resources. Comments regarding the applicant’s submissions It is relevant to explain the basis upon which I do not consider a number of public interest factors identified by the applicant apply in this review. The applicant submits that disclosure of the BMA Information and the Aggregate Private Royalty Information: may allow a private royalty recipient to assess the accuracy of its royalty payments, and that there is no other mechanism enabling a private royalty recipient to do so could reasonably be expected to reveal that the information is incorrect[40] further a public interest in ensuring that information provided by commercial entities to government is accurate, especially when such information affects the statutory entitlements of third parties; and could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the decision.[41] The BMA Information and the Aggregate Private Royalty Information are comprised by various figures. Given the content of the KPMG Report, it appears likely that the BMA Information or the KPMG Report include inaccuracies, possibly regarding tonnage and allowable deductions. On careful examination of the BMA Information, I am satisfied that the various figures that comprise it: do not indicate the data or methodology on which they are based that would enable assessment of their accuracy; and do not include revised figures, data or methodology subsequently identified as accurate that would enable identification and examination of the inaccurate figures. Further, I note that the applicant does not have possession or control of revised figures, data or methodology that would provide a point of comparison and enable identification and examination of the inaccurate figures.[42] Therefore, while it appears possible to examine the internal accuracy of the figures that comprise the BMA Information and the Aggregate Private Royalty Information,[43] I am satisfied that doing so would not enable identification and examination of which figures in which line items were inaccurate, to what extent they were inaccurate, or to what extent they caused other figures based on them, including the Aggregate Private Royalty Information, to also be inaccurate. Accordingly, I am not satisfied that disclosure of the BMA Information or the Aggregate Private Royalty Information may allow a private royalty recipient to assess the accuracy of the royalty payments. For the same reasons, I am not satisfied that disclosure could reasonably be expected to[44] reveal that any of the information is incorrect. Given these conclusions, I am also not satisfied that disclosure would further a public interest in ensuring that information provided by commercial entities to government is accurate. Finally, on careful consideration of the BMA Information and the Aggregate Private Royalty Information, I do not consider that this information could reasonably be expected to provide any background or contextual information that informed a government decision. This is because the information was provided by BMA to the Department and there is no apparent connection between that information and a government decision. In summary, I am satisfied that the following factors favour disclosure of the BMA Information and the Aggregate Private Royalty Information: disclosure could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability; and disclosure may provide a private royalty recipient with further information regarding aggregate private royalty payment amounts assessed as being payable, and figures used in calculations leading to such amounts, in circumstances where there is no other mechanism enabling a private royalty recipient to obtain such information. Factors favouring nondisclosure of the information in issue I have also carefully considered the public interest factors favouring nondisclosure of the BMA Information and the Aggregate Private Royalty Information. Disclosure is prohibited by section 334 of the MR Act Mineral Royalty Returns are required to be lodged under section 320 of the MR Act. They are subject to section 334 of the MR Act, which provides: 334 Confidentiality of information (1) Except as provided in this section, an officer shall not disclose information or publish a record obtained by that officer or another person in connection with the administration of this part, unless the disclosure or publication is made— (a) with the consent (express or implied) of the person to whose affairs the information or record relates; or (b) in connection with the administration of this Act; or (c) for the purpose of any legal proceeding (including any report thereon) arising out of this Act; or (d) with the consent of the Minister ... On the information before me, I am satisfied that disclosure of Mineral Royalty Returns is prohibited by section 334 of the MR Act, except in certain specified circumstances. Disclosure under the RTI Act in response to an access application is not one of the exceptions. Accordingly, I am satisfied that a public interest factor favouring non-disclosure of the BMA Information and the Aggregate Private Royalty Information is that disclosure of that information is prohibited by an Act,[45] namely section 334 of the MR Act. Impact on BMA’s business, commercial or financial affairs The BMA Information comprises information about the Mine’s tonnage, revenue, applicable royalty rates,[46] deductions (including port charges) and rail freight for the September 2008 quarter. Some of the information concerning the Mine is interwoven with information about other mines owned or operated by BMA, which are outside the scope of the access application.[47] After careful consideration, I am satisfied that disclosure of the BMA Information may have a detrimental effect on BMA’s business, commercial or financial affairs or place BMA at a disadvantage in relation to those affairs because disclosure would reveal sensitive commercial, business or financial information not otherwise available about: the amount of coal mined and prices paid for that coal financial arrangements with and obligations to third party goods and service providers; and the success or otherwise of mines owned or operated by BMA, and doing so could, in the circumstances, reasonably be expected to: affect BMA’s dealings with other parties involved in trade with or investment in its mines cause third party goods and service providers to lose confidence in the confidentiality of their private agreements with BMA; and put BMA at a competitive disadvantage. On this basis, I am satisfied that disclosure of the BMA Information could reasonably be expected to: prejudice[48] the business, commercial or financial affairs of an entity,[49] namely BMA; and cause a public interest harm[50] because it would disclose information concerning[51] the business, commercial or financial affairs of a person, namely BMA, and could reasonably be expected to have an adverse effect[52] on those affairs.[53] On the other hand, after careful consideration of the Aggregate Private Royalty Information, I am satisfied that its disclosure would reveal sensitive commercial, business or financial information about aggregate royalties payable by BMA to private royalty recipients. However, I also note that BMA’s submissions objecting to disclosure of this information[54] related only to the ability of the applicant to calculate royalties paid to other private royalty recipients. Given BMA’s submissions, and on the information before me, I am satisfied that disclosure of the Aggregate Private Royalty Information would not prejudice BMA’s business, commercial or financial affairs or cause a public interest harm to those affairs. Impact on other private land holders’ business, commercial or financial affairs The Department and BMA have raised concerns that disclosure of the Aggregate Private Royalty Information would necessarily disclose to the applicant royalties payable to other private royalty recipients.[55] It has not been possible to consult with the other private royalty recipients, as doing so would necessarily disclose to them information of the exact same nature regarding the applicant. On the information before me, I am satisfied that the Aggregate Private Royalty Information concerns the private, business, commercial or financial affairs of the other private royalty recipients, as it is information about their private royalty interests, and therefore about the activities they are involved in for the purpose of generating income or profits. Further, I am satisfied that if the Aggregate Private Royalty Information is disclosed, the applicant may use its knowledge of the other private royalty recipients’ relative interests in the land on which the Mine operates (known to the applicant through information contained in the KPMG Report and also publicly available through land title searches) to determine the initial amount of royalties paid to each private land owner for the September 2008 quarter, prior to BMA’s revision of those amounts. However, on the information before me, I am unable to identify a detrimental effect of disadvantage to the other private royalty recipients’ business, commercial or financial affairs resulting from disclosure of the Aggregate Private Royalty Information. In this regard, I note that information of this nature is already available to the applicant, through its knowledge of the other private royalty recipients’ relative interests in the land on which the Mine operates and the initial amount that it actually received from BMA for the September 2008 quarter (which was offset over subsequent quarters). Accordingly, I am not satisfied that disclosure of Aggregate Private Royalty Information could reasonably be expected to prejudice[56] or have an adverse effect[57] on the business, commercial or financial affairs of the other private royalty recipients. In summary, I am satisfied that the following public interest factors favour nondisclosure of the information: disclosure of the BMA Information and Aggregate Private Royalty Information is prohibited by an Act,[58] namely section 334 of the MR Act disclosure of the BMA Information could reasonably be expected to prejudice the private, business, professional, commercial or financial affairs of an entity;[59] and disclosure of the BMA Information could reasonably be expected to cause a public interest harm because it would disclose information concerning the business, professional, commercial or financial affairs of an agency or another person and its disclosure could reasonably be expected to have an adverse effect on those affairs.[60] Balancing factors favouring disclosure and nondisclosure in the public interest BMA Information I note the importance of open discussion of public affairs and the accountability of government. However, given the nature of the BMA Information, I am not satisfied that its disclosure would further the public interest in open discussion or government accountability to any great extent. I consider that the public interest in providing a private royalty recipient with further information regarding figures used in calculations leading to aggregate private royalty payment amounts is significant—particularly as there is apparently no other mechanism for a private royalty recipient to obtain such information. The public interest in contributing to the administration of justice generally by disclosure of information that may avoid unnecessary litigation is significant here. On the other hand, I note that disclosure of the BMA Information is prohibited by section 334 of the MR Act. However, I also note that the information is not exempt from disclosure under the RTI Act by virtue of the fact that its disclosure is prohibited by section 334 of the MR Act. The prohibition is simply one of a number of public interest factors to be considered.[61] The applicant submits that this public interest factor should be given little or no weight, on the basis that: As the RTI Act is a latter Act, it has the effect of “trumping” the MR [Act] and specifically in an RTI Act context will trump the confidentiality provision in s.334 of the MR [Act]. This position is expressly confirmed by s.6 of the RTI Act which clearly overrides any confidentiality provision in an Act which is not specifically listed in s.12 of Schedule 3 of the RTI Act. [In footnote:] The Information Commissioner’s decision in Moon and the Department of Health ... confirms this position.[62] Section 6 of the RTI Act provides: 6 Relationship with other Acts prohibiting disclosure of information This Act overrides the provisions of other Acts prohibiting the disclosure of information (however described). In relation to section 6 of the RTI Act, OIC commented as follows in Moon and Department of Health (Moon):[63] The policy objective behind section 6 is to provide a deliberate override of secrecy provisions in other legislation such as section 62A of the Health Services Act 1991 (Qld) to ensure that the RTI Act can operate unhindered by them. The Parliament considered those secrecy provisions that should not be overridden by the RTI Act and provision is made for them in Schedule 3, section 3 of the RTI Act. The confidentiality provisions in the Health Services Act 1991 (Qld) do not appear in the Schedule. The effect of section 6 is that the Department can participate in the early resolution processes of the Office provided for in the RTI Act and it can agree to release information that might otherwise be subject to section 62A of the Health Services Act 1991 (Qld) in that process. In my view, the comments in Moon confirm that when the disclosure of information is prohibited by a provision in an Act that is not listed in schedule 3, section 12 of the RTI Act, the RTI Act overrides that provision. However, this does not mean that the information should simply be disclosed. At the external review stage, it means that parties may engage in informal resolution processes and, if those processes prove unsuccessful, OIC is required to decide whether the information is exempt information of a type listed in schedule 3 (other than section 12) or information, the disclosure of which would, on balance, be contrary to the public interest (through application of the public interest test). Section 6 must be understood in the context of the whole Act. Section 49(2) of the RTI Act states that schedule 4 sets out the factors the Parliament considers appropriate for deciding where the public interest lies. Section 49(3) requires me to identify such a factor as Item 22, Part 3 of Schedule 4 and consider it. Therefore, in relation to the applicant’s submission that: ... Item 22, Part 3 of Schedule 4 of the RTI Act... should be given little or no weight in the context of applying the Public Interest Exemption Test. To do otherwise would defeat the clear and obvious purpose of and amount to an administrative overriding of s.6 of the RTI Act which cannot be what Parliament intended.[64] it is my view that section 6 does not require that I give little or no weight to the public interest factor favouring nondisclosure, that disclosure is prohibited by an Act. Section 6 only goes so far as to provide that the RTI Act overrides section 334 of the MR Act, and therefore provisions in the RTI Act—including provisions that require determination of whether disclosure of the relevant information would, on balance, be in the public interest—apply, notwithstanding that disclosure of the information is generally prohibited by section 334 of the MR Act. The applicant’s submissions[65] also raised the following in support of giving very limited weight to the public interest factor that disclosure of the BMA Information is prohibited by an Act, namely section 334 of the MR Act: the RTI Act is to be applied and interpreted to further its primary object[66] the RTI Act should be administered with a pro-disclosure bias;[67] and the grounds on which access may be refused are to be interpreted narrowly.[68] I agree these are the requirements of the legislation. On careful consideration of the information before me, it is my view that public interest in nondisclosure of the BMA Information is significant, given that that disclosure of it is prohibited under section 334 of the MR Act, but that this significance is reduced, given that there is no mechanism for a private royalty recipient to obtain information regarding royalties payable to them. Given the nature of the BMA Information, I consider the prejudice and adverse affect to the business, commercial or financial affairs of BMA is of relatively great weight, given the potential impact that its release could reasonably be expected to have on the interests of BMA. On careful consideration of these factors, I am satisfied that the weight of the factors favouring nondisclosure, particularly the relatively great weight of the factor identified at paragraph 64 above, outweigh the public interest factors favouring disclosure of the BMA Information. Accordingly, I am satisfied that disclosure of this information would not, on balance, be in the public interest. Aggregate Private Royalty Information I am not satisfied that disclosure of the Aggregate Private Royalty Information would further the public interest in open discussion or government accountability to any great extent. However, I am satisfied that the public interest in providing a private royalty recipient with further information regarding aggregate private royalty payment amounts assessed as being payable is significant—particularly as there is apparently no other mechanism for a private royalty recipient to obtain such information. In this regard, I note that the Aggregate Private Royalty Information relates expressly and directly to private royalty payments. The public interest in contributing to the administration of justice generally by assisting the fair settlement of commercial disputes and avoiding unnecessary litigation is significant and here, I consider that disclosure of the Aggregate Private Royalty Information could influence the settlement of the payment issue between the parties. For reasons outlined above, I consider the only factor favouring nondisclosure to be given any weight in regards to this information is that its disclosure is prohibited by section 334 of the MR Act.[69] I am satisfied that less weight should attach to this factor with respect to the Aggregate Private Royalty Information than the BMA Information. This is because information of a similar nature to the Aggregate Private Royalty Information is, in effect, available to the applicant and relevant private land holders each quarter, including the relevant quarter, through their knowledge of other private land holders’ relative interests in the relevant land (publicly available through land title searches) and the amount of royalties actually received by them. In these circumstances, I am satisfied that the factors favouring disclosure of the Aggregate Private Royalty Information outweigh the factor favouring nondisclosure, and that disclosure of this information would, on balance, be in the public interest. DECISION I vary the Department’s decision to refuse access to the Documents in Issue under section 47(3)(b) and 49 of the RTI Act and find that: access to the BMA information may be refused under sections 47(3)(b) and 49 of the RTI Act on the basis that its disclosure would, on balance, be contrary to the public interest; and the Aggregate Private Royalty Information should be released to the applicant, as its disclosure would not, on balance, be contrary to the public interest. ________________________ Julie Kinross Information Commissioner Date: 21 September 2011 APPENDIX Significant procedural steps Date Event 21 December 2009 Applicant applied to Department for documents about private royalties payable by BMA regarding three properties for the September 2008 quarter February 2010 Department consulted with a relevant third party 26 February 2010 Third party objected to disclosure of the Documents in Issue 2 March 2010 Department decided to refuse access to the Documents in Issue on the basis that disclosure would, on balance, be contrary to the public interest, and advised that it did not hold any documents responsive to part 2 of the access application 16 March 2010 Applicant applied to OIC for a review of Department’s decision 4 March 2011 Applicant made submissions regarding access to the Documents in Issue and advised that it accepted that the Department did not hold any documents responsive to part 2 of the access application 30 May 2011 Applicant provided the KPMG report to OIC 31 May 2011 OIC staff met with Department staff (from the Royalties and Rent unit and RTI/Privacy unit) who confirmed their view that disclosure of the Documents in Issue would, on balance, be to contrary to the public interest 2 June 2011 In a telephone conversation between OIC staff and representatives of applicant on 2 June 2011, OIC advised the applicant of its preliminary view that some of the information on the Documents in Issue was irrelevant, and disclosure of the remaining information would, on balance, be to contrary to the public interest 7 June 2011 By correspondence, OIC confirmed to applicant its preliminary view conveyed on 2 June 2011 14 June 2011 Applicant made submissions in which it accepted OIC’s preliminary view that some information was irrelevant, but did not accept OIC’s preliminary view that disclosure of the remaining information would, on balance, be to contrary to the public interest 17 June 2011 By correspondence, OIC advised the Department of its preliminary view that a the Aggregate Private Royalty Information should be released to the applicant, disclosure of the BMA Information would, on balance, be to contrary to the public interest and the remaining information on the Documents in Issue was irrelevant 17 June 2011 By correspondence, OIC consulted with BMA (as a concerned party under section 97(4) of the RTI Act) and conveyed OIC’s preliminary view (as per that conveyed to Department on same date) 23 June 2011 In a telephone conversation between OIC staff and Department staff, the Department accepted OIC’s preliminary view 24 June 2011 By correspondence, BMA advised that it did not accept OIC’s preliminary view that the Aggregate Private Royalty Information should be released to the applicant 28 June 2011 In a telephone conversation between OIC staff and representatives of applicant, applicant was advised of OIC’s preliminary view the Aggregate Private Royalty Information should be released to it and confirmed reliance on its earlier submissions 28 June 2011 In a telephone conversation between OIC staff and representatives of BMA, BMA confirmed its grounds for not accepting OIC’s preliminary view regarding the Aggregate Private Royalty Information 5 July 2011 In a telephone conversation between OIC staff and representatives of BMA, BMA confirmed its participation in the external review under section 89(2) of the RTI Act 7 July 2011 By correspondence, OIC confirmed information to be redacted and information to be released with the Department and BMA. Correspondence was hand delivered to BMA and the contents of the correspondence verbally confirmed with BMA legal staff. 11 July 2011 In a telephone conversation between OIC staff and representatives of applicant, the applicant proposed negotiations under section 90(3) of the RTI Act 13 July 2011 By correspondence, BMA confirmed its grounds for not accepting OIC’s preliminary view regarding the Aggregate Private Royalty Information 20 July 2011 By correspondence, OIC advised applicant of informal resolution steps taken in the review and requested that applicant confirm whether it wished to suspend the review in order to negotiate with other parties to the review. OIC also queried whether applicant wished to pursue access to personal information of the BMA employee who signed the royalty return 25 July 2011 In a telephone conversation between OIC staff and representatives of applicant, applicant advised that it did not wish to conduct negotiations under section 90(3) of RTI Act 25 July 2011 By correspondence, applicant confirmed that it did not wish to conduct negotiations under section 90(3) of RTI Act and did not wish to pursue access to personal information of the BMA employee who signed the royalty return. Applicant raised procedural fairness concerns and requested that it be given opportunity to respond to any adverse submissions by other parties 8 August 2011 By correspondence, OIC addressed applicant’s concerns regarding procedural fairness and noted that applicant had already made relevant submissions, or was not required to do so (because OIC’s view was not adverse to applicant) 15 August 2011 By correspondence, applicant made further submissions in response to OIC’s correspondence regarding procedural fairness 19 August 2011 By correspondence, OIC advised parties that, given that the applicant did not wish to pursue personal information of the BMA employee who signed the royalty return, that the Department accepted OIC’s preliminary view, and that BMA’s non-acceptance of OIC’s preliminary view related to the Aggregate Private Royalty Information only, the Department could release redacted versions of pages 4, 5, 7, 8 and 10 (excluding the BMA Information and the Aggregate Private Royalty Information). [1] On 21 December 2009.[2] By submissions dated 4 March 2011.[3] By decision dated 2 March 2010. [4] On 16 March 2010.[5] See paragraph 7 below.[6] Parts of pages 5, 8 and 10 of the Documents in Issue.[7] Under sections 47(3)(b) and 49 of the RTI Act.[8] Parts of pages 8 and 10 of the Documents in Issue.[9] By submissions dated 4 March 2011.[10] By submissions dated 14 June 2011.[11] By telephone conversation between OIC staff and representatives of the applicant on 2 June 2011 and by letter to the applicant dated 7 June 2011, and confirmed by letter to the applicant dated 20 July 2011.[12] That is, pages 1, 2, 3, 6 and 9, and parts of pages 4, 5, 7, 8 and 10 of the Documents in Issue.[13] The irrelevant information is irrelevant under section 73 of the RTI Act or does not fall within the scope of the applicant’s application. It is comprised by information that has no bearing on private royalty payments (for example, information about royalty payments to the Crown and whether particular leases are producing or not (which provide no means of enabling calculation of private royalties), and information about mines other than the Gregory-Crinum mine or minerals other than coal. [14] By submissions dated 25 July 2011.[15] That is, parts of pages 4 and 7 of the Documents in Issue.[16] Consulted under section 97(4) of the RTI Act, and joined as a participant in the external review under section 89(2) of the RTI Act. [17] By telephone conversation with OIC staff on 23 June 2011, the Department accepted OIC’s preliminary view to it dated 17 June 2011 and 7 July 2011. By correspondence dated 24 June 2011 and 13 July 2011, BMA’s submissions objecting to disclosure related only to the Aggregate Private Royalty Information, and BMA was therefore taken to accept OIC’s preliminary view to it dated 17 June 2011 and 7 July 2011 that the BMA Information should be released to the applicant.[18] That is, parts of pages 4, 5, 7, 8 and 10 of the Documents in Issue.[19] As confirmed in correspondence to all parties dated 19 August 2011.[20] Parts of pages 5, 8 and 10 of the Documents in Issue.[21] Parts of pages 8 and 10 of the Documents in Issue.[22] By telephone conversation between OIC staff and representatives of the applicant on 2 June 2011 and by letter to the applicant dated 7 June 2011, clarified in a telephone conversation between OIC staff and representatives of the applicant on 28 June 2011 (in which the applicant was advised of OIC’s preliminary view that the Aggregate Private Royalty Information should be released to it), and confirmed by letter to the applicant dated 20 July 2011.[23] Under sections 47(3)(b) and 49 of the RTI Act.[24] Dated 4 March 2011, 14 June 2011 and 15 August 2011.[25] By letters dated 17 June 2011 and 7 July 2011.[26] Dated 24 June 2011, confirmed in telephone conversation with OIC staff on 28 June 2011 and by email dated 13 July 2011.[27] Provided to the applicant by means other than the access application subject to this review and obtained by OIC from the applicant under section 103 of the RTI Act.[28] ‘Determination of Coal Royalty Min 140’, Department of Mines and Energy http://www.dme.qld.gov.au/zone_files/royalties/ policy_no_140.pdf, effective 1 July 2008.[29] Now part of the Department as defined for the purpose of this decision.[30] Section 49(3) of the RTI Act.[31] That is, the first line item on page 8 of the Documents in Issue.[32] The line item appears to relate to the applicant only—however, both the Department and BMA advise that the figures in the line are aggregate figures for all relevant private royalty holders, not just the applicant.[33] Dated 4 March 2011 and 14 June 2011.[34] Schedule 4, part 2, item 1 of the RTI Act.[35] Dated 4 March 2010. [36] On 31 May 2011.[37] I note this is in contrast to the obligations imposed on BMA as holder of a mining tenure to provide certain information to the State under Part 9 of the MR Act.[38] Pages 2 and 3 of the section of the KPMG Report regarding the September 2008 quarter.[39] See Schedule 4, part 2, item 16 of the RTI Act.[40] Schedule 4, part 2, item 12(a) of the RTI Act.[41] Schedule 4, part 2, item 11 of the RTI Act.[42] In this regard, I note the applicant’s advice in its submissions dated 4 March 2011 that it made the application that is the subject of this external review because its other attempts to obtain relevant information were unsuccessful. [43] As noted at paragraph 27 above.[44] The term ‘could reasonably be expected to’ requires that the relevant expectation is reasonably based; that it is neither irrational, absurd or ridiculous, nor merely a possibility. It is not necessary for a decision-maker ‘to be satisfied upon a balance of probabilities’ that disclosing the document will produce the anticipated result. Whether the expected consequence is reasonable requires an objective examination of the relevant evidence. Importantly, the expectation must arise as a result of disclosure, rather than in other circumstances—see Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97 at 106; Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744; Sheridan and South Burnett Regional Council (and Others) (Unreported, Queensland Information Commissioner, 9 April 2009); and Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 at paragraphs 45-47 and 54.[45] Schedule 4, part 3, item 22 of the RTI Act.[46] Royalty rates vary depending on the average price per tonne of coal sold, disposed of or used in the relevant quarterly period—‘Determination of Coal Royalty Min 140’, Department of Mines and Energy http://www.dme.qld.gov.au/zone_files/ royalties/ policy_no_140.pdf, effective 1 July 2008.[47] On page 10 of the Documents in Issue.[48] The word ‘prejudice’ is not defined in the RTI Act or the Acts Interpretation Act 1954 (Qld). Therefore, it is appropriate to consider the ordinary meaning of the word. The Macquarie Dictionary contains a number of definitions for the word ‘prejudice’, the most relevant being ‘resulting injury or detriment’ and ‘to affect disadvantageously or detrimentally’.[49] Schedule 4, part 3, item 2 of the RTI Act.[50] Schedule 4, part 4, item 7(1)(c) of the RTI Act.[51] For information to ‘concern’ business, professional, commercial or financial affairs, it must be information ‘about’ those affairs; essentially, information about activities carried on for the purpose of generating income or profits—see Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 (Cannon) at paragraph 67, which considered the now repealed Freedom of Information Act 1992 (Qld) exemption upon which this public interest factor was modelled.[52] The phrase ‘adverse effect’ usually refers to the relevant entity being exposed to commercial disadvantage or competitive harm—see generally Cannon, at paragraphs 82-84.[53] Prior to making its decision on 2 March 2010, the Department consulted with a relevant third party whose submissions included the comment that disclosure would act as a disincentive to full and frank disclosure of financial information in future royalty returns, raising the alternative basis for the public interest harm listed in schedule 4, part 4, item 7(1)(c) of the RTI Act that disclosure could reasonably be expected to prejudice the future supply of information of this type to government. However, I am not satisfied that disclosure of the BMA Information could cause a public interest harm on this basis, given that provision of such information is required under section 334 of the MR Act.[54] Dated 24 June 2011 and 13 July 2011.[55] The Department raised these concerns in a meeting on 31 May 2011 and BMA raised them in its submissions dated 24 June 2011 and 13 July 2011.[56] Schedule 4, part 3, item 2 of the RTI Act.[57] Schedule 4, part 4, item 7(1)(c) of the RTI Act.[58] Schedule 4, part 3, item 22 of the RTI Act. [59] Schedule 4, part 3, item 2 of the RTI Act.[60] Schedule 4, part 4, item 7(1)(c) of the RTI Act. [61] In contrast, for those types of information covered by the provisions listed in schedule 3, section 12 of the RTI Act, Parliament has determined that disclosure of would, on balance, be contrary to the public interest in all instances, and has therefore designated such information as exempt information—see section 48(2) of the RTI Act.[62] Submissions dated 15 August 2011.[63] Moon and Department of Health (Unreported, Queensland Information Commissioner, 12 August 2010).[64] Submissions dated 15 August 2011.[65] Dated 14 June 2011.[66] Referring to section 3(2) of the RTI Act.[67] Referring to section 44(4) of the RTI Act.[68] Referring to section 47(2)(a) of the RTI Act.[69] Schedule 4, Part 3, item 22 of the RTI Act. I note that schedule 3, section 12 of the RTI Act does not recognise information prohibited from disclosure under section 334 of the MRA as exempt information and emphasise that this merely one public interest factor favouring nondisclosure of the Information in Issue.

queensland

court_judgement

Queensland Information Commissioner 1993-

V73 and Queensland Police Service [2021] QICmr 32 (23 June 2021)

V73 and Queensland Police Service [2021] QICmr 32 (23 June 2021) Last Updated: 19 August 2021 Decision and Reasons for Decision Citation: V73 and Queensland Police Service [2021] QICmr 32 (23 June 2021) Application Number: 315026 Applicant: V73 Respondent: Queensland Police Service Decision Date: 23 June 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - IRRELEVANT INFORMATION - request for documents and communications about the applicant - whether information may be deleted on the basis it is irrelevant - section 88 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - CONTRARY TO PUBLIC INTEREST INFORMATION - personal information and investigative procedure information - accountability, transparency, fair treatment and administration of justice - personal information, privacy and ability to obtain information - whether disclosure would, on balance, be contrary to the public interest - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - NONEXISTENT OR UNLOCATABLE DOCUMENTS - whether agency has taken all reasonable steps to locate requested documents - whether access to further documents can be refused on the ground they are nonexistent or unlocatable - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied to the Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) to access a range of documents about him or which contain his name.[1] 2. QPS did not make a decision within the required statutory timeframe and was therefore taken to have made a deemed decision refusing access to the requested information.[2] 3. The applicant applied to the Office of the Information Commissioner (OIC) for an external review of QPS’ deemed decision.[3] 4. On external review, QPS located relevant documents[4] and disclosed them to the applicant, subject to deletion of certain information. The applicant remains dissatisfied with the level of information released to him and believes further relevant documents exist. 5. For the reasons set out below, I vary QPS’ decision and find that: certain information may be deleted under section 88 of the IP Act, on the basis it is irrelevant to the scope of the application access may be refused to information on the basis that disclosure would, on balance, be contrary to the public interest;[5] and access to any further documents may be refused on the basis they do not exist or cannot be located.[6] Reviewable decision and evidence considered 6. The decision under review is the deemed decision QPS is taken to have made under section 66 of the IP Act. 7. Significant procedural steps taken during the external review process are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including the footnotes and Appendix). 8. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right to seek and receive information.[7] I consider a decision-maker will be ‘respecting and acting compatibly with’ that right and others prescribed in the HR Act, when applying the law prescribed in the IP Act and RTI Act.[8] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act.[9] Information and issues for determination 9. QPS deleted information from 719 pages of the documents disclosed to the applicant[10] (information in issue). The applicant generally contends that these deletions are ‘not inline with any part of the law and are simply excessive to prevent the documents being legible’[11] and that no information can be withheld from him.[12] 10. The information in issue appears in records concerning domestic violence protection orders[13] and criminal charges brought against the applicant and broadly comprises: information on 55 pages[14] which QPS deleted on the basis that it is irrelevant to the access application (Irrelevant Information); and information redacted by QPS on the basis its disclosure would, on balance, be contrary to the public interest (CTPI Information). 11. The issues for determination are whether: the applicant is entitled to access the Irrelevant Information access to the CTPI Information may be refused on the basis disclosure would, on balance, be contrary to the public interest;[15] and access to further documents may be refused on the basis that they do not exist or cannot be located.[16] Irrelevant Information 12. Under the IP Act, an individual has a right to be given access to documents of a Queensland government agency, to the extent they contain the individual’s personal information.[17] A document will be outside the scope of an access application made under the IP Act if it does not contain the applicant’s personal information.[18] Section 88 of the IP Act also permits information that is not relevant to the access application to be deleted from the document before giving access to a copy of the document. 13. The applicant submits that I cannot decide what information is relevant because I do not have the necessary information[19] and I ‘have not requested any detail about why the information is needed’.[20] 14. The IP Act does not require a person to give reasons for seeking access to documents. In deciding whether information is irrelevant, it is necessary to consider whether the information has any bearing upon, or is pertinent to, the terms of the application.[21] The applicant has, however, been provided with several opportunities on external review to make submissions in relation to why he considers the Irrelevant Information should be disclosed to him. 15. Having carefully considered the terms of the access application[22] and the Irrelevant Information, I am satisfied that: 6 entire pages[23] of the Irrelevant Information comprise documents that do not contain any of the applicant’s personal information; and the remaining Irrelevant Information in the documents is not about the applicant but is instead about other individuals.[24] 16. On this basis, I find that the Irrelevant Information was validly deleted from the documents that QPS has disclosed.[25] CTPI Information 17. While I am limited in the extent to which I can describe the CTPI Information,[26] it includes: the personal information[27] of private individuals, including their names, dates of birth, signatures, contact details (such as residential and workplace addresses, emails and telephone numbers), their personal circumstances and their observations, recollections and opinions information about the personal circumstances of QPS staff mobile telephone numbers of QPS staff and telephone extension details for other public sector officers; and information about certain procedures employed by QPS in its investigation of criminal matters involving the applicant. 18. The right of access under the IP Act is subject to some limitations, including the grounds on which access to information may be refused.[28] One ground of refusal is where disclosing information would, on balance, be contrary to the public interest.[29] 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.[30] 19. In deciding where the balance of the public interest lies, the RTI Act requires a decision maker to identify factors for and against disclosure, disregard irrelevant factors[31] and decide, on balance, whether disclosure would be contrary to the public interest.[32] 20. I have not taken any irrelevant factors into account in making this decision. Factors favouring disclosure 21. A small amount of the CTPI Information relates to the applicant and comprises his personal information. This gives rise to a factor favouring disclosure to which I afford high weight.[33] However, this information about the applicant is intertwined with the personal information of other individuals to such an extent that it cannot be disclosed without also disclosing the personal information of those other individuals (which raises the nondisclosure factors discussed below). 22. The applicant submits that no information can be withheld from him and: Full transparency in the Criminal Justice System once charges are laid is a fundamental protection given to defends [sic]. No one persons [sic] individual right to privacy, can override Common Law fundamentals, of a fair trial, and Equity of arms. Equity of arms Mandates, that once a charge is laid, there must be no disparity between the information available to either party. ... To provide equity, we must have equal access to information. Therefore no documents may be refused.[34] 23. Firstly, the RTI process is not a replacement for Court processes in relation to the disclosure of documents for the purposes of a fair trial.[35] The arguments that the applicant makes in this regard are specifically relevant to the requirements that a Judge might consider in criminal or other proceedings against the applicant. 24. The RTI Act recognises that public interest factors favouring disclosure will arise where disclosing information could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[36] inform the community of the Government’s operations, including, in particular, the policies, guidelines and codes of conduct followed by the Government in its dealings with members of the community[37] reveal the reason for a government decision and any background or contextual information that informed the decision[38] advance the fair treatment of individuals in accordance with the law in their dealings with agencies;[39] and contribute to the administration of justice generally, including procedural fairness, or for a person.[40] 25. QPS must be transparent and accountable about how it deals with received allegations of contraventions, or possible contraventions, of the law. I accept that disclosing the CTPI Information would provide the applicant with a more complete picture of the applications and allegations that have been made to QPS by, and about, him and the actions taken by QPS in respect of those matters. QPS has disclosed a significant amount of information to the applicant.[41] I consider disclosure of this information has substantially advanced the accountability and transparency factors,[42] by enabling scrutiny of QPS’ actions and providing background information which informed those actions. Given the particular nature of the CTPI Information, I do not consider its disclosure would further advance these accountability and transparency factors in any significant way. In these circumstances, I attribute low weight to these factors. 26. In determining whether the disclosure of the CTPI Information could reasonably be expected to contribute to the administration of justice for the applicant, I must consider whether:[43] the applicant has suffered loss, or damage, or some kind of wrong, in respect of which a remedy is, or may be, available under the law the applicant has a reasonable basis for seeking to pursue the remedy; and disclosing the information held by an agency would assist the applicant to pursue the remedy, or evaluate whether a remedy is available or worth pursuing. 27. The applicant has not identified that he is wishing to pursue any particular remedy and there is no evidence before me to indicate that disclosure of the CTPI Information is required to enable the applicant to pursue a legal remedy or evaluate whether a remedy (legal or otherwise) is available or worth pursuing. For these reasons, I do not consider this factor favouring disclosure[44] applies. 28. The fundamental requirements of procedural fairness—that is, an unbiased decision-maker and a fair hearing—should be afforded to a person who is the subject of an investigation or decision.[45] Although the applicant has raised general fairness arguments, he has not enunciated how disclosure of this particular CTPI Information would contribute to his fair treatment or procedural fairness. On the information before me, it appears that the applicant was afforded an opportunity to respond to the various allegations made against him and I note that some of criminal proceedings referenced in the disclosed documents have been completed. In these circumstances, and taking the particular nature of the CTPI Information into account, I am not satisfied that that there is a reasonable expectation its disclosure would, in any meaningful way, advance the applicant’s fair treatment or contribute to the general administration of justice, including procedural fairness. On this basis, while these factors may apply,[46] I afford them only low weight due to the nature of the CTPI Information. 29. The applicant also contends that QPS has used the redactions to hide its improper conduct and that some of the CTPI Information comprises ‘improper language, and racist, sexist and hateful slurs, by QPS’.[47] Public interest factors favouring disclosure also arise in circumstances where disclosing information could reasonably be expected to: reveal the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant;[48] or allow or assist enquiry into, or reveal or substantiate, deficiencies in the conduct of QPS or its officers.[49] 30. I have carefully considered the CTPI Information (together with the applicant’s submissions and the information which has been released to the applicant). There is nothing before me which suggests that the CTPI Information is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. Some of the CTPI Information comprises information provided to QPS by other individuals. Information of this nature includes the individuals’ observations, opinions and versions of events which are shaped by factors such as the individuals’ memories of relevant events and subjective impressions. This inherent subjectivity does not itself mean that the information is necessarily incorrect, misleading or unfairly subjective.[50] I am also satisfied that there is nothing within the CTPI Information which gives rise to an expectation that its disclosure would allow or assist enquiry into, reveal or substantiate, agency or official conduct deficiencies. Accordingly, to the extent these disclosure factors[51] apply, I afford them low weight. 31. Taking into account the particular nature of the CTPI Information, I cannot identify any other public interest considerations favouring its disclosure.[52] Factors favouring nondisclosure 32. The RTI Act recognises that there is a public interest harm[53] in disclosing an individual’s personal information to someone else and that disclosing information which could reasonably be expected to prejudice the protection of an individual’s right to privacy gives rise to a public interest factor favouring nondisclosure.[54] The concept of ‘privacy’ is not defined in the IP Act or the RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others.[55] 33. Having carefully reviewed the CTPI Information, I am satisfied that most of it comprises the personal information of individuals other than the applicant. 34. Some of this personal information relates to personal circumstances of QPS officers. While personal information of this nature appears in a work context, I am satisfied that it is not wholly related to the routine day-to-day work activities of those officers.[56] Given the nature of this information, I am satisfied its disclosure would be a significant intrusion into the privacy of the relevant staff and the extent of the harm that would arise from its disclosure would be significant. 35. The CTPI Information also includes mobile numbers of QPS staff and direct telephone extension details for other public sector officers.[57] Mobile phone numbers and direct extensions are different to other contact details (such as email addresses or general office phone numbers) in that they allow an individual to be contacted directly and potentially outside of office hours. This gives rise to a reasonable expectation of intrusion into the officer’s personal sphere. Accordingly, for information of this nature, I afford moderate weight to these nondisclosure factors. 36. The remaining personal information relates to private individuals and it is of a highly sensitive and personal nature, appearing in the context of domestic violence protection applications and police investigations of criminal matters. As noted above, some of this information is intertwined with a small amount of the applicant’s personal information. Given the sensitive and highly personal nature of this information, I am satisfied that its disclosure would be a significant intrusion into the privacy of these private individuals and the extent of the harm that could be expected to arise from its disclosure would be significant. On this basis, I afford significant weight to these factors which favour nondisclosure of this remaining personal information. 37. The applicant submits that the CTPI Information is ‘unlikely to contain information that contains a third party I am unaware of’ and he considers that ‘No one persons [sic] individual right to privacy, can override Common Law fundamentals, of a fair trial, and Equity of arms’. [58] I acknowledge that the applicant may know the identities of some of these other individuals and, as a result of his interactions with QPS and his involvement in criminal proceedings, he may also be aware of some of the information these individuals provided to QPS. However, taking into account the sensitive nature and context of the CTPI Information, I do not consider this reduces the weight of these nondisclosure factors, particularly as there can be no restriction on the use, dissemination or republication of information disclosed under the IP Act. 38. Public interest factors favouring nondisclosure also arise where disclosing information could reasonably be expected to prejudice the flow of information to law enforcement or regulatory agencies[59] or prejudice an agency’s ability to obtain confidential information.[60] There is a strong public interest in protecting the free flow of information to law enforcement agencies and the ability of those agencies to obtain information which is relevant to the investigation of potential contraventions of the law, including the opinions and observations of concerned individuals (whether they are complainants, witnesses, informers or the subjects of complaint).[61] Routinely disclosing this type of information would tend to discourage individuals from coming forward with relevant information or participating openly in future investigations, particularly where the information involves sensitive personal matters or where information has been provided on a confidential basis. Accordingly, I afford significant weight to these factors favouring nondisclosure. 39. Where disclosing information could reasonably be expected to prejudice security, law enforcement or public safety, a factor favouring nondisclosure will arise.[62] Some of the CTPI Information reveals investigation procedures and methods employed by QPS. I am prohibited by the IP Act from disclosing any further details as to the specific procedures or methods that are relevant here.[63] Having carefully considered the relevant information, I am satisfied that disclosing information of this nature could allow individuals to use the information to modify their behaviour so as to avoid detection, thereby compromising the ongoing effectiveness of those procedures and methods and detrimentally effecting QPS’ ability to effectively discharge its obligations to investigate contraventions, or possible contraventions, of the law. On this basis, I afford significant weight to this factor favouring nondisclosure. Balancing of the factors 40. I have taken into account that the IP Act is to be administered with a pro-disclosure bias.[64] For the reasons set out above, I am satisfied that privacy considerations and the protection of the personal information of other individuals warrant moderate weight in respect of the direct contact details of public sector officers and significant weight in favour of nondisclosure of the remaining CTPI Information, given its highly personal and sensitive nature of the CTPI Information. Further, anticipated prejudices to law enforcement, the flow of information to QPS and the ability of QPS to obtain confidential information warrant significant weight. 41. On the other hand, I have afforded high weight to the factor favouring disclosure of the applicant’s personal information within the CTPI Information,[65] however, that personal information of the applicant is inextricably intertwined with the personal information of other individuals. In addition, and for the reasons outlined above, I have identified additional factors which favour disclosure of the CTPI Information (including those relating to QPS’ transparency and accountability; agency conduct deficiencies; fair treatment; revealing information to be incorrect, misleading or unfairly subjective; and the administration of justice generally).[66] However, taking into account the nature of the CTPI Information, I have afforded these factors only low weight. For completeness, I have also considered all other factors listed in schedule 4, part 2 of the RTI Act, in case the applicant’s submissions may indirectly raise any other factor favouring disclosure. Given the specific nature of the CTPI information, I do not consider that any other factors attract any weight. 42. On balance, I am satisfied that the public interest factors favouring nondisclosure outweigh the factors favouring disclosure. Accordingly, I find that disclosure of the CTPI Information would, on balance, be contrary to the public interest and access may be refused on this basis.[67] Nonexistent or unlocatable documents 43. On external review, the functions of the Information Commissioner include investigating and reviewing whether an agency has taken reasonably steps to identify and locate documents applied for by applicants.[68] However, access to a document may be refused if it is nonexistent or unlocatable.[69] 44. To be satisfied that documents are nonexistent, an agency must rely on their particular knowledge and experience and have regard to a number of key factors.[70] If searches are relied on to justify a finding that documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case, depending on which of the key factors are most relevant in the particular circumstances. 45. To determine whether a document exists, but is unlocatable, the RTI Act requires consideration of whether there are reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency’s possession; and whether the agency has taken all reasonable steps to find the document. In answering these questions, regard should again be had to the circumstances of the case and the relevant key factors.[71] Findings 46. As a result of concerns raised by the applicant that a specific individual, Ms J, held additional documents about him, OIC asked QPS to conduct further searches for information requested in the access application.[72] As a result of those searches, additional documents were located and these were partially disclosed to the applicant.[73] OIC asked QPS to conduct further searches after the applicant again submitted[74] that additional documents about him were held by certain QPS officers, however, QPS did not located any further documents relevant to the access application[75]. 47. Despite the documents which QPS disclosed during the course of the review, the applicant maintains that ‘QPS have provided less than 10% of the material specifically covered by the scope’.[76] More specifically the applicant submits that the disclosed documents: have no detail of his ‘court information, references to cases, and the brief’[77] do not include the file notes, diary entries, emails and logs which he believes were emailed by Officers H, S and D[78]; and omit a ‘contemptuous log’[79] [sic] kept by Ms J and emails that Ms J sent to QPS officers in 2015.[80] 48. QPS relied on searches conducted by its officers to justify its position that reasonable steps have been taken to locate documents relevant to the application and provided information to me about its recordkeeping systems and searches, as set out below. 49. QPS submitted[81] that it made enquiries of QPS staff who had requisite knowledge of matters involving the applicant and searches were conducted of the following: its electronic records (including QPRIME and patrol logs) records held at a number of police stations, including the 2 police stations specified in item 1 of the application documents held in a dedicated domestic violence unit notebooks, diaries and text messages of officers specified in item 2 of the access application; and QPS’ email records, being those held in QPS’ Office 365 system and additional emails that were not migrated to that system.[82] 50. QPS explained that Ms J’s records are not held at the police stations identified in item 1 of the application and therefore, any contemporaneous log that she may have kept, if it exists, falls outside the terms of the application. 51. Having reviewed the terms of the application, the applicant’s submissions and QPS’ search submissions,[83] I consider that QPS has conducted comprehensive searches of locations where it would be reasonable to expect the types of information requested in the access application to be stored. I am also satisfied that enquiries have been made of staff who have relevant knowledge of the matters in which the applicant was involved. 52. In view of the above, and taking into account the documents that were located by QPS (including the information in issue), there is nothing before me, other than the applicant’s assertions, to support an expectation that additional relevant documents exist. Accordingly, I am satisfied that QPS has taken all reasonable steps to locate documents relevant to the access application; and access to further documents may be refused on the basis they do not exist, or cannot be located.[84] DECISION 53. For the reasons set out above, as a delegate of the Information Commissioner, under section 139 of the IP Act, I vary QPS’ deemed decision and find that: the Irrelevant Information may be deleted under section 88 of the IP Act access to the CTPI Information may be refused as disclosure would, on balance, be contrary to the public interest;[85] and access to any further information may be refused on the basis it is nonexistent or unlocatable.[86] S MartinAssistant Information Commissioner Date: 23 June 2021 APPENDIX Significant procedural steps Date Event 28 November 2019 OIC received the external review application. 18 December 2019 OIC notified the applicant and QPS that the application for external review had been accepted and requested information from QPS. 24 January 2020 OIC received the requested information from QPS. 31 January 2020 OIC provided an update to the applicant. 3 February 2020 and 10 March 2020 OIC provided further updates to the applicant 13 March 2020 OIC conveyed a preliminary view to QPS. 17 April 2020 QPS provided a submission and agreed to disclose some of the requested information to the applicant. 24 April 2020 OIC asked QPS to release the information it had agreed to disclose to the applicant. 27 April 2020 OIC notified the applicant that QPS had agreed to disclose some of the requested information and conveyed a preliminary view to the applicant regarding the remaining information. 4 May 2020 OIC received the applicant’s submissions. 21 May 2020 QPS notified OIC that information could not be sent electronically to the applicant. 26 May 2020 The applicant notified OIC that he had not received documents from QPS. 27 May 2020 OIC requested, and received, confirmation of the applicant’s postal address for delivery of documents and provided those details to QPS. 1 June 2020 QPS notified OIC that documents were posted to the applicant on 28 May 2020. 2 June 2020 OIC notified the applicant that QPS had sent documents to his nominated postal address and invited the applicant to provide submissions if he did not agree with OIC’s preliminary view. 3 and 7 June 2020 OIC received the applicant’s further submissions, including his concern that records held by a specific individual had been omitted. 23 June 2020 OIC requested search information from QPS and conveyed a second preliminary view to the applicant. 22 July 2020 The applicant confirmed to OIC that he maintained his disagreement with OIC’s preliminary view. 10 September 2020 QPS agreed to disclose to the applicant information from additional located documents. 16 October 2020 OIC conveyed a preliminary view to the applicant regarding the sufficiency of QPS’ searches and OIC asked QPS to release the further information it had agreed to disclose to the applicant. OIC received a further submission from the applicant about further records he considered would be held by three specific individuals. 29 October 2020 QPS released further information to the applicant. 30 October 2020 OIC asked the applicant to identify how records held by the three specified individuals were relevant to his access application and requested further search information from QPS. 2 November 2020 OIC received the applicant’s submissions. 3 November 2020 OIC requested further search information from QPS. 1 December 2020 and 22 December 2020 OIC sought updates from QPS concerning the requested search information. 23 December 2020 OIC provided an update to the applicant. 5 February 2021 and 22 March 2021 OIC sought updates from QPS concerning the requested search information. 23 April 2021 OIC provided a further update to the applicant. 6 May 2021 OIC received the requested search information from QPS. 14 May 2021 OIC conveyed a further preliminary view to the applicant concerning the sufficiency of QPS’ searches and received the applicant’s further submissions. [1] The application is dated 17 September 2019 and was received by QPS on 25 September 2019. [2] Under section 66(1) of the IP Act. In accordance with section 66(2) of the IP Act, QPS provided a notice of the deemed decision to the applicant on 18 November 2019. [3] On 28 November 2019. [4] Comprising in excess of 1200 pages. [5] Under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) (RTI Act). Section 67(1) of the IP Act sets out that an agency may refuse access to information in the same way and to the same extent that the agency could refuse access to the document under section 47 of the RTI Act were the document the subject of an access application under the RTI Act. [6] Under section 67(1) of the IP Act and sections 47(3)(e) and 52 of the RTI Act. [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] I also note the following observations made by Bell J in XYZ at [573], on the interaction between equivalent pieces of Victorian legislation (namely, the Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic)): ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act’. [10] There is a significant level of duplication in the information in issue which appears within emails. [11] Submission dated 7 June 2020. [12] Submission dated 4 May 2020. [13] Under the Domestic and Family Violence Protection Act 2012 (Qld). [14] Pages 45, 322-324, 327-328, 334, 342, 344, 349, 355-356, 358-361, 364-367, 370-371, 378 and 382-383 in Part One; pages 213-215, 272, 277, 296-302, 403-408, 491-493, 527-529 and 608 in Part Two and pages 7, 14, 27, 28 and 33 in Additional documents. [15] Sections 47(3)(b) and 49 of the RTI Act. [16] Sections 47(3)(e) and 52 of the RTI Act. [17] Section 40 of the IP Act. [18] ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. [19] Submissions dated 4 May 2020. [20] Submissions dated 3 June 2020. [21] Van Vennendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) at [12], citing with approval O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [52].[22] The application seeks information about the applicant in the following documents: (i) records held at two police stations; (ii) QPRIME records; (iii) the notebooks and diaries of five officers; (iv) text messages and electronic media sent by five officers; and (v) emails. The date range of the application is 1 April 2015 to 25 June 2018 for items (i)-(iv) and 1 April 2015 to 2 July 2018 for item (v).[23] Page 45 in the Part One documents and pages 492-493 and 527-529 in the Part Two documents. [24] For example, it includes officer notebook entries about police matters which do not involve the applicant. [25] Under section 88 of the IP Act. [26] Section 121 of the IP Act, which relevantly prevents OIC from revealing information claimed to be contrary to the public interest information. [27] ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. [28] The grounds on which access can be refused are set out in section 47 of the RTI Act. As noted above, section 67(1) of the IP Act provides that access may be refused to information in the same way and to the same extent as information may be refused under the RTI Act. [29] Sections 47(3)(b) and 49 of the RTI Act. [30] However, there are some recognised public interest considerations that may apply for the benefit of an individual. [31] Including those at schedule 4, part 1 of the RTI Act.[32] Section 49(3) of the RTI Act. [33] Schedule 4, part 2, item 7 of the RTI Act.[34] Submissions dated 4 May 2020. The applicant also raised ‘the interest of Justice’ in his submissions dated 3 June 2020.[35] 3FG6LI and Queensland Police Service [2014] QICmr 32 (29 July 2014) at [30] and Phyland and Department of Police (Unreported, Queensland Information Commissioner, 31 August 2011) at [24].[36] Schedule 4, part 2, item 1 of the RTI Act. [37] Schedule 4, part 2, item 3 of the RTI Act. [38] Schedule 4, part 2, item 11 of the RTI Act. [39] Schedule 4, part 2, item 10 of the RTI Act. [40] Schedule 4, part 2, items 16 and 17 of the RTI Act. [41] In his submissions dated 7 June 2020, the applicant stated that some of the documents which were partially disclosed to him had previously been served on him. I also note that this disclosed information confirms that the applicant was legally represented in the criminal proceedings taken against him and that information was provided to his lawyer as part of those court processes. [42] Schedule 4, part 2, items 1, 3 and 11 of the RTI Act. [43] Willsford and Brisbane City Council [1996] QICmr 17; (1996) 3 QAR 368 at [17] and confirmed in 1OS3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, 16 December 2011) at [16].[44] Schedule 4, part 2, item 17 of the RTI Act. [45] The fair hearing aspect of procedural fairness requires that, before a decision that will deprive a person of some right, interest or legitimate expectation is made, the person is entitled to know the case against them and to be given the opportunity of replying to it (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584 per Mason J).[46] Schedule 4, part 2, items 10 and 16 of the RTI Act. [47] Submissions dated 7 June 2020. [48] Schedule 4, part 2, item 12 of the RTI Act. [49] Schedule 4, part 2, items 5 and 6 of the RTI Act. [50] Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [15]‑[20]; Brodsky and Gympie Regional Council [2014] QICmr 17 (2 May 2014) at [32]. [51] Schedule 4, part 2, items 5, 6 and 12 of the RTI Act. [52] Having carefully considered all factors listed in schedule 4, part 2 of the RTI Act, I cannot see how disclosing the CTPI Information could, for example, contribute to positive and informed debate on important issues or matters of serious interest (schedule 4, part 2, item 2 of the RTI Act); ensure oversight of expenditure of public funds (schedule 4, part 2, item 4 of the RTI Act); or contribute to the maintenance of peace and order or the enforcement of the criminal law (schedule 4, part 2, items 15 and 18 of the RTI Act). In the event that further relevant factors exist in favour of disclosure, I am satisfied that there is no evidence before me to suggest that any would carry sufficient weight to outweigh the significant weight that I have afforded to the public interest factors that favour the nondisclosure of the CTPI Information. [53] Schedule 4, part 4, section 6 of the RTI Act.[54] Schedule 4, part 3, item 3 of the RTI Act. [55] Paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 12 August 2008, at paragraph 1.56.[56] Refer to BFU12E and Metro North Hospital and Health Service [2015] QICmr 21 (31 August 2015) at [29] to [31] and F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 (9 June 2017) at [118] to [120]. [57] CTPI Information of this nature was the only information redacted from 35 pages disclosed to the applicant. [58] Submissions dated 4 May 2020. [59] Schedule 4, part 3, item 13 of the RTI Act.[60] Schedule 4, part 3, item 16 of the RTI Act.[61] See for example: P6Y4SX and Queensland Police Service [2015] QICmr 25 (11 September 2015), P6Y4SX and Department of Police (Unreported, Queensland Information Commissioner, 31 January 2012), and SW5Z7D and Queensland Police Service [2016] QICmr 1 (15 January 2016) and Marshall and Department of the Police (Unreported, Queensland Information Commissioner, 25 February 2011). [62] Schedule 4, part 3, item 7 of the RTI Act. [63] Section 121(1) of the IP Act. [64] Section 64 of the IP Act. [65] Schedule 4, part 2, item 7 of the RTI Act. [66] Schedule 4, part 2, items 1, 3, 5, 6, 10, 11 and 16 of the RTI Act. [67] Section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. [68] Section 137(2) of the IP Act. [69] Sections 47(3)(e) and 52 of the RTI Act. A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist—section 52(1)(a) of the RTI Act. A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but it cannot be found—section 52(1)(b) of the RTI Act. [70] These factors are identified in Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) (Pryor) at [19,] which adopted the Information Commissioner’s comments in PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at [37]-38]. The key factors include: the administrative arrangements of government; the agency structure; the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it); the agency’s practices and procedures (including but not exclusive to its information management approach); and other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s and the nature of the government activity to which the request relates. These factors were more recently considered in Van Veendendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) and P17 and Queensland Corrective Services [2020] QICmr 68 (17 November 2020). [71] Pryor at [21]. [72] On 23 June 2020. [73] In October 2020. [74] Submissions dated 2 November 2020. [75] Submissions dated 6 May 2021.[76] Submissions dated 14 May 2021. [77] Submissions dated 3 June 2020. [78] Submissions dated 16 October 2020 and 2 November 2020. [79] I have taken this to refer to a ‘contemporaneous log’.[80] Submissions dated 2 November 2020. [81] Submissions received 6 May 2021, which included search records and certifications . [82] These searches were conducted by ESC Systems Audit and Investigation Unit as well as individual QPS officers. [83] Including search records and certifications. [84] Under 67(1) of the IP Act and section 47(3)(e) of the RTI Act. [85] Section 67(1) of the IP Act and section 47(3)(b) of the RTI Act.[86] Section 67(1) of the IP Act and sections 47(3)(e) and 52(1) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Price and Department of Police [2009] QICmr 14 (27 February 2009)

Price and Department of Police [2009] QICmr 14 (27 February 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210548, 210553, 210554 Applicant: Mr Ronald Price Respondent: Department of Police Decision Date: 27 February 2009 Catchwords: FREEDOM OF INFORMATION – whether the Information Commissioner is functus officio; s73- whether letters to the agency constitute FOI applications that give rise to reviewable decisions; whether the Information Commissioner will exercise a discretion to accept the applications for external review; where there is a reviewable decision accepted for review, what is the correct and preferable decision? Contents REASONS FOR DECISION Summary 1. The applicant’s request for a review of the Information Commissioner’s Delegate’s Decision is beyond the power of the Information Commissioner i.e. the Information Commissioner is ‘functus officio’. 2. Of the remaining seven letters sent by the applicant to the Department of Police or the Queensland Police Service (QPS), only the letters dated 27 August 2007 and ‘2 November 2007 (Wrong date4 02.10.2007)’ are applications made under the Freedom of Information Act 1992 which give rise to reviewable decisions. Applications for external review were accepted in respect of those letters. 3. In relation to the letter dated 27 August 2007, I decline to deal with the application on the basis that application concerns access to documents that have been the subject of an earlier application made by the same applicant to the same agency. The earlier applications made by the applicant, were not withdrawn, the later application has not disclosed any reasonable basis for again seeking access to the documents and earlier agency decisions were the subject of a completed review under part 5 of the Freedom of Information Act 1992. 4. In relation to the letter dated ‘2 November 2007 (Wrong date4 02.10.2007)’, I decline to deal with the application on the basis that the application does not identify the documents to which access is being sought. The applicant is advised to make a fresh application to QPS which sets out clearly the documents sought. Background 5. By letter dated 13 May 2005 the applicant applied to QPS for all documents related to himself with respect to a lengthy list of matters including a 1991 traffic conviction, assault convictions, matters involving ‘McDonald v Price’, ‘Smith v Price’, the Department of Veteran’s Affairs, the Nominal Defendant the Vietnam Veteran’s Counselling Service etc. QPS failed to make a decision within the time frame prescribed by the Freedom of Information Act 1992 (FOI Act). 6. By letter dated 25 July 2005 the applicant sought external review of QPS’s deemed decision to refuse access. 7. By decision (the Delegate’s Decision) dated 29 June 2007, the Delegate of the Information Commissioner decided that to the extent the application for external review sought review of QPS decisions which had been the subject of previous reviews by the Information Commissioner, or to revisit issues of ‘sufficiency of search’ which had been determined in previous reviews, the application was vexatious. The delegate found that the majority of issues raised in the external review application dated 25 July 2005 had already been considered in 12 previous external reviews of QPS decisions and that the applicant was seeking a re-hearing of the reviews. 8. With regard to the balance of documents considered in the Delegate’s Decision, it was essentially decided the applicant: • should be given access to a number of documents including a tape recording of an interview with Constable McDonald and the typed summary of that interview; • should not be given access to a number of documents as he did not respond to the Delegate and was taken to no longer contest the refusal of access. 9. On 27 July 2007 QPS applied to the Supreme Court for a statutory order of review of the Delegate’s Decision to release the tape recording of an interview with Constable McDonald and the associated summary. 10. By letter dated 27 June 2008 to the Information Commissioner the applicant requested a review of the Delegate’s Decision on the basis that it contained serious errors. The applicant also asked that he be allowed an extension of time within which to make an external review application with respect to each FOI application he had made to QPS since its application for a statutory order of review. Decision under review 11. Each letter forwarded by the applicant to the Office of the Information Commissioner (the Office) is analysed to ascertain whether the letters constitute an FOI application that gives rise to a reviewable decision. Steps taken in the external review process 12. By letter dated 30 June 2008 and with reference to the applicant’s request for a review of the Delegate’s Decision, the Acting Information Commissioner advised the applicant of the avenues of appeal in circumstances where he was aggrieved by a decision of the Information Commissioner. The applicant was also asked to provide copies of FOI applications in respect of which he was seeking an external review and the basis on which he sought any extension of time. 13. By letter dated 2 July 2008 the applicant referred the Office to ‘a deemed refusal of my FOI applications contained in my enclosed copy of letters to the Queensland Police Commissioner, through his solicitors.’ Attached to the applicant’s letter were eight letters dated 13 May 2005, 27 August 2007, 30 August 2007, 3 September 2007, 6 September 2007, 24 September 2007 “2 November 2007 (Wrong date4 02.10.2007)” and 18 March 2008. The applicant has sought an extension of time in which to make an external review application, if necessary. The letter dated 13 May 2005 related to the applicant’s request for a review of the Delegate’s Decision. The other letters related to his application for an external review concerning FOI applications made since 27 July 2007. 14. By letter dated 3 July 2008 the applicant was advised with respect to his request for a review of Delegate’s Decision that he had already been advised of his appeal avenues and that as the function of the Information Commissioner had been discharged, nothing remained to be done i.e. the Information Commissioner was functus officio. With respect of his application for external review, the applicant was advised that the Office had written to QPS seeking a status report on its processing of any FOI application. 15. By letter dated 3 July 2008 the Acting Information Commissioner wrote to QPS advising it that the Office was functus officio with respect to the FOI application dated 13 May 2005 and seeking a status report on the FOI applications made since 27 July 2007. 16. QPS subsequently telephoned the Office to clarify which of the applicant’s letters might constitute FOI applications. It was agreed that QPS focus any submissions it made on the letters dated 27 August 2007 and ‘2 November 2007 (Wrong date4 02.10.2007)’. 17. On 16 July 2008 QPS telephoned the Office to confer on QPS’s plans to proceed with the FOI application made after the application for statutory order of review by identifying and processing those documents that were not considered previously at external review. The Acting Information Commissioner was not opposed to QPS initiating that course of action. 18. By letter dated 28 July 2008 QPS wrote to the Office advising its views with respect to the letters dated 27 August 2007 and ‘2 November 2007 (Wrong date4 02.10.2007)’. 19. The applicant submitted that the reason of functus officio did not apply to his request for a review of the Delegate’s Decision as administrative decisions can be re-made in certain circumstances. 20. A preliminary view dated 13 February 2009 was sent to the applicant and written submissions were requested by 27 February 2009. A copy of the preliminary view was provided to QPS on 16 February 2009. No further submissions were sought from QPS. 21. No written submissions were received from the applicant. Matter in issue 22. With respect to the letter dated 13 May 2005, the question is: Does the Information Commissioner have the power to vary or revoke an external review decision? 23. With respect to the remaining seven letters, the questions to be answered are; which, if any, constitute FOI applications out of which reviewable decisions arise? 24. In relation to any reviewable decisions, will the Information Commissioner exercise a discretion to accept the application for external review out of time? 25. If an application for external review is accepted, what is the correct and preferable view? The law 26. Section 72 of the FOI Act requires external review proceedings to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and a proper consideration of the matters before the Commissioner permits. As the applicant has requested a statement of reasons in relation to the decision that the Information Commissioner is functus officio and has stated that the Acts Interpretation Act gives the Information Commissioner the power to amend or repeal external review decisions, some consideration of the legal issue is given in this decision. 27. Section 73 of the FOI Act states: 73 Applications for review (1) An application for review must- (a) be in writing; and (b) specify an address of the applicant to which notices may be sent under this Act; and (c) give particulars of the decision for review; and (d) be made within 28 days from the day on which written notice of the decision is given to the applicant, or within the longer period the commissioner allows. (2) The application may contain particulars of the basis on which the applicant disputes the decision under review. (3) A person is not entitled to apply to the commissioner for review of a decision (other than a decision of a Minister or the principal officer of an agency) unless— (a) an application has been made (whether by the person or another person) under section 52 or 60 in relation to the decision; and (b) the person has been informed of the result of that review or the period of 28 days mentioned in section 52(6) or 60(6) has ended. Decision 28. The decisions with respect to each of the eight letters attached to the applicant’s application for external review are set out in turn. Letter dated 13 May 2005 – External Review Application No 210548 29. The letter dated 13 May 2005 constitutes the FOI application made to QPS in 2005 and in respect of which a reviewable decision was ‘deemed’ to have been made by the statute. The QPS deemed decision to refuse access to documents was subject to external review and decision. The Delegate’s Decision is presently the subject of an application for a statutory order of review before the Supreme Court. 30. By letter dated 27 June 2008 the applicant requested a review of the Delegate’s Decision on the basis that it contained serious errors. The applicant submits administrative decisions can be re-made in certain circumstances. 31. My decision is that I have no power to amend or repeal any external review decision. In considering the bases for review submitted by the applicant, I do not agree with them. Reasons for these views follow. 32. The Delegate’s Decision is a valid, final decision made in accordance with the requirements of the FOI Act. The requirements of section 89 of the FOI Act have been met. Importantly, the decision was conveyed to both the applicant and the respondent, QPS. It was lawfully made, the Delegate holding the necessary delegation and the conduct of the review conforming to the requirements of procedural fairness. 33. The applicant claims the decision contains serious errors. In his letter dated 27 June 2008 the applicant states: I also request that you take an opportunity to review the improper decision by the Delegate (my words) not to review the Police matter as she amongst other serious errors claimed I was vexatious and all previous decisions had been done with fairness etc. 34. With respect to the applicant’s claim that the Delegate “claimed he was vexatious”, the Delegate did not decide that the applicant was vexatious. The Delegate decided that the application (not the applicant) for external review was vexatious given 12 previous applications for external review had been made by the same applicant concerning the same documents. The serious error upon which the applicant seeks a review of the Delegate’s Decision can be characterised as no more than the applicant not agreeing with the Delegate’s Decision that his application was vexatious. Such an issue provides no ground for a review of the Delegate’s Decision by me. 35. By letter dated 21 August 2006 the Information Commissioner’s Delegate afforded the applicant the opportunity of making submissions in relation to her preliminary view that part of the external review application was vexatious. 36. In response to the Delegate’s preliminary view that part of his application was vexatious, to the extent it had been the subject of previous decisions and should not be dealt with further by the Information Commissioner, the applicant made two submissions dated 30 August 2006 and 7 September 2006. The applicant stated he did not accept the preliminary view. The applicant’s further submissions were mere claims that the decision maker was biased, corrupt, dirty, crooked and tainted etc. The decision that that part of the application was vexatious was subsequently made by the Delegate. 37. The applicant was given ample opportunity to be heard. There was no procedural error. 38. In his letter dated 3 July 2008 the applicant also states: The Delegate (my words) and others believed the corruption would continue with everything to be brushed over again. With respect, there is a constitutional right for me to have previous decisions looked at again by the same judge if a decision has been corrupted by unlawful activity. 39. It appears that the other form of serious error claimed by the applicant is that the Delegate’s Decision was corrupted by unlawful activity, and that the Delegate was complicit in not allowing the corruption to be discovered by refusing to review a matter that had already been subjected to 12 previous reviews. No reasonable person would expect a thirteenth external review of achieving an outcome not previously achieved by the applicant in the previous 12 reviews. 40. There is no information or evidence of any corruption or criminal activity or unlawful conduct of any kind in the exercise of delegated powers. There is no information or evidence that the Delegate’s Decision was corrupted by unlawful activity. The making of mere allegations of corruption without any form of substantiation or credible information provides no basis for review of the Delegate’s Decision. 41. As the applicant has already exercised his right to an external review with respect to his FOI application dated 13 May 2005, and the review was finalised, the Office has discharged its responsibility and has nothing left to do. There are no errors in the decision that may make it invalid. 42. Once a decision on an external review is made, the only provision in the FOI Act authorising or empowering the Commissioner to alter a decision is found in section 89A which allows the Commissioner at any time to correct an error in a decision if the Commissioner considers there is an obvious error and the error resulted from an accidental slip or omission. 43. The applicant is not seeking a correction of an obvious error in the Delegate’s Decision and it follows that the Commissioner has no power under the FOI Act to set aside, vary or correct the Delegate’s Decision on the basis that it contained some serious error. 44. The applicant has contended that section 24 AA of the Acts Interpretation Act 1954 (Qld) permits the Commissioner to review, uphold, vary or set aside the Delegate’s Decision. 45. Section 24AA of the Acts Interpretation Act 1954 provides as follows: 24AA Power to make instrument or decision includes power to amend or repeal If an Act authorises or requires the making of an instrument or decision— (a) the power includes power to amend or repeal the instrument or decision; and (b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision. 46. The application of section 24AA of the Acts must be considered in light of the Acts Interpretation Act 1954 as a whole. Section 24AA may be displaced wholly or partly, by a contrary intention appearing in any Act. (See section 4 of the Acts Interpretation Act 1954.) 47. The question is whether or not there is a contrary intention in the FOI Act that displaces wholly or partly the authority provided by section 24AA to amend or repeal the Delegate’s Decision. 48. In Queensland Newspapers Pty Ltd v Stjernqvist [2007] 1 Qd R 171 Douglas J, without deciding the point, doubted that any power conferred by section 24AA could be used “as a substitute for the appeal process or the power of review given by the Judicial Review Act 1991” in respect of orders made by the Magistrates Court under section 12 of the Bail Act 1980 prohibiting the publication of evidence or information decisions about a bail application. Because of the quasi judicial nature of the Information Commissioner’s decisions, a similar doubt must arise in the context of the FOI Act, with the decisions of the Information Commissioner being reviewable under the Judicial Review Act 1991. 49. In Aurukun Shire Council v CEO Office of Liquor Gaming and Racing (unreported) [2008] QSC 305, Jones J found that where a legislative scheme was directed to the making of a determination such that it called for finality in respect of any decision made under the scheme, the legislation expressed a “contrary intention” for the purposes of sections 4 and 24AA of the Acts Interpretation Act 1954, as it would “offend against the spirit of the legislation and the clear intention of the legislature for a decision, once made, to be the subject of arbitrary reconsideration or repeal. Section 89 of the FOI Act requires the Commissioner to make a written decision at the end of a review. As the FOI Act makes clear that a determination by the FOI Commissioner calls for finality in respect of any decision made under the scheme, the FOI Act expresses the necessary “contrary intention” for the purposes of sections 4 and 24AA of the Acts Interpretation Act 1954. 50. The limitation of the Commissioner’s powers to the express powers conferred by section 89A of the FOI Act, the power of review given by the Judicial Review Act 1991 provides a sufficient basis for me to form the view that the Commissioner does not have any power to vary, revoke or affirm an external review decision. 51. This approach is otherwise more generally supported by the common law. Gummow J considered the history of similar provisions in the Acts Interpretation Act 1901 (Cth) in Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193 where he noted ...there was “an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise”...however, s33(1) of the Acts Interpretation Act 1901 (Cth)...provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed “from time to time as occasion requires”. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of such steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue. 52. Chesterman J considered a number of authorities illustrating the application of similar provisions in other Australian jurisdictions and the United Kingdom in Firearm Distributors Pty Ltd v Carson and Ors [2000] QSC 159; [2001] 2 Qd R 26. His Honour found at paragraph 32 an “underlying reasoning” that where a power is adjudicative in nature, affecting rights or liabilities, it can only be exercised once, such a view would accord with the law relating to arbitrarial awards and judicial pronouncements. The common law very early insisted that an arbitrator could not vary or recall an award. The rule was very strict. 53. Decisions of the Information Commissioner are adjudicative in nature, and following Chesterman J’s reasoning, this provides a further basis on which to decline the applicant’s request to review the Delegate’s Decision. 54. In Ping v Medical Board of Queensland [2004] 1 Qd R 282 Moynihan J at 284 held that where an Act required a statutory body to decide or elect to proceed by one of two alternative courses, then, having chosen one course, section 24AA could not operate to authorise the statutory body to repeal the decision and elect to proceed by the alternative course. 55. In the Court of Appeal decision Re Petroulias [2004] QCA 261; [2005] 1 Qd R 643 McMurdo P at 655 thought it arguable that the power found in section 24AA could be used by the Registrar of the Court to review and re-exercise a decision to register a solicitor, where the decision had been based on mistaken facts. In expressing this view, Her Honour noted: With very limited exceptions such as fraud or clear statutory statements, administrative decisions, once given effect by communication to the affected party, are irrevocable: Goulding v Chief Executive, Ministry of Fisheries.[1] This is because the decision-making power is spent.[2] 56. In light of all of the above judicial authority it appears clear to me that once the decision making power of the Commissioner has been exercised, the power is spent. The Commissioner may not amend or repeal an external review decision under section 24 AA of the AIA. 57. My decision therefore is that the applicant’s submission that section 24AA of the Acts Interpretation Act 1954 cannot be accepted and I must conclude that his request for a review of the Delegate’s Decision is beyond the power of the Commissioner and that the Information Commissioner is functus officio in these circumstances. Letter dated 27 August 2007 – External Review Application number 210553 58. The applicant’s letter dated 27 August 2007 is addressed to the ‘Commissioner of Police c/- Mr Colin Strofield’, the then QPS solicitor and requests ‘all documents related to myself, and or my family and or my property and or also related to other agencies such as the Department of Veteran Affairs/Vietnam Veterans Counselling Service etc to a proper record in your agency and documents to myself.......I request these documents under FOI and to be both viewed and supplied on computer disc’. 59. In its submissions QPS state that the applicant’s letter dated 27 August 2007 was not dealt with by the FOI Unit but directed to QPS solicitors in accordance with the applicant’s address on the letter. QPS understood the letter to be further submissions in relation to his FOI application of 13 May 2005 and as that matter had been the subject of an external review conducted by the Office of the Information Commissioner, it was not treated as a separate ‘fresh’ application. On a re-examination of the letter, QPS conceded that the letter was a fresh FOI application. QPS submitted that as the letter dated 27 August 2007 sought the same documents the applicant sought in his FOI application dated 13 May 2005, it was open to it to refuse to deal with this ‘application’ under s29B(4)(a)(ii) of the FOI Act. Does the letter constitute an FOI application out of which a reviewable decision arises? 60. It is clear on its face that the letter dated 27 August 2007 is an FOI application. As QPS did not process the application within the statutory time frames, QPS was deemed to have refused access to documents on or about 12 October 2007. This is a reviewable decision. Will the Information Commissioner exercise a discretion to accept the external review application out of time? 61. As QPS did not recognise the FOI application as an application under the FOI Act, it did not process the application or give the applicant the required notice under section 27(5A) of the FOI Act notifying him of the deemed decision and his right of external review. As the applicant did not receive the prescribed notice, the 28 day statutory period within which he was required to make an application for external review did not commence. Section 73 of the FOI Act requires applications for review to be made within 28 days from the date an applicant is given notice of the decision. It might be open to argue on a technical reading of the provision that because no notice had been given, the applicant is not entitled to an external review of QPS’s decision. However, a procedural failure of this kind should not be used to disentitle an applicant, only to cause the inconvenience of re-applying for external review, once QPS had been asked to meet its lawful requirements under the FOI Act. On this basis, the external review application is accepted. What is the correct and preferable view? 62. Under section 29B of the FOI Act an agency may refuse to deal with an application under section 29B if an applicant applies to an agency for access to documents that have been the subject of an earlier application made by the same applicant to the same agency. I am satisfied from an examination of the wording in the letters dated 13 May 2005 and 27 August 2007 that: • the applicant is requesting the same documents subject of an earlier application made by the applicant • the earlier application was not withdrawn • the later application has not disclosed any reasonable basis for again seeking access to the documents and • that the earlier agency decision was the subject of a completed review under part 5 of the FOI Act. On that basis I have decided to set aside the agency’s deemed decision to refuse access to documents and make a decision to refuse to deal with the application under section 29B. Letter dated 30 August 2007 63. The letter dated 30 August 2007 is addressed to “The Commissioner of Police c/- Mr Colin Strofield” and concerns the QPS application for a statutory order of review. In it the applicant states: ‘In this current matter (meaning the judicial review) on the 03.08.07, you will remember I attempted to make submissions to Justice Daubney but was abruptly cut off. I was in fear of his position, his manner and demeanour at the time. I am not attempting to screw up a court matter with unnecessary requests...... Do I have to make an FOI application for such documents of your agency so that I may form an opinion as to what I may do in this matter before the Court. (my emphasis) Does the letter constitute an FOI application out of which a reviewable decision arises? 64. It is this last statement, underlined by me, which makes it clear that this letter is not an FOI application but a request for documents in the context of the application for a statutory order of review presently before the Supreme Court. 65. As the letter is not an FOI application, no reviewable decision arises. No entitlement to an external review under section 73 of the FOI Act arises in the absence of an FOI application, internal review and/or a deemed decision by the agency. Letter dated 3 September 2007 66. The letter dated 3 September 2007 is addressed to “The Commissioner of Police c/- Mr Colin Strofield” and commences: I am not willing to sign a document at the moment that states I am ready for trial when I am clearly not ready. I am hoping parties to this matter will see sense and supply the requested documents etc. Does the letter constitute an FOI application out of which a reviewable decision arises? 67. The letter dated 3 September 2007 is a letter to the Commissioner of Police refusing to sign a Readiness for Trial certificate in relation to the QPS application for a statutory order of review. While the letter makes a request for information, the fact that the letter is directed to QPS’s solicitor and clearly canvasses procedural issues concerning the judicial review on foot, and the requested information includes documents of the Information Commissioner to which the applicant is aware the FOI Act does not apply, the letter cannot be considered to be an FOI application. 68. Consequently, my decision is that there is no reviewable decision. The applicant is therefore not entitled under section 73 of the FOI Act to an external review. Letter dated 6 September 2007 69. The letter dated 6 September 2007 is addressed to “The Commissioner of Police c/- Mr Colin Strofield” further to the letter of 3 September 2007. It attaches a copy of a letter the applicant sent to the solicitors for the Information Commissioner in the context of the judicial review. Does the letter constitute an FOI application out of which a reviewable decision arises? 70. On its face the letter reveals no request for information and cannot be considered an FOI application. 71. Consequently my decision is that there is no reviewable decision. The applicant is therefore not entitled under section 73 of the FOI Act to an external review. Letter dated 24 September 2007 72. The letter dated 24 September 2007 is addressed to “The Commissioner of Police c/- Mr Colin Strofield” asking: Has my Freedom of Information application made in my letter dated the 27 August 2007 been overlooked? Does the letter constitute an FOI application out of which a reviewable decision arises? 73. The letter attaches a copy of a letter the applicant wrote to solicitors for the Information Commissioner concerning QPS’s application for a statutory order of review and an accusation that the Information Commissioner and staff had improperly accessed information from the Department of Veteran’s Affairs several years ago. 74. On its face the letter is not an FOI application but a follow up letter to the applicant’s FOI application dated 27 August 2007. Consequently my decision is that there is no reviewable decision. The applicant is therefore not entitled under section 73 of the FOI Act to an external review. Letter dated ‘2 November 2007 (Wrong date4 02.10.2007)’- External Review No 210554 75. The letter dated ‘2 November 2007 (Wrong date4 02.10.2007)’ is addressed to “The Commissioner of Police c/- Mr Colin Strofield” and asks: Has my Freedom of Information application made in my letter dated the 27.08.07 been overlooked????? 76. QPS in its submission has stated: An examination of the facsimile of 2 November 2007 indicates that it is not a separate matter but is a follow up inquiry to the facsimile dated 27August 2007. Does the letter constitute an FOI application out of which a reviewable decision arises? 77. The applicant is writing to follow up the processing of his FOI application. However the applicant also seeks to expand the scope of his FOI application when he states: So that relevant documents and information is not left out, please adjust the FOI application to this date and answer same. FOI Police catch up 02.10.2007. In my view such an expansion of scope should have been treated as a fresh FOI application by QPS as the applicant appears to be seeking additional documents to those requested by letter dated 27 August 2007. As QPS did not process the application within the statutory time frame, QPS was deemed to have refused access to documents on or about 17 December 2007. This gives rise to a reviewable decision. Will the Information Commissioner exercise a discretion to accept the external review application out of time? 78. As QPS did not recognise the FOI application as an application under the FOI Act, it did not process the application or give the applicant the required notice under section 27(5A) of the FOI Act notifying him of the deemed decision and his right of external review. As the applicant did not receive the prescribed notice, the 28 day statutory period within which he was required to make an application for external review did not commence. As the applicant did not receive the prescribed notice, for reasons similar to those given above, the discretion to accept the application is not necessary to be exercised and the procedural error of the prescribed notice not issuing will be overlooked so as not to inconvenience the applicant. What is the correct and preferable view? 79. It is not clear from the applicant’s correspondence what additional documents he is seeking under FOI. Section 25(2) of the FOI Act requires FOI applications to provide sufficient information concerning the document to enable a responsible officer of the agency to identify the document/s sought. Additionally, section 73 of the FOI Act requires applicants to give particulars of the decision for review. As the application for external review does not contain the required particulars, the application should not be accepted. The preferable course in my view is for the applicant to make a fresh FOI application to QPS which clearly identifies the documents he is seeking. Letter dated 18 March 2008 80. The letter dated 18 March 2008 advises the Commissioner of Police that the letter dated 2 October 2007 should have been the 2 November 2007. The applicant also mentions an enclosed copy of documents which should be read by QPS when viewing a DVD he also sent. Does the letter constitute an FOI application out of which a reviewable decision arises? 81. On its face this letter is not an FOI application. There is no reviewable decision giving rise to any external review rights. ________________________ Julie Kinross Acting Information Commissioner Date: 27 February 2009 [1] [2003] NZCA 244; [2004] 3] NZLR. 173, 182-83 [30], 185-186 [42]-[43][2] Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR, 193, Gummow J at 211

queensland

court_judgement

Queensland Information Commissioner 1993-

P64 and Queensland Police Service [2019] QICmr 56 (6 December 2019)

P64 and Queensland Police Service [2019] QICmr 56 (6 December 2019) Last Updated: 9 January 2020 Decision and Reasons for Decision Citation: P64 and Queensland Police Service [2019] QICmr 56 (6 December 2019) Application Number: 314415 Applicant: P64 Respondent: Queensland Police Service Decision Date: 6 December 2019 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO THE CHILD’S BEST INTERESTS - application on behalf of child for a transcript of the child’s interview with police - section 93A of the Evidence Act 1977 (Qld) - section 67(1) of the Information Privacy Act 2009 (Qld) - whether disclosure of the information would not be in the child’s best interests - sections 47(3)(c) and 50 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary An application on behalf of a child[1] was made, under the Information Privacy Act 2009 (Qld) (IP Act), to Queensland Police Service (QPS) for access to documents relating to the child’s interview with police. QPS located 26 pages and decided[2] to refuse access some information on the basis that disclosure would, on balance, be contrary to the public interest. The child’s mother applied on behalf of the child for external review,[3] seeking a copy of the transcript of the child’s interview with police. She submitted that ‘the child’s welfare and protection is the paramount consideration’. I vary QPS’s decision and find that access to the information in issue may be refused on the basis that its disclosure would be contrary to the best interests of the child.[4] Background Significant procedural steps relating to the external review are set out in the Appendix. The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including the footnotes and Appendix). Reviewable decision The decision under review is QPS’s decision dated 2 May 2018.[5] Information in issue In the application for external review, the applicant’s mother advised that she was requesting a ‘copy of the transcript of interview’ conducted under section 93A of the Evidence Act 1977 (Qld) (Evidence Act)[6] between the child and QPS. Therefore, the information in issue in this review is one-part page and one full page of a QPRIME Occurrence that comprises the Interview Transcript.[7] Issue for determination The issue for determination is whether disclosure of the Interview Transcript would not be in the child’s best interests, under section 47(3)(c) of the RTI Act. Relevant law The IP Act provides an individual a right to access documents of an agency to the extent they contain the individual’s personal information.[8] The right of access is subject to certain limitations, including grounds for refusing access.[9] Access to information may be refused where: the information is sought under an application made by or for a child the information sought comprises the child’s personal information; and the disclosure of that information would not be in the child’s best interests.[10] Personal information is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.’ The IP Act and RTI Act provide limited guidance as to what factors are to be considered in deciding whether disclosure of the information would not be in the best interests of the child.[11] The ‘best interests of the child’ principle is set out in the United Nations’ Convention on the Rights of the Child (1989),[12] and has since been applied in Australia in a number of legal contexts, particularly in family law[13] and administrative law.[14] In the family law context, courts have recognised that the ‘best interests of the child’ is not a straightforward test. For example, in the High Court decision of CDJ v VAJ[15] the majority stated that: It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child... Best interests are values, not facts. They involve a discretionary judgement in respect of which judges can come to opposite but reasonable conclusions. Determining the best interests of the child is a multi-faceted test and includes consideration of the wellbeing of the child, and factors that will affect the future of the child, the happiness of the child, immediate welfare and other matters relevant to the child’s healthy development.[16] In Re Bradford and Director of Family Services; Commissioner, Australian Federal Police,[17] the applicant sought access under the Freedom of Information Act 1982 (Cth) to information about her four children that were held by the Director of Family Services. In that case, President Curtis noted that if there are child protection issues, disclosure of any information that undermines the relationship between the child and the agency charged with the protection of children may not be in the child’s best interests.[18] The Information Commissioner has also previously recognised that it would not be in a child’s best interests to disclose information where that disclosure may impact the child’s trust in a child protection agency or which may result in damage to the relationship between the child and the agency.[19] Findings and analysis In this case, I am satisfied that the information is sought under an application made for a child. The Interview Transcript records a conversation between the child and QPS regarding events involving the child and the child’s recollection of the events. I am therefore satisfied that this information comprises the child’s personal information. Contrary to the child’s best interests In considering whether the disclosure of the Interview Transcript would not be in the child’s best interests, I acknowledge that a parent is generally the most appropriate person to judge what is in the best interests of their child. The child’s mother and representative is genuinely concerned about the child’s best interests and I understand that she is seeking the Interview Transcript for this reason. In considering the best interests of the child in this case, particularly given the very young age of the child, I have carefully considered each of the submissions put forward by the child’s mother. The applicant’s mother submits that the Interview Transcript should be released to enable her to protect the child.[20] I accept that protecting the child and ensuring the child’s health and wellbeing is a paramount consideration in determining whether disclosure is in the child’s best interests. While the specific information appearing in the Interview Transcript has not been released, the child has disclosed the nature of this information to her mother,[21] police discussed the subject matter of the interview with the child’s mother at the time of the interview, and some information has been released through the IP access process. I acknowledge that release of the Interview Transcript would reveal specific detail about what the child said in the interview, however having considered the content of the Interview Transcript as well as the information already provided to the child’s mother, I am satisfied that the mother is sufficiently appraised of the relevant issues in order to care for and protect her child. The applicant’s mother submits that the child was ‘interrogated by police without me being present and without informed consent. I only allowed my child to be alone, without me with the police officers on the understanding that I would receive a copy of what was said. It is a serious offence to interrogate a child without her parent being present.’[22] She further submits that it is contrary to the public interest for police to interview children without parental consent or a parent being present, as this would deter parents from encouraging their children to trust in the police.[23] It has also been submitted that refusing access to the Interview Transcript would discourage parents from allowing children to be interviewed by police.[24] I acknowledge that police are generally not permitted to question a child suspect[25] without a support person present.[26] However, there is nothing before me to suggest that the child was interviewed as a suspect. Instead, it appears that the child was interviewed as the victim of an alleged crime. QPS’s Operational Procedures Manual states that a parent should not be the support person for the interview of a child who is the suspected victim of an offence.[27] Further, it is an offence for a person to have unauthorised possession of, or dealing with, statements obtained under section 93A of the Evidence Act.[28] The information previously released to the applicant indicates that police gave a general report regarding the interview to the applicant’s mother shortly after its completion. There is also no objective evidence before me to support the assertion that the interview was conducted without the informed consent of the child’s parent or that there was a mutual understanding that a copy of the interview transcript would be provided to the child’s parent following the interview. I consider that the presence of a parent may influence a child’s willingness or ability to speak freely and frankly to police, and for this reason, QPS interviews of this nature are conducted without the presence of a parent. There is no evidence before me that QPS’s current practice has resulted in a reluctance of parents to engage with police and I consider it unlikely that parents would avoid seeking police assistance where they suspect their child has been harmed. I consider it is important for QPS officers to be able to conduct interviews and communicate with very young children in confidence, to obtain the relevant evidence necessary to properly investigate a matter involving a child. I am satisfied that the disclosure of the specific information exchanged between QPS and a child in an interview where that child’s parent is explicitly not present, could potentially undermine the relationship of confidence between the child and QPS as the agency charged with the protection of that child in this circumstance.[29] Where a parent applies to access information under the IP Act on behalf of the child,[30] the child is taken to be the applicant. Practically though, disclosure of information through this process will mean that the parent accesses the information requested on behalf of their child. Disclosure of the Interview Transcript in this way may impact the child’s willingness to speak freely with police officers in the future if there are concerns about the contents being reported to their parent, and in turn, prejudice QPS’s ability to obtain information from the child. I am satisfied that this would not be in the child’s best interests. The child’s mother submits that disclosure of the Interview Transcript would not prejudice QPS’s investigative processes because there is no investigation pending.[31] I am satisfied that there does not have to be a current investigation for prejudice to occur to an investigative process. Whilst the information obtained in a particular interview may not, in itself, be enough to lead to a successful prosecution, it does not preclude this information being used in support of any future proceedings, should they arise.[32] Disclosure of the Interview Transcript through this process may have a negative bearing on any future QPS investigation into similar allegations by the child by reducing the weight that can be attributed to the child’s past or future statements. I am satisfied that this outcome would also not be in the best interests of the child. The applicant’s mother submits that the investigation information may be destroyed if the child has to wait until she reaches the age of majority to obtain information, and destruction of the Interview Transcript would ‘deprive the child of her rights.’[33] QPS’s Retention and Disposal Schedule[34] requires the retention of all investigation material relating to allegations of child abuse for 75 years after the last action on the matter. Given the relatively recent date of the interview,[35] I consider it unlikely that the Interview Transcript will be destroyed prior to the child reaching the age of majority. The applicant’s mother submits that police officers explained that the interview information can be used as exploitation material.[36] While I am unable to disclose in these reasons the content of the Interview Transcript,[37] I note that both the Criminal Code Act 1995 (Cth)[38] and Criminal Code Act 1849 (Qld)[39] respectively define ‘child abuse material’ and ‘child exploitation material’ as including information that ‘describes’ a child in a specific context. On that basis and taking into account the reason that the child was interviewed by police, I accept this submission and find that it weighs against disclosure. To be clear, I do not consider that the applicant or her mother will use the Interview Transcript inappropriately, however, I consider that unintentional or inadvertent further disclosure[40] may result in the risk of this harm and it is relevant to consider this when determining whether disclosure is in the best interests of the child. In the family law context, the benefit to a child having a meaningful relationship with both parents is a primary consideration in determining the child’s best interests.[41] The provisions of the Family Law Act dealing with the best interests of a child are intended to provide a framework for determining parenting orders[42]. For the sake of completeness here, I have turned my mind to this consideration and acknowledge that the mother has parental responsibility for the child[43] and disclosure of the Interview Transcript is unlikely to affect the child’s relationship with either parent.[44] The applicant’s mother submits that ‘there is no basis in law, and it is unethical to prioritise a (young) child’s right to privacy over her right to be free and safe to disclose what she considers necessary to any authority with open communication with her parents.’[45] Due to the child’s very young age, I accept that the child has very little privacy from her mother and, given this application was made by the mother, on behalf of the child, I have given no weight to the child’s privacy in determining whether disclosure would be contrary to the child’s best interests. The applicant’s mother submits that the Interview Transcript contains her own personal information which she has a right to access,[46] and at law, the child’s private information, such as intellectual property, is owned by her parents.[47] While the applicant’s mother may have her own right to access personal information, and a parent may own their minor child’s intellectual property, I am not persuaded that these arguments advance the proposition that disclosure of the Interview Transcript is in the child’s best interests. The applicant’s mother submits[48] that the Interview Transcript can be disclosed with exempt, contrary to the public interest and third party personal information redacted. I have considered this submission, however I am satisfied that partial redaction would not sufficiently negate the potential harm to the child that I have set out above and even disclosure in this format would not be in the best interests of the child. Finally, the applicant’s mother submits[49] that the Information Commissioner has the discretion to release the Interview Transcript.[50] While an agency may give access to a document even if a ground on which access may be refused applies,[51] the Information Commissioner has no such discretion.[52] Conclusion I acknowledge that the information in issue in this review is the information provided by a very young child to QPS in relation to an incident of concern. The application is made by the child’s mother, on behalf of the child, for the child’s personal information and in these circumstances the IP Act allows for access to be refused where disclosure would not be in the best interests of the child. As I have acknowledged previously, a child’s parent is often in the best position to determine what is in the best interests of a child and it is only in exceptional cases that the disclosure of information about a young child, to their parent acting on their behalf, would not be in the best interests of that child. I am satisfied that one of these exceptional circumstances is where a young child makes specific disclosures to QPS as part of an interview conducted under section 93A of the Evidence Act, where the parent of that child is not present. In identifying the relevant factors for my consideration, I note that determining the best interests of a child is a multi-faceted test and includes consideration of the factors that will affect the future and immediate welfare and happiness of the child.[53] In this case the factors that I have identified are raised by the nature of the Interview Transcript, being a record of a conversation between the child and QPS in circumstances where the child may potentially have been the victim of a criminal offence, as well as the factors raised in submissions made by the child’s mother. Having considered each of the factors explained above, I am satisfied that disclosure of the Interview Transcript may impact upon the child’s willingness to speak to QPS freely and prejudice the conduct of future investigations by QPS in relation to that child. I also consider that the possibility of the Interview Transcript being recognised as child exploitation material adds further weight to the conclusion that disclosure, in these circumstances,[54] would not be in the best interest of the child. On this basis, I consider that disclosure of the Interview Transcript would not be in the best interests of the child applicant and access can be refused under section 47(3)(c) of the RTI Act.DECISION I vary QPS’s decision and find that access to the Interview Transcript may be refused under section 67(1) of the IP Act and section 47(3)(c) of the RTI Act. I have made this decision under section 123 of the IP Act, as a delegate of the Information Commissioner under section 139 of the IP Act.Shiv Martin Assistant Information Commissioner Date: 6 December 2019 APPENDIX Significant procedural steps Date Event 25 January 2019 OIC received the external review application dated 24 January 2019. 29 January 2019 The applicant provided additional information in support of the application. 31 January 2019 OIC notified the applicant and QPS that it had received the application for external review and requested procedural documents. 4 February 2019 OIC received the requested procedural documents from QPS. 25 February 2019 OIC notified the applicant and QPS that it had accepted the application for external review of QPS decision dated 11 January 2019 and requested additional information from QPS. 12 March 2019 OIC received the requested information from QPS. 13 March 2019 OIC requested and received further information from QPS. 18 April 2019 OIC received submissions from the applicant by telephone and OIC clarified that the applicant sought review of QPS decision dated 2 May 2018. OIC advised the applicant that it was considering whether to accept out of time the application for external review of QPS decision dated 2 May 2018. 24 April 2019 OIC clarified with QPS that the decision under review was QPS decision dated 2 May 2018 and requested additional information from QPS. 17 May 2019 OIC received the requested information from QPS. 21 May 2019 OIC received additional information from QPS by telephone and received submissions from the applicant by telephone. 23 May 2019 OIC requested and received additional information from QPS. 5 June 2019 OIC received additional submissions from the applicant. 6 June 2019 OIC received additional submissions from the applicant. 9 July 2019 OIC conveyed a preliminary view to the applicant and requested submissions in response if the view was not accepted. 11 July 2019 OIC confirmed to QPS the decision under review was QPS’s decision dated 2 May 2019 and conveyed a preliminary view that disclosure of the transcript of interview would be contrary to the best interests of the child. 9 August 2019 OIC received the submissions from the applicant dated 8 August 2019. 6 September 2019 OIC received additional submissions from the applicant by telephone. OIC requested that QPS provide the previously released information to the applicant and sought to informally resolve the review with the applicant on this basis. 12 September 2019 OIC received notification from QPS that the previously released information was again provided to the applicant. 30 September 2019 OIC received an additional submission from the applicant dated 26 September 2019. 17 October 2019 OIC requested additional information from QPS regarding its retention and disposal of records. 18 October 2019 OIC received additional submissions from the applicant. 6 November 2019 OIC received submissions from QPS. 15 November 2019 OIC conveyed a preliminary view to the applicant. [1] The application was dated 7 March 2018.[2] Decision notice dated 2 May 2018. QPS also deleted some irrelevant information.[3] External review application received by the Office of the Information Commissioner (OIC) on 25 January 2019. The application was accepted outside the statutory timeframe under section 101(d) of the IP Act. [4] Under section 67(1) of the IP Act and section 47(3)(c) of the Right to Information Act 2009 (Qld) (RTI Act). [5] The external review application referred to several applications and decisions by QPS for certain information. Following consultation with the applicant’s mother, the Information Commissioner decided to accept the application for external review, outside of the relevant timeframe, in relation to QPS’s first decision of 2 May 2018. [6] OIC confirmed the narrowed scope of the review in an email dated 17 October 2019 and telephone discussion with the applicant’s mother on 18 October 2019. [7] That is, pages 11 and 12 of the partially released Occurrence. Certain information appearing on page 11 does not comprise the transcript of interview and therefore is not in issue in this external review. [8] Section 40 of the IP Act. [9] Section 67(1) of the IP Act sets out that an agency may refuse access to information in the same way and to the same extent that the agency could refuse access to the document under section 47 of the RTI Act, were the document the subject of an access application under the RTI Act. Section 47(2) of the RTI Act states that it is Parliament’s intention that the grounds on which access may be refused are to be interpreted narrowly. [10] Sections 47(3)(c) and 50 of the RTI Act. [11] Noting that section 50(3) of the RTI Act sets out that an agency must have regard to whether the child has the capacity to under the information and the context in which it was recorded and make a mature judgement as to what might be in his or her best interests, unless the access application was made for the child, as is the case in this review. [12] Ratified by Australia in December 1990. This convention provides that the best interests of the child is a ‘primary consideration’ in decisions concerning children and defines 'children' as everyone under 18 years.[13] For guidance, see section 60CC of the Family Law Act 1975 (Cth) (Family Law Act) and Australian Human Rights Commission, Human Rights Brief No. 1: The Best Interests of the Child (March 1999) available at <https://www.humanrights.gov.au/our-work/human-rights-brief-no-1> (accessed on 5 December 2019).[14] Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273. [15] (1998) 197 CLR 172 at 219.[16] See section 60CC of the Family Law Act.[17] (1998) 52 ALD 455 (Re Bradford).[18] Re Bradford at 458-459.[19] 2YSV6N and the Department of Communities, Child Safety and Disability Services [2014] QICmr 25 (5 June 2014).[20] External review application dated 24 January 2019. [21] This is clear from the information that has been previously released to the applicant. [22] Submissions dated 5 June 2019. Similar submissions were made in the external review application dated 24 January 2019 and submissions dated 8 August 2019.[23] Applicant submissions dated 6 June 2019.[24] Submissions dated 8 August 2019 and similar submissions were made in a telephone conversation on 21 May 2019. [25] Section 415 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) provides that part 3 applies to a person being questioned as a suspect of an indictable offence.[26] Section 421 of the PPRA. [27] QPS Operational Procedures Manual, issue 70 (Public Edition) chapter 7.6.1.[28] Section 93AA of the Evidence Act.[29] As established in Re Bradford at 458-459.[30] Section 45 of the IP Act.[31] Submissions dated 6 June 2019. [32] If used for criminal proceedings, there are strict rules around access to and dissemination of interviews under section 93 of the Evidence Act (described in section 93AA of the Evidence Act). [33] Submissions dated 26 September 2019, received by OIC on 30 September 2019. [34] In an unrelated review, OIC previously obtained from QPS a copy of the Queensland Police Service Retention and Disposal Schedule (12 September 2008), QDAN 561 version 7. [35] The interview was conducted in 2017.[36] Submissions received in a telephone discussion between the applicant’s mother and OIC on 6 September 2019.[37] Section 121(3) of the IP Act. [38] Section 473.1.[39] Section 207A.[40] Noting that, once information is disclosed under the RTI Act or IP Act there are no express limitations on its further use or disclosure.[41] Section 60CC of the Family Law Act. [42] Australian Law Reform Commission, The Best Interests Principle (29 July 2010) available at <https://www.alrc.gov.au/publication/seen-and-heard-priority-for-children-in-the-legal-process-alrc-report-84/16-childrens-involvement-in-family-law-proceedings/the-best-interests-principle/> (accessed on 27 November 2019).[43] External review application dated 24 January 2019. [44] Submissions dated 8 August 2019. [45] Submissions dated 8 August 2019.[46] External review application dated 24 January 2019.[47] Submissions dated 8 August 2019. [48] External review application dated 24 January 2019. [49] External review application dated 24 January 2019.[50] Under section 108 of the IP Act. [51] Section 67(2) of the IP Act. [52] Section 118 of the IP Act. [53] For example, see section 60CC of the Family Law Act.[54] As there are no express limitations on the further use or disclosure of information disclosed under the RTI Act or IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

PDE and The University of Queensland [2009] QICmr 7 (9 February 2009)

PDE and The University of Queensland [2009] QICmr 7 (9 February 2009) Office of the Information Commissioner (Qld) Decision and Reasons for Decision Application Number: 210632 Applicant: PDE Respondent: University of Queensland Decision Date: 9 February 2009 Catchwords: FREEDOM OF INFORMATION – Section 28A(1) of the Freedom of Information Act 1992 (Qld) – Refusal of Access – How Agency or Minister is to be satisfied the document does not exist Contents REASONS FOR DECISION Summary 1. In this external review the applicant seeks access to a document the University of Queensland (UQ) contends does not exist. 2. Having considered the parties’ submissions and evidence, relevant legislation, case law and decisions, I am satisfied that access to the document sought can be refused under section 28A(1) of the Freedom of Information Act 1992 (Qld) (FOI Act) on the basis that the document sought does not exist. Background 3. By application form dated 12 August 2008 (FOI Application) the applicant lodged a freedom of information application with UQ seeking access to the results form of a specified UQ course (Course). 4. By letter dated 29 August 2008 (Original Decision), Mr Zgrajewski, Acting Freedom of Information Officer, UQ, advised the applicant: • that UQ had located 3 folios responding to the FOI Application • of his decision to release 2 folios in full and 1 folio with information comprising the name and results of another student deleted. 5. By letter dated 3 September 2008 the applicant sought internal review of the Original Decision (Internal Review Application) and raised procedural issues in relation to the finalisation of marks for the Course. 6. Mr Zgrajewski contacted the applicant upon receipt of the Internal Review Application to explain the difference between an access application and an application for amendment under the FOI Act. The applicant confirmed that he wished to pursue the access application on the grounds of sufficiency of search. 7. By letter dated 19 September 2008 Mr Porter, Secretary and Registrar, UQ: • indicated that, in accordance with the FOI request, a copy of the final form of the results for the Course was provided to the applicant with the Original Decision • provided two additional documents ‘which relate to the marks for the course before they were finalised,’ one of which was a Request to Amend Result After Results Release form which was signed by the Chief Examiner, UQ, on 4 August 2008 (Request Form 1) • decided that all documents responding to the FOI Application had been provided (Internal Review Decision). 8. On 6 October 2008 the Office of the Information Commissioner (the Office) received an application for external review of the Internal Review Decision (External Review Application) stating: Could you please release complete form of Request to Amend Result after Results Release from University of Queensland [Request Form 1] after FOI and internal review failed to release complete form with signature of course coordinator [course specified] and signature of (Executive Dean/Academic Registrar) BACS ... 9. Attached to the External Review Application is a copy of Request Form 1 with the word ‘signature’ highlighted in the signing blocks for the Course Coordinator and the Executive Dean/Academic Registrar, and the query ‘? missing why’ handwritten near the word ‘signature’ in each instance. 10. In the conduct of a review the Information Commissioner has the power to review any decision that has been made by an agency in relation to the FOI application concerned and to decide any matter in relation to the application that could, under the FOI Act have been decided by an agency. [1] Decision under review 11. The decision under review is the Internal Review Decision referred to at paragraph 7 above in which UQ decided that all documents responding to the FOI Application had been released to the applicant. Steps taken in the external review process 12. By facsimile dated 8 October 2008 the Office asked UQ to provide copies of documents relevant to this external review. 13. In a telephone conversation on 8 October 2008 the Office notified UQ that the External Review Application had been accepted. 14. Under cover of a letter dated 10 October 2008 UQ provided copies of the FOI Application, Original Decision, Internal Review Application and Internal Review Decision. 15. By letter dated 10 October 2008 I informed the applicant that the External Review Application had been accepted and expressed a preliminary view that UQ appeared to have located and released all documents within the scope of the FOI Application on the bases that the applicant had indicated on his FOI application form that the document was located in Dr Pemberton’s office; and UQ advised that the applicant had been adamant that UQ confine its searches to Dr Pemberton’s Office. I invited the applicant to make a written submission if he did not accept my preliminary view. 16. On 13 October 2008 the applicant telephoned the Office and submitted that as some signatures were missing from Request Form 1, the procedure and the document are illegal. He outlined his expectation that the Office would address that issue for him. 17. By e-mail dated 14 October 2008 I explained to the applicant my role, the external review process, rights of review in the event he was aggrieved by a decision and reiterated that my letter of 10 October 2008 invited his submissions to the review. 18. By email dated 14 October 2008 the applicant provided further submissions in support of his application. 19. On 15 October 2008 the applicant telephoned the Office to confirm receipt of his e-mails and spoke with me. During the conversation he reiterated: • his view that the unsigned document provided by UQ was illegal • that it was my role to investigate UQ. His rights under the FOI Act were explained to him again. 20. By email dated 16 October 2008 the applicant expressed his intention to seek review of this matter by the Supreme Court. 21. On 20 October 2008 the Office conveyed to UQ my view that UQ could not narrow the scope of searches required in response to an FOI application to those locations indicated on an FOI application form by the applicant, i.e. in answer to the requests in the form “Please indicate any area in which you do not wish a search to be made” and “Please specify any other location that you think may hold relevant documents:....” UQ accepted this view and agreed to conduct further searches for the document sought by the applicant. 22. On 28 October 2008 UQ advised the Office that another version of Request Form 1 was on file within the Faculty of Natural Resources, Agriculture and Veterinary Science (Faculty of NRAVS) (Request Form 2). 23. By letter dated 28 October 2008 UQ provided a copy of Request Form 2, noting that it did not contain the signatures sought by the applicant. 24. On 10 December 2008 the Office contacted Ms Parke, Freedom of Information Officer, UQ, to request further information regarding the absence of Associate Professor Pemberton’s signature on Request Form 1. 25. By letter dated 7 January 2009, Ms Parke provided submissions concerning Faculty processes, enclosing a memorandum from Ms Morgan of the Faculty of NRAVS. 26. On 28 January 2009 the Office contacted Ms Power of the School of Chemistry and Molecular Biosciences (School) for further specific information on the change of grade process. 27. On 29 January 2009 the Office contacted Ms Logan of the Faculty of NRAVS for additional information about the process of amending results. 28. In making my decision in this review, I have taken into account the following: • FOI Application • Original Decision • Internal Review Application • Internal Review Decision • External Review Application • extract of advice from the School enclosed as “Attachment 1” to the Internal Review Decision • UQ’s submissions dated 10 October 2008 • telephone conversation with applicant on 13 October 2008 • email submission from applicant dated 14 October 2008 • email submission from applicant dated 16 October 2008 • file note of telephone conversation with Ms Parke on 20 October 2008 • file note of telephone conversation with Ms Parke on 29 October 2008 • file note of telephone conversation with Mr Zgrajewski on 10 November 2008 • email correspondence from Ms Parke dated 10 November 2008 • UQ’s letter of 28 October 2008, received 1 December 2008 • file note of telephone conversation with Ms Parke on 10 December 2008 • UQ’s submissions dated 7 January 2009 and enclosed memorandum from Ms Morgan of the Faculty of NRAVS, UQ dated 23 December 2008 and Associate Professor Pemberton’s email dated 29 July 2008 • file note of telephone conversation with Ms Power of the School on 28 January 2009 • file note of telephone conversation with Ms Logan of the Faculty of NRAVS on 29 January 2009 • Ms Power’s email dated 30 July 2008 to Associate Professor Pemberton • the Grade Change Report for the period 4 August 2008 to 8 August 2008 • relevant provisions of the FOI Act and Acts Interpretation Act 1954 (Qld) (AI Act) as referred to in this decision • Explanatory Notes to the Freedom of Information and Other Legislation Amendment Bill 2005 (Qld) • case law as cited in this decision • decisions of this Office as referred to in this decision. Issue in the Review 29. The applicant seeks a copy of Request Form 1 bearing the signatures of the Chief Examiner, the Course Coordinator and the Executive Dean/Academic Registrar. 30. UQ maintains that the document sought by the applicant was never created and therefore does not exist. 31. The applicant contends that the document must exist and that UQ’s search efforts have been insufficient. 32. In this review the issue to be determined is whether there are reasonable grounds for UQ to be satisfied that the document sought by the applicant does not exist and accordingly, whether access can be refused under section 28A(1) of the FOI Act. The law 33. Sections 28A(1) and (2) of the FOI Act provide: 28A Refusal of access—documents nonexistent or unlocatable (1) An agency or Minister may refuse access to a document if the agency or Minister is satisfied the document does not exist. Example— documents that have not been created (2) An agency or Minister may refuse access to a document if— (a) the agency or Minister is satisfied the document has been or should be in the agency’s or Minister’s possession; and (b) all reasonable steps have been taken to find the document but the document can not be found. Examples— • documents that have been lost • documents that have been disposed of under an authority given by the State Archivist. 34. Sections 28A(1) and (2) of the FOI Act address two different scenarios faced by agencies and Ministers from time to time in dealing with FOI applications: circumstances where the document sought does not exist and circumstances where a document sought exists (to the extent it has been or should be in the agency’s possession) but cannot be located. In the former circumstance, an agency or Minister is required to satisfy itself that the document does not exist. If so satisfied, the agency or Minister is not required by the FOI Act to carry out all reasonable steps to find the document. In the latter circumstance an agency or Minister is required to satisfy itself that the document sought exists (to the extent that it has been or should be in the agency’s possession) and carry out all reasonable steps to find the document before refusing access. 35. Section 28A of the FOI Act is silent on how an agency or Minister satisfies itself about the existence of a document. The further requirement in section 28A(2) of the FOI Act of taking all reasonable steps to find the document (typically searches) makes it clear that such steps are not required if the agency is satisfied that a document does not exist. The construction of section 28A of the FOI Act does not preclude an agency or Minister from using searches as a means to satisfy itself that a document does not exist. Indiscriminate searches alone however cannot form a reasonable basis on which to decide a document does not exist. 36. In discussing the equivalent (though differently constructed) provision, section 24A,[2] in the Freedom of Information Act 1982 (Cth) Justice Finn stated the following: Turning to the scheme of the FOI Act more generally, it is fair to say that at many places it requires evaluative judgements to be made and interests to be balanced (particularly in the exemption provisions)...; and on occasion it employs “reasonableness” as a judgemental yardstick of action taken or to be taken or of anticipated consequences of action... Nonetheless, it is equally fair to say that the Act is somewhat indiscriminate in its use of formulae such as “is satisfied” to indicate explicitly that the particular evaluation or judgement required to be made is that of the Minister or agency and that it is not one ultimately for a court... However, what the scheme of the Act does suggest in general terms is that in a matter: (i) in which the Minister or agency is expected to balance the general right of access to documents against another designated public interest; and (ii) in respect of which that Minister or agency is to be taken by virtue of function or responsibility to possess the necessary particular knowledge or experience to make the required judgement, then (whether or not the judgement to be made is circumscribed by other requirements, e.g. designated relevant considerations) the judgement will be that of the Minister or agency and not of the Court. Given the inquiry posed by s24A’s “all reasonable steps” requirement this provides some-albeit slight- support for the view that the requirement being one tied to intradepartmental or agency structures, practices and record keeping policies and practices, its fulfilment is one of which the Minister or agency is to be the judge.[3] 37. What is inferred by this statement is that to be satisfied that a document does not exist, it is necessary for the Minister or agency to rely upon a number of key factors, including the Minister/agency’s particular knowledge or experience with respect to the administrative arrangements of government, the agency structure, the Minister/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), relevant administrative practices and procedures including but not exclusively information management approaches. The knowledge and experience required will vary from agency to agency, Minister to Minister and from one FOI application to another. The knowledge and experience required in particular cases will not always rest with individual FOI decision makers alone. 38. What follows is that neither an agency/Minister nor an external merits review body can be satisfied that a document does not exist through a process where an agency/Minister indiscriminately sends out search traces to particular locations in the agency/Office and relies on a nil response. There must be some reference to those key factors listed in paragraph 37 together with key factors within the FOI application or factors reasonably inferred from any other information supplied by the applicant. Those key factors will include the nature and age of the document sought and the nature of the government activity the FOI request relates to. Searches undertaken in the context of section 28A(1) of the FOI Act will be directed by these key factors and those searches undertaken on behalf of FOI units by individual business units must include all reasonable steps to locate the document. 39. This approach, implicit in FOI practices adopted by many agencies, prevents section 28A of the FOI Act from providing a level of protection to those agencies with poor information management practices or low thresholds in the searches required to assist FOI applicants. In such agencies, searches alone may not disclose the existence of a document that should be or has been in the agency’s possession. 40. In applying section 28A(1) of the FOI Act, the following two questions from Shepherd and Department of Housing, Local Government and Planning[4] have been considered relevant: (i) are there reasonable grounds to believe that the requested documents exist and are documents of the agency as that term is defined in section 7 of the FOI Act and if so (ii) have the search efforts made by the agency to locate such documents been reasonable in all the circumstances of the review.[5] 41. Shepherd was not a review decided with respect to section 28A of the FOI Act. It was a review in which documents had been located by the agency however the applicant submitted that further documents existed. This type of review is commonly referred to as a ‘sufficiency of search’ matter. In deciding whether or not the documents existed, the Information Commissioner took evidence from both the applicant and the officer named, weighed the evidence before him and decided that it was unlikely that further documents existed, and in any event, that the agency’s search efforts ‘had fulfilled the obligation to make all reasonable searches and inquiries to locate requested documents’.[6] 42. Section 28A was inserted into the FOI Act after the decision in Shepherd and it specifically addresses the circumstances addressed in Shepherd—documents that are nonexistent or unlocatable. It is therefore preferable that general guidance provided in Shepherd and a number of the earlier review decisions be aligned with the approach taken in section 28A(1), section 28A(2) and that the approach now reflect the ordinary meaning conveyed by the text of the provision of the FOI Act, taking into account the purpose or object underlying the Act. Section 4 of the FOI Act states: 4 Object of Act and its achievement (1) The object of this Act is to extend as far as possible the right of the community to have access to information held by Queensland government. 43. Section 28A of the FOI Act now requires an agency to be ‘satisfied’ as to the existence of a document. Justice Finn referred to the test of ‘being satisfied’ as an evaluative judgement based on the knowledge and experience of the agency. Such a judgement requires that the decision be made on reasonable grounds. In the context of applying section 28A(1) of the FOI Act the preferred question then is: Are there reasonable grounds for the agency/Minister to be satisfied that the requested document does not exist? 44. In the context of applying section 28A(2) of the FOI Act, the preferred question is then: Are there reasonable grounds for the agency/Minister to be satisfied that the requested document has been or should be in the agency’s or Minister’s possession? 45. In practice these questions may be two sides of the same coin and in answering one question, the other question is answered in the opposite. The provision however requires the agency to satisfy itself of either one or the other. Section 28A of the FOI Act should now be applied when a question of the sufficiency of searches otherwise arises. 46. The second question in Shepherd is presently used in the application of section 28A(1) of the FOI Act and in sufficiency of search reviews: Have the search efforts made by the agency to locate the document been reasonable in all the circumstances of the review? 47. This question now needs to be brought into line with the test used in section 28A(2)(b) of the FOI Act to read: Have all reasonable steps been taken to find the document but the document can not be found? In the context of applying s28A(1) of the FOI Act this question only needs to be asked if an agency or Minister relies in part on searches to satisfy itself that the document does not exist. 48. Section 28A(2) was inserted into the FOI Act at the same time as section 28A(1) through the Freedom of Information and Other Legislation Amendment Act 2005 (Qld). Section 28A(2) of the FOI Act provides that in circumstances where the agency or Minister have satisfied themselves that a document has been or should be in their possession, the agency or Minister may only refuse access to a document if ‘all reasonable steps have been taken to find the document but the document can not be found.’ 49. While the FOI Act is silent in relation to the requirements of searches undertaken in relation to section 28A(1), it is preferable that the ‘all reasonable steps’ test in subsection (2) also be applied should searches be required in relation to section 28A(1) of the FOI Act. This is because of the proximity of the sub-sections and of the fact that the existence (or not) of a document are mutually exclusive propositions, with the answer to one question providing an equally certain answer to the opposite question. If the agency is to be satisfied on reasonable grounds as to the existence of a document and searches are required, in the context of the achievement of the object of the Act, then an agency or Minister must take ‘all reasonable steps to find the document’ to locate a document in every circumstance such a question arises. 50. Confirmation of the interpretation conveyed by the ordinary meaning of a provision through the consideration of extrinsic material is permitted by section 14B of the Acts Interpretation Act 1954 (Qld). The explanatory notes to the amending Bill provide that the amendment addresses Finding 96 in the Parliament’s Legal and Constitutional Administrative Review Committee’s Report No 32. The preceding discussion to Finding 96 cites section 24A of the Commonwealth FOI Act and recommends that an equivalent provision be inserted into the FOI Act. Section 24A is quoted at footnote 3. 51. The relevant note in the Explanatory Notes to the Bill, provides: Clause 18 inserts new s28B which addresses the situation where applications are made for documents which do not exist or cannot be found. At present, the FOI Act does not contain a provision to enable an agency or Minister to refuse such an application. The new section provides that an agency or minister may refuse access to a document if all reasonable steps have been taken to find the document and the agency or Minister is satisfied the document: • has been, or should be, in the agency’s or Minister’s possession but cannot be found; or • does not exist. The clause addresses LCARC finding 96. This explanation quite unambiguously asserts the intention to adopt the approach of section 24A of the Commonwealth FOI Act but the intention remains unexpressed by the Queensland statute. The course of action to be taken by the Office in these circumstances is made clear in the joint judgement of Mason CJ and Dawson JJ: The speech (second-reading speech of the Minister when introducing a Bill for the Act into the House of Representatives) while deserving serious consideration, cannot be determinative: it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law.[7] 52. Section 28A of the FOI Act is the law which reflects the will of the Parliament. Section 28A of the FOI Act differs materially from section 24A of the Commonwealth FOI Act. This means that the full intentions as expressed in the Explanatory Notes cannot be given effect to. However the extrinsic material does provide support for the approach to the interpretation of the plain meaning of the text of section 28A of the FOI Act proposed in paragraphs 42 to 49 above. 53. It is therefore more appropriate in the context of section 28A of the FOI Act for agencies and Ministers, when relying on searches to satisfy themselves that a document does not exist, to demonstrate that they have taken all reasonable steps to find the document, rather than the current approach of ‘reasonable search efforts in all the circumstances of the review’ following Shepherd. 54. Adopting this reasoning, the question to be addressed in this current review is: Are there reasonable grounds for UQ to be satisfied that the requested document does not exist? If searches are necessary to substantiate a conclusion that the document sought does not exist, it is appropriate in reviewing the searches undertaken to also ask: Have all reasonable steps been taken to find the document? 55. To be satisfied that the requested document does not exist, UQ must have reference to the key factors that arise in this particular matter including relevant knowledge and experience of assessment recording processes as they relate to the particular document sought by the applicant. Applicant’s Submissions 56. The applicant has made the following submissions to this review. • You did not consider on 10/10/2008 document is illegal according to your department website “In Queensland, the Freedom of Information Act 1992 (Qld) gives you a legally enforceable right... to amend information about your personal affairs that is inaccurate, incomplete, out of date or misleading” you need to read your department website and understand the nature of external review. • [Ms] Power was surprise when she knows that I received final grade [for the Course] via mySI.net. [Ms] Power said your results should take more time before release it because Dr Pemberton was just an e-mail her today? • Because of a missing signature on a document of the university, the procedure and the document are illegal • You had said please remember that they are not obligated to provide you with an answer on this point you need to look again to your department website “The FOI Act also requires agencies to make available information about o how they are organised o what their functions are o what kinds of decisions they make o what arrangements they have for public involvement in their work o what kind of documents they hold and how the public can see them o what rules and practices they use to make decisions affecting the public. • You think signed document is not important and role of FOI UQ is not make sure the document completed but you send e-mail with your singe? UQ’s Submissions 57. Upon receipt of the FOI Application UQ conducted searches for the document sought within the School and in the Course Coordinator’s office. The relevant documents located were released to the applicant. 58. In the Internal Review Decision, the decision-maker states ‘I have made further inquiries with [the School] ... an extract of the advice received from [the School] is enclosed as Attachment A’ (Advice). The Advice states in part: a) All assessment items are submitted to the School office via ‘iMark’ database... Once the final assessment has been uploaded, the Course Coordinator is provided with a final course summary form for review and signing. This summary constitutes a list of all students with all assessment results, final percentages and assigned grade. b) The Course Coordinator attends the SMMS Examiners’ meeting held after the end of the exam period... At the completion (of the meeting), the Course Coordinator and appropriate Chief Examiner both endorse the summary form by signing. c) The course results are then submitted for approval (via iMark) to the Associate Dean, Teaching & Learning, Faculty of BACS... ... Obviously time constraints do not allow for a repeat of this process following supplementary and special exam marking. However, a ratification process occurs via the Request to Amend Results After Release form process. In this case, the final results for the student were submitted to the School office via email. The special exam result was entered into iMark and a new final percentage was calculated. A new grade was assigned based on the course cut-offs. iMark was used to produce the Request to Amend Results After Release form. The form was signed by the appropriate Chief Examiner and sent to the student’s Faculty of NRAVS for approval. [my emphasis] 59. In response to inquiries from the Office regarding the absence of Dr Pemberton’s signature, under cover of a letter dated 7 January 2009, UQ provided a memorandum from Ms Morgan, Acting Faculty Executive Officer, Faculty of NRAVS. Ms Morgan explains the procedure for processing grades using the iMark system (Memo) in circumstances where the results are amended. The Memo provides, in part: The Course Coordinator, in this case Associate Professor John Pemberton, submits the results (grades) for students in his course by email to the staff member in the School responsible for uploading all student results, in this case Ms Cheryl Power... Associate Professor Pemberton’s email is recognised by the School and Faculty as his authority in respect of the results he submitted for [the Course] and the subsequent Request to Amend Result form. [my emphasis] 60. In a telephone discussion with the Office on 28 January 2009 Ms Power indicated that her recollection of events relating to the administrative processing of the applicant’s results is as follows: • Associate Professor Pemberton emailed her the results of the applicant’s special exam for uploading into iMark • iMark automatically calculated the result in accordance with the cut-offs and a Request to Amend Results After Release form was generated • she printed the Request to Amend Results After Release form that day and took it to Ms Ward, Chief Examiner, who signed the form • Ms Power then faxed the signed form, Request Form 1, to the Faculty of NRAVS. 61. On 28 January 2009, Ms Power provided a copy of Dr Pemberton’s email to her dated 29 July 2008 indicating that he attached the results for the special exam for the Course as well as a copy of her email to Dr Pemberton dated 30 July 2008 indicating that she had now entered the marks into iMark. 62. Ms Power also indicated that once the steps outlined in paragraph 60 are completed she would expect the form to be uploaded in SI-net (student database) particularly for straight forward changes such as an SP to a number result. Ms Power would not anticipate dealing with the Request to Amend Results After Release form again. 63. In a telephone discussion with the Office on 29 January 2009, Ms Logan of the Faculty of NRAVS indicated that the Executive Dean does not necessarily sign off result amendments of this nature as some change of result is implicit when a special exam is approved. Ms Logan indicated that once she receives results such as Request Form 1: • she checks that the Course Coordinator and Chief Examiner have approved the new result (Ms Logan noted that a Course Coordinator’s approval is implicit if the results have been entered into iMark) • if it is a change that is classified as straight forward such as a Special to a number result (as in this instance) she then uploads the information into SI-net. 64. Ms Logan explained that the Executive Dean’s approval is not required for a straight forward change of result. However, at the end of each week, SI-net generates a Grade Change Report that includes all the changes she has uploaded for the week. The Executive Dean signs the Grade Change Report and it is sent to Central Records. 65. On 29 January 2009, Ms Logan provided a copy of the Change of Grade Report for the period 4 August 2008 to 8 August 2008. In line with the information provided by Ms Logan, the Change of Grade Report was signed by the Executive Dean, Faculty of NRAVS and dated 12 August 2008. 66. In summary, UQ submits that: • the process adopted by the Faculty explains the absence of the Course Coordinator and Executive Dean’s signatures on Request Form 1 • search efforts have been fruitless and support the view that the document sought was never created • all reasonable steps have been taken to locate the document sought by the applicant but the document cannot be located because it was never created. Findings on material questions of fact 67. Having considered the parties’ submissions, I make the following findings of fact: • on 29 July 2008 Associate Professor Pemberton sent an email to Ms Power which constituted his authorisation, as Course Coordinator for the results of the special exam for the Course for Semester 1 2008 • the results provided by Associate Professor Pemberton for the special exam undertaken by the applicant were uploaded to iMark by Ms Power • iMark computed a new final percentage for the applicant and a new grade was calculated based on pre-determined cut-offs for the Course • iMark generated a Request to Amend Results After Release form in respect of the applicant • Ms Power printed this form on 4 August 2008 and took it to the Chief Examiner for signature • the Chief Examiner signed the form on 4 August 2008 • Ms Power faxed Request Form 1 to the Faculty of NRAVS to be processed • on or after 4 August 2008 Ms Logan received Request Form 1 and uploaded the amended grade into SI-net (student portal) without consulting the Executive Dean as Request Form 1 constituted a ‘straight forward’ amendment following an approved special exam • Ms Logan signed Request Form 1 on 8 August 2008, indicating that the results were ‘updated in SI-net’ • the Change of Grade Report was generated in SI-net and signed off by the Executive Dean on 12 August 2008 • UQ conducted searches for a version of the Request Form signed by the Chief Examiner, Course Coordinator and Executive Dean/Academic Registrar upon receipt of the FOI Application, on receipt of the Internal Review Application and again during this external review and was unable to locate a document fitting this description. Analysis 68. The applicant appears to submit that Request Form 1 is illegal because the FOI Act gives a person a legally enforceable right to amend certain documents. Part 4 of the FOI Act is concerned with amendment. The FOI Application concerns access to documents, not amendment of documents. Accordingly, this submission is not relevant to the issues in this review. 69. The applicant also submits that agencies are required to make information about, for example, how they are organised and the kinds of decisions they make, available to the public. This appears to be a reference to Part 2 of the FOI Act which is concerned with requirements on agencies to publish particular information. This is not a relevant consideration in this external review which is concerned with access to documents. 70. Although the applicant seems to suggest in his submissions that UQ should be required to provide him with a copy of Request Form 1 with the signatures he is seeking, the FOI Act does not require an agency to create a document in response to an FOI application. The legal right of access is subject to the FOI Act and applies only to ‘documents that are or may be, in existence on the day the application is received’.[8] 71. The applicant submits that Request Form 1 and the procedure connected with Request Form 1 render Request Form 1 illegal. In this external review the applicant contends that UQ’s searches for the document requested in the FOI Application are insufficient. Accordingly, the external review raises the issue of whether the applicant has been refused access to the document he is seeking. The legality or otherwise of Request Form 1 is not a relevant consideration in this review. 72. On the Request to Amend Result After Results Release form attached to the External Review Application, the applicant highlights the places on the form where he believes the signatures of the Course Coordinator and the Executive Dean/Academic Registrar are missing and includes a notation ‘?missing why’. The FOI Act does not confer a right to obtain answers to questions from Government agencies or to require agencies to extract answers from any documents held.[9] This does not mean that an agency is prohibited by the FOI Act from answering questions, but it means that the FOI Act does not require UQ to answer to the applicant’s questions in this instance. 73. Nonetheless, the applicant’s questions point to his expectation that because the form includes signing blocks for the Course Coordinator and the Executive Dean/Academic Registrar these individuals would have signed Request Form 1 before the results were uploaded into Si-Net. Given the layout of Request Form 1, which provides for the signatures of the Course Coordinator and Executive Dean/Academic Registrar, the applicant’s expectation that Request Form 1 would have been signed by these individuals as well as the Chief Examiner is understandable. Determining whether the document sought was created 74. The applicant raised sufficiency of search issues when seeking internal review of the Original Decision. In addressing this issue it would have been appropriate for the decision-maker to have reference to the key factors that arise in this particular matter including relevant agency knowledge and experience of assessment recording processes as they relate to the particular document sought by the applicant. However, this task was not straight forward because the framing of the FOI Application made the documents sought unclear. A version of the document actually sought by the Applicant was only released on internal review. It appears from the Internal Review Decision that the decision-maker was not aware that this was the particular document sought by the applicant as he comments that the document sought by the applicant had already been released with the Original Decision and Request Form 1 related to the marks for the Course before they were finalised. Accordingly, the applicant’s view that another, more complete version of Request Form 1 must be held by UQ seems only to have emerged on external review. 75. In this review, in order to be satisfied that access to the document sought can be refused under section 28A(1) of the FOI Act, it is necessary to: • identify the process for creating and processing the document sought • identify UQ’s usual administrative process for authorising amended student results for special exams prior to the results being uploaded into Si-net and therefore finalised • ascertain whether there is any evidence to suggest that there has been any deviation from the usual process and if so, investigate the matter further with relevant personnel and possibly undertake relevant searches. Are there reasonable grounds to be satisfied that the requested document does not exist? 76. The answer to this question is ‘yes’. 77. UQ’s usual process for amending results after a special exam is initiated by an email from the Course Coordinator, which is taken as the Coordinator’s authority as to the correctness of the results provided with the email. The results are uploaded into iMark at which time a new final percentage and grade is calculated. A Request to Amend Results After Release form is generated for the particular student. This form is printed and then signed by the Chief Examiner. The form is then faxed to the Faculty of NRAVS, where the results are uploaded into Si-net. 78. In the case of the applicant’ special exam results: • on 29 July 2008 the Course Coordinator emailed the applicant’s results for the special exam to Ms Power • on 4 August 2008 Ms Power uploaded the results into iMark and a Request to Amend Results After Release form was generated in respect of the applicant • Ms Power printed the Request to Amend Results After Release form and took it to the Chief Examiner to have it signed • Ms Power faxed the signed form, that is, Request Form 1, to the Faculty of NRAVS to be processed • on or after 4 August 2008 Ms Logan received Request Form 1 and uploaded the amended grade into SI-net (student portal) without consulting the Course Coordinator or the Executive Dean/Academic Registrar as Request Form 1 constituted a ‘straight forward’ amendment following an approved special exam • Ms Logan then signed Request Form 1, indicating that the results were ‘updated in SI-net’ • the Change of Grade Report was generated and signed off by the Executive Dean on 12 August 2008. 79. In this instance it is clear that the applicant’s special exam results were processed in accordance with UQ’s usual processes for amending results after a special exam. As explained above, this process does not require the Request to Amend Results After Release form to be signed by the Course Coordinator and/or the Executive Dean/Academic Registrar. Accordingly, there are reasonable grounds to be satisfied that the document sought by the applicant does not exist because it was not created. If so satisfied, it is unnecessary for an agency to conduct searches to locate a requested document. 80. However, had there been evidence that UQ may have deviated from its usual processes for amending results after a special exam, targeted searches and further inquiries with relevant personnel would have been necessary to establish that all reasonable steps had been taken to locate the document sought by the applicant. 81. In this external review I am satisfied that: • there are reasonable grounds to be satisfied that the document sought by the applicant does not exist because it was not created • access to the document can be refused under section 28A(1) of the FOI Act. DECISION 82. I vary the decision under review by finding that UQ was entitled to refuse access to the document sought in the FOI Application under section 28A(1) of the FOI Act on the basis that the document sought does not exist. ________________________ J Kinross Acting Information Commissioner Date: 9 February 2009 [1] Section 88(1) of the FOI Act provides:Powers of commissioner on review (1) In the conduct of a review, the commissioner has, in addition to any other power, power to – (a) review any decision that has been made by an agency or Minister in relation to the application concerned; and (b) decide any matter in relation to the application that could, under this Act, have been decided by an agency or Minister...[2] Section 24A of the Commonwealth FOI Act reads: 24A Requests may be refused if documents cannot be found or do not exist An agency or Minister may refuse a request for access to a document if: (a) all reasonable steps have been taken to find the document; and (c) the agency or Minister is satisfied that the document: (i) is in the agency's or Minister's possession but cannot be found; or (ii) does not exist. [3] Chu v Telstra Corp Ltd [2005] FCA 1730 (Unreported, Finn J, 1 December 2005) at paragraphs 10 and 11.[4] [1994] QICmr 7; (1994) 1 QAR 464 (Shepherd).[5] Shepherd at paragraphs 18 and 19.[6] Shepherd at paragraph 23.[7] R v Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 517-8.[8] Section 25(3) of the FOI Act. [9] Hearl and Mulgrave Shire Council [1994] QICmr 12; (1994) 1 QAR 557 at paragraph 30.

queensland

court_judgement

Queensland Information Commissioner 1993-

Winchester and Queensland Police Service [2017] QICmr 56 (4 December 2017)

Winchester and Queensland Police Service [2017] QICmr 56 (4 December 2017) Last Updated: 11 December 2017 Decision and Reasons for Decision Citation: Winchester and Queensland Police Service [2017] QICmr 56 (4 December 2017) Application Number: 313454 Applicant: Winchester Respondent: Queensland Police Service Decision Date: 4 December 2017 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NEITHER CONFIRM NOR DENY - request for documents about a specified agency officer - whether the existence of responsive information can be neither confirmed nor denied - section 55 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Queensland Police Service (QPS) under the Right to Information Act 2009 (Qld) (RTI Act) for documents recording a complaint made, between 8 August 2008 and 24 December 2010, by individuals other than himself about a specified officer.[1] QPS neither confirmed nor denied the existence of the information sought by the applicant pursuant to section 55 of the RTI Act.[2] The applicant applied[3] to the Office of the Information Commissioner (OIC) for external review of the decision. For the reasons set out below, I affirm QPS’s decision that section 55 of the RTI Act applies to the access application. Background Significant procedural steps taken by OIC in conducting the external review are set out in the Appendix to these reasons. Reviewable decision The decision under review is QPS’s decision dated 3 August 2017. Evidence considered Evidence, submissions, legislation and other material that I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). The applicant provided OIC with a number of submissions.[4] While I have carefully reviewed all of those submissions, including the supporting material the applicant provided with those submissions, certain concerns the applicant has raised are not matters which the Information Commissioner has jurisdiction to consider in conducting an external review under the RTI Act.[5] Accordingly, in reaching this decision, I have only considered and addressed the applicant’s submissions to the extent they are relevant to the issue for determination on external review. Relevant law Under section 23 of the RTI Act, a person has a right to be given access to documents of an agency. However, this right is subject to a number of exclusions and limitations. Section 55 of the RTI Act allows a decision-maker to neither confirm nor deny the existence of a document which, if it exists, would contain prescribed information. This provision is intended to apply in situations where revealing that the agency does or does not have documents in response to an application, due to the specific wording of the request, would reveal information to which an agency would normally be entitled to refuse access. ‘Prescribed information’ is defined[6] as including ‘personal information the disclosure of which would, on balance, be contrary to the public interest under section 47(3)(b)’ of the RTI Act. ‘Personal information’ is defined[7] 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’. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision-maker must:[8] identify factors irrelevant to the public interest and disregard them[9] identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Findings Although the applicant submits that the requested documents exist ‘as the complaint was mentioned in [his] trial’,[10] there is nothing in the material provided by the applicant in support of his submissions which independently confirms that any complaint of the nature sought in the access application was made. Further, nothing in these reasons should be taken to confirm or deny that any complaint was made against the specified officer or that the requested documents exist. The applicant seeks access to documents recording a complaint which he believes was made about a specified officer. If the documents did exist, they would identify and contain information about an individual or individuals who made an allegation to QPS and the individual who is the subject of an allegation. I consider there are strong public interest factors favouring the nondisclosure of the type of information sought by the applicant—including those relating to the personal information and privacy of a complainant,[11] the fact that disclosing a complainant’s identifying details could reasonably be expected to prejudice the flow of information to QPS[12] and disclosing details of a complaint against a police officer may prejudice QPS’s management function or its conduct of industrial relations.[13] If the documents requested by the applicant did exist, I consider their nature requires that substantial weight be afforded to each of these public interest factors favouring nondisclosure. The applicant submits that: he requires this information to prove his innocence;[14] and as the complaint was mentioned in his trial ‘it is [his] right to be informed what the complaint was and the outcome was’.[15] Public interest factors favouring disclosure will arise where disclosing information could reasonably be expected to: advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies[16] contribute to the administration of justice generally, including procedural fairness;[17] and contribute to the administration of justice for a person.[18] The fundamental requirements of procedural fairness (that is, a fair hearing and a decision-maker free from bias) should be afforded to the person who is the subject of a decision. Here, the applicant seeks details of a complaint he says was made by persons other than himself, about a person other than himself. While the applicant considers he requires the requested information to ‘prove [his] innocence’, I note that: the applicant appealed his conviction and sentence to the Court of Appeal the Court of Appeal allowed the appeal against the applicant’s conviction on certain charges[19] the applicant was not retried in respect of those charges;[20] and the applicant subsequently made further applications to the Court of Appeal,[21] however, the applicant’s further appeals against conviction and sentence were refused.[22] In these circumstances, it is unclear how disclosure of the requested information, if it existed, would advance the applicant’s fair treatment in his dealings with QPS or contribute to administration of justice or procedural fairness for the applicant. Further, it is unclear how disclosure of the requested information, if it existed, would contribute to the administration of justice, including procedural fairness, for any other individual. For these reasons, I consider that the factors favouring disclosure relating to fair treatment and the administration of justice generally[23] do not apply. However, for the sake of completeness, I note that even if I were incorrect in this regard, and these factors could be said to apply, I consider they nonetheless warrant low to no weight in favour of disclosure given the nature of the requested information and the applicant’s completed appeal processes. The applicant has not raised any specific public interest factors favouring disclosure. As noted above, the applicant seeks documents recording a complaint, which he believes was made by an individual or individuals other than himself, against a police officer. Factors favouring disclosure relating to QPS’s accountability[24] and allowing or assisting inquiry into, or revealing or substantiating, deficiencies in an official’s conduct[25] may arise in respect of information of this nature, if it existed. Generally, there is a public interest in disclosing information that demonstrates actions taken by QPS in investigating and dealing with complaints it receives concerning its officers. However, in this case, the applicant has not sought information that demonstrates the actions taken or inquiries made by QPS. He is seeking only ‘a detailed copy’ of a complaint which he did not make. Further, the applicant has not identified the nature or subject matter of the complaint he believes was made and I do not have any objective evidence before me to support a reasonable expectation that disclosing the requested information, if it existed, would allow or assist inquiry into, or reveal or substantiate, deficiencies in an officer’s conduct. For these reasons, to the extent that these factors favouring disclosure may arise, I do not consider that they would carry sufficient weight to override the public interest factors favouring nondisclosure identified above. I have carefully considered all factors listed in schedule 4, part 2 of the RTI Act, and can identify no public interest considerations telling in favour of disclosure of the requested information.[26] In balancing the public interest, I consider that, to the extent that any factors exist which may favour disclosure of the requested information, those factors do not carry sufficient weight to override the public interest factors favouring nondisclosure. For these reasons, I am satisfied that the type of information requested by the applicant, if it exists, would include the personal information of individuals other than the applicant and its disclosure would, on balance, be contrary to the public interest. Accordingly, I find that the requested information, if it exists, would contain prescribed information, and QPS is entitled to neither confirm nor deny the existence of that information under section 55 of the RTI Act. DECISION For the reasons set out above, I affirm QPS’s decision that the existence of documents sought by the applicant is neither confirmed nor denied under section 55 of the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. Assistant Information Commissioner CorbyDate: 4 December 2017 APPENDIX Significant procedural steps Date Event 17 August 2017 OIC received the external review application. 5 September 2017 OIC notified the applicant and QPS that the external review application had been accepted and conveyed a preliminary view to the applicant that QPS was entitled to neither confirm nor deny the existence of the requested documents. OIC invited the applicant to provide submissions if he did not accept the preliminary view. 7 September 2017 In a conversation with an OIC staff member, OIC received the applicant’s submissions. 15 September 2017 OIC received further submissions from the applicant. 20 September 2017 OIC received further submissions from the applicant. 21 September 2017 OIC conveyed a further preliminary view to the applicant. 22 September 2017 In a conversation with an OIC staff member, OIC received the applicant’s further submissions. 26 September 2017 OIC received further submissions from the applicant. [1] The application dated 7 June 2017 was received by QPS on 13 June 2017. [2] By decision dated 3 August 2017. [3] The application dated 10 August 2017 was received by OIC on 17 August 2017. [4] As set out in the Appendix. [5] Such as his concerns regarding certain evidence considered at his trial and that the complainant in that trial was not cross examined by his legal representative. Additionally, the applicant’s submissions received on 15 September 2017 include a series of questions that OIC does not have jurisdiction to address. [6] Schedule 5 of the RTI Act. [7] Schedule 5 of the RTI Act, and section 12 of the Information Privacy Act 2009 (Qld). [8] Section 49(3) of the RTI Act. [9] I have not taken any irrelevant factors into account in this review. [10] Submissions received 26 September 2017. [11] Schedule 4, part 3, item 3 and schedule 4, part 4, section 6(1) of the RTI Act. See Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [27]-[28]. [12] Schedule 4, part 3, item 13 of the RTI Act. See P6Y4SX and Department of Police (Unreported, Queensland Information Commissioner, 31 January 2012) at [35]-[40]. [13] Schedule 4, part 3, item 19 of the RTI Act. [14] External review application. [15] Submissions received 26 September 2017. However, I note that the access application seeks ‘a detailed copy of the complaint’ the applicant believes was made and does not seek outcome documents or investigation documents. [16] Schedule 4, part 2, item 10 of the RTI Act. [17] Schedule 4, part 2, item 16 of the RTI Act. [18] Schedule 4, part 2, item 17 of the RTI Act. [19] R v Winchester [2011] QCA 374. The Court of Appeal also allowed the appeal against the applicant’s sentence in respect of one charge. [20] External review application. Refer also to R v Winchester [2013] QCA 166. I note that the applicant was resentenced in respect of one charge on 17 October 2012. [21] Seeking extensions of time within which to appeal against conviction and sentence, leave to appeal against sentence and leave to adduce evidence. [22] R v Winchester [2013] QCA 166. [23] Schedule 4, part 2, items 10, 16 and 17 of the RTI Act. [24] Schedule 4, part 2, item 1 of the RTI Act. [25] Schedule 4, part 2, items 5 and 6 of the RTI Act. [26] Taking into consideration the nature of the requested information I cannot see how disclosure of the requested information could, for example, reasonably be expected to reveal the reason for a QPS decision (Schedule 4, part 2, item 11 of the RTI Act).

queensland

court_judgement

Queensland Information Commissioner 1993-

James and Queensland Police Sevice [2018] QICmr 8 (22 February 2018)

James and Queensland Police Sevice [2018] QICmr 8 (22 February 2018) Last Updated: 21 March 2018 Decision and Reasons for Decision Citation: James and Queensland Police Service [2018] QICmr 8 (22 February 2018) Application Numbers: 313460 and 313530 Applicant: James Respondent: Queensland Police Service Decision Date: 22 February 2018 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST - personal information of another individual recorded in a police officer’s notebook - information provided by the applicant to the police officer - personal information and privacy - whether disclosure would, on balance, be contrary to the public interest - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld)ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - NONEXISTENT DOCUMENTS - applicant believes further documents should exist in relation to her interactions with a police officer - whether agency has taken all reasonable steps to locate additional documents - whether access may be refused on the basis the documents do not exist - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - IRRELEVANT INFORMATION - entries in a police officer’s notebook unrelated to the applicant or her interactions with police - whether information has any bearing on, or is pertinent to, the terms of the access application - whether section 88 of the Information Privacy Act 2009 (Qld) applies REASONS FOR DECISION Summary The applicant made two separate access applications to Queensland Police Service (QPS) under the Information Privacy Act 2009 (Qld) (IP Act) seeking access to the following: On 15 September 2015 I attended Roma St Police HQ for the purpose of complaining about what I believed at the time was police harassment. I was interviewed by S/Sgt Col Giles who recorded the interview. I request a copy of S/S Giles report and a list of all agencies it was sent to.[1] and, All recordings, electronic files, police notebook entries, correspondence, emails and reports made at and subsequent to an interview with Senior Sergeant Col Giles at Police Headquarters Roma Street Brisbane on 15 September 2015 related to Christine James nee Reynolds.[2] In response to the first application, QPS identified two pages of a police officer’s notebook (Notebook) as containing relevant information and released these to the applicant in part, subject to the removal of another individual’s personal information, and some information QPS considered to be irrelevant.[3] In response to the second application, QPS was unable to locate any information and issued a decision refusing access to information on the basis that it did not exist.[4] The applicant applied to OIC for external review of both QPS decisions.[5] The applicant believes that she should be entitled to an unredacted copy of the Notebook and that QPS should hold far more documentation regarding her interactions with Senior Sergeant Giles such as reports, call records and related correspondence. For the reasons set out below, I affirm the decision made by QPS on both applications. Background Significant procedural steps taken by OIC in conducting these external reviews are set out in the Appendix to these reasons. While considering External Review No. 313460, OIC advised the applicant that, due to the wording of the access application, the scope of the review would be limited to considering whether she was entitled to access the Notebook.[6] The applicant then made a second, broader application to QPS to capture any other documents created at or after the time of the applicant’s conversation with the QPS officer. Reviewable decision The decisions under review are: External Review No. 313460 – the decision deemed to have been made by QPS refusing access to information in the Notebook;[7] and External Review No. 313530 – the decision dated 3 October 2017 refusing access to information under section 67(1) of the IP Act and 47(3)(e) of the Right to Information Act 2009 (Qld) (RTI Act). Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). The applicant provided OIC with extensive written and oral submissions.[8] I have carefully reviewed all of those submissions, however, some concerns the applicant has raised are not matters which the Information Commissioner has jurisdiction to consider in conducting an external review under the IP Act and this was conveyed to the applicant during the review process.[9] For example, the applicant seeks redress for her complaints of police harassment. Accordingly, in reaching this decision, I have only considered the applicant’s submissions to the extent they are relevant to the issues for determination on external review. The applicant emphasised to OIC that her two access applications were interrelated and in External Review No. 313530, asked OIC to also consider the submissions she had provided in External Review No. 313460.[10] Information in issue In External Review No. 313460, the information in issue appears on Page 2 of the Notebook and comprises: two handwritten lines containing the name and address of another individual (Third Party Information); and information pertaining to other QPS matters (Irrelevant Information). As QPS did not locate any documents in response to the second application, there is no information in issue in External Review No. 313530—that review solely concerns the issue of nonexistent documents, as set out below. Issues for determination In External Review No. 313460, the issues for determination are whether: access to the Third Party Information may be refused on the basis that its disclosure would, on balance, be contrary to the public interest; and section 88 of the IP Act applies to the Irrelevant Information. In External Review No. 313530, the issue for determination is whether there are reasonable grounds to be satisfied that no documents exist in response to the terms of the access application. In examining this issue, it is also necessary to determine whether QPS has taken all reasonable steps to locate documents responding to the application. Relevant law Section 40 of the IP Act gives an individual a right to access documents of an agency to the extent they contain the individual’s personal information.[11] However, this right of access is subject to some limitations, including grounds on which an agency may refuse access.[12] The IP Act is to be administered with a pro-disclosure bias, meaning that access to information should be provided unless doing so would, on balance, be contrary to the public interest.[13] Access may therefore be refused to information which would, on balance, be contrary to the public interest to disclose.[14] To assist in determining whether disclosure of information would, on balance, be contrary to the public interest, the RTI Act identifies various factors that may be relevant to deciding the balance of the public interest,[15] and explains the steps that a decision-maker must take in doing so: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest. [16] An agency may also refuse access to documents which do not exist.[17] A document is nonexistent if there are reasonable grounds for the agency or Minister to be satisfied that the requested document does not exist. A decision maker must rely on their particular knowledge and experience to be satisfied that documents are nonexistent, and must have regard to a number of key factors: administrative arrangements of government agency structure, functions and responsibilities agency recordkeeping practices and procedures; and other factors including the nature and age of the requested documents and the nature of the government activity to which the requested information relates.[18] After considering these factors, an agency may determine that a particular document was not created because, for example, its processes do not involve creating the specific document. Where an agency can adequately explain the relevant circumstances accounting for nonexistent documents, it would not be necessary for the agency to conduct searches. If searches are undertaken, an agency must demonstrate that all reasonable steps have been taken to locate responsive documents, prior to deciding that the documents are nonexistent. In determining whether all reasonable steps have been taken, the key factors must be considered together with the circumstances of the case. Section 88 of the IP Act permits deletion of information that is not relevant to the terms of the access application. Section 88 is not a ground for refusing access to information but a mechanism to allow removal of irrelevant information from documents identified for disclosure. To determine if information is irrelevant under section 88 of the IP Act, it is relevant to consider whether the information has any bearing upon, or is pertinent to, the terms of the access application.[19] Findings External Review No. 313460 Third Party Information No irrelevant factors arise in the circumstances of this review, and I have not taken any into account in making my decision. I accept that there is a general public interest in disclosing information held by a government agency. I also consider that providing access to the Third Party Information would allow increased transparency in the contemporaneous records made by a police officer, following interaction with a member of the public, and thereby enhance the accountability of QPS, to some extent.[20] However, given the limited nature of the Third Party Information, I afford this factor only low weight in favour of disclosure. The applicant argues that full disclosure of the information in issue would support her beliefs about corruption and collusion within and among various government agencies, including QPS.[21] The RTI Act recognises that there is a public interest in disclosing information that would reveal that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[22] However, given the limited nature of the Third Party Information, I do not consider that this factor applies. In the circumstances of this case, I am unable to identify any other relevant factors favouring disclosure of the Third Party Information. I am satisfied that the Third Party Information comprises the personal information[23] of another individual.[24] Given the Third Party Information appears in an official QPS record, I am also satisfied that disclosure of that individual’s details could reasonably be expected to prejudice the protection of their right to privacy.[25] It is not contested that the applicant provided the Third Party Information to QPS and I accept that the applicant’s direct involvement serves to diminish the weight of the relevant factors favouring nondisclosure. However, they are not entirely negated. While the RTI Act does not support an assumption that release of documents to an applicant is necessarily release to the world at large,[26] once the information is disclosed, there is no control over how information may be further disseminated. Therefore, I consider that disclosing the Third Party Information in the particular context of the Notebook, an official record created by a QPS officer, would cause a moderate level of harm to that individual’s personal sphere and moderately infringe upon their privacy. On balance, I find that the weight of the factors which seek to safeguard the personal information and privacy of another individual is sufficient to outweigh the public interest in promoting access to information held by government and enhancing the transparency and accountability of QPS. Accordingly, I find that disclosure of the Third Party Information would be contrary to the public interest and access to it may therefore be refused under section 67 of the IP Act and section 47(3)(b) of the RTI Act. Irrelevant Information This information appears on page 2 of the Notebook. The applicant has questioned the deletion of irrelevant information and generally submits that full disclosure is necessary to expose, what she believes is, police corruption and harassment.[27] The terms of the access application are quoted above at paragraph 1 of these reasons. The scope was limited to a request for information relating to the applicant’s interview with the relevant officer. Due to the wide range of matters which a police officer is required to attend to in any given day, a police officer’s notebook will inevitably record information relating to various inquiries, individuals and investigations and it is reasonable to expect that information about separate QPS matters will appear on the same page of a notebook. I have carefully considered the Irrelevant Information and am satisfied that it comprises information about QPS matters/activities that are unrelated to the applicant’s interactions with police, and therefore, the information is not pertinent to the terms of the access application. Accordingly, I am satisfied that section 88(2) of the IP Act applies to the Irrelevant Information and it can be deleted on that basis. External Review No. 313530 The applicant has submitted that QPS should hold additional documents in relation to her interaction with the relevant officer on 15 September 2015, beyond the Notebook.[28] As set out above, the applicant specifically made the second application which is the subject of External Review No. 313530, framed in broader terms than the first application, with the expectation that it would elicit further information from QPS. The applicant believes a recording of her interaction with QPS should exist, and that QPS would have created other documents eg. reports, correspondence and records of telephone calls. QPS provided OIC with emails from the relevant police officer confirming that he had a conversation with the applicant on 15 September 2015 in which he provided her with his contact details and some advice. While he subsequently had a telephone conversation with the applicant, his recollection is that he did not make a record of that call. The police officer emphasised that the only record he created in relation to his interaction with the applicant was the entry in the Notebook.[29] QPS confirmed that upon receiving the access application, it conducted searches of the QPRIME database,[30] as is common practice in response to access applications of this nature; however, no entries were located in QPRIME.[31] QPS provided OIC with records certifying those searches had been conducted.[32] QPS submitted to OIC that the applicant’s interactions with the relevant officer were not treated as a formal complaint, and therefore, a QPRIME report was not produced. As a QPRIME report was not created, there was no incident/matter against which to record the subsequent telephone conversation. QPS also submitted to OIC that the discussions with the applicant did not constitute an interview, and therefore, an audio recording had not been created. I acknowledge that the applicant’s interaction with QPS on 15 September 2015 related to a matter of serious concern to her. However, I consider it is reasonable to conclude, from the evidence available to OIC, that QPS did not treat it as a formal complaint and as a result, very limited records were created in relation to it—this approach appears consistent with QPS recordkeeping practices. I consider the explanation provided by QPS as to the nonexistence of further documents is reasonable and is supported by its searches and the relevant officer’s response. Also, the entry in the Notebook is very limited in nature and is therefore, congruent with QPS’ submissions that the matter was not treated as a formal complaint, and did not trigger a QPRIME reporting requirement. For these reasons, I am satisfied that QPS has taken all reasonable steps to locate documents in response to the access application and access may be refused to the requested documents on the basis they do not exist.[33]DECISION In External Review No. 313460, I affirm QPS’ decision to: refuse access to the Third Party Information in the Notebook under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act on the basis that its disclosure would, on balance, be contrary to the public interest; and remove Irrelevant Information from the Notebook under section 88 of the IP Act. In External Review No. 313530, I affirm QPS’ decision to refuse access to information under section 67(1) of the IP Act and section 47(3)(e) of the RTI Act on the basis that documents responding to the application do not exist. I have made this decision under section 123 of the IP Act, as a delegate of the Information Commissioner, under section 139 of the IP Act.K Shepherd Assistant Information CommissionerDate: 22 February 2018 APPENDIX Significant procedural steps External Review No. 313460 Date Event 21 August 2017 OIC received the external review application. 22 August 2017 OIC notified QPS and the applicant that the external review application had been received and requested relevant procedural documents from QPS. 28 August 2017 OIC received the procedural documents from QPS. 1 September 2017 OIC received submissions from the applicant. 4 September 2017 OIC notified QPS and the applicant that the external review application had been accepted and requested further information from QPS. 21 September 2017 OIC received the requested documents from QPS. OIC conveyed a preliminary view to the applicant that access to the information may be refused under section 67 of the IP Act and section 47 of the RTI Act. The applicant provided submissions to OIC, contesting the preliminary view. 22 September 2017 OIC received submissions from the applicant. 27 September 2017 OIC provided the applicant with an update on the status of the review. 28 September 2017 OIC received submissions from the applicant. 9 October 2017 OIC wrote to the applicant confirming the preliminary view that access to the information may be refused under section 67 of the IP Act and section 47 of the RTI Act. OIC received further submissions from the applicant. 10, 12 and 13 October 2017, and 1 November 2017 OIC received further submissions from the applicant. 2 November 2017 OIC provided the applicant with an update on the status of the review and received submissions from the applicant. 4 January 2018 OIC provided the applicant with an update on the status of the review. 22 January 2018 OIC received submissions from the applicant. 24 January 2018 OIC provided the applicant with an update on the status of the review. External Review No. 313530 Date Event 10 October 2017 OIC received the application for external review. 11 October 2017 OIC notified QPS and the applicant that the external review application had been received and requested relevant procedural documents. 12 and 13 October 2017 OIC received submissions from the applicant. 17 October 2017 OIC received the procedural documents from QPS. 18 October 2017 OIC notified QPS and the applicant that the external review application had been accepted and requested search records from QPS. 24 October 2017 OIC received search records from QPS. 1 and 2 November 2017 OIC provided the applicant with an update on the status of the review and received submissions from the applicant. 1 December 2017 OIC requested further search information from QPS. 12 December 2017 OIC provided QPS with an update on the status of the review and received submissions from QPS. 4 January 2018 OIC provided the applicant with an update on the status of the review. 5 January 2018 OIC conveyed a preliminary view to the applicant that access to any further information may be refused under section 67 of the IP Act and section 47(3)(e) of the RTI Act. 8 January 2018 OIC provided QPS with an update on the status of the review. 22 January 2018 OIC received submissions from the applicant contesting the preliminary view. 24 January 2018 OIC provided the applicant with an update on the status of the review. 9 February 2018 OIC provided the applicant with an update on the status of the review. [1] Access application dated 26 May 2017. The date range specified was 15 September 2015 - 31 December 2015.[2] Access application dated 4 September 2017. The date range specified was 15 September 2015 to the date of the application. [3] Purported internal review decision dated 7 August 2017. However, the original decision was technically a deemed decision – see footnote 7 below.[4] Decision dated 3 October 2017.[5] External review applications dated 21 August 2017 and 10 October 2017.[6] OIC’s letter to the applicant dated 4 September 2017.[7] Due to an administrative oversight involving receipt of the applicant’s identification, QPS did not provide written notice of its decision by the end of the processing period and therefore, under section 66(1) of the IP Act, QPS was taken to have made a decision refusing access to the requested information. However, QPS provided the applicant with a statement of reasons dated 7 August 2017 which was considered by OIC as submissions on the external review. [8] Including the applicant’s external review applications dated 21 August 2017 and 10 October 2017, email submissions to OIC on 1, 21, 22 and 28 September 2017, 9, 12 and 13 October 2017, 1 and 2 November 2017, and 22 January 2018, and by telephone to OIC on 3 October 2017.[9] In email correspondence dated 4 September 2017 and 21 September 2017.[10] Applicant submissions dated 22 January 2018.[11] Section 12 of the IP Act defines ‘personal information’ as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[12] Section 67 of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent the agency could refuse access to the document under section 47 of the RTI Act. [13] Section 64 of the IP Act.[14] Section 67(1) and sections 47(3)(b) and 49 of the RTI Act.[15] Schedule 4 of the RTI Act, Parts 1 to 4 set out the factors for deciding where the balance of the public interest lies in making a finding on whether granting access to information is contrary to the public interest. The lists are not exhaustive meaning that factors that are not included in any of the lists may also be considered in a particular case.[16] In section 49(3) of the RTI Act.[17] Section 67(1) of the IP Act and sections 47(3)(e) and 52(1)(a) of the RTI Act.[18] See Lester and Department of Justice and Attorney-General [2017] QICmr 17 (16 May 2017) at [11] which adopted the Information Commissioner’s comments in PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) at [37]-[38]. The decision in PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld). Section 52 of the RTI Act is drafted in substantially the same terms as the provision considered in PDE and, therefore, the Information Commissioner’s findings in PDE are relevant here.[19] See O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [52]. This decision was made in the context of section 27(3) of the repealed Freedom of Information Act 1992 (Qld) which is equivalent to section 88 of the IP Act. [20] Schedule 4, part 2, item 1 of the RTI Act. [21] Application for external review dated 21 August 2017.[22] Schedule 4, part 2, item 6 of the RTI Act[23] As defined in section 12 of the IP Act. [24] Giving rise to the public interest harm factor in schedule 4, part 4, section 6 of the RTI Act.[25] Schedule 4, part 3, item 3 of the RTI Act. [26] FG and National Archives of Australia [2015] AICmr 26 at [32]- [44], which in turn was considered in FH and National Archives of Australia [2015] AICmr 27 at [20]- [28]. See also, Bowmaker Realty and Department of Justice and Attorney-General; Andrews [2015] QICmr 19 (17 August 2015), at [36].[27] Email from the applicant to OIC dated 10 October 2017.[28] Application for external review dated 21 August 2017 and submissions dated 28 September 2017, 9, 12 and 13 October 2017 and 22 January 2018.[29] QPS submissions dated 24 October 2017 and 12 December 2017, attaching emails from the relevant police officer dated 22 September 2017 and 11 December 2017, respectively.[30] The QPRIME database is used to record complaints, investigations and various other dealings with members of the public.[31] QPS submissions dated 12 December 2017.[32] QPS submissions dated 24 October 2017.[33] Section 67(1) of the IP Act and sections 47(3)(e) and 52(1)(a) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

VA6Q6J and Sunshine Coast Hospital and Health Service [2015] QICmr 18 (14 August 2015)

VA6Q6J and Sunshine Coast Hospital and Health Service [2015] QICmr 18 (14 August 2015) Last Updated: 19 January 2017 Decision and Reasons for Decision Citation: VA6Q6J and Sunshine Coast Hospital and Health Service [2015] QICmr 18 (14 August 2015) Application Number: 312339 Applicant: VA6Q6J Respondent: Sunshine Coast Hospital and Health Service Decision Date: 14 August 2015 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - EXEMPT INFORMATION - LAW ENFORCEMENT OR PUBLIC SAFETY INFORMATION - information relating to a justices examination order - whether disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(a) and 48 and schedule 3, section 10(1)(i) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - information provided by other individuals in relation to the applicant’s medical treatment - whether disclosure would, on balance, be contrary to the public interest - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to Sunshine Coast Hospital and Health Service (SCHHS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to all inpatient hospital notes, outpatient notes, community health notes and laboratory reports at the Sunshine Coast Hospital from 2011 to 1 October 2014[1]. SCHHS located 1,054 pages relevant to the access application. It released all of them, except for 23 full pages and 40 part pages. It refused access to this information on the ground that it comprised exempt information (as its disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons or would found an action for breach of confidence) and/or its disclosure would, on balance, be contrary to the public interest.[2] The applicant applied to the Office of the Information Commissioner (OIC) for external review of SCHHS’s decision to refuse access to the requested information. Some additional information was released to the applicant on external review with SCHHS’s agreement.[3] The remaining information in issue comprises 23 full pages and 33 part pages. It relates to a justices examination order (JEO) about the applicant and information provided by other individuals to SCHHS for the purpose of the applicant’s treatment and assessment. For the reasons set out below, I find that access to the remaining information may be refused on the grounds that disclosure of information on: 23 full pages and 14 part pages could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment,[4] and accordingly that information is exempt information;[5] and 29 part pages[6] would, on balance, be contrary to the public interest.[7] Background Significant procedural steps relating to the external review are set out in the Appendix to this decision. Reviewable decision The decision under review is SCHHS’s decision dated 5 December 2014. Evidence considered The evidence, submissions, legislation and other material I have considered in this decision are disclosed in these reasons (including footnotes and Appendix). The applicant provided submissions to OIC supporting her case. Whilst I have carefully considered all of the applicant’s submissions, not all matters raised are relevant to the issues for determination. I have summarised and addressed the applicant’s submissions below to the extent they are relevant to the issues for determination. JEO Information The JEO Information appears in 23 full pages and 14 part pages and comprises information relating to a JEO made under the Mental Health Act 2000 (Qld) (MH Act) concerning the applicant.[8] The JEO Information identifies the JEO applicant/s and the information supplied in support of the JEO application.[9] Relevant law Under the IP Act, an individual has a right to access documents of an agency to the extent the documents contain the individual’s personal information.[10] However, this right of access is subject to certain limitations, including the grounds for refusal of access set out in the RTI Act.[11] An agency may refuse access to documents to the extent they comprise exempt information.[12] Schedule 3 of the RTI Act sets out information which Parliament considers is exempt information on the basis that disclosure would, on balance, be contrary to the public interest.[13] Information is exempt if its disclosure could reasonably be expected to[14] prejudice a system or procedure for the protection of persons, property or the environment.[15] This exemption will apply if each of the following requirements are met:[16] (a) there exists an identifiable system or procedure (b) it is a system or procedure for the protection of persons, property or environment; and (c) disclosing the information in issue could reasonably be expected to prejudice that system or procedure. Findings Is there an identifiable system or procedure? Yes. The objective of a JEO is to allow a person in the community to request a non-urgent, involuntary mental health assessment for a person they believe may be experiencing mental health problems.[17] Chapter 2, part 3, division 2 of the MH Act relevantly provides: a person may apply to a Magistrate or Justice of the Peace for a JEO for another person[18] the Magistrate or Justice of the Peace may issue a JEO if he/she reasonably believes that the relevant person has a mental illness and should be examined[19] once a JEO has been issued and sent to the administrator of an authorised mental health service, a doctor or authorised mental health practitioner may conduct the examination[20] the JEO authorises a doctor or authorised mental health practitioner to examine the person to decide whether a recommendation for assessment for the person should be made;[21] and if a recommendation for assessment for the person is not made after the person’s examination under the JEO, the examining doctor or authorised mental health practitioner must give notice to the director.[22] In view of the above, I am satisfied that the JEO procedure prescribed by the MH Act is a system or procedure for the purpose of schedule 3 section 10(1)(i) of the RTI Act. Is the system or procedure for the protection of persons, property or environment? Yes. The Information Commissioner has previously decided that the JEO procedure is an identifiable procedure for the protection of persons.[23] In 74KDLG,[24] the Right to Information Commissioner relevantly explained that the JEO process is an important mechanism by which persons in need of appropriate mental health care may be removed from the community for the purposes of assessment and treatment, thereby minimising the potential for harm to themselves and others. I am satisfied that the procedure for making a JEO application is a procedure for the protection of persons. Could disclosing the JEO Information reasonably be expected to prejudice the system or procedure? Yes. The Information Commissioner has previously explained that people applying for a JEO provide information on the understanding that it is confidential and will only be used for the limited purpose of ensuring the proper administration of the MH Act.[25] I agree with that view and consider that confidentiality is integral to the JEO process. I consider that the prospect of disclosure of information about a JEO could render future JEO applicants reluctant to supply information that might lead to their identification and, as a consequence, diminish the quality of information upon which JEO assessments and decisions are made. Also, some potential JEO applicants may be deterred from using the JEO process at all. As noted above, the JEO Information in this review identifies the JEO applicant/s and the information supplied in support of the JEO application. I am satisfied that disclosing the JEO Information in this review could reasonably be expected to prejudice the JEO procedure prescribed in the MH Act. The applicant’s submissions[26] indicate that she: has great concerns about the JEO process, which has caused her significant distress believes the JEO application was made dishonestly and that there are discrepancies within it is concerned about the contents of the JEO Information and the way she has been treated as a result of the JEO believes she should have full access to her personal records held by SCHHS on the grounds they were funded by tax payers; and considers the JEO process should be truthful and transparent. I have carefully considered the applicant’s submissions. I acknowledge that the JEO process and treatment following it have caused the applicant great distress. However, the applicant’s submissions explain the reasons for her request and provide background information about her interactions with SCHHS. While I recognise the importance of these matters to the applicant, they do not relate to the application of the exemption to the JEO Information, and I am unable to take them into account in the circumstances.[27] Conclusion For the reasons set out above, I am satisfied that the JEO Information meets each of the requirements of schedule 3, section 10(1)(i) of the RTI Act. As a result, I find that access to the JEO Information can be refused. Healthcare Information The relevant information appears in 29 part pages and comprises information provided by other individuals to SCHHS for the purpose of the applicant’s assessment and treatment (Healthcare Information).[28] It comprises specific information provided by multiple third parties, including but not limited to their names, telephone numbers, experiences, concerns and general comments that, if released, would identify the person/s. Relevant law An agency may refuse access to documents to the extent they comprise information where its disclosure would, on balance, be contrary to the public interest.[29] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[30] and explains the steps that a decision-maker must take[31] in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest. Findings No irrelevant factors arise in the circumstances of this case and I have not taken any into account. I will now address the relevant factors favouring disclosure and nondisclosure of this information. Accountability and transparency I have considered whether disclosing the information could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[32] advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies;[33] and reveal the reason for a government decision and any background or contextual information that informed the decision.[34] I am satisfied that disclosing the Healthcare Information would provide the applicant with a better understanding of her medical treatment and the reasons for certain treatment actions taken by her doctors, by giving her access to the background information that the doctors had before them. However, I note that, of the 1,054 pages identified by SCHHS as falling within the scope of the applicant’s application, 998 have been released in full, and 33 in part.[35] I also note that the substance of the 33 part pages is, in the majority of cases, clear. In these circumstances, I consider the information already disclosed to the applicant provides her with a comprehensive understanding of the actions taken by SCHHS in treating her, and largely satisfies the public interest factors identified above. Also, given the relatively small amount of the information that comprises the Healthcare Information and its nature, I do not consider its disclosure would advance these public interest factors to any significant degree. Accordingly, while I find the factors mentioned above are relevant, they warrant limited weight. Personal information and privacy The Healthcare Information was provided by other individuals to SCHHS for the purpose of the applicant’s assessment and treatment. The majority of it is about the applicant and her health, and I am satisfied that this information comprises the applicant’s personal information.[36] The RTI Act recognises that, generally, it is in the public interest for individuals to access their personal information that is held by government agencies.[37] More particularly, it is in the public interest for individuals to access such information so that they can ensure its accuracy. I acknowledge the importance of providing individuals with access to their personal information held by public authorities, and note that the Healthcare Information forms part of the applicant’s medical records. In these circumstances, I afford significant weight to this factor favouring disclosure. However, the Healthcare Information also comprises the names, contact details, thoughts and opinions of the individuals who provided it. Accordingly, I consider that the Healthcare Information is the other individuals’ personal information as well. In this regard, the RTI Act recognises that: a factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy;[38] and disclosing information could reasonably be expected to cause a public interest harm if it would disclose personal information of a person, whether living or dead.[39] I am unable to separate the Healthcare Information from the applicant’s personal information. It is therefore relevant to consider the extent of the harm that could result from disclosing the personal information of other individuals under the IP Act. I am satisfied that the information is personal and sensitive in nature, given the context in which it was provided, and given that much of it comprises the opinions, thoughts, feelings and concerns of individuals other than the applicant. I consider that disclosure of the Healthcare Information under the IP Act would be a significant intrusion into the privacy of these individuals and the extent of the public interest harm that could be anticipated from disclosure is significant. As a result, I attribute this factor favouring nondisclosure significant weight. Prejudice future supply of confidential information The Healthcare Information was provided by other individuals to the applicant’s treating doctors to assist them with her treatment during times that she was perceived to be in need of medical assistance. The RTI Act recognises: a factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice an agency’s ability to obtain confidential information;[40] and disclosing information could reasonably be expected to cause a public interest harm if: the information consists of information of a confidential nature that was communicated in confidence; and disclosing it could reasonably be expected to prejudice the future supply of information of this type.[41] Healthcare agencies such as SCHHS frequently rely on information provided by third parties to inform patient care and treatment. In some instances, the information is sought from the third party by the healthcare agency, and in other instances it is provided voluntarily. In both instances, it is reasonable to expect that, in the future, third parties may be deterred from providing this type of information if they are aware that it would be disclosed to the patient under the IP Act. This, in turn, could prejudice the ability of healthcare providers to effectively treat patients, by reducing the likelihood that they have all relevant information about the patient before them. Taking into account the sensitivity of the information provided to SCHHS and the importance of this type of information for treating healthcare providers (so that they may, after assessing its accuracy and relevance, act on it where necessary), I consider the public interest harm arising from disclosure of the Healthcare Information would be significant and accordingly afford the factor favouring nondisclosure significant weight. Other factors favouring disclosure I have carefully considered the applicant’s submissions which are summarised at paragraph 24 above. I am unable to consider or comment on the appropriateness of the JEO process, or the applicant’s concerns about the treatment provided to her by SCHHS, as these issues are beyond OIC’s jurisdiction. In terms of the question of whether access to the Healthcare Information can be granted under the IP Act, the issues raised by the applicant in her submissions require my consideration of whether the following public interest factors favouring disclosure apply to the Healthcare Information: disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official[42] disclosure could reasonably be expected to reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct;[43] and disclosure could reasonably be expected to reveal that the information was incorrect[44] or misleading.[45] While I acknowledge the applicant’s concerns, on careful consideration of all material before me (including the applicant’s submissions and the Healthcare Information), there is no evidence available to me to support the application of these public interest factors, and I find that they do not apply in the circumstances of this review. Balancing the public interest I consider there is a significant public interest in the applicant having access to those parts of the Healthcare Information that comprise her personal information, particularly given that the information forms part of her medical records. However, the Healthcare Information also comprises the personal information of other individuals, and its disclosure would be a significant intrusion into the privacy of these individuals, given its personal and sensitive nature. Both of these factors favouring nondisclosure carry significant weight. I afford limited weight to the factors relating to accountability and transparency. These factors have been advanced substantially by the large amount of information released to the applicant. Given the small amount and nature of the Healthcare Information, I do not consider that its disclosure would further enhance these factors to any significant degree. I am satisfied the Healthcare Information was provided by other individuals specifically for the purpose of the applicant’s treatment, and in circumstances where they would reasonably expect that the information would be treated confidentially. I am also satisfied that disclosing the Healthcare Information could reasonably be expected to prejudice the free flow of information by individuals to health care providers in the circumstances of someone needing medical treatment. In these circumstances, I afford significant weight to these factors favouring nondisclosure. Balancing the weight of these factors against one another, I find that the factors favouring nondisclosure of the Healthcare Information outweigh the factors favoring its disclosure. Accordingly, I find that access to the Healthcare Information can be refused under section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest.[46] DECISION For the reasons set out above, I vary SCHHS’s decision and find that: access to the JEO Information can be refused on the ground that it comprises exempt information because its disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment;[47] and access to the Healthcare Information can be refused on the ground that its disclosure would, on balance, be contrary to the public interest.[48] I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________A RickardActing Assistant Information Commissioner Date: 14 August 2015APPENDIX Significant procedural steps Date Event 1 October 2014 SCHHS received the access application. 5 December 2014 SCHHS issued its decision on the access application. 8 January 2015 OIC received the application for external review of SCHHS’s decision. OIC notified SCHHS the external review application had been received and requested relevant procedural documents. 15 January 2015 OIC received the requested located documents from SCHHS. 19 February 2015 OIC notified the applicant and SCHHS that it had accepted the external review application. OIC provided SCHHS with a preliminary view regarding seven full pages and three part pages (additional information) that OIC considered could be released. 4 March 2015 OIC received SCHHS’s submissions. SCHHS advised OIC it did not agree to release the additional information to the applicant.An OIC staff member spoke with a SCHHS staff member in relation to its preliminary view. 5 March 2015 A SCHHS staff member advised an OIC staff member by telephone that SCHHS agreed the additional information could be released to the applicant. OIC asked SCHHS to release the additional information to the applicant. 8 April 2015 OIC conveyed its preliminary to the applicant and invited her to provide submissions supporting her case by 22 April 2015 if she did not accept the preliminary view. 4 May 2015 The applicant provided OIC with written submissions supporting her case. 29 May 2015 OIC conveyed a second preliminary to the applicant and invited her to provide submissions supporting her case by 12 June 2015 if she did not accept the second preliminary view. 22 June 2015 OIC received correspondence from the applicant contesting its preliminary view with submissions and requesting a written decision. 24 June 2015 SCHHS sent the additional information to the applicant. 7 August 2015 OIC wrote to the applicant to confirm its preliminary view in relation to the 23 full pages and 33 part pages remaining in issue following release of the additional information. [1] The applicant initially specified a period ending at September 2014, but on 13 October 2014 requested that SCHHS extend the period to include October 2014. As the applicant’s access application was received by SCHHS on 1 October 2014, it is taken to apply to all relevant documents in existence on that date – section 47(1) of the IP Act.[2] SCHHS decided that nine part pages contained both exempt information and information that would, on balance, be contrary to the public interest to disclose.[3] That is, seven full pages and three part pages.[4] Schedule 3, section 10(1)(i) of the Right to Information Act 2009 (Qld) (RTI Act).[5] Section 67(1) of the IP Act and section 47(3)(a) of the RTI Act.[6] Ten of which also contain exempt information.[7] Section 67(1) of the IP Act and section 47(3)(b) of the RTI Act.[8] Community Mental Health Records – pages 35-42, 73-74 and 79 and parts of pages 58, 67, 77-78, 92, 97 and 102; Nambour General Hospital Records Vol 2. – parts of pages 21 and 87; and Nambour General Hospital Records Vol 3 – pages 113-122 and 308-309 and parts of pages 262, 270, 280 and 306-307.[9] Section 121 of the IP Act prevents me from revealing information that is claimed to be exempt information or contrary to the public interest information and I am unable to describe the JEO Information in more detail. [10] Section 40 of the IP Act. [11] Section 47 of the RTI Act. Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent the agency could refuse access to a document under section 47 of the RTI Act if the application had been made under the RTI Act. [12] Under section 47(3)(a) and section 48 of the RTI Act. [13] Section 48(2) of the RTI Act. [14] The term ‘could reasonably be expected to’ requires that the expectation be reasonably based, that it is neither irrational, absurd or ridiculous, nor merely a possibility. The expectation must arise as a result of disclosure, rather than from other circumstances. Whether the expected consequence is reasonable requires an objective examination of the relevant evidence. It is not necessary for a decision-maker to be satisfied upon a balance of probabilities that disclosing the document will produce the anticipated prejudice. See Nine Network Australia Pty Ltd and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 14 February 2012) at [31].[15] Schedule 3, section 10(1)(i) of the RTI Act.[16] Ferrier and Queensland Police Service [1996] QICmr 16; (1996) 3 QAR 350 at [27]- [36] regarding section 42(1)(h) of the repealed Freedom of Information Act 1992 (Qld) (FOI Act), which preceded and is replicated in schedule 3, section 10(1)(i) of the RTI Act.[17] Page 2 of Queensland Government (Queensland Health), Information about Justice Examination Orders at <http://www.health.qld.gov.au/mha2000/documents/jeo_brochure.pdf> . [18] Section 27 of the MH Act.[19] Section 28 of the MH Act.[20] Section 29 and 30 of the MH Act.[21] Section 30 of the MH Act.[22] Section 32 of the MH Act.[23] See for example ROSK and Brisbane North Regional Health Authority; Others (Third Parties) [1996] QICmr 19; (1996) 3 QAR 393 (ROSK) at [13]–[15] and VHL and Department of Health (Unreported, Queensland Information Commissioner, 20 February 2009) at [49] and QPF and Department of Health (Unreported, Queensland Information Commissioner, 29 June 2009) at [26] regarding section 42(1)(h) of the repealed FOI Act; and SQD and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 2 September 2010) (SQD) at [16], 74KDLG and Department of Health (Unreported, Queensland Information Commissioner, 25 February 2011) (74KDLG) at [15] and B7TG4G and Gold Coast Hospital and Health Service (Unreported, Queensland Information Commissioner, 1 May 2015) at [20] regarding schedule 3, section 10(1)(i) of the RTI Act.[24] At [17]; see also ROSK at [15]. [25] SQD at [17]; see also ROSK at [21].[26] The applicant’s submissions were provided in her external review application dated 5 January 2015 and letters to OIC received on 4 May 2015 and 22 June 2015.[27] Schedule 3 of the RTI Act sets out the types of information the disclosure of which Parliament has decided would, on balance, be contrary to the public interest: section 48(2) of the RTI Act. If the information meets the requirements of one of the exemptions in schedule 3 of the RTI Act, access can be refused and there is no scope for a decision-maker to take into account any public interest considerations or an applicant’s reasons for seeking access to the information, no matter how compelling they may be.[28] Community Mental Health Records – parts of pages 33, 58, 67, 84-85, 92, 97, 102, 111, 121, 128, 141, 149, 151-152 and 162; Nambour General Hospital Records Vol 2. – parts of pages 14, 16, 21, 28, 87 and 130; and Nambour General Hospital Records Vol 3. – parts of pages 131, 262, 270, 280 and 301-303. As noted at paragraph 26 of this decision, I consider that ten of these part pages contain portions of JEO Information (that is, Community Mental Health Records – parts of pages 58, 67, 92, 97 and 102; Nambour General Hospital Records Vol 2. – parts of pages 21 and 87; and Nambour General Hospital Records Vol 3. – parts of pages 262, 270 and 280). [29] Section 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. [30] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant.[31] Section 49(3) of the RTI Act.[32] Schedule 4, part 2, item 1 of the RTI Act.[33] Schedule 4, part 2, item 10 of the RTI Act.[34] Schedule 4, part 2, item 11 of the RTI Act.[35] Considering both the information released pursuant to SCHHS’s decision and the information released as a result of informal resolution processes during the external review.[36] ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[37] Schedule 4, part 2, item 7 of the RTI Act[38] Schedule 4, part 3, item 3 of the RTI Act.[39] Schedule 4, part 4, item 6(1) of the RTI Act.[40] Schedule 4, part 3, item 16 of the RTI Act.[41] Schedule 4, part 4, item 8(1) of the RTI Act.[42] Schedule 4, part 2, item 5 of the RTI Act. [43] Schedule 4, part 2, item 6 of the RTI Act. [44] Schedule 4, part 2, item 12(a) of the RTI Act. [45] Schedule 4, part 2, item 12(c) of the RTI Act. [46] Note: SCHHS decided that two of the part pages that comprise the Healthcare Information (Community Mental Health Records – parts of pages 121 and 141) comprised exempt information on the ground that disclosure of the information would found an action for breach of confidence – however, I prefer the ground that disclosure would, on balance, be contrary to the public interest. Also, SCHHS decided that nine part pages contained portions of Healthcare Information and portions of JEO information (Community Mental Health Records – parts of pages 58, 92, 97 and 102; Nambour General Hospital Records Vol 2. – parts of pages 21 and 87; and Nambour General Hospital Records Vol 3. – parts of pages 262, 270 and 280). I agree with this – however, I find that one additional page (Community Mental Health Records – part of page 67) also contains portions of Healthcare Information as well as portions of JEO Information.[47] Section 67(1) of the IP Act and section 47(3)(a) and schedule 3, section 10(1)(i) of the RTI Act.[48] Section 67(1) of the IP Act and sections 47(3)(b) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Chambers, Alan and Department of Families Youth and Community Care and Gribaudo (Third Party) [1999] QICmr 1; (1999) 5 QAR 16 (7 April 1999)

Chambers, Alan and Department of Families Youth and Community Care and Gribaudo (Third Party) [1999] QICmr 1; (1999) 5 QAR 16 (7 April 1999) Last Updated: 20 February 2001 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 99001Application S 160/96 Participants: ALAN CHAMBERS Applicant DEPARTMENT OF FAMILIES, YOUTH AND COMMUNITY CARE Respondent JENNY GRIBAUDO Third Party DECISION AND REASONS FOR DECISION FREEDOM OF INFORMATION - refusal of access - formal grievance lodged against applicant and others - applicant seeking access to record of interview between grievance investigators and union officer - promise of confidential treatment given in respect of information supplied to grievance investigators by union officer - whether that information qualifies for exemption from disclosure to the applicant under s.46(1)(a) or s.46(1)(b) of the Freedom of Information Act 1992 Qld - whether promise of confidential treatment overridden to the extent required to comply with s.99 of the Public Service Management and Employment Regulation 1988 Qld, as then in force - whether matter in issue comprised information of a confidential nature as against the applicant - whether disclosure of the matter in issue could reasonably be expected to prejudice the future supply of like information.FREEDOM OF INFORMATION - refusal of access - whether disclosure could reasonably be expected to have a substantial adverse effect on the management by an agency of its personnel - application of s.40(c) of the Freedom of Information Act 1992 Qld.FREEDOM OF INFORMATION - refusal of access - whether matter in issue can properly be characterised as information concerning the personal affairs of a person other than the applicant - application of s.44(1) of the Freedom of Information Act 1992 Qld. ii Freedom of Information Act 1992 Qld s.21, s.25, s.40(c), s.44(1), s.46(1), s.46(1)(a), s.46(1)(b)Freedom of Information Act 1982 Vic s.33(1)Public Service Regulation 1997 Qld s.15, s.16(2)Public Service Management and Employment Regulation 1988 Qld s.99, s.99(1)"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Cairns Port Authority and Department of Lands, Re [1994] QICmr 17; (1994) 1 QAR 663Holt & Reeves and Department of Education; Ors, Re (Information Commissioner Qld, Decision No. 98004, 20 April 1998, unreported)McCann and Queensland Police Service, Re [1997] QICmr 10; (1997) 4 QAR 30Murphy and Queensland Treasury & Ors, Re [1995] QICmr 23; (1995) 2 QAR 744Pemberton and The University of Queensland, Re (1994) 2 QAR 293 Pope and Queensland Health, Re [1994] QICmr 16; (1994) 1 QAR 616Shaw and The University of Queensland, Re [1995] QICmr 32; (1995) 3 QAR 107State of Queensland v Albietz [1996] 1 Qd R 215Stewart and Department of Transport, Re [1993] QICmr 6; (1993) 1 QAR 227University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177 DECISION I set aside the decision under review (being the decision made by Mr D A C Smith on behalf of the Department dated 19 September 1996). In substitution for it, I find that the matter in issue is not exempt from disclosure to the applicant under the Freedom of Information Act 1992 Qld.Date of decision: 7 April 1999.........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS Page Background 1External review process 2Application of s.46(1) of the FOI Act 3Application of s.40(c) of the FOI Act 10 Substantial adverse effect 11Application of s.44(1) of the FOI Act 13Conclusion 15 OFFICE OF THE INFORMATION COMMISSIONER (QLD) Decision No. 99001Application S 160/96 Participants: ALAN CHAMBERS Applicant DEPARTMENT OF FAMILIES, YOUTH AND COMMUNITY CARE Respondent JENNY GRIBAUDO Third Party REASONS FOR DECISION Background1. The applicant seeks review of a decision of the Department of Families, Youth and Community Care (the Department) to refuse him access, under the Freedom of Information Act 1992 Qld (the FOI Act), to a record of interview with the third party, prepared by the appointed investigators of a formal grievance lodged against the applicant and two other persons. The grievance was lodged by an employee (hereinafter referred to as "the complainant") of the Public Trust Office, where, at the relevant time, the applicant was employed as Deputy Director, Human Resource Management.2. By letter dated 21 March 1996, the applicant sought access, under the FOI Act, to a large number of documents concerning the grievance investigation. By letter dated 31 May 1996, Mr V Jeppesen of the Department decided to grant access in full to 170 folios. However, Mr Jeppesen decided that the whole of 155 folios, and parts of a further 10 folios, were exempt matter under s.40(c) of the FOI Act.3. The applicant sought internal review of one aspect only of Mr Jeppesen's decision, namely, his decision to refuse access to the record of interview between the grievance investigators and the third party, Ms Gribaudo, who was an industrial officer with the public sector union of which the complainant was a member. The internal review decision (made by Mr D A C Smith on behalf of the Department on 19 September 1996) affirmed Mr Jeppesen's decision to refuse access to the record of interview with Ms Gribaudo on the basis that it was exempt matter under s.40(c) of the FOI Act. By letter dated 14 October 1996, the applicant applied to me for review, under Part 5 of the FOI Act, of Mr Smith's decision.External review process4. A copy of the document in issue was obtained and examined. It is a two page record of an interview conducted with Ms Gribaudo on 6 October 1995. It forms an attachment to the grievance report prepared by Ms C Ahern and Mr K Gall of the Department, following their investigation of the complainant's grievance. It sets out Ms Gribaudo's views which were critical of the management of the Public Trust Office (including the applicant) with respect to the handling of the concerns raised with management by the complainant, and by Ms Gribaudo on behalf of the complainant.5. When Ms Gribaudo was informed of my review, she wrote to me objecting to disclosure of the document in issue, and providing a statutory declaration dated 28 April 1997. She was subsequently granted status as a participant in this review.6. In order to better understand the circumstances surrounding the interview with Ms Gribaudo, I requested that the Department provide me with additional information. It did so by letter dated 12 May 1997, attaching a number of documents including a copy of the relevant grievance procedures for the Department, and a copy of the grievance report.7. By letter dated 17 February 1998, Assistant Information Commissioner Sammon suggested to the applicant that he might apply to the Department for access to the record of interview with Ms Gribaudo pursuant to s.16(2) of the Public Service Regulation 1997 Qld, a provision which appeared to confer on officers of the public service (like the applicant) a right of access to information of the kind in issue, but a right that was unqualified by any specific exceptions (unlike the extensive exceptions to the right of access conferred by s.21 of the FOI Act that are contained in the exemption provisions in Part 3, Division 2 of the FOI Act). Section 16(2) of the Public Service Regulation provides:Access to employee's record ... (2) A public service employee may, at a time and place convenient to the relevant department-- (a) inspect any departmental record about the employee; and (b) take extracts from, or obtain a copy of details in, the record.8. By letter dated 27 February 1998, the applicant applied to the Department, under s.16(2) of the Public Service Regulation, for access to the record of interview with Ms Gribaudo. The applicant provided me with a copy of the Department's response dated 16 March 1998, which said: "... the material in issue is not specifically a 'departmental record about (yourself)'. Rather, it is a record of an interview with a Union official representing a member other than yourself. It is not material which would be placed on a file relating to yourself. Accordingly, there is some question as to the applicability of s.16 of the Public Service Regulation to the documents.". The Department suggested to the applicant that dealing with the matter under the FOI Act would seem the most appropriate course to adopt.9. With all due respect to the Department, it is clear that the document in issue contains information about the applicant's work performance, and that it answers the description of a "departmental record about the employee" (a point which the Department appeared to acknowledge and accept in the third and fourth paragraphs on p.3 of its subsequent written submission dated 9 September 1998, lodged with me for the purposes of my review). Nor is it in any way relevant, according to the language used in s.16(2) of the Public Service Regulation, that the document in issue might not be placed on a file relating to the applicant.(In any event, I have difficulty in seeing how a file on the investigation of a grievance lodged against the applicant, as well as two other persons, could be characterised as something other than a file relating to the applicant.) However, the applicant elected not to take steps to enforce the right of access conferred by s.16 of the Public Service Regulation, indicating instead that he wished to have me proceed to deal with his application for review under Part 5 of the FOI Act. (I should point out that s.16 of the Public Service Regulation, and the provisions of the FOI Act, create distinct rights. The fact that an FOI application is being processed is no basis for refusal to comply with a valid application under s.16 of the Public Service Regulation.)10. Thereafter, I wrote to the Department, and to Ms Gribaudo, conveying my preliminary view (and my reasons for forming it) that the document in issue did not qualify for exemption from disclosure to the applicant under s.40(c) of the FOI Act, and inviting them to lodge evidence and submissions in support of their respective cases for exemption. Ms Gribaudo replied on 2 July 1998, stating that she had no further submissions to make, but that she continued to oppose disclosure of the document in issue because it concerned the personal affairs of the complainant. The Department provided a written submission dated 9 September 1998 in support of its case for exemption. Having regard to the submissions made by the Department and Ms Gribaudo, I will consider below whether any part of the document in issue qualifies for exemption under s.40(c), s.44(1) or s.46(1) of the FOI Act.Application of s.46(1) of the FOI Act11. Section 46(1) of the FOI Act provides: 46.(1) Matter is exempt if-- (a) its disclosure would found an action for breach of confidence; or (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest.12. I discussed the requirements to establish exemption under s.46(1)(a) in Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279. The test for exemption is to be evaluated by reference to a hypothetical legal action in which there is a clearly identifiable plaintiff, possessed of appropriate standing to bring a suit to enforce an obligation of confidence said to be owed to that plaintiff, in respect of information in the possession or control of the agency faced with an application, under s.25 of the FOI Act, for access to the information in issue. I am satisfied that there is an identifiable plaintiff (Ms Gribaudo) who would have standing to bring an action for breach of confidence.13. In Re "B", I indicated that there are five cumulative criteria that must be satisfied in order to establish a case for protection in equity of allegedly confidential information:(a) it must be possible to specifically identify the information in issue, in order to establish that it is secret, rather than generally available information (see Re "B" at pp.303-304, paragraphs 60-63); (b) the information in issue must possess "the necessary quality of confidence"; i.e., the information must not be trivial or useless information, and it must possess a degree of secrecy sufficient for it to be the subject of an obligation of conscience, arising from the circumstances in or through which the information was communicated or obtained (see Re "B" at pp.304-310, paragraphs 64-75); (c) the information in issue must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it (see Re "B" at pp.311-322, paragraphs 76-102); (d) it must be established that disclosure to the applicant for access under the FOI Act would constitute a misuse, or unauthorised use, of the confidential information in issue (see Re "B" at pp.322-324, paragraphs 103-106); and (e) it must be established that detriment is likely to be occasioned to the original confider of the confidential information in issue if that information were to be disclosed (see Re "B" at pp.325-330, paragraphs 107-118). 14. In Re "B" (at pp.337-341; paragraphs 144-161), I considered in detail the elements which must be established in order for matter to qualify for exemption under s.46(1)(b) of the FOI Act. In order to satisfy the test for prima facie exemption under s.46(1)(b), three cumulative requirements must be established:(a) the matter in issue must consist of information of a confidential nature;(b) that was communicated in confidence; and(c) the disclosure of which could reasonably be expected to prejudice the future supply of such information.If the prima facie ground of exemption is established, it must then be determined whether the prima facie ground is displaced by the weight of identifiable public interest considerations which favour the disclosure of the particular information in issue.15. In her statutory declaration, Ms Gribaudo made the following statements that are relevant to a consideration of the application of s.46(1) of the FOI Act:... [T]he information in question was material obtained in confidence, being information provided to the grievance investigators confidentially and on condition that it was to be used only for the limited purpose of the grievance proceedings. ... I and my employer Union are particularly concerned that if this material is released members would be reluctant to participate in future proceedings thereby seriously hindering the proper functioning of grievance processes. ... As to the question of whether any of the information contained in the record of interview was raised regularly either with Mr Martin [another person against whom the grievance was lodged] or Mr Chambers in meetings or conferences convened during the course of the grievance process, I say: during the course of the grievance process the information and the issues resulting from that information were raised with Mr Martin and Mr Chambers. the document in question nevertheless has the necessary quality of confidentiality being received in circumstances which imported an obligation of confidence and, as such, it is unnecessary for the provider and the recipient of the information to be the only ones with knowledge of it.16. For its part, the Department relied on a statement made to a member of my staff by one of the grievance investigators (Ms Ahern), as follows:... we had given a verbal undertaking to all persons interviewed that we would be recording the information they gave us and that we, the investigators, would not be sharing the information with any other parties - the records of interview would form part of the report to the Director-General.17. In my view, it is not ordinarily a wise practice for an investigator to give witnesses a blanket promise of confidentiality, since the common law requirements of procedural fairness may dictate that the crucial evidence (and, apart from exceptional circumstances, the identity of its provider(s)) on which a finding adverse to a party to the grievance may turn, be disclosed to that party in order to afford that party an effective opportunity to respond. I do not see how it could ordinarily be practicable to promise confidential treatment for relevant information supplied by the parties to a grievance procedure (i.e., the complainant(s) and the subject(s) of complaint) who should ordinarily expect their respective accounts of relevant events to be disclosed to the opposite party (and perhaps also to relevant third party witnesses) for response. Sometimes investigators may be tempted to promise confidentiality to secure the co-operation of third party witnesses, in the hope of obtaining an independent, unbiased account of relevant events. Even then, however, procedural fairness may require disclosure in the circumstances adverted to in the opening sentence of this paragraph.18. Moreover, in my view, the assurances of confidentiality given by the grievance investigators in this case were not only potentially in conflict with a common law duty to accord procedural fairness, but were in actual conflict with principles stated in the published procedures of the Department for handling grievance investigations (see paragraphs 27-29 below), and with the Department's obligations under s.99 of the now superseded Public Service Management and Employment Regulation 1988 Qld (the PSME Regulation), which was in force at the time of the grievance investigation, and which provided:Reports to be noted by officers 99.(1) A report, item of correspondence or other document concerning the performance of an officer which could reasonably be considered to be detrimental to the interests of that officer, shall not be placed on any official files or records relating to that officer unless the officer has initialled the document and has been provided with-- (a) a copy of the document; and (b) the opportunity to respond in writing to the contents of the document within 14 days of receipt of the copy. (2) When an officer responds in writing, the response shall also be placed on the official file or record. (3) Where an officer refuses to initial a document, it may nevertheless be placed on the file or record but the refusal shall be noted.19. In Re Holt & Reeves and Department of Education; Ors (Information Commissioner Qld, Decision No. 98004, 20 April 1998, unreported), I said (at paragraphs 49 and 50):49. It is well established that an obligation of confidence, whether equitable or contractual, can be overridden by compulsion of law, in particular by a statutory provision compelling disclosure of information: see, for example, Smorgon v ANZ, FCT v Smorgon [1976] HCA 53; (1976) 134 CLR 475 at pp.486-490. The existence of a provision like s.99 of the PSME Regulation could arguably forestall the recognition and enforcement of an equitable obligation of confidence in respect of information that would be (or would inevitably become) subject to disclosure pursuant to an obligation imposed by statute or delegated legislation. ...50. Section 99 and s.103 of the PSME Regulation required the interpretation and application of some rather vague terms such as "official files or records relating to the officer" and "departmental file or record held on the officer". Moreover, under s.99 of the PSME Regulation, the obligation to disclose adverse information to an officer arose only at the point prior to placement of the adverse information on any official files or records relating to the officer. ... An equitable obligation binding the Department not to disclose certain information may subsist until such time as it is overridden by the application of a provision in a statute or delegated legislation obliging disclosure. ...20. In its letter to me dated 12 May 1997, the Department advised that a separate file was created in relation to the grievance and was held in a secure area in the Department's industrial section. The Department indicated that copies were not held on personnel files relating to individual officers. While I indicated in Re Holt & Reeves that there could be some difficulties in delineating the precise scope of the phrase "any official files or records relating to that officer", I have no doubt that a file or record relating to the investigation of a formal grievance against a named officer falls squarely within the natural and ordinary meaning of that phrase. I do not consider that a reasonable construction of that phrase involves limiting its sphere of application to the main personnel file on a particular officer.I do not consider it appropriate to construe a provision that was obviously intended to confer a substantial entitlement on public service officers (i.e., to be informed of information concerning their performance which could reasonably be considered to be detrimental to their interests) in such a way that the entitlement could be negated simply by strategic placement of a document on a particular file. 21. Nor can I see any justification for construing the relevant phrase as if it read "any official files or records relating exclusively to that officer". It would be highly artificial, and subversive of the obvious intent of the provision, to construe it as though information detrimental to the interests of two officers was not to be disclosed to either because it was not placed on an official file or record relating exclusively to either one of them, or that it was not to be disclosed to one of them because it was placed on an official file or record relating to the other. In this case, the applicant was one of three subjects of a grievance lodged by the complainant. A separate file was created in relation to that grievance, and I consider that it was an official file relating to the applicant. Likewise, the record of interview with Ms Gribaudo was an official record relating to the applicant.22. Further, from my examination of the record of interview with Ms Gribaudo, I am satisfied that it answers the description of a "document concerning the performance of an officer [the applicant]". It addresses issues concerning the way in which the applicant, as a manager, dealt with issues/complaints raised by, or on behalf of, the complainant. In its written submission dated 9 September 1998, the Department argued that the record of interview with Ms Gribaudo could not reasonably be considered to be detrimental to the applicant's interests (within the terms of s.99(1) of the PSME Regulation) because: no disciplinary proceedings will be taken against Mr Chambers in respect of the matters referred to in the document; the document is not to be placed on Mr Chambers' personnel file; the document will not be taken into account in assessing Mr Chambers' suitability for promotion, or for the purpose of taking some action adverse to Mr Chambers (e.g., an involuntary transfer).23. However, I cannot accept, in the context which the language of s.99 contemplates, that the requirements of s.99 were intended to apply according to an assessment of whether or not some formal action adverse to a particular officer would ultimately be taken. Section 99 required an assessment of the situation prior to a document being placed on an official file or record relating to a particular officer. The provision required an assessment of whether information concerning the performance of a particular officer could reasonably be expected to be detrimental to his/her interests. The obvious intent of the provision was to allow an officer to be made aware of criticism or other detrimental information concerning his/her performance, and to afford the officer an opportunity to respond to it, prior to that information being placed on an official file or record relating to the officer. Giving the words of s.99(1) of the PSME Regulation their natural and ordinary meaning, I consider that the Department was obliged to provide the applicant with a copy of the record of interview with Ms Gribaudo for initialing, prior to it being placed on the file relating to the investigation of the formal grievance lodged against the applicant and two other persons.24. I should note that I have formed that conclusion as a step in the process of applying exemption provisions in the FOI Act to the matter in issue before me. I am not in a position to make a substantive ruling as to compliance or non-compliance with s.99(1) for any purpose other than considering the application of the FOI Act. I do so in this case merely to determine whether, in the terms I discussed in paragraph 49 of Re Holt & Reeves, there was a legislative provision compelling disclosure of the document in issue, so as to override, by compulsion of law, any equitable obligation of confidence that might be thought to have been created by the conduct of the grievance investigators in promising confidential treatment of information supplied to them by witnesses. In my view, both the Departmental grievance investigators and Ms Gribaudo, as a union officer, ought reasonably to have known of theexistence of s.99(1) of the PSME Regulation. The touchstone in assessing whether criterion (c) to found an action in equity for breach of confidence (see paragraph 13 above) has been satisfied, lies in determining what conscionable conduct requires of an agency in its treatment of information claimed to have been imparted to the agency in confidence. In my view, conscionable conduct on the part of an agency requires compliance with applicable legislative provisions. In the circumstances of this case, I consider that any understanding of confidential treatment, on which a case for exemption under s.46(1)(a) or s.46(1)(b) of the FOI Act could be based, was necessarily subject to the condition/exception that, or was necessarily overridden to the extent that, the information given to the grievance investigators by Ms Gribaudo could not be treated in confidence as against the applicant (nor the other subjects of the grievance, although that is not relevant for present purposes) beyond the time when disclosure to the applicant, in accordance with s.99(1) of the PSME Regulation, was required.25. I should note that, on pages 5 and 6 of its written submission dated 9 September 1998, the Department endeavoured to put an argument (albeit in somewhat equivocal terms) to the effect that legislative provisions comparable to s.99 of the PSME Regulation should not be construed as though they were intended to override equitable obligations of confidence (such as the Department contended had accrued with the promise by the grievance investigators to treat in confidence information provided to them by Ms Gribaudo). I consider that it is well established on the authorities (Smorgon's case, cited in the extract from Re Holt and Reeves which is reproduced at paragraph 19 above, is but one example) that legislative provisions requiring disclosure of particular information will, to the extent required for compliance with the particular legislative provision, override any equitable or contractual obligation of confidence attaching to information that is caught by the terms of the legislative provision (see also F. Gurry, Breach of Confidence, Clarendon Press, 1984, at p.359 and the cases there cited). I do not accept that any considerations relevant to the importance, for the efficacy of grievance investigations, of honouring promises of confidential treatment, warrant any reading down of the natural and ordinary meaning of the language used in s.99 of the PSME Regulation (or the provisions which superseded it), and I am reinforced in that view by the matters addressed in paragraphs 27-29 below.26. It is possible to think of examples where the application of the natural and ordinary meaning of the language of s.99 of the PSME Regulation (and its successor provision) could lead to inappropriate consequences (such as the example given in the last sentence of the extract from the Department's submission quoted at paragraph 41 below; i.e., the suggestion that an officer of the public service must be informed of allegations of serious wrongdoing received by a Department against the officer, when or before the allegations are referred to the Criminal Justice Commission or the police for investigation - which could allow time for destroying evidence, tampering with witnesses, or otherwise prejudicing the investigation).But that is not the present case, which, in my view, involves no absurd or unreasonable result, but rather falls squarely within the core of the purpose or object which those provisions were intended to achieve. In my view, it could prove a difficult exercise to place on the language used in the current provisions (namely, s.15 and s.16 of the Public Service Regulation 1997) an interpretation which the words are capable of bearing, and which could avoid inappropriate consequences of the kind adverted to above. Rather, there seems to me to be a case for careful consideration of whether amendments are necessary to introduce qualifications/exceptions to the rights and obligations that have been provided for in broad and unqualified terms in the current provisions.27. Even if s.99 of the PSME Regulation had not required disclosure to the applicant of the document in issue, it appears that the applicable written policies and procedures of the Department would have required the same result. With its letter dated 12 May 1997, the Department provided me with a copy of Policy Practice and Procedure Memorandum 91/9, dated 27 September 1991, which applied at the relevant time. In addition to the statutory provisions referred to above, there are provisions in the memorandum and supporting documentation which suggest that the management practices of the Department at the time envisaged disclosure of adverse material to staff in the position of the applicant. For example, clause 2.5 of the memorandum states:Documents relating to the grievance and its investigation will be placed on the file of the officer who has made the grievance. If the documents contain material that could be considered detrimental to the interests of the employee making the grievance, or to any other employee, then the provisions of Regulation 46 [which became s.99] of the Public Service Management and Employment Regulations must be complied with. [my underlining]28. This, at the very least, suggests that the Department gave the words "files or records relating to that officer" in the former Regulation 46 (which became s.99 of the PSME Regulation) a broad interpretation, viz., as potentially requiring disclosure to persons other than the officer on whose personnel file the material was placed.29. I also note that clause 3.3 of the memorandum draws the attention of investigating officers to the Public Sector Management Commission (PSMC) Guidelines for Investigating Officers.I set out below relevant extracts from the version of those Guidelines dated December 1991:Explain that any complaints will be put to other parties to the dispute and that any document likely to be detrimental to another employee (including the notice of grievance) will have to be shown to the person/s concerned.Apart from this, however, the process is confidential. [This appears in a section headed "Interviewing the aggrieved employee".]...Where documents exist (such as the notice of grievance) that could reasonably be considered to be detrimental to the interests of the employee, these should be provided to the employee. The procedure for formally responding to these documents should also be explained. (See the comments below about respondent to reports). [This appears in a section headed "Interviewing other employees party to the grievance".]...Public Servants are to be shown any document which could reasonably be considered to be detrimental to their interests and given a chance to respond.(See Appendix B.) PSMC recommends that a similar practice be adopted for other Public Sector employees. [This appears in a section headed "Responding to reports".]30. The record of interview with Ms Gribaudo includes negative comments about the performance of the applicant as a manager. In my view, a document which contains comments of that kind could reasonably be considered to be detrimental to the interests of the applicant, and therefore was required to be disclosed to the applicant under the terms of s.99 of the PSME Regulation, under the applicable published procedures of the Department, and under the PSMC Guidelines for Investigating Officers. In such circumstances, I am not satisfied that the third criterion for exemption under s.46(1)(a) of the FOI Act (see paragraph 13 above), nor the second requirement for exemption under s.46(1)(b) of the FOI Act (see paragraph 14 above), can be established in respect of the matter in issue.31. Further, I note that Ms Gribaudo has conceded in her statutory declaration that the information and issues addressed in her record of interview with the grievance investigators were raised with the applicant in meetings and conferences during the performance of her duties as a union officer (see paragraph 15 above). I consider that the matter in issue lacks the necessary quality of confidence, as against the applicant, to qualify for exemption from disclosure to the applicant under either s.46(1)(a) or s.46(1)(b) of the FOI Act.32. Further, I do not consider that disclosure of the matter in issue could reasonably be expected to prejudice the future supply of like information to the Department. The matter in issue consists of comments by a union officer about the management of the Public Trust Office.I am not satisfied that union officers would in future be dissuaded from expressing concerns about management's handling of staff grievances, merely because the document in issue was disclosed to the applicant. Raising concerns with, and about, management is one of the key roles of unions, and nothing before me suggests that any union officer would be less likely to do their job in this regard, if the document in issue is disclosed. I therefore find that the third requirement for exemption under s.46(1)(b) of the FOI Act (see paragraph 14 above) is not satisfied, with respect to the matter in issue.33. I find that the matter in issue does not qualify for exemption from disclosure to the applicant under s.46(1)(a) or s.46(1)(b) of the FOI Act.Application of s.40(c) of the FOI Act34. Section 40(c) of the FOI Act provides: 40. Matter is exempt matter if its disclosure could reasonably be expected to-- ... (c) have a substantial adverse effect on the management or assessment by an agency of the agency's personnel; ... ...unless its disclosure would, on balance, be in the public interest.35. I have considered the application of s.40(c) of the FOI Act in Re Pemberton and The University of Queensland (1994) 2 QAR 293, Re Murphy and Queensland Treasury & Ors [1995] QICmr 23; (1995) 2 QAR 744, Re Shaw and The University of Queensland [1995] QICmr 32; (1995) 3 QAR 107, and Re McCann and Queensland Police Service [1997] QICmr 10; (1997) 4 QAR 30. The focus of this exemption provision is on the management or assessment by an agency of the agency's personnel. The exemption will be made out if it is established that disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of its personnel, unless disclosure of the matter in issue would, on balance, be in the public interest.36. I analysed the meaning of the phrase "could reasonably be expected to", by reference to relevant Federal Court decisions interpreting the identical phrase as used in exemption provisions of the Freedom of Information Act 1982 Cth, in Re "B" at pp.339-341, paragraphs 154-160. In particular, I said in Re "B" (at pp.340-341, paragraph 160):The words call for the decision-maker ... to discriminate between unreasonable expectations and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist. The ordinary meaning of the word "expect" which is appropriate to its context in the phrase "could reasonably be expected to" accords with these dictionary meanings: "to regard as probable or likely" (Collins English Dictionary, Third Aust. ed); "regard as likely to happen; anticipate the occurrence ... of" (Macquarie Dictionary, 2nd ed); "Regard as ... likely to happen; ... Believe that it will prove to be the case that ..." (The New Shorter Oxford English Dictionary, 1993).37. If I am satisfied that any adverse effects could reasonably be expected to follow from disclosure of the matter in issue, I must then determine whether those adverse effects, either individually or in aggregate, constitute a substantial adverse effect on the management or assessment by an agency of its personnel. For reasons explained in Re Cairns Port Authority and Department of Lands [1994] QICmr 17; (1994) 1 QAR 663 (at pp.724-725, paragraphs 148-150), I consider that, where the Queensland Parliament has employed the phrase "substantial adverse effect" in s.40(c) of the FOI Act, it must have intended the adjective "substantial" to be used in the sense of grave, weighty, significant or serious.38. If I find that disclosure of the whole or any part of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of its personnel, I must then consider whether disclosure of that matter would nevertheless, on balance, be in the public interest.Substantial adverse effect39. In Mr Jeppesen's initial decision on behalf of the Department, he stated in part: The Public Sector Management Commission (the PSMC) standard issued in June 1991 concerning grievances places an obligation on the Department to provide a fair and equitable working environment for all of its employees.To ensure that this result is achieved and maintained, the Department is obligated to thoroughly investigate all grievances.To enable the Department to conduct such investigations in an effective and unbiased fashion, it is essential that the investigating officer be able to apprise him or herself of all relevant information. Often this information will be extremely sensitive. Accordingly, the process would be undermined if potential complainants, witnesses and parties to the grievance were not offered some confidentiality regarding their sensibilities and information they had provided.Further, it is my view that should the documents concerned be released, there is a strong likelihood that parties to a grievance procedure would be reluctant to provide information to the Department, thus having a substantial adverse effect on the management of the Department's personnel.40. Ms Gribaudo has informed me that the information disclosed during the course of her discussions with the grievance investigators, as recorded in the document in issue, was provided to her in confidence by the complainant. Ms Gribaudo has stated that much of that information, some of which came from the complainant's personnel file, was to be used only for the limited purpose of the grievance proceeding. In essence, Ms Gribaudo claims the information contained in the document in issue is confidential in nature and was disclosed to the grievance investigators for the sole purpose of the grievance investigation. 41. The substantial adverse effects claimed by the Department are the loss of confidentiality, diminished confidence in, and general undermining of, the grievance process. In its submission dated 9 September 1998, the Department stated:It is the view of the Department that there are serious organisational implications if officers of the public service are unable to lodge grievances or provide information to investigators in relation to grievances particularly when express undertakings of confidentiality have been given to all parties involved. Of particular concern is where the aggrieved person is junior in status to the person subject to the grievance.Furthermore the document in issue which relates to an interview with Ms Gribaudo of the State Public Service Federation Queensland raises issues relating to membership and representation by trade unions. [The] preliminary view also raises concerns as to whether there are industrial/legal implications of the proposed decision.Consultations with Ms Gribaudo have indicated that if such a decision was to be made the Union's position would be that grievance procedures would be inevitably undermined and they may advise members not to participate.The preliminary view also raises the question as to whether any exemption provided under the FOI Act could ever apply if the documents are to the detriment of the applicant who is an officer of the public service. For example, if this was the case, material relating to current CJC and police referrals would have to be provided to the alleged perpetrators if [such person is] an officer of the public service.42. The major concern of both the Department and Ms Gribaudo appears to be directed towards the potential for disclosure of information provided by staff members in general, and junior officers who have grievances in particular. However, the source of information in this case was a union officer. The document in issue does not support Ms Gribaudo's claim that the information in it was provided to her in confidence by the complainant. The document in issue contains concerns raised by Ms Gribaudo about Ms Gribaudo's interactions with management, including the applicant. 43. As I indicated at paragraph 32 above, it is only to be expected that in dealing with grievances by staff members there will, from time to time, be disagreements between union officials and management as to how a grievance should be dealt with. It is not surprising that a union official, when providing information to grievance investigators, may be critical of aspects of the performance of managers. I do not consider that disclosure of the information provided by Ms Gribaudo to the applicant would be likely to make her, or any other union officer, less likely to perform their duties by highlighting areas in which they consider that management performance has been lacking. Nor do I consider that disclosure of the document in issue, which merely highlights a union officer's concerns about the way in which management has dealt with an employee's grievances, could reasonably be expected to cause officers of the Department, or of the Public Trust Office, to refrain from making grievances or providing information to grievance investigators in the future.44. Given the nature of the information in issue, and the fact that it comes from a union officer, I am not satisfied that its disclosure could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency (whether it be the Department or the Public Trust Office) of its personnel. I therefore find that the matter in issue is not exempt from disclosure to the applicant under s.40(c) of the FOI Act.Application of s.44(1) of the FOI Act45. Section 44(1) of the FOI Act provides: 44.(1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest.46. In applying s.44(1) of the FOI Act, one must first consider whether disclosure of the matter in issue would disclose information that is properly to be characterised as information concerning the personal affairs of a person. If that requirement is satisfied, a prima facie public interest favouring non-disclosure is established, and the matter in issue will be exempt, unless there exist public interest considerations favouring disclosure which outweigh all identifiable public interest considerations favouring non-disclosure, so as to warrant a finding that disclosure of the matter in issue would, on balance, be in the public interest.47. In my reasons for decision in Re Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227, I identified the various provisions of the FOI Act which employ the term "personal affairs", and discussed in detail the meaning of the phrase "personal affairs of a person" (and relevant variations thereof) as it appears in the FOI Act (see pp.256-257, paragraphs 79-114, of Re Stewart). In particular, I said that information concerns the "personal affairs of a person" if it concerns the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase "personal affairs", that phrase has a well accepted core meaning which includes: family and marital relationships; health or ill health; relationships and emotional ties with other people; and domestic responsibilities or financial obligations.Whether or not matter contained in a document comprises information concerning an individual's personal affairs is essentially a question of fact, to be determined according to the proper characterisation of the information in question.48. Although she did not make any detailed submissions on the point, Ms Gribaudo submitted that the matter in issue concerned the personal affairs of the complainant, and should not be disclosed.49. In Re Stewart, I indicated that, ordinarily, information which concerns an individual's work performance or other work-related matters does not concern that individual's personal affairs (see pp.261-264, paragraphs 91-102). In Re Pope and Queensland Health [1994] QICmr 16; (1994) 1 QAR 616, after reviewing relevant authorities (at pp.658-660), I expressed the following conclusion at p.660 (paragraph 116):Based on the authorities to which I have referred, I consider that it should now be accepted in Queensland that information which merely concerns the performance by a government employee of his or her employment duties (i.e., which does not stray into the realm of personal affairs in the manner contemplated in the Dyrenfurth case) is ordinarily incapable of being properly characterised as information concerning the employee's "personal affairs" for the purposes of the FOI Act.The general approach evidenced in this passage was endorsed by de Jersey J (as he then was) of the Supreme Court of Queensland in State of Queensland v Albietz [1996] 1 Qd R 215, at pp.221-222. 50. Also, in Re Pope, I specifically endorsed the following observations, concerning s.33(1) (the personal affairs exemption) of the Freedom of Information Act 1982 Vic, made by Eames J of the Supreme Court of Victoria in University of Melbourne v Robinson [1993] VicRp 67; [1993] 2 VR 177, at p.187:The reference to the "personal affairs of any person" suggests to me that a distinction has been drawn by the legislature between those aspects of an individual's life which might be said to be of a private character and those relating to or arising from any position, office or public activity with which the person occupies his or her time. [emphasis added]51. From my examination of the matter in issue, I am not satisfied that any of it can be properly characterised as information concerning the complainant's personal affairs. The interview mainly addressed the performance of management in the handling of the complainant's concerns about her treatment. I find that the matter in issue does not qualify for exemption under s.44(1) of the FOI Act.Conclusion52. For the foregoing reasons, I set aside the decision under review (being the decision made by Mr D A C Smith on behalf of the Department, and dated 19 September 1996). In substitution for it, I find that the matter in issue is not exempt from disclosure to the applicant under the FOI Act..........................................................F N ALBIETZINFORMATION COMMISSIONER

queensland

court_judgement

Queensland Information Commissioner 1993-

Shaw and Kilcoy Shire Council [2008] QICmr 3 (9 January 2008)

Shaw and Kilcoy Shire Council [2008] QICmr 3 (9 January 2008) Office of the Information Commissioner Decision and Reasons for Decision Application Number: 210390 Applicant: Mr P Shaw Respondent: Kilcoy Shire Council Decision Date: 9 January 2008 Catchwords: FREEDOM OF INFORMATION – section 44(1) of the Freedom of Information Act 1992 (Qld) – matter in issue concerns the terms of settlement of proceedings commenced by a third party against the respondent – whether matter in issue contains information concerning the personal affairs of the third party – whether disclosure of the matter in issue would, on balance, be in the public interest FREEDOM OF INFORMATION – section 22(a) of the Freedom of Information Act 1992 (Qld) – matter in issue comprises court documents filed with the Supreme Court of Queensland – whether applicant can reasonably get access to documents under another access scheme Contents Summary....................................................................................................................... 2 Background ................................................................................................................. 2 Decision under review................................................................................................... 2 Steps taken in the external review process ................................................................ 3 Matter in issue ............................................................................................................. 3 Findings......................................................................................................................... 4 .... Section 44(1) of the FOI Act .................................................................................... 4 ......... Personal Affairs .................................................................................................. 4 ............. Commencement and conduct of legal proceedings ..................................... 4 ......... Public interest balancing test ............................................................................. 5 ............. Public interest considerations favouring disclosure ...................................... 6 Public interest considerations favouring non-disclosure ............................... 6 ............. Where does the balance of public interest consideration lie? ....................... 7 .... Section 22(a) of the FOI Act .................................................................................... 7 .... Conclusion .............................................................................................................. 7 Decision ...................................................................................................................... 8 REASONS FOR DECISION Summary 1. The three folios which relate to the relevant terms of settlement are exempt from disclosure under section 44(1) of the Freedom of Information Act 1992 (Qld) (FOI Act) as they concern the personal affairs of a person and their disclosure, on balance, is not in the public interest. 2. The remaining six folios which are responsive to the applicant’s freedom of information application (FOI Application) are matters of public record and are reasonably available to the applicant from the Supreme Court of Queensland. On this basis, access to these folios is refused under section 22(a) of the FOI Act. Background 3. By application dated 22 August 2007, the applicant applied to the Kilcoy Shire Council (Council) under the FOI Act for access to: all documents relating to Local Council Mutual Minute No 12/06B/07 (J. Lougheed vs Council) 4. By letter dated 23 August 2007, Council consulted a third party under section 51 of the FOI Act in relation to the release of the relevant information. 5. The third party objected to the release of the information and provided reasons for the objection. 6. By letter dated 7 September 2007, Ms C Gaedtke, FOI Co-ordinator, decided that the information sought could not be released to the applicant and explained that: I have been unable to offer you confirmation of the amount that was settled in the matter of Lougheed vs. Council as I have been advised by Council’s public liability insurer that the settlement is subject to a confidentiality clause, which prohibits public release of the information. The claim was settled out of Court and therefore there are no court transcripts which can be referred to. 7. By email dated 8 October 2007, the applicant sought internal review of Ms Gaedtke’s decision. 8. By letter dated 30 October 2007, KL Timms, FOI Decision Maker, affirmed Ms Gaedtke’s decision. 9. By email dated 26 November 2007, the applicant sought external review of KL Timms’ decision. Decision under review 10. The decision under review is the internal review decision of KL Timms dated 30 October 2007. Steps taken in the external review process 11. By letters dated 28 November 2007 and 3 December 2007 this Office asked Council to provide copies of all documentation relevant to the review and the documents responsive to the FOI Application. 12. By letters dated 29 November 2007 and 12 December 2007, Council provided this Office with the requested documents. 13. On 19 December 2007, a staff member of this Office contacted the applicant and advised the preliminary view that: • three of the folios were exempt from disclosure under section 44(1) of the FOI Act • access should be refused to the remaining 6 folios under section 22(a) of the FOI Act. 14. By letter dated 2 January 2008, I communicated the preliminary view to the applicant in writing and invited the applicant, if he did not accept the preliminary view, to make written submissions in support of his case by 18 January 2008. 15. By email dated 5 January 2008, the applicant advised that he did not accept the preliminary view and provided submissions in support of his case. 16. In making this decision, I have taken the following into account: • the applicant’s FOI Application dated 22 August 2007 • Council’s letter to the third party under section 51 of the FOI Act dated 23 August 2007 • the third party’s response to that letter dated 31 August 2007 • Council’s initial decision dated 7 September 2007 • the applicant’s internal review application dated 8 October 2007 • Council’s internal review decision dated 30 October 2007 • the applicant’s external review application dated 26 November 2007 • the applicant’s submissions dated 5 January 2008 • relevant cases and legislation • the matter in issue. Matter in issue 17. The matter in issue in this review comprises nine folios that can be categorised in the following manner: • three folios which relate to the terms of settlement of the relevant legal proceedings • six folios which comprise court documents filed in the Supreme Court of Queensland which relate to the relevant legal proceedings. Findings Section 44(1) of the FOI Act 18. Section 44(1) of the FOI Act provides that: 44 Matter affecting personal affairs (1) Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest. 19. Section 44(1) of the FOI Act requires consideration of the following issues: • Would disclosure of the matter in issue reveal information concerning a person’s personal affairs? • If it would, the matter in issue is exempt[1] from disclosure unless there are public interest considerations favouring disclosure, which, on balance, outweigh the public interest considerations against disclosure. 20. I will examine each of these requirements below. Personal affairs 21. In Stewart and Department of Transport[2], the Information Commissioner decided that information concerns the ‘personal affairs of a person’ if it concerns the private aspects of a person's life and that, while there may be a substantial grey area within the ambit of the phrase ‘personal affairs’, that phrase has a well accepted core meaning which includes: • family and marital relationships • health or ill health • relationships and emotional ties with other people • domestic responsibilities or financial obligations. 22. Whether or not matter contained in a document comprises information concerning an individual's personal affairs is a question of fact, to be determined according to the proper characterisation of the information in question. Commencement and conduct of legal proceedings 23. The matter in issue contains details about the terms of settlement reached between Council and the relevant individual. 24. The Information Commissioner considered whether such information constitutes an individual’s personal affairs in the decision of Rees and Queensland Generation Corporation trading as Austa Electric.[3] 25. In that case, the Information Commissioner decided that the commencement and conduct of an action for damages for personal injuries, by an individual acting in a purely personal capacity, must properly be characterised as the personal affairs of the individual.[4] 26. The Information Commissioner went on to comment that:[5] 20. Nor do I mean to convey that, where litigation or the pursuit of a legal remedy is properly to be characterised as being an individual's personal affair, any document or information connected with the litigation (or the pursuit of the legal remedy) is necessarily information which concerns the individual's personal affairs. The primary issue in the application of s.44(1) of the FOI Act is always the proper characterisation of the particular information in issue, i.e., what is the information about? 21. In the present case, the information in issue is about the settlement of the proceedings in the Commission, brought by the third party, in a purely personal capacity, to pursue a legal remedy, including the third party's choices as to the basis on which he was prepared to compromise his rights to pursue that legal remedy to the full extent permitted by the law. I consider that the documents in issue comprise information which is properly to be characterised as information concerning the personal affairs of the third party, and which is therefore prima facie exempt from disclosure, under s.44(1) of the FOI Act, subject to the application of the public interest balancing test incorporated in s.44(1). [my emphasis] 27. After carefully reviewing the matter in issue, I am satisfied that the matter in issue: • relates to the terms of settlement of legal proceedings brought by an individual in a purely personal capacity • reveals the basis on which that individual was prepared to compromise his rights to pursue that remedy • comprises information that is properly characterised as the personal affairs of that individual and is prima facie exempt from disclosure under section 44(1) of the FOI Act subject to the public interest balancing test. Public interest balancing test 28. A public interest consideration favouring non-disclosure, that is, the public interest in the protection of personal privacy, is inherent in circumstances where matter is prima facie exempt from disclosure under section 44(1) of the FOI Act. The mere finding that disclosure of the matter in issue would disclose information concerning the personal affairs of a person other than the applicant must always tip the scales against disclosure of that matter. The extent to which the scales are tipped varies from case to case according to the relative weight of the privacy interests attaching to the particular information that disclosure of the matter in issue would disclose. 29. On this basis, I must: • consider any public interest considerations favouring disclosure of the relevant matter in issue • determine whether those public interest considerations outweigh the public interest in the protection of personal privacy and any other public interest considerations favouring non-disclosure of the matter in issue. Public interest considerations favouring disclosure 30. I am of the view that the public interest considerations favouring disclosure of the matter in issue are: • the public interest in promoting openness and transparency in relation to the operations of government agencies • the public interest in government agencies being accountable for the conduct of their operations and the expenditure of their funds. 31. I note that the applicant submits that: Reference is made to public interest and it is purely this issue that concerns me. My understanding is that Councillor Lougheed is intending to stand in the upcoming re zoned council elections. If this is the case I believe the constituents involved should be aware of the fact that this claim was made and the circumstances surrounding it. This would allow the voters to make their decision knowing these facts. 32. After careful review of these issues, it is my view that the considerations favouring disclosure of the matter in issue should be afforded considerable weight in this instance. Against these I must balance the public interest considerations favouring non-disclosure. Public interest considerations favouring non-disclosure 33. A public interest in the protection of personal privacy is inherent in circumstances where matter is prima facie exempt from disclosure under section 44(1) of the FOI Act. 34. In some instances where legal proceedings have commenced, information that would ordinarily be characterised as an individual’s personal affairs can become a matter of public record. Where information becomes a matter of public record, the public interest in the protection of personal privacy is likely to be significantly diminished. 35. In this case, there is some relevant information on the public record (as discussed below). However, on the information available to me, I am satisfied that information relating to the terms of settlement of the matter is not a matter of public record and is not recorded in any public document. As was the case in Rees[6], the settlement of relevant proceedings was achieved through negotiation outside the formal court process and set out in an agreement between the parties, the terms of which include that details of the settlement are to remain confidential. 36. Taking into account the factors set out above, I am of the view that: • disclosure of the matter in issue would constitute a significant incursion into the personal privacy of the individual whose personal affairs are contained in the relevant folios. • the public interest in the protection of personal privacy is a highly significant consideration that should be accorded very substantial weight. Where does the balance of public interest consideration lie? 37. After careful deliberation, I am satisfied that: • the public interest considerations favouring disclosure of the matter in issue do not outweigh the public interest in the protection of personal privacy • the matter in issue qualifies for exemption under section 44(1) of the FOI Act. Section 22(a) of the FOI Act 38. Section 22(a) of the FOI Act provides: 22 Documents to which access may be refused An agency or Minister may refuse access under this Act to— (a) a document the applicant can reasonably get access to under another enactment, or under arrangements made by an agency, whether or not the access is subject to a fee or charge; or 39. A staff member of this Office contacted the Civil Registry at the Supreme Court of Queensland and confirmed that, as a non-party to the proceedings and a general member of the public, the applicant is entitled to view and request a copy of court documents filed in the relevant legal proceedings. As the applicant was not a party to these proceedings, there will be a small fee involved. 40. As the six remaining folios are reasonably available to the applicant from the Supreme Court of Queensland, I am of the view that the applicant should be refused access to these folios in accordance with section 22(a) of the FOI Act. Conclusion 41. For the reasons explained above, I am satisfied that: a) The three folios which relate to the relevant terms of settlement are exempt from disclosure under section 44(1) of the FOI Act as they concern the personal affairs of a person and their disclosure is, on balance, not in the public interest. b) The remaining six folios are matters of public record and are reasonably available to the applicant from the Supreme Court of Queensland. On this basis, access to these folios is refused under section 22(a) of the FOI Act. DECISION 42. For the reasons set out above, I vary the internal review decision of KL Timms dated 30 October 2007. 43. I have made this decision as a delegate of the Information Commissioner, under section 90 of the Freedom of Information Act 1992 (Qld). ________________________ F Henry Assistant Commissioner Date: 9 January 2008 [1] Though it is not exempt merely because it concerns the personal affairs of the applicant (section 44(2) of the FOI Act). [2] [1993] QICmr 6; (1993) 1 QAR 227.[3] [1996] QICmr 10; (1996) 3 QAR 277 (Rees). [4] Rees at paragraph 18. [5] Rees at paragraphs 20 - 21. [6] Rees at paragraphs 22-23.

queensland

court_judgement

Queensland Information Commissioner 1993-

Geary and Australian Health Practitioner Regulation Agency [2011] QICmr 36 (12 September 2011)

Geary and Australian Health Practitioner Regulation Agency [2011] QICmr 36 (12 September 2011) Last Updated: 21 October 2011 Decision and Reasons for Decision Application Number: 310392 Applicant: Geary Respondent: Australian Health Practitioner Regulation Agency Decision Date: 12 September 2011 Catchwords: INFORMATION PRIVACY ACT – REFUSAL OF ACCESS – applicant sought access to information related to concerns about the applicant’s conduct and a copy of relevant CCTV footage – whether disclosure of information would, on balance, be contrary to public interest – section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) Contents REASONS FOR DECISION Summary The applicant applied to the Queensland Nurses’ Council (QNC) for information “which raises concerns about ...” the applicant’s health and conduct. QNC released all documents on the applicant’s professional standards file to the applicant except for a two page file note and a copy of relevant CCTV footage.[1] On behalf of the applicant, the Queensland Nurses’ Union (QNU) applied to the Australian Health Practitioner Regulation Agency (AHPRA)[2] for internal review of QNC’s decision. On internal review, AHPRA upheld QNC’s decision[3] refusing access to the file note and CCTV footage on the basis that their disclosure would, on balance, be contrary to the public interest. QNU applied for external review of AHPRA’s internal review decision. During the course of this external review, AHPRA agreed[4] to release some routine personal work information contained in the file note[5] to the applicant. However, AHPRA maintains that disclosure of the remaining information in the file note and the CCTV footage would, on balance, be contrary to public interest. Accordingly, the information under consideration in this external review (Information in Issue) comprises: the remaining information[6] in the file note which is limited to: information relating to the identity of the notifier personal opinions held by the author of the file note regarding collateral issues (including staffing); and relevant CCTV footage. After carefully considering all of the relevant information before me, I am satisfied that: the file note is not the relevant ‘complaint’ and contains no information about the actual incident involving the applicant disclosure of the Information in Issue: would disclose personal information of third parties (which is not routine personal work information) and could reasonably be expected to cause a public interest harm could reasonably be expected to prejudice the protection of those third parties’ rights to privacy; and is, on balance, contrary to public interest under sections 47(3)(b) and 49 of the RTI Act. Reviewable decision The decision under review is AHPRA’s internal review decision dated 12 August 2010. Background Significant procedural steps are set out in the appendix to this decision. Evidence considered In making this decision, I have taken the following into account: the applicant’s applications to QNC, AHPRA and the Office of the Information Commissioner (OIC) QNC’s initial decision and AHPRA’s internal review decision the submissions made by QNU on the applicant’s behalf to OIC file notes of telephone conversations between OIC staff and QNU staff file notes of telephone conversations between OIC staff and AHPRA staff the Information in Issue; and relevant provisions of the Right to Information Act 2009 (Qld) (RTI Act) and the Information Privacy Act 2009 (Qld) (IP Act). Issue for determination The issue for determination in this review is whether AHPRA is entitled to refuse access to the Information in Issue on the basis that its disclosure would, on balance, be contrary to public interest under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act. Applicant’s submissions QNU makes extensive submissions in support of its member’s case[7] including that: in relation to the remaining information in the file note: it must have been in the reasonable contemplation of Queensland Health (QH) that the file note would need to be provided to the applicant pursuant to the rules of natural justice the Nursing and Midwifery Board of Australia recently determined to refer the applicant’s matter to the Queensland Civil and Administrative Tribunal the documents sought are key to the applicant’s disciplinary matter and disclosure is in the public interest so that the applicant is in a position to know the evidence which may be put against him all of the information contained in the file note would be “deliberative process information”, and thus should not be considered exempt information or information favouring nondisclosure how can any “personal opinions, beliefs or comments” contained in a file note prepared in relation to an employment matter place it outside what would otherwise be regarded as work information, rather than personal information how can information conveyed by a staff member or members to their supervisors regarding an incident that they witnessed properly be considered information of a confidential nature that was communicated in confidence it is unlikely that the file note was disclosed to QNC on a confidential basis - any possible claim to confidentiality was lost at the point the information was given to QNC In relation to the relevant CCTV footage: it is disputed that many of the individuals, if any, are truly identifiable from the footage, given the poor quality of the footage it is anticipated that the CCTV footage will be a key piece of evidence in disciplinary proceedings against the applicant counsel and/or external solicitors will be engaged to represent the applicant in disciplinary proceedings and they will need to view the footage it is not reasonable to expect a barrister to attend QH offices simply for the purpose of viewing this footage, and the applicant is entitled to know the case which may be put against him, and obtain full and informed advice from his legal representatives in relation to this matter. QNC/AHPRA submissions As set out in their decisions, QNC and AHPRA relevantly state that: portions of the file note would reveal the identity of the person who made the initial notification QH contends that the notifier is a confidential source of information, in relation to the enforcement or administration of the law (namely, the provisions of the Nursing Act 1992 (Qld) regarding the investigation of complaints against registrants) the factors relevant to the flow of information to AHPRA (as the organisation replacing the QNC) should be afforded considerable weight, given that the success of AHPRA’s notification program relies on the receipt of this kind of information as AHPRA’s ability to respond to such complaints exists for the protection of the public, AHPRA does not wish to place this system in jeopardy the file note also contains the personal views of the author regarding how the matter was managed the CCTV footage records the personal information of not only the applicant but also a number of other identifiable individuals, including staff and patients as neither QNC nor QH has the technical equipment necessary to obscure (pixelate) the identities of those other persons, release would result in the disclosure of personal information of all persons captured on the tape, including individuals who were at the relevant time patients receiving mental health treatment once released, the QNC would not be able to place any conditions on the future disclosure/use of the information, resulting in a breach of the privacy of the patients concerned, and natural justice has been afforded to the applicant by the communication of relevant information and the decision to give the applicant access to all of the other documents in his professional standards file. Relevant law Section 67(1) of the IP Act provides that access to a document may be refused on the same basis upon which access to a document could be refused under section 47 of the RTI Act. Relevantly, sections 47(3)(b) and 49 of the RTI Act provide a ground for refusal of access where disclosure of information would, on balance, be contrary to public interest. The term ‘public interest’ is not defined in the RTI Act. Instead the RTI Act recognises that many factors can be relevant to the concept of the public interest. The public interest refers to considerations affecting the good order and functioning of the community and governmental affairs for the well-being of citizens. The notion of the public interest is usually treated as separate from matters of purely private or personal interest. Usually, a public interest consideration is one that is available to all members or a substantial segment of the community should they choose to access it. Although, in some circumstances public interest considerations can apply for the benefit of particular individuals. In determining whether disclosure of the Information in Issue would, on balance, be contrary to public interest, I must:[8] identify and disregard irrelevant factors identify factors favouring disclosure of the information in the public interest identify factors favouring non-disclosure of the information in the public interest balance the relevant factors favouring disclosure and non-disclosure; and decide whether disclosure of the information would, on balance, be contrary to public interest. Irrelevant factors QNU identifies the following factor as irrelevant to deciding the public interest - disclosure of the information could reasonably be expected to cause embarrassment to the Government or cause a loss of confidence in the Government.[9] I agree that this factor is irrelevant and should be disregarded in accordance with section 49(3)(d) of the RTI Act. Factors favouring disclosure On the basis of the information before me, I am satisfied that the factors favouring disclosure of the Information in Issue include that disclosure could reasonably be expected to: promote open discussion of public affairs and enhance the Government’s accountability[10] advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies;[11] and contribute to the administration of justice (both generally and for a person), including procedural fairness.[12] Factors favouring nondisclosure On the basis of the information before me, I am satisfied that the factors favouring nondisclosure of the Information in Issue include that disclosure: could reasonably be expected to prejudice an individual’s right to privacy[13] may cause a public interest harm as it would disclose an individual’s personal information;[14] and could reasonably be expected to prejudice an agency’s ability to obtain confidential information.[15] Balancing the public interest I note that personal information is ‘information or an opinion... whether true or not ... about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.[16] CCTV footage With respect to the relevant CCTV footage, I note: QNC’s statement that neither QNC nor QH have the technology to enable pixilation of the third parties’ images to prevent disclosure of the third parties’ personal information,[17] and that the applicant and two QNU officials have already viewed the CCTV footage[18] and have been advised that the CCTV footage may be viewed again. After carefully considering the CCTV footage and all of the relevant information before me, I am satisfied that: the footage contains the personal information of third parties including patients receiving mental health treatment the images are sufficiently clear for the persons recorded to be identified the applicant and his representatives have viewed the footage and are able to view the footage again at QH’s offices if they wish to do so, and while there is a clear public interest in the accountability of agencies and in individuals being afforded procedural fairness, on balance, the factors favouring nondisclosure of the CCTV footage (including the protection of an individual’s right to privacy, particularly where some of those individuals are patients receiving mental health treatment) significantly outweigh the factors favouring disclosure in the circumstances of this review. Remaining information in file note After carefully considering the remaining information in the file note and all of the relevant information before me, I am satisfied that: the file note is not the relevant ‘complaint’ and contains no information about the actual incident involving the applicant the remaining information in the file note: comprises information relating to the identity of the notifier and personal opinions held by the author of the file note regarding collateral issues (including staffing) comprises the personal information of third parties does not comprise the routine personal work information of a public servant,[19] and is not adverse to the applicant. Procedural fairness and administration of justice QNU submits that procedural fairness requires the file note to be provided to the applicant so that he knows the evidence which may be put to him, particularly now that the matter has been referred to QCAT. Given my findings that the file note is not the relevant ‘complaint’, that the remaining information in the file note contains no information about the relevant incident, is not adverse to the applicant and where the applicant has been provided with all other documents on his professional standards file, I am satisfied that little or no weight should be afforded to these submissions in support of factors favouring disclosure including the administration of justice and procedural fairness. Deliberative process information and routine work information QNU also submits that the information in the file note would be “deliberative process information” and questions how any “personal opinions, beliefs or comments” contained in a file note prepared in relation to an employment matter place it outside what would otherwise be regarded as work information. Given my findings that the remaining information in the file note comprises the personal information of third parties (being information relating to the identity of the notifier and personal opinions held by the author of the file note regarding collateral issues including staffing), I am satisfied that: this information is properly characterised as the non-routine personal work information of the file note’s author as it comprises an individual’s personal views regarding collateral issues including staffing[20] this information does not comprise deliberative process matter,[21] little or no weight should be afforded to these submissions in support of factors favouring disclosure. Confidentiality QNU further submits that: information conveyed by a staff member or members to their supervisors regarding an incident that they witnessed cannot properly be considered information of a confidential nature that was communicated in confidence, and it is unlikely that the file note was disclosed to QNC on a confidential basis, therefore, any possible claim to confidentiality was lost at the point the information was given to QNC. Given my finding that the remaining information in the file note does not concern “information conveyed by a staff member ... to their supervisor... regarding an incident that they witnessed” and the relevant confidentiality provisions of the Nursing Act 1992 (Qld) and the Health Practitioner Regulation National Law Act 2009 (Qld),[22] I am satisfied that little or no weight should be afforded to these submissions in support of factors favouring disclosure. In summary, after carefully considering the remaining information in the file note, QNU’s submissions and all of the relevant information before me, I am satisfied that: while acknowledging the importance of agency accountability generally and the applicant being provided with sufficient information to enable him to properly respond to allegations made against him, little weight should be afforded to the public interest factors favouring disclosure, given that: the applicant has been provided with all other information on his professional standards file the remaining information in the file note contains no information about the actual incident and is not adverse to the applicant significant weight should be afforded to the factors favouring nondisclosure, as disclosure could reasonably be expected to: cause a public interest harm as it would disclose third parties’ personal information (including information regarding the identity of the notifier and the author’s personal opinions about collateral issues which do not comprise routine personal work information and do not relate to the applicant’s relevant conduct) prejudice the third parties’ rights to privacy, and on balance, the factors favouring nondisclosure of the remaining information in the file note outweigh the factors favouring disclosure in the circumstances of this review. In summary and based on the matters set out above, I am satisfied that disclosure of the Information in Issue is, on balance, contrary to public interest. DECISION I vary the decision under review by finding that AHPRA: was not entitled to refuse access to the routine personal work information contained in the file note; and is entitled to refuse access to the Information in Issue under section 67(1) of the IP Act and sections 47(3)(b) and 49 of the RTI Act on the basis that disclosure would, on balance, be contrary to public interest. I have made this decision as a delegate of the Information Commissioner, under section 139 of the Information Privacy Act 2009 (Qld). ________________________ Jenny Mead Right to Information Commissioner Date: 12 September 2011APPENDIX Significant procedural steps Date Event 26 May 2010 The applicant lodges an application with the Queensland Nursing Council (QNC) seeking information under the Information Privacy Act 2009 (IP Act). 30 June 2010 QNC issues its initial decision. 1 July 2010 QNC merges with the Australian Health Practitioner Regulation Agency (AHPRA). 19 July 2010 Queensland Nurses’ Union (QNU), on behalf of the applicant, applies to AHPRA for internal review of QNC’s decision. 12 August 2010 AHPRA issues its internal review decision. 9 September 2010 QNU applies to the Office of the Information Commissioner (OIC) for external review of AHPRA’s internal review decision and provides copies of relevant documents. 6 October 2010 OIC accepts the external review application. OIC requests AHPRA provide copies of the documents to which access was refused. 11 October 2010 AHPRA provides OIC with copies of the relevant information. 23 June 2011 OIC: conveys a written preliminary view to AHPRA; and consults with Queensland Health (QH), advising of the preliminary view to AHPRA and asking whether QH wishes to become a participant in the external review. 7 July 2011 AHPRA accepts OIC’s preliminary view, agreeing to release further information to the applicant. QH confirms that it has no objection to the preliminary view conveyed to AHPRA and, on that basis, does not wish to apply to participate in the external review. 13 July 2011 OIC conveys a preliminary view to QNU and asks AHPRA to release additional information to the applicant. 26 July 2011 AHPRA releases the additional information to the applicant/QNU. 2 August 2011 QNU provides a submission to OIC. [1] Dated 30 June 2010.[2] QNC (being a state health registration board) merged with the Australian Health Practitioner Regulation Agency (AHPRA) on 1 July 2010 following the commencement of the Health Practitioner Regulation National Law 2009 (Cth) which came into effect on that date.[3] Internal review decision dated 12 August 2010.[4] Following consultation with Queensland Health (QH).[5] Routine personal work information is information that is solely and wholly related to the routine day to day work duties and responsibilities of a public service officer. While the routine personal work information of public service officers is personal information, on balance, the infringement of a public service officer’s right to privacy would, generally, be minimal or non-existent, as would any public interest harm caused by its disclosure. See OIC’s guideline, Routine personal work information of public servants.[6] Which I note contains no details of the incident involving the applicant which led to the relevant notification. [7] In their request for internal review dated 19 July 2010, request for external review dated 9 September 2010 and submissions dated 2 August 2011.[8] Section 49 of the RTI Act. This section must be read in conjunction with the public interest factors listed in schedule 4 of the RTI Act.[9] Schedule 4, Part 1, Factor 1 of the RTI Act.[10] Schedule 4, Part 2, Factor 1 of the RTI Act.[11] Schedule 4, Part 2, Factor 10 of the RTI Act.[12] Schedule 4, Part 2, Factor 16 and 17 of the RTI Act.[13] Schedule 4, Part 3, Factor 3 of the RTI Act.[14] Schedule 4, Part 4, section 6(1) of the RTI Act.[15] Schedule 4, Part 3, Factor 16 of the RTI Act.[16] See section 12 of the Information Privacy Act 2009 (Qld).[17] Page 2 of QNC’s decision dated 30 June 2010.[18] As advised by QNU in their submission dated 2 August 2011.[19] As set out in this Office’s guideline, non-routine personal work information includes complaints made by or about a public service officer and opinions about another public service officer including about how well an officer performs their duties.[20] See the OIC’s Guideline “Routine personal work information of public servants” which explains that the type of information which is not considered to be routine includes complaints made by or about a public service officer and an officer’s opinions about other public service officers.[21] As it does not comprise a relevant opinion, advice, recommendation, consultation or deliberation that has taken place, been obtained, prepared or recorded in the course of, or for the purposes of, the deliberative processes of government.[22] See for example section 216 of the Health Practitioner Regulation National Law Act 2009 (Qld) “Duty of confidentiality” and section 139 of the Nursing Act 1992 (Qld) “Confidentiality of documents and information”.

queensland

court_judgement

Queensland Information Commissioner 1993-

Matthews and Gold Coast City Council [2011] QICmr 30 (23 June 2011)

Matthews and Gold Coast City Council [2011] QICmr 30 (23 June 2011) Last Updated: 8 September 2011 Decision and Reasons for Decision Application Number: 310314 Applicant: Matthews Respondent: Gold Coast City Council Decision Date: 23 June 2011 Catchwords: INFORMATION PRIVACY ACT – Grounds on which access may be refused – section 67(1) of the Information Privacy Act 2009 (Qld) – sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) – whether document comprises information the disclosure of which would, on balance, be contrary to the public interest Contents REASONS FOR DECISION Summary The applicant applied to the Gold Coast City Council (Council) under the Information Privacy Act 2009 (Qld) (IP Act) for access to a complaint made about him. Council identified six pages responding to the applicant’s access application. After consultation with a third party, Council provided the applicant with full access to four pages, partial access to two pages (the letter of complaint) and refused access to the remaining information on the basis that its disclosure would, on balance, be contrary to the public interest.[1] The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision. In support of his case for access, the applicant made submissions including that: the opinions, thoughts and assumptions to which he has been denied access are about him and he has reason to believe they: are of a malicious nature are not relevant to the facts of the complaint are exaggerated, misleading and false; and are defamatory he is being denied natural justice and the right to defend himself he should be permitted to know comments made about him so that he can defend himself and have the information corrected under the IP Act. After carefully considering all of the information before me, I am satisfied that access to the information in issue can be refused under section 67 of the IP Act and section 47(3)(b) of the Right to Information Act 2009 (Qld) (RTI Act) on the basis that its disclosure would, on balance, be contrary to the public interest under section 49 of the RTI Act. Background Significant procedural steps relating to the application, internal review and external review are set out in the Appendix. Reviewable decision The decision under review is Council’s internal review decision dated 15 July 2010 refusing access to parts of two pages under section 47(3)(b) of the RTI Act, on the basis that disclosure of this information would, on balance, be contrary to the public interest. Evidence considered In making this decision, I have taken the following into account: applicant’s access application dated 21 April 2010 Council’s decision dated 9 June 2010 applicant’s internal review application dated 21 June 2010 Council’s internal review decision dated 15 July 2010 applicant’s external review application dated 26 July 2010 file notes of telephone conversations held between OIC staff members and the applicant, the third party and officers of the Council during the external review the information in issue and the information already released to the applicant submissions provided by the applicant to the OIC dated 21 March 2011 previous decisions of the Information Commissioner as referred to in these reasons; and relevant provisions of the RTI and IP Acts. Information in issue The information in issue in this review comprises parts of two pages to which the applicant was refused access (Information in Issue), except for any personal contact information of the complainant to which the applicant does not seek access.[2] Relevant law Access must be given to a document unless disclosure would, on balance, be contrary to the public interest.[3] To decide whether disclosure of the Information in Issue would, on balance, be contrary to the public interest, I must: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest.[4] Findings No irrelevant factors arise in this case. Next, I will consider which public interest factors favouring disclosure and nondisclosure of the Information in Issue arise in this case. Factors favouring disclosure Taking into account all of the information before me, I am satisfied that the factors favouring disclosure of the Information in Issue include: some of the Information in Issue comprises the applicant’s personal information, (notably his name and references to events to which he was a party)[5] disclosure could reasonably be expected to promote open discussion of public affairs and enhance Council’s accountability;[6] and disclosure could reasonably be expected to reveal that the Information in Issue was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant, given the applicant’s submission that disclosure would reveal defamatory allegations made by the complainant.[7] Shared personal information and accountability With respect to the relevant personal information, I note that it comprises the shared personal information of both the applicant and the complainant and that in a practical sense, it is not able to be separated. I also note that Council: has provided the applicant with the substance of the relevant complaint; and did not rely on the Information in Issue in reaching its decision. Content of complaint information With respect to the applicant’s concern that the Information in Issue may contain defamatory allegations to which he should be able to respond, I am mindful that complaint information is by its very nature, an individual’s particular version of events which is shaped by factors including the individual’s memory and subjective impressions. In my view, this inherent subjectivity does not necessarily mean that the resulting account or statement is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. Rather, it means that complaint information comprises a personal interpretation of relevant events, which an investigator must balance against other (often competing) statements and evidence in reaching a conclusion in a particular case. In this respect, I note Council’s statement on internal review: With respect to personal opinions, thoughts and assumptions... Council does not underestimate the potential for exaggerated, misleading or false allegations or information... A report to Council may only be a trigger for inspection or investigation. Once Council’s attention is drawn to a matter, Council makes its own investigations, inspections and interviews of people who may be, or may be offered as, a potential witness of fact or a person who can provide assistance. After carefully considering all of the matters set out above, I am satisfied that little or no weight should be afforded to the public interest factors favouring disclosure. Factors favouring non-disclosure Taking into account all of the information before me, I am satisfied that the factors favouring non-disclosure of the Information in Issue include, that disclosure of the information could reasonably be expected to: prejudice the protection of an individual’s right to privacy[8] cause a public interest harm if disclosure would disclose personal information of a person;[9] and prejudice an agency’s ability to obtain confidential information.[10] Personal information and privacy The concept of ‘privacy’ is not defined in the IP Act or RTI Act. It can, however, be viewed as the right of an individual to preserve their personal sphere free from interference from others.[11] Taking into account all of the information before me, I consider that: when an individual provides information to Council about their thoughts and opinions related to a complaint, this comprises a private action falling within an individual’s ‘personal sphere’; and disclosure of this information could reasonably be expected to prejudice the protection of an individual’s right to privacy. I am also satisfied that as the Information in Issue comprises the personal information of someone other than the applicant, its disclosure could reasonably be expected to cause a public interest harm under part 4, schedule 4 of the RTI Act. Prejudice agency’s ability to obtain confidential information Council relies heavily on information provided by members of the community on a confidential basis to enable it to effectively administer and enforce local laws. I consider that there is a strong public interest in protecting Council’s ongoing ability to obtain this information. In the circumstances, I am satisfied that disclosure of the Information in Issue could reasonably be expected to have a detrimental impact[12] on the ability of Council to obtain confidential information in future.Balancing relevant public interest factors Having identified and carefully considered the public interest factors for and against disclosure, I consider that the public interest in: safeguarding personal information protecting an individual’s right to privacy and avoiding public interest harm; and protecting Council’s ability to obtain confidential information, outweighs those factors favouring disclosure of the Information in Issue in the circumstances of this review. While I accept the importance of ensuring that agencies conduct investigations transparently and accountably, and that individuals have access to information allowing them to determine how complaints have been managed, I am satisfied in the circumstances of this case that: these public interests have been adequately served by disclosure to the applicant of the bulk of the letter of complaint; and Council has provided the applicant with sufficient information to demonstrate the reasoning behind its ultimate response to the complaint. I also confirm that while some of the Information in Issue is the applicant’s personal information, it is not possible to separate this personal information from the personal information of others. Disclosing it would therefore require disclosure of the personal information of a person other than the applicant, and would prejudice that individual’s right to privacy and could reasonably be expected to cause a public interest harm. In the circumstances of this case, I am satisfied that the public interest in safeguarding personal information and privacy outweighs the public interest in disclosing to the applicant their own personal information, particularly given that Council did not rely on the Information in Issue in reaching its decision. DECISION I affirm the reviewable decision and find that access to the Information in Issue can be refused under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act on the basis that disclosure of this information would, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. ________________________ Jenny Mead Right to Information Commissioner Date: 23 June 2011 APPENDIX Significant procedural steps Date Event 21 April 2010 Council receives access application May 2010 Council consults with third party 9 June 2010 Council issues initial decision 21 June 2010 Applicant applies for internal review 15 July 2010 Council issues internal review decision 26 July 2010 Applicant applies for external review 28 July 2010 OIC receives external review application 1 October 2010 OIC provides oral preliminary view to applicant 18 February 2011 OIC provides written preliminary view to applicant 28 February 2011 Applicant applies for extension to provide submissions 2 March 2011 OIC grants extension until 21 March 2011 for applicant to provide submissions 21 March 2011 OIC receives submissions from applicant objecting to preliminary view [1] Section 67 of the IP Act provides that Council may refuse access to a document in the same way and to the same extent that Council could refuse access to the document under section 47 of the RTI Act, were the document to be the subject of an access application under that Act.[2] Letter from the applicant dated 21 March 2011.[3] Sections 64 (Pro disclosure bias) and 67 (Grounds on which access may be refused) of the IP Act and section 47(3)(b) of the RTI Act.[4] Section 49(3) of the RTI Act.[5] Schedule 4, part 2, item 7 of the RTI Act. [6] Schedule 4, part 2, item 1 of the RTI Act.[7] Schedule 4, part 2, item 12 of the RTI Act. [8] Schedule 4, part 3, item 3 of the RTI Act [9] Schedule 4, part 4, item 6 of the RTI Act. [10] Schedule 4, part 3, item 16 of the RTI Act. [11] Paraphrasing the Australian Law Reform Commission’s definition of the concept in “For your information: Australian Privacy Law and Practice” Australian Law Reform Commission Report No. 108 released 11 August 2008, at paragraph 1.56.[12] Adopting the ordinary meaning of the term ‘prejudice’: see Daw and Queensland Rail (220020, 24 November 2010) at paragraph 16 for a succinct exposition of the meaning of ‘prejudice’ as used throughout the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Jackson and Department of Health [2010] QICmr 1 (10 February 2010)

Jackson and Department of Health [2010] QICmr 1 (10 February 2010) Office of the Information Commissioner Decision and Reasons for Decision Application Number: 210820 Applicant: Mr P Jackson Respondent: Department of Health Decision Date: 10 February 2010 Catchwords: ADMINISTRATIVE LAW – FREEDOM OF INFORMATION –REFUSAL OF ACCESS – EXEMPT MATTER – MATTER CONCERNING CERTAIN OPERATIONS OF AGENCIES – applicant sought access to findings of an investigation into grievances lodged by him – whether disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel – whether disclosure would, on balance, be in the public interest Contents REASONS FOR DECISION Summary 1. The applicant, an employee of the Department of Health (also known as Queensland Health) (QH), seeks access to information concerning six categories of documents related to his employment. 2. For the reasons set out below, I find that the relevant matter in issue does not qualify for exemption from disclosure under section 40(c) of the Freedom of Information Act 1992 (Qld) (FOI Act). Background 3. By letter dated 12 November 2008 (FOI Application), the applicant requested access to six categories of documents under the FOI Act. 4. By letter dated 8 January 2009 (Initial Decision), QH advised the applicant that it had located a number of documents relating to the FOI Application and had decided to: • grant access to a range of documents • refuse access to some documents in accordance with section 44(1) of the FOI Act. 5. By letter dated 30 January 2009, the applicant applied for internal review of the Initial Decision. 6. By letter dated 5 March 2009 (Internal Review Decision), QH advised the applicant that it had decided to vary the Initial Decision by releasing further documents to him but affirmed the Initial Decision in relation to the remainder of the relevant documents. 7. By letter dated 29 March 2009, the applicant applied to the Office of the Information Commissioner (Office) for external review of the Internal Review Decision. Decision under review 8. The decision under review is the Internal Review Decision dated 5 March 2009 which is referred to at paragraph 6 above. Steps taken in the external review process 9. By email on 2 April 2009, the Office requested that QH provide a number of initiating documents relevant to the review. 10. By letter dated 3 April 2009, the Office advised the applicant that the Internal Review Decision would be reviewed. 11. By letter dated 3 April 2009, the Office advised QH that the Internal Review Decision would be reviewed and requested that it also provide a copy of the documents responsive to the FOI Application. 12. By letter dated 9 April 2009, QH provided the requested documents. 13. During the course of this external review, Mr Ex of the Office contacted the applicant and QH on various occasions in an attempt to informally resolve the issues on external review. Both parties provided information to the Office during that process. 14. By letter dated 11 May 2009, the applicant provided submissions in support of his case. 15. By letter dated 12 May 2009, a third party advised the Office that they did not object to disclosure of the matter in issue which related to their involvement in the grievance process. 16. By email on 26 May 2009, QH provided information in support of its case. 17. By letters dated 14 August 2009, the parties were advised that the review would proceed to formal determination and both parties were invited to provide written submissions to the Office on the application of section 40(c) of the FOI Act to the matter in issue. 18. By letter dated 27 September 2009, QH provided submissions in support of its case that the matter in issue in this review is exempt from disclosure under section 40(c) of the FOI Act. 19. The applicant did not provide any further submissions in support of his case in relation to the application of section 40(c) of the FOI Act. 20. On 27 November 2009, a staff member of this Office contacted the third party to confirm that they had no objection to disclosure of the matter in issue as it related to their involvement in the grievance process. The third party confirmed that they did not object to disclosure of that information to the applicant. 21. By letter dated 30 November 2009, I advised QH of the preliminary view that the relevant documents are exempt from disclosure under section 44(1) and section 40(c) of the FOI Act with the exception of: • a brief summary of the outcome of the grievance initiated by the applicant • information relating to the third party’s involvement in the grievance process. I invited QH to provide submissions in support of its case by 15 December 2009 if it did not accept the preliminary view. 22. By letter dated 21 December 2009, I advised the applicant of the preliminary view and asked him to provide submissions in support of his case by 8 January 2010 if the view was not accepted. 23. By email dated 21 December 2009, QH advised that: • it accepted the preliminary view in relation to information relating to the third party’s involvement in the grievance process • it maintained its objection to disclosure of information relating to the outcome of the grievance initiated by the applicant for the reasons previously provided to the Office. 24. By letter dated 13 January 2010, I wrote to QH to: • reiterate the reasons for my preliminary view concerning the findings in relation to the applicant’s grievance • invite QH to specifically address those reasons and to provide any additional submissions on those issues by 20 January 2010. 25. QH did not provide any further submissions in support of its case. 26. In making my decision in this review, I have considered the following: • the terms of the FOI Application • the Initial Decision and Internal Review Decision • the applicant’s internal review application and external review application • information the applicant provided by telephone on 6 May 2009, 11 May 2009, 28 July 2009 and 7 September 2009 • information QH provided by telephone on 6 May 2009, 26 May 2009, 16 June 2009, 21 July 2009, 12 August 2009, 17 September 2009 and 18 November 2009 • the applicant’s written submissions dated 11 May 2009 • QH’s written submissions dated 9 April 2009, 21 May 2009, 26 May 2009, 29 June 2009, 27 September 2009 and 21 December 2009 • the matter in issue • previous decisions of the Information Commissioner • the relevant provisions of the FOI Act. Matter in issue 27. A number of issues in this review have been informally resolved. The remaining issue for determination is whether the matter in issue is exempt from disclosure under section 40(c) of the FOI Act. 28. The matter in issue in this review (Matter in Issue) can be described as a summary of findings made in respect of a grievance lodged by the applicant as it appears in folios 14 and 47 of the relevant investigation report (Investigation Report).[1] Relevant submissions The applicant’s submissions 29. By letter dated 11 May 2009, the applicant made the following general submissions in support of his case: I repeat that I was given no outcomes to my official Grievance complaint. ... There are problems with the way managers handle complaints in the public health arena, the way investigations are carried out and the way those targeted by harassment are given little support. The system needs to be changed and managers held accountable for their actions. ... At a bare minimum I believe in the interests of natural justice I would be allowed to have the conclusion of the investigation and parts related to me. I think I would be entitled to know the recommendations of the [Investigation Report] in regard to my complaints. I would like to know if the investigator substantiated my complaints. To provide some closure I would like to know that QH acted as a responsible employer to ensure such harassment does not occur again to staff or enacted methods to minimise it. The agency’s submissions 30. I have summarised QH’s relevant submissions on the general application of section 40(c) of the FOI Act to the Matter in Issue in the following manner: Substantial adverse effect on the management of QH’s personnel • The Matter in Issue consists of information gathered or prepared as part of an investigation into numerous allegations made by certain staff members about several of their colleagues from a particular unit. These allegations covered a wide range of both personal and work-related issues. • The Matter in Issue contains information communicated in confidence by a number of staff members from the unit, in which they expressed concerns about certain clinical practices, staff relationships and administration practices that were negatively affecting the facility. This information was provided on the basis that it would remain confidential and would not be disclosed to any other employee either involved in this investigation or from the unit. • As a result of these allegations, a hostile work environment developed together with a number of acrimonious relationships between certain employees. As the unit is a small Aged and Residential Care Centre, any further animosity between staff would create enormous disruption within the facility which may in turn affect the clinical care that is provided to residents. • The other employees who were involved in the investigation have a genuine expectation that the information that they provided will not be disclosed to any other person (especially someone who does not have any direct involvement in the matter). • Release of the information would have a substantial effect on QH’s ability to effectively manage staff at the unit in particular and more generally within the district in which that facility is located for the following reasons: o It would significantly impact on employees’ willingness to fully cooperate and participate in the necessary human resource processes and therefore would affect QH’s ability to manage and resolve such situations in the future. o It would have a significant and unsettling effect on workplace harmony within the unit and on the relationships amongst employees which in turn would affect management’s ability to successfully manage staff within the facility. • Other considerations include: o QH is required to manage its workforce effectively to ensure the efficient working of numerous health care facilities and services. o It is critical (especially in small health care facilities) that staff have confidence in the processes established to facilitate the management and assessment of staff and their operations. o Staff must be able to freely seek, receive and document advice relating to staff management issues in order to ensure that appropriate and necessary remedial action can be taken when required. o Any release of documents generated with the express understanding of confidential treatment of matters reported on by individual staff members could reasonably be expected to have a substantial adverse effect on the management or assessment by QH of its personnel. o The ability of QH to manage workplace issues, including cooperation in ongoing investigations would be compromised if staff (including management) felt that their duty to report, provide comment on and / or follow up on matters of importance would be circumvented by the later release of any statements, reports or comments initially provided in an atmosphere of expected confidentiality. o Disclosure has the potential to provoke further hostility in an already volatile work environment which is presently showing gradual signs of settling. o All staff involved in the workplace matters to which the Matter in Issue relates continue to work within the same health service district. Public interest considerations • There is a general right to seek access to documents under the FOI Act held by QH and there is also a public interest in maintaining the integrity of QH’s decision making processes particularly in relation to the management of staff and the resolution of disputes. • There is a substantial public interest in ensuring that QH conducts its human resource management responsibilities in an appropriate way, consistent with ‘best practice’ in the broader community, however, weighed against that interest is the public interest in ensuring that the privacy interests of the individual staff members involved are adequately respected. • Given the above and the fact that the staff members involved in this matter continue to work within the same health service district, the greater public interest lies in ensuring, as far as possible, the confidentiality arising from the personal disclosures by the staff as well as the preservation of the integrity and effectiveness of the methods and processes employed by QH for managing its large workforce. • Disclosure of the Matter in Issue would undermine the public interest in maintaining the continued supply of information about the competencies and workplace behaviour of employees via the relevant channels within the department. • Other considerations include: o In the interests of procedural fairness and natural justice, the applicant has already been provided with information relating to the allegation that was made against him. o The documents to which the applicant have been refused access relate to the other allegations that formed part of the investigation. o The other employees who were involved in this investigation have a genuine expectation that the information that they provided will not be disclosed to any other person. The law 31. Section 40(c) of the FOI Act provides: 40 Matter concerning certain operations of agencies Matter is exempt matter if its disclosure could reasonably be expected to— ... (c) have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel; or ... unless its disclosure would, on balance, be in the public interest. 32. The focus of this exemption provision is on the management or assessment by an agency of the agency's personnel. The exemption will be made out if it is established that disclosure of the matter in issue could reasonably be expected to have a substantial adverse effect on the management or assessment by the respondent of its personnel, unless disclosure of the matter in issue would, on balance, be in the public interest. ‘Could reasonably be expected to’ 33. In Attorney-General v Cockcroft,[2] the Federal Court interpreted the phrase ‘could reasonably be expected to prejudice the future supply of information’ in the context of the equivalent business affairs exemption in the Commonwealth FOI Act.[3] In Cockroft, Bowen CJ and Beaumont J provided the following guidance on interpretation of that phrase: [4] In our opinion, in the present context, the words "could reasonably be expected to prejudice the future supply of information" were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s.43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Jason Kioa v. The Honourable Stewart John West, High Court, unreported, 18 December 1985 per Mason, J. at p 36; see also per Gibbs, C.J. at p 12). 34. The Justices’ interpretation of the phrase ‘could reasonably be expected to’ and the proposed line of inquiry, while made in the context of the Commonwealth FOI Act, is relevant to the interpretation of section 40(c) of the FOI Act. Shepherd J also noted in Cockcroft that it is not necessary for a decision-maker ‘to be satisfied upon a balance of probabilities’ that disclosing the document will produce the anticipated prejudice. 35. Accordingly, the phrase ‘could reasonably be expected to’ in section 40(c) of the FOI Act requires a consideration of whether the expectation that disclosure of the matter in issue could have a substantial adverse effect on the management or assessment by an agency of the agency’s personnel is reasonably based. ‘Substantial adverse effect’ 36. In Cairns Port Authority and Department of Lands[5] the Information Commissioner considered the phrase ‘substantial adverse effect’ as it appears in the various provisions of the FOI Act and said:[6] In my opinion, no such doubt attends the correct interpretation of the phrase "substantial adverse effect" where it appears in the Queensland FOI Act (notably in s.49, s.40(c), s.40(d) and s.47(1)(a)). Its meaning is made clear by its contrast with the phrase "adverse effect" in s.45(1)(c), where the adjective "substantial" does not appear. The legislature must have intended an adverse effect under s.45(1)(c) to be one that is "real" or "actual" or "having substance, not illusory". Thus, where the legislature has employed the phrase "substantial adverse effect", it must in my opinion have intended the adjective "substantial" to be used in the sense of grave, weighty, significant or serious. Public interest considerations 37. The words ‘public interest’ are not specifically defined and generally refer to considerations affecting the good order and functioning of community and the well-being of citizens. In general, a public interest consideration is one which is common to all members of the community, or a substantial segment of them, and for their benefit. The public interest is usually treated as distinct from matters of purely private or personal interest. However, some recognised public interest considerations may apply for the benefit of individuals in a particular case. Findings Substantial adverse effect 38. I acknowledge that QH is primarily concerned that disclosure of the Matter in Issue will: • provoke further hostility in an already volatile work environment which is presently showing gradual signs of settling • make staff reluctant to cooperate in future investigations and/or compromise their duty to report, provide comment on and / or follow up on matters of importance • make staff lose confidence in the processes for the investigation and resolution of grievances. 39. While I accept that the work environment of the unit has previously been volatile and QH is concerned about staff cooperation in future investigations, I consider the following considerations are relevant: • The applicant no longer works in the unit. • The relevant events which led to the hostile working environment occurred some time ago (i.e. in 2007 and early 2008). • The Matter in Issue is not detailed and does not reveal information provided by other employees during the course of the investigation, nor does it relate to grievances lodged by other employees. • The Matter in Issue is limited to a summary of outcomes in respect of the five allegations made by the applicant. 40. In light of the matters set out immediately above, I am not satisfied that disclosure of the Matter in Issue to the applicant could reasonably be expected to: • provoke further hostility in the relevant unit or make staff reluctant to cooperate in future investigations • have an adverse effect on its management or assessment of its personnel is reasonably based. Public interest considerations 41. Whilst not strictly necessary (given my findings set out above), I will briefly address the public interest considerations favouring disclosure. 42. In Pemberton and The University of Queensland[7] the Information Commissioner noted that a legitimate category of public interest is the public interest in the fair treatment of persons and corporations in accordance with the law in their dealings with government agencies and explained that: In an appropriate case, it means that a particular applicant's interest in obtaining access to particular documents is capable of being recognised as a facet of the public interest, which may justify giving a particular applicant access to documents that will enable the applicant to assess whether or not fair treatment has been received and, if not, to pursue any available means of redress, including any available legal remedy. 43. Also of relevance is the decision of Villanueva and Queensland Nursing Council; A Midwife (Third Party); Talbot (Fourth Party); Gordon (Fifth Party)[8] concerned a complaint about a midwife's conduct in delivering the applicant's baby. The matter was investigated by the Queensland Nursing Council (QNC) but no disciplinary action was taken. In that case the Information Commissioner noted that as the complainant, the applicant had a special interest in scrutinising the investigation and the information gathered by the QNC, upon which the QNC's decision to take no action was based. The Information Commissioner said:[9] It remains the case that the applicant's complaint against the midwife was, in effect, dismissed by the QNC, and that she has not been provided with a sufficient explanation as to why that decision was reached. The extent of the detail that is offered by way of explanation in such circumstances will necessarily vary from case to case, depending on the need to respect any applicable obligations or understandings of confidence, or applicable privacy considerations. Subject to any such constraints, I consider that there is a legitimate public interest in a complainant being given sufficient information to be satisfied that the investigating body has conducted a thorough investigation and reached a fair and realistic decision about whether the available evidence was sufficient or insufficient to justify any formal action being taken in respect of the complaint. 42. In accordance with the principles set out in Pemberton and Villanueva, I consider that in this case there is significant public interest in the complainant being given an adequate explanation of the outcome of the grievance which he initiated. 43. During the course of this external review, QH advised that it had written to the applicant about the investigation of his grievance and provided me with a copy of that letter. 44. I have carefully considered the content of this letter and note that it does not provide the applicant with the grievance investigation findings, decision or reasons for decision. 45. I note the applicant’s submission that he: • is unaware of whether any parts of his grievance were substantiated • has not been advised of the outcome of the investigation into his grievance. 46. I also note clause 7.3.7 of QH’s Integrated (HR / IR) Resource Manual IRM 3.5 - ‘Grievance Resolution and EB6 Grievance Settling; and Industrial Disputes’ (Grievance Resolution Policy) which provides: 7.3. Action required by delegate upon receipt of a formal grievance ... 7.3.7. At the end of an investigation, the authorised delegate must provide the parties to the grievance with a written copy of the grievance investigation findings, decision and reasons for the decisions. ... 47. On the information currently before me, I consider that the public interest favours the applicant being provided with sufficient detail about the outcome of the investigation into the grievance lodged by him, which I note is wholly consistent with clause 7.3.7 of the relevant QH Grievance Resolution Policy. DECISION 48. For the reasons set out above, I find that the Matter in Issue is not exempt from disclosure under section 40(c) of the FOI Act. 49. I have made this decision as a delegate of the Information Commissioner, under section 90 of the FOI Act. ________________________Assistant Commissioner Henry Date: 10 February 2010 [1] I have provided QH with a copy of the Matter in Issue in this review. [2] [1986] FCA 35; (1986) 64 ALR 97 (Cockcroft).[3] Section 43(1)(c)(ii) of the Freedom of Information Act 1982 (Cth)[4] Cockcroft at 106. [5] [1994] QICmr 17; (1994) 1 QAR 663.[6] At paragraph 150.[7] (1994) 2 QAR 293 (Pemberton) at paragraph 190. [8] (2000) 5 QAR 363 (Villanueva). [9] At paragraph 141.

queensland

court_judgement

Queensland Information Commissioner 1993-

W83 and Cairns and Hinterland Hospital and Health Service [2021] QICmr 8 (5 March 2021)

W83 and Cairns and Hinterland Hospital and Health Service [2021] QICmr 8 (5 March 2021) Last Updated: 19 August 2021 Decision and Reasons for Decision Citation: W83 and Cairns and Hinterland Hospital and Health Service [2021] QICmr 8 (5 March 2021) Application Number: 315220 Applicant: W83 Respondent: Cairns and Hinterland Hospital and Health Service Decision Date: 5 March 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - HEALTHCARE INFORMATION - application for medical records - whether disclosure might be prejudicial to the physical or mental health of wellbeing of the applicant - whether disclosure is contrary to the applicant’s best interests under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(d) and 51 of the Right to Information Act 2009 (Qld). REASONS FOR DECISION Summary 1. The applicant applied to Cairns and Hinterland Hospital and Health Service (the Health Service) under the Information Privacy Act 2009 (Qld) (IP Act) for ‘All files contained in Queensland Health Service’s records on any subject [related] to my health.’[1] 2. The Health Service located 886 pages in response to the application. Access to this information was refused by the Health Service’s appointed healthcare professional (referred to in these reasons as Dr A) on the basis that disclosure might be prejudicial to the physical or mental health or wellbeing of the applicant.[2] 3. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the Health Service’s decision. The applicant submits that the appointed healthcare professional is not his treating doctor and therefore is not able to determine what is in his best interests. Further, the applicant submits disclosure of his medical records would not be harmful to his health, but instead, improve his mental health.[3] 4. For the reasons set out below, I affirm the Health Service’s decision to refuse access to the requested information under section 67(1) of the IP Act and sections 47(3)(d) and 51 of the Right to Information Act 2009 (Qld) (RTI Act) as disclosure might be prejudicial to the physical or mental health or wellbeing of the applicant. Background 5. The decision under review is the Health Service’s decision dated 26 February 2020. 6. Significant procedural steps taken during the external review are set out in the Appendix to this decision. 7. Evidence, submissions, legislation and other material I have considered in reaching this decision are identified in these reasons, including the Appendix. 8. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act),[4] particularly the right to seek and receive information as recognised in section 21 of the HR Act. I consider that a decision maker will, when observing and applying the law prescribed in the IP and RTI Acts, be ‘respecting’ and ‘acting compatibly with’ this right and others prescribed in the HR Act.[5] I further consider that, having done so when reaching my decision, I have acted compatibly with and given proper consideration to relevant human rights, as required under section 58(1) of the HR Act. I also note the observations made by Bell J on the interaction between the Victorian equivalents of Queensland’s IP and RTI Acts and HR Act: ‘it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act.’[6] Information in issue 9. The information is issue is 886 pages[7] comprising the applicant’s medical records (Information in Issue). Issue for determination 10. The issue for determination is whether access to the Information in Issue may be refused on the ground that disclosure might be prejudicial to the physical or mental health or wellbeing of the applicant under 67(1) of the IP Act and sections 47(3)(d) and 51 of the RTI Act. Relevant law 11. The IP Act provides an individual with the right to access documents of an agency to the extent they contain the individual’s personal information.[8] However, this right of access is subject to certain limitations, including grounds for refusing access.[9] 12. An ‘appropriately qualified healthcare professional’ appointed by the agency[10] may decide to refuse access to a document under the IP Act if: the information comprises the applicant's ‘relevant healthcare information’; and disclosure might be prejudicial to the physical or mental health or wellbeing of the applicant.[11]13. A ‘healthcare professional’ means a person who carries on, and is entitled to carry on, an occupation involving the provision of care for a person's physical or mental health or wellbeing, including, for example: a doctor, including a psychiatrist a psychologist a social worker; or a registered nurse.[12] 14. ‘Appropriately qualified’, in relation to a healthcare professional, means having the qualifications and experience appropriate to assess relevant healthcare information.[13] 15. ‘Relevant healthcare information’ means healthcare information given by a healthcare professional.[14] 16. Despite an agency refusing access to the healthcare information, the agency may direct that access to the information is to be given instead to an appropriately qualified healthcare professional nominated by the applicant and approved by the agency.[15] The nominated and approved healthcare professional may decide whether or not to disclose all or part of the information to the applicant, as well as the way in which to disclose the information to the applicant.[16] 17. The Information Commissioner[17] has the power to decide any matter in relation to an access application that could have been decided by an agency.[18] The applicant’s submissions 18. During the external review, the applicant made the following submissions: He has not been treated by Dr A and is not currently treated by Queensland Health, therefore, they are not well positioned to determine that allowing access will have any prejudicial effect on his physical or mental health or wellbeing.[19] He asserted that he was engaged in ‘mediation before court action’ with the Health Service and the opinions of the Health Service employees were therefore not reliable.[20] Refusing access to the Information in Issue will prejudice his health, whereas, there will be no harm to his health by releasing the Information in Issue. Disclosure will help him to understand that period of time better and improve his mental health.[21] The Health Service has relied on false and misleading information in making decisions relating to him and his treatment.[22] The applicant accused the Health Service of malpractice[23] and refusing access to the records to cover this up.[24] 19. In support of his submissions, the applicant provided a letter from his own doctor, (referred to in these reasons as Dr B) simply stating that the applicant attends his practice and disclosure of his hospital medical records to him would not be prejudicial to his mental or physical health.[25] The Health Service’s submissions 20. The Health Service submits the Information in Issue is healthcare information.[26] A healthcare provider, other than Dr A, from the Health Service who has been directly involved in the applicant’s treatment expressed concerns regarding the applicant’s mental health[27] and is of the view that direct disclosure would be prejudicial to his health and wellbeing.[28] 21. The Health Service also explained that the Information in Issue was provided to Dr A, Clinical Director of the Integrated Mental Health Service, a qualified medical practitioner appointed by the Director-General of Health to assess.[29] 22. Following an assessment of the Information in Issue, Dr A formed the opinion that disclosure of the Information in Issue directly to the applicant would be prejudicial to his health and wellbeing and made a healthcare decision to refuse access to the documents.[30] Dr A directed that access to the Information in Issue should be given through an appropriately qualified healthcare professional, nominated by the applicant and approved by the Health Service. This is because it is in the applicant’s best interests that access be given via an appropriately qualified healthcare professional to provide the applicant with the opportunity to discuss the contents of the documents in a therapeutic and supportive environment and ask questions about the information.[31] 23. On external review, the Health Service also confirmed that the applicant’s doctor can obtain information directly from the Health Service under the Hospital and Health Boards Act 2011 (Qld).[32] Analysis and findings 24. Dr A is a registered Psychiatrist,[33] the Clinical Director of a Mental Health Service, and appointed by the Director-General of Health to make healthcare decisions. Therefore, I am satisfied that Dr A possesses qualifications and experience appropriate to assess relevant healthcare information and the decision to refuse access was made by an appropriately qualified healthcare professional appointed by the Health Service. 25. Having reviewed the Information in Issue, and taking into account the Health Service’s submission that the applicant’s health records comprise healthcare information provided by healthcare professionals, I am satisfied that the information is relevant healthcare information.[34] 26. It is Dr A’s opinion that disclosure of the Information in Issue directly to the applicant would have a negative impact on the applicant’s health and wellbeing. Contradicting this position is the evidence from Dr B, provided by the applicant, stating that disclosure of the applicant’s medical records would not be prejudicial to his mental and physical health. 27. I accept that Dr B has explained that the applicant attends his practice and I also accept the applicant’s submission that Dr A is not his treating doctor. However, there is nothing before me to indicate that Dr B has reviewed the Information in Issue, whereas Dr A has had an opportunity to review it and consider the contents. I also note that Dr A is the Clinical Director of the Health Service’s Mental Health Service and a specialist in this field while it is unclear whether Dr B specialises in mental health. Finally, I note the Health Service’s submission that a healthcare provider who has had direct care of the applicant also felt that disclosure would be prejudicial to his health and wellbeing and this supports Dr A’s opinion. 28. I also acknowledge the allegations made by the applicant regarding his treatment and related court action, however, he has not provided any evidence to support his assertions or undermine the Health Service’s submissions and Dr A’s opinion that giving direct access to the documents would be prejudicial to his mental health and wellbeing. 29. Having weighed up the considerations set out above, I consider that the evidence of the Health Service’s Dr A is to be given greater weight than the evidence of the applicant’s doctor, Dr B. On that basis, I am satisfied that access may refused to the Information in Issue as its disclosure might be prejudicial to the applicant’s physical or mental health or wellbeing.[35] 30. A direction was made that the Information in Issue could be disclosed to the applicant through an appropriately qualified healthcare professional nominated by the applicant and approved by the Health Service.[36] The applicant declined this opportunity and did not pursue this avenue on external review, and rather, maintained that he sought direct access to the Information in Issue.[37] As such, I have not addressed this issue further. Should the applicant seek to pursue this avenue in the future, I consider that the direction made by the Health Service’s appointed healthcare professional,[38] remains an option available to the applicant. DECISION 31. Pursuant to section 123 of the IP Act, I affirm[39] the Health Service’s decision to refuse access to the requested information under section 67(1) of the IP Act and sections 47(3)(d) and 51 of the RTI Act as disclosure might be prejudicial to the physical or mental health or wellbeing of the applicant. S MartinAssistant Information CommissionerDate: 5 March 2021 APPENDIX Significant procedural steps Date Event 28 February 2020 OIC received the external review application. 4 March 2020 OIC requested initial documents and preliminary information from the Cairns Hinterland Hospital and Health Service (the Health Service). 13 March 2020 The Health Service provided the initial documents and preliminary information. 30 March 2020 The Health Service confirmed it would release the Information in Issue to a healthcare professional nominated by the applicant and approved by the Health Service. 1 April 2020 OIC notified the applicant and the Health Service that the external review application had been accepted and requested information from the Health Service. 15 April 2020 The Health Service provided the requested information and confirmed it would be agreeable to informal resolution by way of releasing the documents to a health care professional nominated by the applicant and approved by the Health Service. 16 April 2020 The applicant provided submissions by telephone. 22 April 2020 The Health Service provided information requested by OIC and also provided submissions by telephone. 23 April 2020 OIC contacted the applicant by telephone to propose informal resolution by releasing the documents to a healthcare professional nominated by the applicant and approved by the Health Service. The applicant refused. The applicant also provided submissions by telephone. 20 May 2020 The Health Service provided the Information in Issue to OIC. 26 May 2020 The applicant provided a letter from his doctor in support of his access application. 10 June 2020 OIC requested the Health Service’s submission in response to the applicant’s submission. 2 July 2020 The Health Service provided submissions in response to the applicant’s submission. 22 July 2020 OIC conveyed a preliminary view to the applicant and the Health Service. OIC invited the applicant to provide submissions in response by 5 August 2020. 13 August 2020 OIC notified the parties of the completion of the external review on the basis that the applicant had not responded to the preliminary view. The applicant asserted that he had responded to the preliminary view prior to the due date and also provided a short submission. 19 August 2020 The applicant forwarded his email to OIC, dated 25 July 2020, containing submissions in response to the preliminary view. 26 August 2020 OIC notified the applicant the external review had been re-opened. 31 August 2020 OIC notified the agency the external review had been re-opened. 28 October 2020 OIC confirmed the preliminary view to the applicant and the Health Service. OIC also confirmed the Health Service’s submission provided by telephone. 29 October 2020 The applicant provided an emailed submission. 12 November 2020 OIC advised the applicant that OIC will not request assessment or a report from an independent doctor and invited any further submissions by 26 November 2020. 13 November 2020 The applicant provided an emailed submission, indicating that he intended to provide further submissions and evidence. 20 November 2020 OIC advised the applicant by email that further submissions in support of his application should be provided by 22 January 2021, after which date OIC would proceed to a formal written decision. 23 November 2020 The applicant provided an emailed submission and indicated he would provide further scanned information the following week. 5 February 2021 OIC contacted the applicant by email to advise that no further submissions had been received. The applicant was advised that further submissions should be provided by 12 February 2021, after which date OIC would proceed to a formal written decision. 9 February 2021 The applicant provided an emailed submission. [1] Access application dated 21 January 2020.[2] Decision dated 26 February 2020.[3] Application for external review dated 28 February 2020.[4] Relevant provisions of which commenced on 1 January 2020.[5] See XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) (XYZ) at [573]; and Horrocks v Department of Justice (General) [2012] VCAT 241 (2 March 2012) at [111].[6] XYZ at [573].[7] The Health Service provided 885 pages to OIC and explained, in writing, that this discrepancy was due to removing one blank page from the file before sending to OIC.[8] Section 40 of the IP Act.[9] Section 67(1) of the IP Act states 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, had the document been the subject of an access application under the RTI Act.[10] Under section 50(5)(b) of the IP Act. See also section 50(6) of the IP Act which defines healthcare decision as including decisions under sections 47(3)(d) and 51 of the RTI Act, as applied under the IP Act. [11] Sections 47(3)(d) and 51 of the RTI Act. [12] See definition in schedule 5 of the IP Act.[13] See definition in schedule 5 of the IP Act.[14] See definition in schedule 5 of the IP Act.[15] Section 92(2) of the IP Act.[16] Section 92(3) of the IP Act.[17] Or her delegate under section 139 of the IP Act.[18] Section 118(1)(b) of the IP Act.[19] External review application dated 28 February 2020, telephone discussion on 23 April 2020, and emailed submissions received 13 August 2020, 13 November 2020 and 23 November 2020.[20] Applicant’s emailed submissions dated 13 November 2020.[21] External review application dated 28 February 2020 and emailed submission dated 29 October 2020.[22] Applicant’s emailed submissions dated 25 July 2020 (received by OIC on 19 August 2020), 13 August 2020, 29 October 2020, 23 November 2020, and 9 February 2021.[23] Applicant’s emailed submissions dated 25 July 2020 (received by OIC on 19 August 2020), 13 August 2020, 29 October 2020, 13 November 2020 and 23 November 2020.[24] Applicant’s emailed submissions dated 29 October 2020 and 13 November 2020.[25] Letter dated 25 May 2020, submitted by the applicant by email on 26 May 2020.[26] Decision dated 26 February 2020, attachment 1 (statement of reasons), page 1.[27] Submissions dated 15 April 2020.[28] Submission dated 2 July 2020. It is my view that describing this evidence in any greater detail is likely to impact the applicant’s willingness to engage with essential health services.[29] Decision dated 26 February 2020, attachment 1 (statement of reasons), page 2.[30] Submissions dated 15 April 2020 and 2 July 2020 and as outlined in the decision dated 26 February 2020.[31] Decision dated 26 February 2020, attachment 1 (statement of reasons), page 2.[32] Health Service’s submissions in a phone call on 22 April 2020 and confirmed by OIC’s email to the Health Service dated 28 October 2020.[33] Registered in the specialty of Psychiatry, according to details obtained from the Australian Health Practitioner Regulation Agency’s Register of Practitioners, available at <https://www.ahpra.gov.au/Registration/Registers-of-Practitioners.aspx>, accessed on 5 February 2021.[34] As defined in schedule 5 of the IP Act.[35] Section 47(3)(d) of the RTI Act.[36] In the Health Service’s decision dated 26 February 2020.[37] Telephone discussion with the applicant on 23 April 2020.[38] Directing that the Health Service give the Information in Issue to an appropriately qualified healthcare professional nominated by the applicant and approved by the Health Service pursuant to section 92(2) of the IP Act.[39] As a delegate of the Information Commissioner under section 139 of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

C01MAA and The Public Trustee of Queensland [2012] QICmr 23 (8 May 2012)

C01MAA and The Public Trustee of Queensland [2012] QICmr 23 (8 May 2012) C01MAA and The Public Trustee of Queensland [2012] QICmr 23 (8 May 2012) Last Updated: 17 July 2012 Decision and Reasons for Decision Application Number: 310878 Applicant: C01MAA Respondent: The Public Trustee of Queensland Decision Date: 8 May 2012 Catchwords: ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE - applicant seeking personal information - access refused to correspondence exchanged between officers of the Public Trustee and its Official Solicitor in relation to legal proceedings involving the applicant - whether communications are exempt under schedule 3, section 7 of the Right to Information Act 2009 (Qld) due to legal professional privilege - whether access to information may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) Contents REASONS FOR DECISION Summary The applicant applied to the Public Trustee of Queensland (Public Trustee) under the Information Privacy Act 2009 (Qld) (IP Act) for access to documents containing the applicant’s personal information, created on or after 1 January 2006.[1] The Public Trustee delegated the power to deal with the application to the principal officer of the Department of Justice and Attorney-General (Department).[2] The majority of documents located by the Department were released to the applicant in full.[3] However, the Department refused to grant the applicant access[4] to three pages[5] on the basis that they were exempt from disclosure due to legal professional privilege.[6] The applicant applied to the Office of the Information Commissioner (OIC) for external review of the decision to refuse access to the three pages. For the reasons set out below, I affirm the Department’s decision to refuse access to information on the basis that it is subject to legal professional privilege and is therefore exempt under schedule 3, section 7 of the RTI Act. Significant procedural steps These are set out in the Appendix to these reasons. Reviewable decision The decision under review is the Department’s internal review decision dated 18 November 2011, made under delegation by the Public Trustee. Material considered Evidence, submissions, legislation and other material I have considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). Information in issue The three pages to which access was refused (Information in Issue) comprise correspondence between a Principal Legal Officer of the Official Solicitor’s Office[7], the Acting Official Solicitor and an officer of the Public Trustee in relation to a proceeding in the Guardianship and Administration Tribunal (GAAT) involving the applicant.[8] The Information in Issue can be described as follows: page 346 – email sent by Principal Legal Officer, Official Solicitor’s Office to the Acting Official Solicitor; and pages 349-350 – memorandum prepared by the Principal Legal Officer, Official Solicitor’s Office and sent to the Acting Official Solicitor and a non-legal officer of the Public Trustee. Section 121(3) of the IP Act prohibits the Information Commissioner from including, in reasons for a decision on an external review, information that is claimed to be exempt information. This prevents me from describing the actual content of the Information in Issue in these reasons. Relevant law Under the IP Act, a person has a right to be given access to documents of an agency to the extent they contain the individual’s personal information.[9] This right is subject to some limitations, including grounds for refusal of access.[10] One of the grounds for refusal of access is where information is exempt under schedule 3 of the RTI Act.[11] Legal professional privilege Schedule 3, section 7 of the RTI Act sets out that information will be exempt if it would be privileged from production in a legal proceeding on the ground of legal professional privilege (LPP). This section reflects the common law requirements for establishing LPP.[12] The general principles of LPP were summarised by the High Court of Australia in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission[13] as follows: It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. The dominant purpose is ‘the ruling, prevailing, paramount or most influential purpose’[14] and is to be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions.[15] LPP is generally divided into two categories, advice and litigation privilege.[16] Advice privilege attaches to confidential communications between a legal adviser and client or third party which are made for the dominant purpose of obtaining or providing legal advice.[17] Litigation privilege attaches to confidential communications between a legal adviser and client in relation to current or reasonably anticipated litigation. Government legal officers The High Court of Australia has established that LPP may protect communications between salaried employee legal advisers of a government department or statutory authority and his/her employer as client (including communications through other employees of the same employer) provided there is a professional relationship of legal adviser and client, which secures to the advice an independent character notwithstanding the employment.[18] In Osland v Secretary to the Department of Justice (Vic)[19] the limits of LPP, as it applies to communications by government lawyers, were explained as follows: It would be a mistake to assume that all communications with government lawyers, no matter what their origins, purpose and subject matter, fall within the ambit of the State's legal professional privilege. Advice taken from lawyers on issues of law reform and public policy does not necessarily attract the privilege.[20] The Information Commissioner has previously decided, under the repealed FOI Act, that communications with government legal officers will attract LPP, provided the legal adviser is an appropriately qualified legal practitioner conducting their practice with a requisite degree of independence.[21] Recently, in Hillier and Redland Shire Council[22], the Right to Information Commissioner found that legal advice communicated by a Council legal officer to a Council employee by email, had the necessary character of independence to attract LPP.[23] Findings As set out in paragraph 8 of these reasons, there are two pieces of correspondence in issue in this review, both of which were prepared by a Principal Legal Officer of the Official Solicitor’s Office in relation to a GAAT proceeding involving the applicant and the Public Trustee. I am satisfied that both pieces of correspondence were prepared by the Principal Legal Officer for the dominant purpose of providing independent legal services to its client, the Public Trustee, in relation to a legal proceeding in GAAT which was current at the time. I am also satisfied that the communications were made confidentially between the relevant officers of the Public Trustee and Official Solicitor’s Office. I therefore find that the Information in Issue satisfies the requirements for litigation privilege. As stated in paragraph 8 of these reasons, the Public Trustee was later appointed by GAAT to act as administrator for the applicant in relation to specific litigation matters. I do not consider that this has any effect on the legally privileged nature of the communications. I recognise that the applicant was a party to the GAAT proceeding, however, I am satisfied that the Official Solicitor was acting as legal representative for the Public Trustee, not the applicant, in preparing the communications. I am also satisfied that there is no available information to indicate that LPP has been waived. Based on the above, I am satisfied that the Information in Issue attracts LPP and is therefore exempt under schedule 3, section 7 of the RTI Act. DECISION I affirm the Department’s decision to refuse access to the Information in Issue under section 67 of the IP Act and section 47(3)(a) of the RTI Act. I have made this decision as a delegate of the Information Commissioner under section 139 of the IP Act. ________________________ J Mead Right to Information Commissioner Date: 8 May 2012APPENDIX Significant procedural steps Date Step taken 21 August 2011 The applicant sent an email to the Department requesting his/her personal information held by the Public Trustee ‘that post dates my 2006 FOI application to the Public Trustee’. 10 October 2011 The Department wrote to the applicant to confirm that the Public Trustee had delegated its power to process the application to the Department under section 50(3) of the IP Act. 28 October 2011 The Department located 1538 pages in response to the application and decided to: release 1521 pages in full refuse access to 13 pages on the basis that they were outside the scope of the application (Out of Scope Documents) refuse access to the Information in Issue on the basis that it was subject to LPP; and refuse access to parts of one page on the basis that disclosure would, on balance, be contrary to the public interest under section 49 of the RTI Act. 15 November 2011 The applicant requested internal review of the Department’s decision in relation to the Information in Issue and certain Out of Scope Documents. 18 November 2011 The Department issued its internal review decision which released the Out of Scope Documents and affirmed the decision refusing access to the Information in Issue. 15 December 2011 The applicant applied to OIC for an external review of the Department’s decision. 16 December 2011 The Department provided OIC with a copy of the documents to which the applicant was refused assess. 23 December 2011 OIC conveyed a written preliminary view to the applicant that the Information in Issue was subject to LPP and that access may therefore be refused under the IP Act. OIC invited the applicant to provide submissions in response to the preliminary view by 20 January 2012. 20 January 2012 The applicant sent an email to OIC, contesting the preliminary view. [1] The applicant specifically requested “information that post-dates my 2006 FOI application to the Public Trustee”. [2] Under section 50(3) of the IP Act. Under section 50(4) of the IP Act, the principal officer of the other agency may subdelegate a power delegated to him or her under section 50(3) of the IP Act.[3] In excess of 1500 pages.[4] Under section 67(1) of the IP Act and sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) (RTI Act). [5] Folio numbers 346, 349 and 350. [6] Under schedule 3, section 7 of the RTI Act. [7] The Office of the Official Solicitor forms part of the Public Trustee. It is established by the Public Trustee Act 1978 (Qld) and delivers legal services to both the Public Trustee of Queensland and the Queensland Government generally. See http://www.pt.qld.gov.au/official-solicitor/index.html.[8] One of the orders made by GAAT in the proceeding was to appoint the Public Trustee as administrator for the applicant in the management of particular litigation proceedings. See Re SE [2005] QGAAT 66, 5 September 2005. [9] Section 40 of the IP Act.[10] Section 67 of the IP Act provides that the grounds for refusal of access set out in section 47 of the RTI Act apply in the same way, and to the same extent, under the IP Act. [11] Section 47(3)(b) and 48 of the RTI Act.[12] The Electoral and Administrative Review Commission Report on Freedom of Information (1990) stated, in the context of the equivalent exemption in section 43 of the repealed Freedom of Information Act 1992 (Qld) (FOI Act), 'the exemption incorporates the common law concept of legal professional privilege'. This approach was recently confirmed in Ozcare and Department of Justice and Attorney-General (Unreported, Information Commissioner of Queensland, 13 May 2011) [12]. [13] [2002] HCA 49; (2002) 213 CLR 543 [9].[14] Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34; (1996) 186 CLR 404 [416], see also AWB v Cole (No. 1) (2005) 152 FCR 382 [411].[15] Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 [692].[16] Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 322 [8]-[9]. [17] AWB v Cole (No.5) [2006] FCA 1234; (2006) 155 FCR 30, 44 [41]; Waterford v Commonwealth [1987] HCA 25; (1986) 163 CLR 54, 95; Pratt Holdings Pty Ltd v Federal Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357. [18] Waterford v Commonwealth [1987] HCA 25; (1986) 163 CLR 54 [95] per Mason and Wilson JJ.[19] [2008] HCA 37.[20] Osland v Secretary to the Department of Justice (Vic) [2008] HCA 37 [89]. [21] Potter and Brisbane City Council (1994) QAR 37; Smith and Administrative Services Department [1993] QICmr 3; (1993) 1 QAR 22 [88-90]; Harris and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 21 January 2009).[22] Unreported, Queensland Information Commissioner, 9 June 2011 (Hillier). [23] See Hillier [51-58].

queensland

court_judgement

Queensland Information Commissioner 1993-

Abbot and The University of Queensland [2012] QICmr 50 (16 October 2012)

Abbot and The University of Queensland [2012] QICmr 50 (16 October 2012) Last Updated: 28 May 2013 Decision and Reasons for Decision Application Number: 310954 Applicant: Abbot Respondent: The University of Queensland Decision Date: 16 October 2012 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - application for information relating to an irregularity in a university admission process - whether disclosure of university senate meeting minutes and draft public statements would prejudice relevant deliberative processes - whether access may be refused to information on the basis that disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to The University of Queensland (UQ) under the Right to Information Act 2009 (Qld) (RTI Act) for access to information relating to an irregularity in an admission process at UQ, including an investigation report. UQ released some information to the applicant and refused access to other information on the basis that it was subject to legal professional privilege or its disclosure would, on balance, be contrary to the public interest. The applicant applied to the Office of the Information Commissioner (OIC) for external review of UQ’s refusal of access decision. On external review, UQ agreed to release further information to the applicant and the applicant elected not to pursue access to information (including the investigation report) which OIC considered to be exempt[1] on the basis of a related investigation by the Crime and Misconduct Commission (CMC)[2]. The information remaining in issue, which is the subject of this decision, comprises parts of (i) the minutes of a UQ Senate meeting (ii) a draft message from the Chancellor to the UQ community and (iii) a draft media statement. UQ contends that disclosure of this information would, on balance, be contrary to the public interest primarily due to the resulting prejudice UQ’s relevant deliberative processes. For the reasons set out below, disclosure of the information remaining in issue would not, on balance, be contrary to the public interest and therefore, access to it may not be refused under section 47(3)(b) of the RTI Act. Background Significant procedural steps relating to the application and external review are set out in the Appendix to these reasons. Reviewable decision The decision under review is UQ’s decision dated 23 January 2012 to refuse access to information under sections 47(3)(a) and 47(3)(b) of the RTI Act.[3] Evidence considered Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix). Information in issue The information remaining in issue in this review comprises: parts of the minutes of a UQ Senate meeting (Senate Minutes);[4] and parts of a draft message from the Chancellor to the UQ community and parts of a draft media statement (Draft Public Statements).[5] Relevant law Under the RTI Act, an individual has a right to be given access to documents of an agency.[6] Access should be given to a document unless disclosure would, on balance, be contrary to the public interest.[7] The right of access is subject to some limitations, including the grounds on which access may be refused.[8] One ground for refusing access is where disclosure would, on balance, be contrary to the public interest.[9] The RTI Act lists various public interest factors for and against disclosure[10] and explains the steps to take[11] in deciding where the public interest lies, as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. On external review, the agency has the onus of establishing that its decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[12] Findings In this review, UQ has the onus of establishing that access to the Senate Minutes and Draft Public Statements should be refused on the basis that disclosure would, on balance, be contrary to the public interest. For the reasons set out below, I find that disclosure of the Senate Minutes and Draft Public Statements would not, on balance, be contrary to the public interest. I am satisfied that no irrelevant factors arise in the circumstances of this case. Factors favouring disclosure Accountability and transparency in decision-making The subject matter of the information in issue, that is, the irregularity in an admission process at UQ, has been the subject of wide media coverage.[13] To the extent the Senate Minutes and Draft Public Statements reveal how UQ handled the irregularity, I consider the following public interest factors apply in favour of disclosure: promote open discussion of public affairs and enhance accountability;[14] and reveal the reason for a government decision and any background or contextual information that informed the decision.[15] Given that the admission irregularity was internally investigated, referred to the CMC and resulted in the resignation of two senior UQ staff members, I am satisfied that the public interest in enhancing accountability and increasing transparency in decision-making carries very significant weight in favour of disclosure. UQ submits[16] that the amount of information already published by UQ and other organisations and the actions of the CMC reduce the weight to be attributed to the public interest factors favouring disclosure relating to accountability and transparency in decision-making. I acknowledge that UQ has published information about the admission irregularity.[17] The publications show that UQ responded to the allegations by retaining a barrister to investigate the matter and then referring it to the CMC. I consider that the information already released by UQ, either through published statements or under the RTI Act on this application, has served to enhance its accountability and reveal some of the reasons for or background/contextual information that informed its decision. On this basis, I find that the weight of these public interest factors is somewhat reduced. However, the fact that the CMC is investigating the admission irregularity matter does not, in my view, further reduce the weight of these public interest factors. As noted above, these factors are relevant to the extent the Senate Minutes and Draft Public Statements show how UQ internally handled the irregularity and in disclosing the reasons for and/or background/contextual information that informed UQ’s decision-making on the matter, whereas the CMC investigation commenced after UQ internally dealt with the irregularity.[18] For the above reasons, I find that the public interest factors set out in paragraph 15 above should be afforded significant weight in favour of disclosure. Factors favouring nondisclosure Deliberative process UQ submits that disclosure of the Senate Minutes and Draft Public Statements would be prejudicial and/or harmful to the deliberative processes of the Senate at its meetings, and UQ generally in deciding how to communicate information regarding internal matters, such as the admission irregularity, to the wider community.[19] The RTI Act recognises that that the public interest will favour nondisclosure of information where disclosure could reasonably be expected to: prejudice a deliberative process of government (Nondisclosure Factor);[20] and cause a public interest harm through disclosure of a consultation or deliberation that has taken place in the course of, or for, the deliberative processes involved in the functions of government (Harm Factor).[21] Deliberative processes involved in the functions of government have been defined as ‘...thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action’.[22] For the above factors to apply, the information in issue must constitute deliberative process information. Once this is established, the Harm Factor will apply and it is then relevant to consider the nature and extent of the public interest harm that may result through disclosure.[23] For the Nondisclosure Factor to apply, a reasonable expectation of prejudice to the relevant deliberative process must be established. (i) Senate Minutes The Senate Minutes list certain matters discussed at a meeting concerning the admission irregularity and related investigation report. They also set out the Senate’s assessment of the relevant measures taken and identify potential further actions required. I am satisfied that this information constitutes deliberative process information. In support of its submission that disclosing the Senate Minutes would prejudice and/or cause harm to its deliberative processes, UQ submits[24] that: the Senate members present at the meeting were encouraged to speak fairly and frankly on this matter and members would consider what they said in a closed meeting would be kept out of the public arena the deliberative part of any meeting will cause robust debate as members express their views and not everything which is said in this process will find its way to the final decisions as members change their minds and compromises are made; and if the relevant information is disclosed, members will be less inclined to speak frankly and the minutes will record less detail and this would be detrimental to UQ’s governance, given that the Senate is UQ’s ultimate governing body. In Eccleston[25] the Information Commissioner considered whether disclosure would inhibit candour and frankness in future communications and found that: such claims should be disregarded unless a very particular factual basis is laid for the claim and tangible harm to the public interest will result from that inhibition;[26] and even if some diminution in candour and frankness caused by the prospect of disclosure is conceded, the real issue is whether the efficiency and quality of a deliberative process is thereby likely to suffer to an extent which is contrary to the public interest.[27] UQ submits[28] that this case can be distinguished from Eccleston as it concerns different types of documents. While I acknowledge that the nature of the information in issue in this review is different to what was considered in Eccleston[29], I consider the Information Commissioner’s comments in paragraph 27 above are relevant to the extent that they provide guidance on assessing whether disclosure would generally inhibit candour and frankness in future communications within an agency. UQ further submits[30] that: the Senate Minutes reveal matters considered by the Senate when considering the investigation report and are inherently sensitive as they raise various issues of concern to members of the Senate arising out of the investigation report and the options available to deal with the investigation report UQ has made numerous public statements about the investigation report to explain the Senate’s decisions but at no time has UQ or the Senate published information about the actual decision-making process and the specific factors that the Senate took into account when deciding how to deal with the investigation report; and disclosure could lead to harm to the Vice-Chancellor and Senior Deputy Vice-Chancellor, harm to the Senate by disclosing its deliberations publicly and potential harm to the student at the centre of the enrolment irregularity. UQ has also made various submissions about how disclosing the role of particular individuals in the deliberations would prejudice the Senate’s deliberative processes.[31] I have carefully reviewed the content of the Senate Minutes in the context of UQ’s above submissions. In my view, the Senate Minutes are set out in general terms, akin to a list of discussion items, with some items having been published in comparative terms in public statements. For these reasons, I do not consider the Senate Minutes can be described as particularly sensitive in nature. I am also satisfied that the Senate Minutes do not reveal the personal views of individual members or show that members changed their minds or made compromises on particular matters. Further, I do not consider that there is any evidence of ‘robust debate’ within the Senate Minutes, as UQ has submitted. For these reasons, I am not persuaded that disclosure of the Senate Minutes would reveal internal thinking processes of the Senate, or that the substance or quality of future deliberations would be prejudiced by disclosure.[32] Various public statements refer directly to the Senate as having reviewed the admission irregularity matter, initiated an independent investigation and taken corresponding action in relation to the resignations of the relevant staff members.[33] In my view, this confirms that the Senate’s decision-making role in relation to the admission irregularity matter is publicly known. I consider it is reasonable to expect that this governing body would be required to consider matters, such as those set out in the Senate Minutes, to ensure an issue of this nature was dealt with thoroughly and appropriately. Therefore, I am not persuaded that the efficiency of quality of Senate deliberations in the future would be likely to suffer to such an extent that would be contrary to the public interest, if the Senate Minutes were disclosed. In the circumstances, I am unable to identify how the potential harm to particular individuals, as submitted by UQ, could reasonably be expected to be prejudicial and/or harmful to the Senate’s deliberative processes. For the reasons set out above, I find that, in relation to the Senate Minutes: the Harm Factor applies but there is no specific or tangible harm to the relevant deliberative processes of the Senate that could reasonably be expected to be caused by disclosure and therefore, this factor carries only minimal weight in favour of nondisclosure; and the Nondisclosure Factor does not apply as disclosure could not reasonably be expected to prejudice the Senate’s deliberative processes. (ii) Draft Public Statements UQ submits that the Draft Public Statements reflect the deliberative process of UQ in deciding how to communicate the outcomes of the investigation report to the wider community and that, due to the sensitivity of the report, numerous press releases were drafted.[34] I consider that the Draft Public Statements comprise deliberations that occurred to decide upon the appropriate form of public statement for UQ to make in relation to the admission irregularity and related matters. I am satisfied that these documents constitute deliberative process information. In Criminal Justice Commission and Director of Public Prosecutions; Harris (Third Party) (Harris)[35] the Information Commissioner considered whether a draft public statement satisfied the requirements of the deliberative process exemption under the repealed Freedom of Information Act 1992 (Qld).[36] In Harris, the Information Commissioner found[37] that while the draft statement constituted deliberative process information, there could be no public interest factor weighing against release of any parts of the statement which had already been made public. In considering the parts of the draft statement which had not formed part of the final public statement, the Information Commissioner stated: I am confident that members of the public are sufficiently aware of the procedures adopted by government organisations to be able to distinguish the significance of draft documents from final expressions of the approach of an organisation. Documents prepared to express the position of an organisation on matters of public importance may go through many stages of development before being finally adopted by an agency. Often there will be input from numerous officers of an agency ... I do not consider that disclosure of draft documents to the public must be assumed in every case to represent a danger to this process. On the contrary, I consider that there may be significant benefits to the public in obtaining access to draft material, so as to further the accountability, and public understanding of, the operations of government organisations... In my view, disclosure of this type of material allows members of the public to examine the processes by which an agency has come to its final conclusion ... ... I consider that public access to pre-decisional processes of agencies, even well after the event, may, in appropriate cases, be valuable in furthering accountability, and public understanding, of the operations of government agencies.[38] During the review, UQ agreed to release certain parts of the Draft Public Statements which it considered reflected the content of the final published statements. However, UQ has maintained that the Draft Public Statements contain some information which does not appear in the final versions and considers that its disclosure would prejudice and/or cause harm to, its deliberative processes. In relation to the parts of the Draft Public Statements which remain in issue, I am unable to identify any specific harm or prejudice which disclosure could reasonably be expected to cause to the deliberative processes of UQ. In contrast, I consider that disclosure would further public understanding of UQ’s handling of the matter, thereby reducing the weight to be attributed to this factor. On the basis of the above, I find that, in relation to the Draft Public Statements: the Harm Factor applies but there is no specific or tangible harm to the relevant deliberative processes of UQ that could reasonably be expected to be caused by disclosure and therefore, this factor carries only minimal weight in favour of nondisclosure; and the Nondisclosure Factor does not apply as disclosure could not reasonably be expected to prejudice the relevant deliberative processes of UQ. Confidentiality UQ has submitted that the Senate Minutes are confidential.[39] To support this submission, UQ referred to provisions of the University of Queensland Act 1998 (Qld) concerning the operation of the Senate, particularly the provision which entitles the Senate to ‘regulate its proceedings in meetings as it considers appropriate’.[40] UQ further explained[41] that: Pursuant to section 29 of the UQ Act, the Senate has passed standing orders, which deals specifically with the handling of confidential information, and requires these confidential minutes to be kept separately to other minutes. The University is of the view that the corporate structure of the University and the role of Senate is analogous to that of a board of a private corporation, and accordingly, the general presumption that board minutes are confidential should also apply to confidential minutes of Senate. The relevant standing order[42] relied on by UQ in the above submission states that ‘The minutes of those proceedings or classes of proceedings that Senate or the Vice-Chancellor decides are confidential, must be kept separately’. The RTI Act recognises that the public interest will favour nondisclosure of information where disclosure could reasonably be expected to: prejudice an agency’s ability to obtain confidential information (Nondisclosure Factor);[43] or cause a public interest harm (Harm Factor) if: ○ the information consists of information of a confidential nature that was communicated in confidence; and ○ disclosure could reasonably be expected to prejudice the future supply of information of this type.[44] Information will have a necessary quality of confidence if it is not trivial or useless and has a sufficient degree of secrecy.[45] The Senate Minutes are marked as ‘confidential’. I acknowledge that this indicates that the Senate intended for them to be dealt with under the relevant standing order. However, I do not consider that being subject to the standing order assigns confidentiality to the Senate Minutes—the standing order simply concerns appropriate storage measures for Senate Minutes. In my view, this is not relevant to the issue of confidentiality. In view of the subject matter of the Senate Minutes, I find that they are not trivial in nature. I also accept that the Senate Minutes have not been published, at least not in their entirety. There are however, some parts of the Senate Minutes which appear, in comparative terms, in public statements made by UQ in relation to the admission irregularity matter. Accordingly, while I acknowledge that the Senate Minutes were marked as ‘confidential’, I find that those parts which appear in publications in similar terms, are no longer sufficiently secret to attract confidentiality. However, in view of my findings below in relation to the other elements of the Harm Factor, I have not specifically identified in these reasons, the parts which I am satisfied are of a confidential nature.[46] For the Harm Factor to apply, the information must have been communicated in confidence. For information to be communicated in confidence it must be imparted in circumstances where the information supplier’s need or desire for confidential treatment has been expressly or implicitly conveyed (or otherwise apparent to the recipient) and has been understood or accepted by the recipient, giving rise to an express or implicit mutual understanding that the relevant information would be treated in confidence.[47] I am not satisfied that UQ’s submissions demonstrate that members of the Senate participated in the meeting on the understanding that matters discussed would be treated in confidence. I have considered the fact that the Senate Minutes are marked as ‘confidential’ however, the Information Commissioner has previously found that it is not possible to unilaterally impose confidentiality through labelling information as such.[48] For these reasons, I find that the Senate Minutes were not communicated in confidence. Even if I had been satisfied that the Senate Minutes were communicated in confidence, for the reasons set out at paragraphs 31-32 above, I do not consider that disclosure of the Senate Minutes could reasonably be expected to prejudice the future supply of thi[49]type of information.49 I also rely on the reasons at paragraphs 31-32 above to explain why I am satisfied that UQ’s ability to obtain confidential information from Senate members at its meetings would similarly, not be prejudiced through disclosure. For the reasons set out above, I find that the requirements of the Harm Factor and Nondisclosure Factor have not been established in this case and therefore, I am satisfied that these factors do not apply to disclosure of the Senate Minutes. Personal information and privacy UQ submits that the information in issue contains personal information of UQ staff including allegations of possible wrongdoing.[50] The RTI Act recognises that protecting other people’s personal information[51] raises a public interest factor favouring nondisclosure due to the public interest harm in disclosure.[52] Where disclosure could reasonably be expected to prejudice the protection of an individual’s right to privacy, this will also raise a public interest favouring nondisclosure.[53] As the information in issue names several UQ staff members in the context of issues relating to their employment, I am satisfied that this constitutes their personal information.[54] The information relates to the staff members’ involvement in the admission irregularity and resulting resignations and therefore, I am satisfied that this is not routine personal work information[55] and that there is a level of privacy associated with it. However, I consider that similar, and in some cases, identical information about the staff members has been published by UQ in online news articles.[56] I consider that this significantly reduces the privacy interest attaching to the information and similarly, any harm that may result from disclosing the personal information would be negligible. For the reasons set out above, I afford the public interest factors identified at paragraph 51 very low weight in favour of nondisclosure. Balancing the public interest As the information in issue concerns an irregularity in a university admission process which was internally investigated, referred to the CMC and resulted in the resignation of two university staff members, the public interest in enhancing accountability and increasing transparency in decision-making is particularly high in this case. However, the weight of these factors is somewhat reduced as UQ has already released/published information which reveals some of the measures it took to handle the matter. While I accept that the Senate Minutes and Draft Public Statements comprise deliberative process information, I do not consider that disclosing the information could reasonably be expected to cause a specific and tangible harm to the relevant deliberative processes and therefore, attribute only minimal weight to this factor in favour of nondisclosure. I also give only very low weight to the public interest in protecting the personal information and privacy of individuals concerned, due to the significant amount of publicly available information relating to the staffing matters connected with the admission irregularity. For the above reasons and taking into account the pro-disclosure bias in deciding access to information under the RTI Act, I am satisfied that the public interest factors favouring nondisclosure are outweighed by the factors favouring disclosure and that therefore, disclosure of the information in issue would not, on balance, be contrary to the public interest. DECISION For the reasons set out above, I set aside UQ’s decision to refuse access to information under section 47(3)(b) of the RTI Act. In substitution, I find that disclosure of the Senate Minutes and Draft Public Statements remaining in issue in this review would not, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. _________________________ K Shepherd Assistant Information Commissioner Date: 16 October 2012 APPENDIX Significant procedural steps Date Event 25 November 2011 UQ received the access application. 23 January 2012 UQ issued its decision, granting access to some information and refusing access to other information under sections 47(3)(a) and (b) of the RTI Act. 17 February 2012 OIC received the external review application and asked UQ to provide relevant preliminary documents to OIC. 1 March 2012 OIC notified the applicant and UQ that the application had been accepted for review. OIC asked UQ for a copy of the documents to which it had refused access and a further submission supporting its reasons for refusing access to information, particularly in relation to schedule 3, section 10(4) of the RTI Act. 19 March 2012 UQ provided OIC with a copy of the documents to which it had refused access. 21 March 2012 The applicant asked OIC for an update on the progress of the review. 27 March 2012 OIC provided the applicant with an update on the status of the external review. 30 March 2012 OIC received UQ’s further submissions. OIC asked UQ for further information in relation to the related CMC investigation. 31 March 2012 The applicant asked OIC to provide a response to procedural issues relating to the application. 2 April 2012 OIC responded to the applicant’s procedural inquiries and provided an update on the status of the external review. 16 April 2012 OIC asked UQ to provide further submissions in relation to schedule 3, section 10(4) of the RTI Act. 27 April 2012 OIC received UQ’s submissions and provided the applicant with an update on the status of the external review. 28 April 2012 The applicant provided submissions to OIC regarding the review timeframe. 1 May 2012 OIC directed UQ to provide further submissions in relation to schedule 3, section 10(4) of the RTI Act. 8 May 2012 OIC received further submissions from UQ. 22 May 2012 OIC received correspondence from the CMC in relation to its investigation. 29 May 2012 OIC issued a written preliminary view to the applicant that some of the documents in issue were exempt under schedule 3, section 10(4) of the RTI Act due to the related CMC investigation. OIC invited the applicant to provide submissions supporting his case if he did not accept the preliminary view. 30 May 2012 OIC conveyed a preliminary view to UQ that certain documents in issue were not exempt under schedule 3, section 10(4) of the RTI Act. OIC invited UQ to provide submissions supporting its decision to refuse access to information if it did not accept the preliminary view. 4 June 2012 The applicant contacted OIC by telephone in relation to the preliminary view and external review timeframes. OIC confirmed to the applicant the due date for written submissions, if he wished to contest the preliminary view. 13 June 2012 OIC received submissions from UQ in which it agreed to release some information to the applicant. 25 June 2012 OIC asked UQ to release the additional information to the applicant. OIC confirmed, by letter to the applicant, the outstanding issues in the review, in view of UQ’s agreement to release information and the absence of any submissions from the applicant in response to the preliminary view. 27 June and 31 July 2012 OIC provided the applicant with an update on the status of the external review. 10 August 2012 OIC conveyed a further preliminary view to UQ on the remaining information in issue and invited UQ to provide submissions if it did not accept the view. 24 August 2012 OIC received UQ’s submissions in response to the preliminary view. UQ agreed to release some additional information to the applicant which OIC asked UQ to send to the applicant. OIC provided the applicant with an update on the status of the external review and asked the applicant if, in view of the additional information released to him by UQ, he wished to pursue access to the remaining information in issue. 31 August 2012 The applicant confirmed that he wished to pursue access to the remaining information in issue and asked OIC to clarify a procedural issue. 3 September 2012 UQ confirmed to OIC that it had sent the additional information to the applicant. OIC provided the applicant with an update on the status of the external review and information regarding external review procedures. 7 September 2012 The applicant confirmed to OIC that he had received the additional information from UQ and wished to proceed with the formal review process. 10 October 2012 OIC provided the applicant with an update on the status of the external review. [1] Under schedule 3, section 10(4) of the RTI Act. [2] See http://www.cmc.qld.gov.au/news-and-media/media-releases/cmc-to-prepare-public-report-on-university-of-queensland-investigation-2014-28.05.2012. [3] The information to which access was refused under section 47(3)(a) of the RTI Act is not dealt with in this decision as the applicant accepted the Office of the Information Commissioner’s (OIC) preliminary view that access to that information may be refused – see the Appendix. [4] Document 2 (folios 32 - 33). [5] Document 7 (folios 15 - 16 and 23 - 24). [6] Section 23(1) of the RTI Act. [7] Section 44(1) of the RTI Act. This is referred to as the pro-disclosure bias in deciding access to documents. [8] Listed in section 47(3)(b) of the RTI Act. Section 47(2) of the RTI Act provides that these grounds are to be interpreted narrowly and an agency may give access to a document even if a ground for refusal of access applies. [9] Section 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. [10] In schedule 4 of the RTI Act. This list is not exhaustive and therefore, other factors may be relevant in a particular case.[11] Section 49(3) of the RTI Act.[12] Section 87(1) of the RTI Act. [13] See for example http://www.couriermail.com.au/news/queensland/favouritism-probe-at-uq/story-e6freoof-1226186284276. [14] Schedule 4, part 2, item 1 of the RTI Act. [15] Schedule 4, part 2, item 11 of the RTI Act. [16] UQ’s submission to OIC dated 23 August 2012. [17] See for example http://www.uq.edu.au/news/?article=24023; http://www.uq.edu.au/news/?article=24189; and http://www.uq.edu.au/news/?article=24033. [18] I also note that UQ’s submission to OIC dated 13 June 2012 confirmed that the Senate Minutes and Draft Public Statements were not obtained, used or prepared by the CMC for the purpose of its investigation and for this reason, UQ did not maintain its claim that the documents were subject to the exemption in schedule 3, section 10(4) of the RTI Act. [19] UQ’s submission to OIC dated 23 August 2012. [20] Schedule 4, part 3, item 20 of the RTI Act. [21] Schedule 4, part 4, item 4 of the RTI Act. This public interest harm factor is similar to the previous exemption in section 41(1) of the repealed Freedom of Information Act 1992 (Qld) (FOI Act). [22] Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 (Eccleston) at [28-30] citing with approval the definition given in Re Waterford and Department of Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588 at [606]. [23] In Trustees of the De La Salle Brothers and Queensland Corrective Services Commission [1996] QICmr 4; (1996) 3 QAR 206 at [14] the Information Commissioner considered, in the context of the equivalent FOI Act exemption, that ‘specific and tangible harm to an identifiable public interest would result from disclosure’. I consider that this is a relevant consideration when applying the Harm Factor under the RTI Act. [24] UQ’s submission to OIC dated 13 June 2012. [25] This case considered the application of the deliberative process exemption in section 41(1) of the repealed FOI Act and ultimately found that the exemption did not apply as disclosure would not be contrary to the public interest – at [185]. The Information Commissioner’s reasoning in Eccleston was later followed in Hewitt and Queensland Law Society [1998] QICmr 23; (1998) 4 QAR 328 where the Information Commissioner stated that he was not satisfied that ‘the substance or quality of advice prepared by staff ... would be materially altered for the worse, by the threat of disclosure under the FOI Act.’ at [139]. [26] At [132]. [27] At [134]. [28] UQ’s submission to OIC dated 23 August 2012. [29] The documents in issue in Eccleston comprised internal memoranda, letters to another agency and a brief for the Minister relating to advice on the consequences of a High Court decision for the Queensland Government, at [2] and [76]. [30] UQ’s submission to OIC dated 23 August 2012. [31] UQ’s submissions to OIC dated 23 August 2012. Section 108(3) of the RTI Act prevents me from setting out these submissions in detail. [32] I acknowledge that there may be cases in which minutes of UQ Senate meetings may be of sufficiently sensitive nature which, if disclosed, could reasonably be expected to prejudice future deliberations of the Senate. However, in this case, I am not satisfied that the Senate Minutes are of such a nature. [33] See UQ online news articles dated 9 November and 9 December 2011 referred to at footnote 17 above. For example, the 9 December article states that “The Senate has acted decisively and promptly every step of the way and has not shirked from making some extremely tough decisions”. [34] UQ’s submission to OIC dated 23 August 2012. [35] [1996] QICmr 12; (1996) 3 QAR 299 (28 June 1996). [36] Section 41 of the repealed FOI Act.[37] At [25 and 27].[38] At [36 – 38]. [39] UQ’s submission to OIC dated 23 August 2012. I have addressed UQ’s submissions on confidentiality in the context of public interest factors favouring nondisclosure. As UQ did not make any submissions on the application of the breach of confidence exemption in schedule 3, section 8 of the RTI Act, I have not considered that exemption in these reasons for decision. [40] Section 29 of the University of Queensland Act 1998 (Qld). [41] UQ’s submission to OIC dated 23 August 2012. [42] Number 9.5.[43] Schedule 4, part 3, item 16 of the RTI Act. [44] Schedule 4, part 4, item 8 of the RTI Act. [45] This test was set out in Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (Re B) in the context of section 46(1)(a) of the repealed FOI Act. In Re B, at [71], the Information Commissioner considered the requirement that information be of a confidential nature under an equitable action in breach of confidence, is the same as in section 46(1)(b) of the repealed FOI Act. The Harm Factor is framed in equivalent terms to section 46(1)(b) of the repealed FOI Act and therefore, I am satisfied that this test can be applied under the RTI Act. See also Macrossan & Amiet Solicitors and Queensland Health (Unreported, Queensland Information Commissioner, 27 February 2002) (Macrossan) at [60]. [46] I am also prevented from disclosing, in these reasons for decision, information which UQ claims is contrary to the public interest – see section 108(3) of the RTI Act. [47] Re McCann and Queensland Police Service [1997] QICmr 10; (1997) 4 QAR 30 at [34]. This test was set out in the context of section 46(1)(b) of the repealed FOI Act which is framed in equivalent terms to the Harm Factor and therefore, the same approach can be applied.[48] Re B at [91]. I also note that in Macrossan at [51], the Information Commissioner found that delivering documents to a government agency in boxes marked “Private & Confidential” was not sufficient to impose an obligation of confidence on the recipient of the documents.[49] In view of my finding that the requirements of the Harm Factor have not been established, I have not considered whether the exception in schedule 4, part 4, item 8(2) of the RTI Act applies. I note however that the information in issue is deliberative process information to which the exception relates. [50] UQ’s submissions to OIC dated 13 June 2012 and 23 August 2012. [51] Section 12 of the Information Privacy Act 2009 (Qld) defines ‘personal information’ 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.[52] Schedule 4, part 4, item 6 of the RTI Act.[53] Schedule 4, part 3, item 3 of the RTI Act. [54] However, I do not consider that any personal information of UQ students appears in the information in issue as no students are specifically named. I am also satisfied that student identities could not reasonably be ascertained from disclosure of the information in issue.[55] As discussed in the OIC guideline Routine Personal Work Information and Public Sector Employees available at http://www.oic.qld.gov.au/information-and-resources/guidelines-ip/routine-personal-work-information-public-sector-employees. [56] UQ news articles available at http://www.uq.edu.au/news dated 9 and 11 November and 9 December 2011.

queensland

court_judgement

Queensland Information Commissioner 1993-

J2P8MT and Department of Health [2012] QICmr 22 (11 May 2012)

J2P8MT and Department of Health [2012] QICmr 22 (11 May 2012) J2P8MT and Department of Health [2012] QICmr 22 (11 May 2012) Last Updated: 17 July 2012 Decision and Reasons for Decision Application Number: 310418 Review Applicant: J2P8MT Respondent: Department of Health Decision Date: 11 May 2012 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION – DECISION GRANTING ACCESS – Objection to disclosing information about property sale – whether exempt from disclosure – sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) – 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) Contents REASONS FOR DECISION Summary As part of a hospital development project, the Department of Health, also known as Queensland Health (QH), had purchased a property from the review applicants. The access applicant sought access to documents relating to the hospital project (Project Documents) under the Right to Information Act 2009 (RTI Act).[1] Following consultation with the review applicants,[2] QH refused access to some information and granted access to the remaining information on the basis that its disclosure would not, on balance, be contrary to the public interest (Decision).[3] The review applicants applied to the Office of the Information Commissioner (OIC) for external review of the Decision, objecting to disclosure of information relating to the sale of their property. During the external review, the access applicant indicated that they no longer sought access to some information in the Project Documents.[4] Having considered all submissions and the relevant law, I am satisfied the information remaining in issue (Information in Issue) is not exempt from disclosure[5] and that its disclosure would not, on balance, be contrary to the public interest.[6] Accordingly the access applicant is entitled to access the Information in Issue. Background Significant procedural steps relating to the external review application are set out in the Appendix. Reviewable decision The decision under review is QH’s Decision of 30 September 2010 to disclose information in the Three Attachments contrary to the views of the external review applicant.[7] Information in issue The Information in Issue comprises the Three Attachments and the Additional Information, but does not include information which QH refused access to in its access decision[8] (including some personal information of the external review applicants) nor personal information concerning the impact of the sale on the review applicants’ family.[9] Material considered Evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and Appendix). Onus As the decision being reviewed is a disclosure decision,[10] the review applicants bear the onus of establishing that a decision to not disclose the Information in Issue is justified or that the Information Commissioner should give a decision adverse to the access applicant.[11] Issues in this review The review applicants submit that disclosing the Information in Issue would: breach their agreement with the Legal Services Commission (LSC) and their former solicitors prohibiting them from disclosing information regarding the property sale and related issues; and invade the privacy of the review applicants and their family. The relevant issues in this review are whether disclosure of the Information in Issue: would found an action for a breach of confidence;[12]and/or would, on balance, be contrary to the public interest.[13] Is the Information in Issue exempt information? No, for the reasons that follow. Relevant law Under the RTI Act, a person has a right to be given access to documents of an agency.[14] However, this right is subject to other provisions of the RTI Act including the grounds on which an agency may refuse access to documents.[15] Relevantly, access may be refused where information is exempt information[16] or disclosure would, on balance, be contrary to the public interest.[17] Under section 47(3)(a) of the RTI Act, access can be refused to information on the basis that it is exempt information. Information will be exempt information if its disclosure would found an action for breach of confidence.[18] Disclosing information will found an action for breach of confidence if five cumulative requirements are satisfied.[19] Relevantly, the information must have been communicated in such circumstances as to fix the recipient – in this case, QH – with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the information’s confider.[20] Review applicants’ submissions The review applicants contend that: in resolution of a dispute with their former solicitors, arising from the sale of the property, the review applicants agreed with the solicitors and the LSC to keep information regarding the sale of the property (settlement agreement) confidential; and accordingly, they are obliged to keep the Information in Issue confidential and cannot consent to its disclosure, as to do so will breach the settlement agreement, thereby making them liable to the LSC and their former solicitors. Findings For the breach of confidence exemption to apply in this case the review applicants must demonstrate that they communicated the Information in Issue to QH in circumstances where both either expressly or impliedly agreed to keep that information confidential.[21] There is no evidence before me that that was the case. The review applicants’ reference to their obligations under the settlement agreement is, in this context, irrelevant. This is because QH is not a party to that agreement, nor to any confidentiality obligations it may impose as between the review applicants and other third parties. I understand that the review applicants may feel concerned that any disclosure of information they believe they are obliged to hold confidentially may constitute a possible breach by them of those obligations. The review applicants may be assured, however, that this not the case in the present circumstances. Disclosure will not be disclosure by the review applicants in breach of any obligation of confidence, but disclosure by a government agency in satisfaction of its statutory obligations under the RTI Act. I am satisfied that the Information in Issue: was not communicated to QH subject to any conditions of confidentiality or in circumstances where such conditions may be implied was not received by QH in circumstances that import an obligation of confidence; and does not satisfy one of the five cumulative elements necessary to found an action for breach of confidence. As disclosure would not found an action for breach of confidence, the Information in Issue is not exempt information.[22] Would disclosing the Information in Issue, on balance, be contrary to the public interest? No, for the reasons that follow. Relevant law Under the RTI Act, access to a document can be refused to the extent that its disclosure would, on balance, be contrary to the public interest.[23] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs and for the wellbeing of citizens generally. This means that ordinarily, a public interest consideration is one which is common to all members of, or a substantial segment of, the community as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest. It also explains the steps that a decision-maker must take in deciding the public interest. To decide whether disclosing the Information in Issue would be contrary to the public interest, I must:[24] identify any irrelevant factors and disregard them; identify relevant public interest factors favouring disclosure and nondisclosure; balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosing the information would, on balance, be contrary to the public interest. Findings I am satisfied that disclosing the Information in Issue would not, on balance, be contrary to the public interest, for the reasons that follow. Irrelevant factors, factors favouring disclosure and nondisclosure I have examined the irrelevant factors in schedule 4 of the RTI Act and am satisfied I have not taken into account any irrelevant factors in reaching my decision. There are a number of factors favouring disclosure and nondisclosure in this case. I discuss these and their relative weight below. Factors favouring disclosure Accountability and positive and informed debate The RTI Act recognises public interest in disclosure of information where such disclosure could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability.[25] The Information in Issue includes information identifying the location and nature/condition of the property, valuation amounts, purchase price, QH’s reasons and authority for acquiring the property and steps in the negotiation. Disclosing the Information in Issue would reveal the matters QH considered, and the legislation and guidelines under which it operated, in negotiating the acquisition of the property. Such disclosure could reasonably be expected to: increase public knowledge and understanding of processes adopted by government in acquiring land from private individuals for public purposes, using public funds; and enhance QH’s accountability for its decision to acquire private land with public funds. I am satisfied these factors favouring disclosure arise for consideration in this case. Reveal reasons for a decision A further public interest factor favouring disclosure arises if disclosing the Information in Issue could reasonably be expected to reveal the reason for a government decision.[26] Disclosing the Information in Issue would do so in this case, by providing the public with information about QH’s reasons for deciding to purchase the property. I am satisfied this factor arises for consideration in this case. Factors favouring nondisclosure Prejudice the protection of an individual’s right to privacy A public interest factor favouring nondisclosure arises if disclosing the Information in Issue could reasonably be expected to prejudice the protection of an individual’s right to privacy.[27] Further, if disclosing the relevant information would disclose an individual’s personal information, a public interest harm factor will arise. The extent of the harm will therefore need to be considered.[28] The Information in Issue includes some personal information of the review applicants. Disclosing such information could reasonably be expected to impact the review applicants’ privacy. In this case, however, the strength of that privacy interest is substantially diminished. This is because much of the detail of the transaction is publicly available. The Government’s scheme for ensuring transparent dealings with land, established through the Land Valuation Act 2010 (Qld) (LVA) and the Land Title Act 1994 (Qld) (LTA), promotes public access to property transaction information.[29] Payment of a small fee entitles any member of the public to obtain land dealing information such as location of the land, the names of owners and vendors, valuation amount and sale price. The access applicant is aware that the property was acquired for the proposed relocation of a particular medical foundation. Internet searches of the term using the foundation’s name show the address of the relocated foundation. This provides the information necessary for an LVA or LTA search. In these circumstances, I am satisfied that relevant personal information – the location and price paid for the land – is publicly available through the process established under the LVA and the LTA. While the public accessibility of this information does not alter its character as personal information, its availability does significantly, if not entirely, reduce the privacy interests that would ordinarily attach to it. Although aspects of the personal information are not publicly available, for example, information relating to the steps in the negotiation, the information of this type which remains in issue is essentially of a non-sensitive commercial nature, rather than personal in character, and the privacy interests are relatively low. Balancing the public interest factors In this case, I consider the factors favouring disclosure discussed above warrant considerable weight. There is a clear public interest in ensuring that agencies acquiring private property with public monies do so transparently and accountably. There is also a strong public interest in making available for scrutiny and public discussion information evidencing the reasons behind purchasing and acquisition decisions of this kind, including, importantly, the final price agreed between a public agency and a private vendor. Weighing against these significant public interests is the public interest in protecting an individual’s right to privacy and the public interest harm in disclosure of personal information. As explained above, much of this personal information is, however, publicly available or is primarily of a non-sensitive commercial nature, diminishing significantly, if not entirely the privacy interests these nondisclosure/harm factors are intended to protect. In these circumstances, I attribute minimal weight to the nondisclosure factor and consider that the public interest harm presumed to arise would be minimal at best. I find that the factors favouring disclosure of the Information in Issue outweigh the factor favouring nondisclosure and the public interest harm. DECISION The decision under review was made in respect of the Three Attachments. I am satisfied that. the Information in Issue in this review is as described in paragraph eight of this decision; it does not comprise exempt information under section 47(3)(a) of the RTI Act; and its disclosure would not, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act. Accordingly, I vary QH’s decision by finding that QH is entitled to disclose the Information in Issue. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld). ________________________ Suzette Jefferies Assistant Information Commissioner Date: 11 May 2012 APPENDIX Significant procedural steps Date[30] Event 22 June 2010 Access applicant applied to QH for access to information about the Hospital Project. 16 July 2010 Access applicant narrowed the scope of the access application.[31] 7 September 2010 Access applicant further narrowed the scope of the access application.[32] 9 September 2010 QH consulted with relevant third parties and sought the review applicants’ views regarding disclosure of Three Attachments 18 September 2010 Review applicants objected to disclosure of the Three Attachments. 22 September 2010 QH sought the review applicants’ views on disclosure of a reduced amount of information in the Three Attachments. 22 September 2010 Review applicants objected to QH’s revised disclosure proposal. 30 September 2010 QH issued its decision. 15 October 2010[33] Review applicants applied to OIC for external review of QH’s decision. 2 November 2010 OIC notified QH and the review applicants that the application had been accepted for external review. 6 November 2010 Review applicants provided a submission to OIC. 22 August 2011 Review applicants provided a further submission to OIC. 13 December 2011 OIC sought the review applicants’ views regarding disclosure of the Additional Information and conveyed a preliminary view to the review applicants.[34] 24 January 2012 Access applicant withdrew the access application in respect of some of the information in the Project Documents. 24 January 2012 OIC informed the review applicants of the access applicant’s withdrawal of part of the access application. 5 February 2012 Review applicants objected to disclosure of the Project Documents and made submissions to OIC in response to OIC’s preliminary view. [1] Access application dated 22 June 2010. [2] Under section 37 of the RTI Act.[3] Decision dated 30 September 2010.[4] In a telephone conversation with OIC and a subsequent email dated 24 January 2012. [5] Under section 47(3)(a), section 48 and schedule 3 section 8 of the RTI Act.[6] Under section 47(3)(b), section 49, schedule 4 part 3 item 3 and schedule 4 part 4 section 6 of the RTI Act.[7] QH had consulted the review applicants regarding pages 7-28, that is, attachments two, three and four to a memorandum of the Project Documents (Three Attachments). On external review, QH indicated to OIC that, given the concerns raised by the external review applicants about disclosing information in the Three Attachments, the review applicants would likely also object to disclosure of parts of pages 1 to 6 of the Project Documents on the same basis because this information essentially replicates the relevant information in the Three Attachments. By letter dated 13 December 2011, OIC consulted the review applicants regarding some information contained in pages 1-6 of the Project Documents, the disclosure of which might reasonably be expected to be of concern to the review applicants (Additional Information). By letter in response dated 5 February 2012, the review applicants objected to disclosure of any information in the Project Documents.[8] Also dated 30 September 2010.[9] Which the access applicant agreed in a telephone conversation with OIC and a subsequent email dated 24 January 2012 that they did not seek to access and which comprises information redacted from pages two, three and fifteen. Redacted copies of these pages have been provided to QH.[10] ‘Disclosure decision’ is defined in section 87(3) of the RTI Act as a decision to disclose a document or information contrary to the views of a relevant third party obtained under section 37 of the RTI Act. [11] Section 87(2) of the RTI Act.[12] Therefore rendering the Information in issue ‘exempt information’ to which access may be refused under section 47(3)(a) of the RTI Act.[13] Under section 47(3)(b) of the RTI Act, and in accordance with the public interest balancing exercise set out in section 49 of the RTI Act.[14] Section 23 of the RTI Act.[15] Section 47 of the RTI Act.[16] Section 47(3)(a) of the RTI Act. [17] Section 47(3)(b) of the RTI Act. [18] Schedule 3 section 8 of the RTI Act.[19] As identified in B and Brisbane North Regional Health Authority [1994] QICmr 1; [1994] 1 QAR 279 (B) at paragraphs 57-58; and Callejo v Department of Immigration and Citizenship [2010] AATA 244 at paragraphs 163-171 and 176.[20] Requirement (c), B, paragraphs 76-102. [21] It must also be shown that information claimed to be confidential actually is confidential: requirement (b), B, paragraphs 76-102. As detailed in paragraphs 38-39, much of the Information in Issue comprises publicly available land valuation information. It is therefore arguable this information does not possess the required quality of confidence.[22] Under section 47(3)(a), section 48 and schedule 3 section 8 of the RTI Act.[23] Section 47(3)(b) of the RTI Act.[24] Section 49(3) of the RTI Act.[25] Schedule 4 part 2 items 1 and 2 of the RTI Act.[26] Schedule 4 part 2 item 11 of the RTI Act.[27] Schedule 4 part 3 item 3 of the RTI Act.[28] Schedule 4 part 4 section 6 of the RTI Act.[29] Under section 181 and section 183 of the LVA, on payment of the prescribed fee, a person may obtain from the valuer-general details of the: identity number, area, location and description of land owner’s name and address valuation date and amount; and other information the valuer-general considers appropriate.Such information is available to members of the public, together with information identifying the previous sale price and vendor, as part of the Queensland Valuation And Sales data collected by the Department of Natural Resources and Mines. Similarly, under section 35 of the LTA, a person may, on payment of the prescribed fee, obtain from the registrar of titles details of instruments lodged and information kept under the LTA. Information available to members of the public under the LTA includes information identifying the previous sale price and vendor. [30] Of correspondence or relevant communication unless otherwise stated. [31] Noted in QH’s letter to access applicant dated 30 September 2010.[32] Noted in QH’s letter to access applicant dated 30 September 2010.[33] External review application dated 10 October 2010 received by OIC.[34] Australia Post was unable to deliver the letter to the review applicants and it was returned unopened to OIC. OIC provided a copy of the letter to the review applicants on 24 January 2012 together with notification of the access applicant’s withdrawal of part of the access application.

queensland

court_judgement

Queensland Information Commissioner 1993-

Hill Mac Pty Ltd and Department of Justice and Attorney-General [2012] QICmr 56 (29 October 2012)

Hill Mac Pty Ltd and Department of Justice and Attorney-General [2012] QICmr 56 (29 October 2012) Last Updated: 27 August 2013 Decision and Reasons for Decision Application Number: 310913 Applicant: Hill Mac Pty Ltd Respondent: Department of Justice and Attorney-General Decision Date: 29 October 2012 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - EXEMPT INFORMATION - application for correspondence between the Office of Liquor and Gaming Regulation and Queensland Police Service in relation to licensed venues - objections to disclosure raised by owner of a venue on the basis that information is exempt under schedule 3, of the Right to Information Act 2009 (Qld) - whether access to information may be refused under sections 47(3)(a) and 48 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - CONTRARY TO PUBLIC INTEREST - information concerning liquor-related incidents - issues of public safety, accountability and regulation of licensed venues - impact of disclosure on the business affairs of a licensed venue - whether disclosure of the information would, on balance, be contrary to the public interest - whether access to information may be refused under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - DISCLOSURE DECISION - ONUS ON EXTERNAL REVIEW - whether objecting participant has established that a decision not to disclose information is justified or that the Information Commissioner should give a decision adverse to the access applicant - section 87(2) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary An application was made to the Department of Justice and Attorney-General (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to correspondence between the Office of Liquor and Gaming Regulation (OLGR)[1] and the Liquor Enforcement and Proactive Strategy (LEAPS) coordinator at the Queensland Police Service (QPS) in relation to certain licensed venues. The Department contacted the owners of the relevant venues, including the external review applicant (Applicant), to seek their views on disclosure of the information it had located in response to the application. The Applicant objected to information about its venue being disclosed. The Department decided to grant access to the information on the basis that it was not exempt or contrary to the public interest to disclose under the RTI Act.[2] The Applicant applied to the Office of the Information Commissioner (OIC) for external review of the Department’s decision to disclose information. The Applicant submitted that information relating to its venue is exempt and/or contrary to the public interest to disclose and therefore, should not be released under the RTI Act. On external review, the Applicant emphasised that disclosing information about ‘alleged incidents’ at its venue would be unlikely to advance government accountability and would instead, significantly prejudice its business affairs by damaging the venue’s reputation. For the reasons set out below, the Department’s decision to disclose information relating to the Applicant’s venue is affirmed as the information is not exempt and nor would its disclosure, on balance, be contrary to the public interest under the RTI Act. Background LEAPS is a program which involves QPS working with OLGR with a view to ensuring compliance with legislation and regulations concerning licensed venues. QPS officers who attend or become aware of liquor-related incidents involving licensed venues create a report and forward this to the QPS LEAPS Coordinator. The LEAPS Coordinator then sends the information to OLGR which assesses it as part of its regulatory activities.[3] Significant procedural steps relating to the application and external review are set out in the Appendix to these reasons Reviewable decision The decision under review is the Department’s internal review decision dated 21 December 2011 granting access to information under the RTI Act. Material considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix). Information in Issue The information in issue in this review (Information in Issue) consists of two spreadsheets, prepared by the QPS LEAPS Coordinator and sent to OLGR, in accordance with LEAPS processes.[4] The spreadsheets set out: date, time and location of incidents recorded by QPS officers as having occurred at, or in the vicinity of, the Applicant’s venue a summary of the facts relating to the incidents, including nature of any offence(s), any resulting arrests and/or description of any injuries sustained; and an indication as to any substance(s) the involved individuals were observed as having been affected by, and level of intoxication (where applicable). The Information in Issue does not include the names of any individuals involved in the incidents. Issues for determination In this review the Applicant has the onus of establishing that access to the Information in Issue should be refused.[5] The Applicant has raised the following grounds for refusal of access in its submissions: (i) the Information in Issue is exempt information;[6] or (ii) disclosure of the Information in Issue would, on balance, be contrary to the public interest.[7] The Applicant made extensive submissions to OIC in support of its view that the Information in Issue should not be disclosed[8] and in making my decision in this review, I have carefully considered all of the submissions. Some submissions did not relate directly to the issues for determination in this review, for example, they did not go to the requirements for establishing the exemptions claimed or were unrelated to the test for applying particular public interest factors. Accordingly, such submissions are not referred to in these reasons for decision as they do not relate to the issues for determination, as set out above. To support a number of its exemption claims and public interest arguments, the Applicant contends that individuals involved in the incidents can be identified from the Information in Issue. As this issue arises for consideration throughout these reasons, I have made a preliminary finding on whether individuals are identifiable from the Information in Issue and have then referred to this finding, throughout the reasons, where applicable. Findings The Applicant generally submitted that the RTI Act does not intend for all information which government possesses to be made publicly available and therefore, disclosure of the Information in Issue would be in conflict with the purpose and objects of the legislation.[9] The RTI Act provides a general right of access to information in the possession or under the control of Queensland government agencies.[10] While the legislation excludes certain documents and entities from the application of the RTI Act[11], I am satisfied that the Information in Issue is not subject to any of these exclusions. Accordingly, I find that the Information in Issue is in the possession of the Department and is therefore, subject to the RTI Act access scheme. Are individuals identifiable from the Information in Issue? No, for the reasons that follow. As set out in paragraph 10 above, the Information in Issue does not name any individuals involved in the incidents. The Information in Issue only refers to individuals in generic terms, eg. ‘victim’ or ‘suspect’. Having carefully reviewed the Information in Issue, I am also satisfied that any personal details of individuals which appear in the Information in Issue, eg. descriptions of injuries sustained, are not of such a unique nature that they could reasonably be expected to be used to ascertain the identity of any individuals involved in the incidents. The Applicant contends that media articles could be used in conjunction with the Information in Issue to identify individuals. The Applicant points to a particular incident referred to in the Information in Issue which it considers would identify the victim and suspect.[12] I acknowledge that incidents occurring at the Applicant’s venue may have been the subject of media reports and that some reported incidents may have similarities to those referred to in the Information in Issue. However, given the absence of individual names and/or other uniquely personal details from the Information in Issue, I do not consider the identity of individuals could reasonably be ascertained using media reports. For the above reasons, I am satisfied that any individuals involved in the incidents cannot be identified from the Information in Issue and also, that it is not reasonable to expect that individuals’ identities could be ascertained using the Information in Issue and/or other publicly available material. Is the Information in Issue exempt information? No, for the reasons that follow. Relevant law Access should be given to a document unless disclosure would, on balance, be contrary to the public interest.[13] The right of access is subject to some limitations, including grounds on which access may be refused.[14] One ground for refusing access is where a document comprises exempt information.[15] Schedule 3 of the RTI Act sets out the type of information which Parliament has considered to be exempt as its disclosure would, on balance, be contrary to the public interest. Analysis The exemptions raised by the Applicant in this review are set out in the Appendix to these reasons. Schedule 3, section 6(a) - contempt of court The Information Commissioner has previously explained[16] that the: concept of contempt of court is based on the protection and maintenance of public confidence in the effective administration of justice; and public disclosure of matter that has the tendency to interfere, or is intended to interfere, with the pending fair trial of a criminal or civil proceeding will amount to a contempt of court. The Applicant submits that the Information in Issue: easily identifies suspected offenders and victims and would therefore, jeopardise a fair trial for potential suspects contains unsubstantiated allegations which have not been determined by a court and the series of events described is only one source’s account of events; and identifies incidents of a criminal nature which may be subject to criminal proceedings, and if disclosed, there is a reasonable expectation that it would adversely affect the impartiality of jurors and/or judicial officers. I acknowledge that the Information in Issue contains allegations which may have not yet been determined by a court. However, as I have found that individuals could not reasonably be identified from the Information in Issue, I consider that any pending criminal or civil proceedings associated with the incidents could not be connected to the Information in Issue with any level of certainty. For this reason, I am not satisfied that disclosure could interfere with any such proceeding to constitute contempt of court. I therefore find that the Information in Issue is not exempt under schedule 3, section 6(a) of the RTI Act. Schedule 3, section 6(b) - contrary to an order or direction The Applicant submits that: there is a real possibility that an order has been made or direction given by a royal commission or commission of inquiry or a person or body having power taking evidence on oath to which public disclosure would be contrary; and the decision-maker is compelled to check and ensure that no such orders have been made or directions given prior to any disclosure being contemplated. The Applicant has not provided any supporting evidence to show that there has been an order made or direction given by a royal commission or commission of inquiry, or by a person or body having power to take evidence on oath, not to disclose the Information in Issue. As the onus is on the Applicant to establish that a decision not to disclose the Information in Issue on the basis of this exemption is justified[17] and in the absence of any available evidence to support its submission, I find that the Information in Issue is not exempt under schedule 3, section 6(b) of the RTI Act. Schedule 3, section 10(1)(a) - prejudice to an investigation The Applicant submits that: all of the Information in Issue relates to contraventions or possible contraventions of the law, largely of an allegedly criminal nature, some or all of which are likely to be subject to investigation and/or court proceedings the Information in Issue arguably allows for the identification of suspects and victims and contains a significant number of unsubstantiated allegations; and if the Information in Issue is disclosed, it could reasonably be expected to impact adversely on the ability of QPS to discharge its duties. For this exemption to apply, there must be evidence of an investigation. The Applicant has not, however, provided any evidence to show that investigations are currently being conducted by QPS (or any other law enforcement agency) in relation to the incidents. I acknowledge that some of the incidents may be the subject of QPS investigations into alleged criminal offences. However, in the absence of any evidence as to specific investigations and in view of my findings at paragraphs 15-18 above, I am satisfied that the Applicant has not established the requisite level of prejudice to satisfy this exemption. I therefore find that the Information in Issue is not exempt under schedule 3 section 10(1)(a) of the RTI Act. Schedule 3, section 10(1)(b) - reveal a confidential source The Applicant submits that the Information in Issue identifies a number of officers and could enable the identity of victims, suspects, security personnel, employees of the Applicant and witnesses to be ascertained, many of which are likely to be confidential sources of information. For this exemption to apply, a confidential source of information must exist in relation to the enforcement or administration of the law.[18] There is no evidence available to OIC to demonstrate that any individuals involved in the incidents provided information to QPS officers confidentially. Even if I had been satisfied on this point, for the reasons set out at paragraphs 15-18 above, I do not consider that disclosure of the Information in Issue could reasonably be expected to enable the identity of any individuals to be ascertained. I therefore find that the Information in Issue is not exempt under schedule 3 section 10(1)(b) of the RTI Act. Schedule 3, section 10(1)(c) - endanger a person’s life or physical safetySchedule 3, section 10(1)(d) - serious act of harassment or intimidation The Applicant submits that it could reasonably be expected that a person who has divulged information or taken action against a person of interest, whose identity is reasonably determinable from this information, may reasonably fear their physical safety is in danger. For the same reasons, the Applicant submits that disclosure of the Information in Issue could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation. I acknowledge that there may be cases in which witnesses to, and/or victims of, criminal offences, may have well-founded concerns of the nature submitted by the Applicant. However, in view of my findings at paragraphs 15-18 above that individuals are not identifiable from the Information in Issue, I do not consider that the Information in Issue could be used for the purpose of committing acts which may endanger a person’s life or physical safety and/or constitute serious harassment or intimidation. Accordingly, I do not consider that the outcomes contemplated by these exemptions could rea[19]nably be expected to19 occur through disclosure of the Information in Issue. I therefore find that the Information in Issue is not exempt under schedule 3 section 10(1)(c) or (d) of the RTI Act. Schedule 3, section 10(1)(e) - prejudice a fair trial The Applicant submits that disclosure would impact adversely on the impartiality of jurors and/or judicial officers as the Information in Issue identifies suspects and victims and discloses incidents of an allegedly criminal nature in the context of unsubstantiated accounts which have not been determined by a court. A ‘person’s fair trial’ only refers to a criminal trial and does not extend to civil proceedings.[20] The phrase ‘impartial adjudication of a case’ is wide enough to extend to civil proceedings or any case that is formally adjudicated by a decision maker.[21] For the reasons set out at paragraph 24 above, I am satisfied that the Information in Issue could not reasonably be expected to prejudice any criminal or civil proceedings relating to the incidents and is therefore, not exempt under schedule 3 section 10(1)(e) of the RTI Act. Schedule 3, section 10(1)(f) and (i) - prejudice methods, systems or procedures The Applicant submits that releasing the Information in Issue will: negatively impact the important relationship between licensees, their staff and QPS, as licensees would be less likely to contact QPS in relation to liquor-related incidents; and prejudice the effectiveness of the LEAPS project because voluntary participants would no longer cooperate to as full an extent, thereby decreasing the accuracy of the information obtained by LEAPS and the effectiveness of its efforts to address liquor-related issues or predict trends. The Information in Issue records suspected offences which have occurred at, or in the vicinity of the Applicant’s venue. I am satisfied that the attendance of QPS officers at licensed venues, either at the request of the venue, or through other intelligence sources, constitutes (i) a lawful method for preventing, detecting and dealing with contraventions or possible contraventions of the law and/or (ii) a system for the protection of persons and property.[22] The Liquor Act 1992 (Qld) (Liquor Act) places a number of obligations on licensed venues in relation to safety and security, for example: licensees are required to maintain a safe environment for their patrons and staff[23] licensees must ensure liquor is served, supplied and promoted in a way that is compatible with minimising harm from the use of liquor and preserving the peace and good order of the neighbourhood of the premises;[24] and venues must keep a register about each incident at the licensed venue (i) in which a person is injured or (ii) requiring a person to be removed from the venue.[25] In view of the above legislative requirements and the regulatory environment in which licensed premises operate, I consider it is reasonable to expect that licensees would notify QPS of any incidents at their venue requiring QPS attention to ensure the safety of their venue, staff and patrons. In my view, maintaining open and regular communication with a law enforcement agency would be advantageous to a licensee as it would support the venue in managing and responding to liquor-related incidents, provide an added level of protection for staff and patrons and generally, enhance venue safety. For these reasons, I am not persuaded that the disclosure of information under the RTI Act would lead to licensees being reluctant to contact QPS about liquor-related incidents.[26] For the above reasons, I am not satisfied that it is reasonable to expect that the relevant methods, systems and/or procedures could be prejudiced through disclosure of the Information in Issue. Accordingly, I find that the Information in Issue is not exempt under schedule 3, section 10(f) or (i) of the RTI Act. Would disclosure, on balance, be contrary to the public interest? No, for the reasons that follow. Relevant law An agency may refuse access to information under the RTI Act where its disclosure would, on balance, be contrary to the public interest.[27] The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest[28] and explains the steps that a decision-maker must take[29] in deciding the public interest as follows: (i) identify any irrelevant factors and disregard them (ii) identify relevant public interest factors favouring disclosure and nondisclosure (iii) balance the relevant factors favouring disclosure and nondisclosure; and (iv) decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Analysis (i) Irrelevant factors The Applicant has questioned the intentions of the access applicant for seeking access to the Information in Issue and the use to which the Information in Issue may be put once released. [30] The RTI Act provides that the conduct of the access applicant which may result from disclosure is an irrelevant factor in deciding the public interest.[31] I also consider that the access applicant’s reasons for requesting information under the RTI Act are irrelevant when assessing the public interest.[32] For the above reasons, I have not taken the Applicant’s submissions on this issue into account. I do not consider any other irrelevant factors arise in this case. (ii) Factors favouring disclosure The RTI Act recognises that the public interest will favour disclosure of information where disclosure could reasonably be expected to: promote open discussion of public affairs and enhance the government’s accountability[33] contribute to positive and informed debate on important issues or matters of serious interest;[34] and reveal environmental or health risks or measures relating to public health and safety.[35] OLGR is responsible for regulating Queensland’s liquor industry and its development, within a socially responsible framework, and in a way that is compatible with minimising harm caused by alcohol abuse.[36] As part of its regulatory role, OLGR records liquor-related incidents as reported by QPS officers, whether or not breach action against the licensee/venue has been taken, to enable OLGR to identify any trends at licensed premises that may require proactive negotiations with the licensee and to reduce the likelihood of significant incidents in the future.[37] OLGR performs this part of its functions with the cooperation of QPS officers, through the LEAPS program. The Information Commissioner has previously recognised that it is essential for the public to have confidence in the way a regulatory agency performs its functions.[38] Given the nature of the Information in Issue, as described at paragraph 9 above, I consider that disclosure would allow the community to scrutinise QPS’ response to liquor-related incidents and the way such incidents are communicated to OLGR, for the purpose of it performing its regulatory activities relating to liquor and licensed venues. For these reasons, I am satisfied that disclosure would enhance government accountability and promote open discussion of public affairs. The occurrence of liquor-related incidents at licensed premises is an issue of serious interest and the impact this issue has on the community is well-recognised.[39] I consider that disclosure of the Information in Issue would allow members of the public to scrutinise the nature and frequency of liquor-related incidents reported by QPS in relation to the Applicant’s venue and the actions taken by QPS at the time of the incident. I am satisfied that this would reveal measures relating to public safety and would contribute to positive and informed debate on matters of serious interest to the community. The Applicant argues strongly against the weight to be given to the above public interest factors on the basis that the Information in Issue describes alleged incidents which occurred some time ago and does not discuss the role of OLGR or QPS, or measures taken, to ensure safety or contribute to accountability.[40] The Applicant also submits that because the venue has a low incident rate in comparison to the number of patrons who attend the venue, the weight of these factors should be further reduced.[41] I acknowledge that the age of the information potentially reduces its utility for the purpose of public discussion. However, OLGR remains the regulating body for licensed premises and OLGR has confirmed that information about liquor-related incidents continues to be communicated between QPS and OLGR in the context of the LEAPS program, to assist OLGR in performing its regulatory functions. Accordingly, I am satisfied that disclosure of the Information in Issue, despite its date range, could still reasonably be expected to enhance government accountability, contribute to discussion and debate within the community on matters of serious interest and reveal measures relating to public safety. In my view, whether the number of liquor-related incidents reported in relation to a licensed venue is high or low, disclosure will still allow the public to see the way in which incidents are reported by QPS and communicated to OLGR. Accordingly, I am satisfied that a venue’s incident rate does not decrease the public interest in enhancing the accountability of the law enforcement agency and regulatory body in relation to their responsibilities concerning liquor-related incidents and licensed premises. For the reasons set out above, I afford the public interest factors identified at paragraph 50 significant weight in favour of disclosure. (iii) Factors favouring nondisclosure The Applicant has raised numerous public interest factors in schedule 4 of the RTI Act which it considers favour nondisclosure of the Information in Issue.[42] The Applicant’s primary concern is that disclosure of the Information in Issue will prejudice its business affairs and damage its reputation. [43] The Applicant submits that disclosure would lead to decreased patronage and financial implications for the venue. The Information in Issue describes liquor-related incidents recorded by QPS as having occurred at, or in the vicinity of the Applicant’s venue. While I am prevented from describing the particular nature of the Information in Issue in these reasons[44], the information refers generally to the behaviour of venue patrons and their level of intoxication, any suspected criminal offences and any violence involved in the incident. I consider that it is reasonable to expect that the Applicant’s business and/or financial affairs could suffer some level of prejudice through disclosure of this type of information as some members of the public may be less inclined to patronise the Applicant’s venue to avoid exposure to such incidents. Accordingly, I find that this public interest factor applies in this case. However, I afford this factor only moderate weight on that basis that members of the public are generally aware that liquor-related incidents occur in many licensed venues and still choose to attend the venues. I also consider that a venue’s history of liquor-related incidents is only one factor considered by potential patrons in selecting a venue to attend. I acknowledge that the Information in Issue is about allegations of criminal conduct which at the time of recording had not been tested in court. However, as no individuals are identified in the Information in Issue, I find that the public interest factor in schedule 4, part 3, item 6 of the RTI Act does not apply in this case. For the reasons set out at paragraph 24 above, I find that disclosure of the Information in Issue could not reasonably be expected to impede the administration of justice for a person, or generally and therefore find that the public interest factors in schedule 4, part 3, items 8 and 9 of the RTI Act do not apply in this case. For the reasons set out at paragraph 43 above, I find that disclosure could not reasonably be expected to prejudice the flow of information to a law enforcement or regulatory agency and that therefore, the public interest factor in schedule 4, part 3, item 13 of the RTI Act does not apply in this case. There is no evidence available to indicate that the Information in Issue was communicated confidentially, either to QPS by persons involved in the incidents or between QPS and OLGR. I am therefore not satisfied the Information in Issue is confidential and accordingly, find that the public interest in schedule 4, part 3, item 16 does not apply in this case. For the reasons set out in paragraphs 15-18 above, I am not satisfied that the Information in Issue identifies individuals or that any identities could reasonably be ascertained from the Information in Issue. Accordingly, I find that disclosure of the Information in Issue would not reveal th[45]personal information45 of any individual and that therefore, the public interest factor in schedule 4, part 4, item 6 of the RTI Act does not apply in this case. The Applicant did not make any specific submissions to support the application of the public interest factors concerning prejudice to intergovernmental relations and prejudice to security, law enforcement and public safety. As the onus is on the Applicant to establish that a decision not to disclose the Information in Issue is justified[46] and in the absence of any evidence to support the application of these factors, I find that they do not apply in this case. (iv) Balancing the public interest Enhancing the accountability of regulatory and law enforcement agencies which deal with liquor-related incidents in relation to licensed premises is a factor carrying significant weight in favour of disclosure of the Information in Issue. Given that the occurrence of such incidents raises issues of public safety, I am also satisfied that disclosure of the Information in Issue would lead to open discussion of public affairs and positive and informed debate on matters of serious interest. Weighing against these factors is the prejudice to the Applicant’s business and/or financial affairs which may result from disclosure of the Information in Issue, however, I am satisfied that this carries only moderate weight in this case in view of the general level of public awareness of the occurrence of liquor-related incidents in licenced premises. On balance, I am satisfied that the public interest favours disclosure in this case and therefore, find that disclosure of the Information in Issue would not be contrary to the public interest. DECISION For the reasons set out above, I affirm the Department’s decision to grant access to the Information in Issue on the basis that it is not exempt information and that disclosure would not, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ K Shepherd Assistant Information Commissioner Date: 29 October 2012APPENDIX Significant procedural steps Date Event 8 August 2011 The Department received the access application. 27 September 2011 The Department consulted with the Applicant under section 37 of the RTI Act about disclosure of the relevant information to the access applicant and invited to Applicant to identify any objections to disclosure. 12 October 2011 The Applicant notified the Department that it objected to disclosure of the relevant information and provided submissions supporting its case. 31 October 2011 The Department issued its initial decision to the Applicant, deciding to disclose information in relation to the Applicant’s venue. 28 November 2011 The Applicant applied to the Department for internal review. 21 December 2011 The Department affirmed its initial decision. 13 January 2012 OIC received the external review application. 19 January 2012 The Department provided OIC with relevant documents including the Information in Issue. 24 February 2012 OIC received the Applicant’s further submissions. 30 April 2012 – 22 May 2012 OIC sought clarification from the Department in relation to the Information in Issue. 28 June 2012 OIC issued a written preliminary view to the Applicant that there is no basis on which the Information Commissioner can set aside the Department’s decision on the Information in Issue. OIC invited the Applicant to provide submissions supporting its case if it did not accept the preliminary view. 20 July 2012 The Applicant advised OIC it did not accept the preliminary view and lodged submissions in response. 31 July 2012 OIC telephoned OLGR to obtain information about the LEAPS program as it relates to OLGR’s role in regulating licensed venues. 27 August 2012 OIC provided the Applicant with an update on the status of the external review. 21 September 2012 OIC provided the Department with an update on the status of the external review and asked the Department to convey the status of the review to the access applicant. 28 September 2012 OIC provided the Applicant with a further update on the status of the external review. Schedule 3 of the RTI Act - Exempt information 6 Information disclosure of which would be contempt of court or Parliament Information is exempt information if its public disclosure would, apart from this Act and any immunity of the Crown— (a) be in contempt of court; or (b) be contrary to an order made or direction given by— (i) a royal commission or commission of inquiry; or (ii) a person or body having power to take evidence on oath; or ... 10 Law enforcement or public safety information (1) Information is exempt information if its disclosure could reasonably be expected to— (a) prejudice the investigation of a contravention or possible contravention of the law (including revenue law) in a particular case; or (b) enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained; or (c) endanger a person’s life or physical safety; or (d) result in a person being subjected to a serious act of harassment or intimidation; or (e) prejudice a person’s fair trial or the impartial adjudication of a case; or (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 (including revenue law); or ... (i) prejudice a system or procedure for the protection of persons, property or the environment; or ... Schedule 4 of the RTI Act - Factors for deciding the public interest Part 3 Factors favouring nondisclosure in the public interest Disclosure of the information could reasonably be expected to prejudice the fair treatment of individuals and the information is about unsubstantiated allegations of misconduct or unlawful, negligent or improper conduct. Disclosure of the information could reasonably be expected to prejudice security, law enforcement or public safety. Disclosure of the information could reasonably be expected to impede the administration of justice generally, including procedural fairness. Disclosure of the information could reasonably be expected to impede the administration of justice for a person. ... Disclosure of the information could reasonably be expected to prejudice the flow of information to the police or another law enforcement or regulatory agency. Disclosure of the information could reasonably be expected to prejudice intergovernmental relations.... Disclosure of the information could reasonably be expected to prejudice an agency’s ability to obtain confidential information.... Part 4 Factors favouring nondisclosure in the public interest because of public interest harm in disclosure 6 Disclosing personal information (1) Disclosure of the information could reasonably be expected to cause a public interest harm if disclosure would disclose personal information of a person, whether living or dead. [1] OLGR is part of the portfolio of the Attorney-General and Minister for Justice. For the purpose of section 14 of the RTI Act, the agency which deals with requests for information held by OLGR is the Department of Justice and Attorney General.[2] The Department also sought QPS’ views on disclosure. The Department has confirmed to OIC that QPS initially objected to disclosure of information and sought internal review of the Department’s decision to disclose information. QPS did not however, apply to OIC for external review and therefore, they were not involved in the review process. [3] See Commissioner’s Circular 27/2010 – Drink Safe Precincts and Banning Orders, 2 December 2010 at page 2 (available at http://www.police.qld.gov.au/Resources/Internet/rti/policies/documents/Circular%2027-2010.pdf).[4] As described at paragraph 5 above. [5] Under section 87(2) of the RTI Act, the participant in an external review who opposes a disclosure decision (defined in section 87(3)(a) of the RTI Act) has the onus of establishing that a decision not to disclose the information is justified or that the Information Commissioner should give a decision adverse to the access applicant.[6] Under sections 47(3)(a) and 48 and schedule 3 of the RTI Act. [7] Under sections 47(3)(b) and 49 of the RTI Act. [8] Submissions to OIC dated 24 February 2012 and 20 July 2012. I have also considered the Applicant’s RTI Objection Form, and accompanying letter dated 12 October 2011, submitted to the Department in response to the consultation process. [9] Submissions to OIC dated 24 February 2012 and 20 July 2012. [10] Section 23 of the RTI Act. See also sections 12 and 14 of the RTI Act. [11] See sections 11 and 17 and schedules 1 and 2 of the RTI Act. [12] Submissions to the Department dated 12 October 2011. I am unable to set out the details of the Applicant’s submission on this issue as it refers to information claimed to be exempt and/or contrary to public interest – see section 108 of the RTI Act. [13] Section 44(1) of the RTI Act. This is referred to as the pro-disclosure bias in deciding access to documents. [14] Section 47(2) of the RTI Act provides that these grounds are to be interpreted narrowly and an agency may give access to a document even if a ground on which access may be refused applies. [15] The grounds for refusal of access are listed in section 47(3) of the RTI Act. Section 47(2) of the RTI Act provides that these grounds are to be interpreted narrowly. [16] In Henderson and Department of Education (Unreported, Queensland Information Commissioner, 22 July 1997) at [23] in the context of the equivalent provision in section 50 of the repealed Freedom of Information Act 1992 (Qld) (FOI Act).[17] See paragraph 11 above.[18] McEniery and the Medical Board of Queensland [1994] QICmr 2; (1994) 1 QAR 349 in the context of the equivalent provision in section 42(1)(b) of the repealed FOI Act. [19] The phrase ‘could reasonably be expected to’ requires that the expectation is reasonably based and not irrational, absurd or ridiculous (Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97 at [106]) nor merely a possibility (Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744). Whether the expected consequence is reasonable requires an objective examination of the relevant evidence (Murphy at [45-47]). It is not necessary for a decision-maker ‘to be satisfied upon a balance of probabilities’ that disclosing the document will produce the anticipated prejudice, or, as in this case, a public good (Sheridan and South Burnett Regional Council & Others (Unreported, Queensland Information Commissioner, 9 April 2009)). Importantly, the expectation must arise as a result of disclosure, rather than from other circumstances (Murphy at [54]).[20] Uksi and Redcliffe City Council; Cook (Third Party) [1995] QICmr 18; (1995) 2 QAR 629 (Uksi) at [34]. [21] Uksi at [35].[22] I have also considered whether the communication of the liquor-related incidents by QPS officers to OLGR is a system, method or procedure for the purpose of these exemptions. I am satisfied that this aspect of the LEAPS program does not meet the necessary requirements as the purpose of the communications is to assist OLGR in its regulatory activities, eg. identifying trends at licensed premises. I consider this aspect of the LEAPS program is relevant to the public interest factors relating to accountability, discussed at paragraphs 50-57 below. [23] Section 148A(1)(a) of the Liquor Act.[24] Section 148A(1)(b) of the Liquor Act.[25] Section 142AI(1)(a) of the Liquor Act. [26] Even if I was persuaded on this point, I am satisfied that licensees are not the only source of intelligence for QPS in relation to liquor-related incidents. I consider that victims, patrons and even venue staff, would still be likely to contact QPS to attend such incidents, notwithstanding the disclosure of related information under the RTI Act. [27] Section 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. [28] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant in a particular case. [29] Section 49(3) of the RTI Act.[30] Submissions to OIC dated 24 February 2012 and 20 July 2012. [31] Schedule 4, part 1, item 3 of the RTI Act. [32] In State of Qld v Albietz, Information Commissioner (Qld) & Anor [1996] 1 Qd R 215, de Jersey J noted at [219] “... the Freedom of Information Act does not confer any discretion on the Information Commissioner, or the Supreme Court, to stop disclosure of information because of any particular motivation in the applicant”. Although this decision was made in the context of the repealed FOI Act, I consider the reasoning equally applies when considering applications under the RTI Act. [33] Schedule 4, part 2, item 1 of the RTI Act. [34] Schedule 4, part 2, item 2 of the RTI Act. [35] Schedule 4, part 2, item 14 of the RTI Act.[36] http://www.olgr.qld.gov.au/aboutUs/index.shtml. [37] http://www.police.qld.gov.au/Resources/Internet/rti/policies/documents/Circular%2027-2010.pdf [38] See Kenmatt Projects Pty Ltd and Building Services Authority (Unreported, Queensland Information Commissioner, 27 September 1999) at [47] and Seven Network (Operations) Limited and Redland City Council; A third party (Unreported, Queensland Information Commissioner, 30 June 2011) at [25].[39] See, for example, Law, Justice and Safety Committee, ‘Inquiry into Alcohol-Related Violence – Final Report (Report No. 74)’, March 2010 at http://www.parliament.qld.gov.au/ documents/TableOffice/TabledPapers/2010/5310T1903.pdf; Queensland Government, ‘Queensland Government Response to Law, Justice and Safety Committee’s final report into alcohol-related violence’, 27 August 2010 at http://www.parliament.qld.gov.au/ documents/Committees/LJSC/2009/alcohol-related-violence/responseReport74.pdf); Ministerial Council on Drug Strategy, ‘National Alcohol Strategy 2006-2009 – Towards Safer Drinking Cultures’, May 2006 at http://www.alcohol.gov.au/internet/alcohol/ publishing.nsf/Content/B83AD1F91AA632ADCA 25718E0081F1C3/$File/nas-06-09.pdf).[40] Page 2 and 5 of Applicant’s submission to OIC dated 20 July 2012. [41] Page 4 of Applicant’s submission to the Department dated 12 October 2011. [42] These are listed in the Appendix.[43] Submission to OIC dated 20 July 2012. [44] Due to the operation of section 108 of the RTI Act – see footnote 12 above.[45] As defined in section 12 of the Information Privacy Act 2009 (Qld). [46] See paragraph 11 above.

queensland

court_judgement

Queensland Information Commissioner 1993-

Swiatek and The University of Southern Queensland [2017] QICmr 57 (8 December 2017)

Swiatek and The University of Southern Queensland [2017] QICmr 57 (8 December 2017) Last Updated: 15 December 2017 Decision and Reasons for Decision Citation: Swiatek and The University of Southern Queensland [2017] QICmr 57 (8 December 2017) Application Number: 313127 Applicant: Swiatek Respondent: The University of Southern Queensland Decision Date: 8 December 2017 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION -REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST INFORMATION - application for access to student assignment marks - names and student numbers removed - whether the identities of other students are reasonably ascertainable - definition of ‘personal information’ in section 12 of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION -REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST INFORMATION - marks awarded to a student cohort in two assignments - enhance accountability of the University - advance administration of justice for the applicant - effect of disclosure on the University’s reputation and financial affairs - potential prejudice to the University’s deliberative processes and/or testing procedures - whether disclosure would, on balance, be contrary to the public interest - whether access to the information may be refused under section 47(3)(b) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary The University of Southern Queensland (USQ) received an application, under the Right to Information Act 2009 (Qld) (RTI Act), from the applicant, a current student, for access to the individual marks awarded to all of the students in his class, in two assignments, according to the specified marking criteria. In his application, the applicant confirmed that he did not seek access to the names and student numbers of any students, ie. he was seeking a ‘deidentified’ list of assignment marks. USQ located six pages and refused access to all of the information on the basis that disclosure would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act. In its decision, USQ relied on the prejudice to its commercial or financial affairs, and the effectiveness of its testing and examination procedures, that it considered would arise from disclosure of the assignment marks. The applicant applied to the Office of the Information Commissioner (OIC) for external review of USQ’s decision submitting, inter alia, that disclosure of the assignment marks would contribute to the administration of justice, would advance his fair treatment and reveal potential deficiencies in USQ’s conduct. Throughout the external review, USQ has strenuously defended its decision. USQ firmly believes that individual students could reasonably be identified from the list of assignment marks and that therefore, disclosure of the information would reveal the students’ personal information and infringe their privacy. USQ has also submitted that its commercial and financial affairs, testing and examination procedures, deliberative processes and the future supply of confidential information, would be prejudiced through disclosure of the assignment marks. For the reasons set out below, I set aside the decision under review. In substitution, I find that, on balance, the public interest favours disclosure of the assignment marks and that therefore, access may not be refused to the information under section 47(3)(b) of the RTI Act. Background Significant procedural steps relating to the external review are set out in the Appendix. Reviewable decision The decision under review is USQ’s decision dated 15 December 2016. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix).[1] Information in issue The information to which USQ refused access comprises the individual marks awarded to 121 students in two assignments in a particular subject (Assignment Marks).[2] The marks are displayed in a basic table format, are broken down across the five marking criteria for each assignment, and include the total assignment mark awarded to each student.[3] The tables of Assignment Marks do not contain any student names or student numbers. Rather, the marks are attributed to rows numbered 1-121, in no apparent order. Issues for determination The primary issue to be determined in this review is whether disclosure of the Assignment Marks would, on balance, be contrary to the public interest under the RTI Act. Within this refusal of access issue, is the threshold issue of whether the Assignment Marks comprise the ‘personal information’ of the USQ students. I have chosen to deal with the personal information question first, as my finding on that issue impacts the public interest factors which I consider are relevant in this case. USQ also sought to raise a scope issue to the effect that the access application sought access to more than just the six pages of Assignment Marks.[4] Having carefully considered the terms of the access application, I am satisfied that the applicant’s request for ‘marked assessment criteria sheet...for each student’ was included as an alternative request, had USQ not been able to generate the Assignment Marks in table format. As USQ located the Assignment Marks and correctly identified these as responding to the access application, I consider there was no need to address the alternative limb of the access application, by looking for any further documents. I also note that the applicant has not sought, at any stage, to raise this as a ‘sufficiency of search’ issue, which tends to indicate that he was satisfied with the extent of documentation located by USQ.[5] Accordingly, I have not considered this scope issue, or USQ’s related submissions, any further, in these reasons for decision. Relevant law The primary object of the RTI Act is to give a right of access to information, in the possession or under the control of a government agency[6] unless, on balance, it is contrary to the public interest to give access.[7] The RTI Act is to be administered with a pro-disclosure bias.[8] The right of access is subject to some limitations, including the grounds on which access may be refused.[9] Relevantly, access to information may be refused where disclosure would, on balance, be contrary to the public interest.[10] The RTI Act identifies various factors that may be relevant to deciding the balance of the public interest[11] and explains the steps that a decision-maker must take in deciding the public interest as follows:[12] 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. On external review, the agency has the onus of establishing that its decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[13] Findings Do the Assignment Marks contain ‘personal information’? No, for the reasons set out below. The term ‘personal information’ is defined as follows in the RTI Act:[14] 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. [emphasis added] In determining whether information is personal information for the purposes of the RTI Act, the first issue to consider is whether an individual can be identified from the information.[15] Information about an individual which includes their name will ordinarily be identifying.[16] Information other than a name, such as a photograph, or a detailed identifying description may also identify an individual.[17] In this review, the Assignment Marks do not identify the students—names, student numbers, photographs or other identifying information does not appear on the face of the documents. However, even where a person’s identity is not readily apparent, it may be possible with the assistance of additional information to identify a person.[18] In Mahoney,[19] the then Right to Information Commissioner found that the question of whether an individual’s identity can reasonably be ascertained will depend on a number of factors: how available the additional information is how difficult it is to obtain how many steps are required to identify the individual how certain the identification will be whether it will identify one specific individual or a group of people; and whether the individual receiving the information can use it to identify the individual. USQ submits that students can be readily identified from the Assignment Marks on the basis that the cohort of 121 students talk to each other.[20] I acknowledge that students may discuss their results. I have also considered USQ’s submission that ‘asking as few as 5 students as secondary sources will produce a high probability that one can correlate marks with an individual, irrespective of the de-identified data’.[21] I also acknowledge USQ’s submission that the access applicant is a member of the student cohort and may have knowledge of other students’ historical marks. USQ considers that the identities of students could reasonably be ascertainable from the Assignment Marks on the basis that students will often ‘share information about their assessment with other students, including ... specific grades’ and that in this regard, ‘students are just as likely as they are unlikely to confirm their assignment result’.[22] USQ has pointed to various online student support platforms which students and staff use to share information about coursework and study. USQ argues that ‘as few as one data point is required to potentially allow identification to occur’ and that this is particularly so due to the small class sizes in its regional campuses. USQ submits that it would be ‘easy to obtain data by students simply asking other students to reveal their numerical mark or score’, that this would ‘only involve one step’ and given the limited size of the cohort, an individual could be identified from the ‘precise numerical mark or score’.[23] As set out above, the Assignment Marks comprise the results awarded to 121 students in a particular subject, in two assignments, broken down across five marking criteria for each assignment—each row in the table of results contains five separate numerical marks, across the five criteria. Given the way in which the Assignment Marks are presented, I am unable to accept USQ’s submission that it would only take ‘one step’ or ‘one data point’ to ascertain the identify of a student. To the contrary, I consider it would require the voluntary disclosure, by multiple students, of the full breakdown of their assignment marks, to a single source, before accurate identification of any students could be achieved, with any certainty. There is however, no certainty that students would even engage in any voluntary disclosure of their marks. As USQ submits, students often consider this information to be relatively private. Furthermore, in any instances where students have been awarded the same marks across criteria, there is no way, on the face of the Assignment Marks, to distinguish them from other students. Also, the marks are numerical only,[24] and contain no qualitative comments that could be used to distinguish one student from another, and students are numbered from 1 through to 121 in no apparent order, rather than listing the students by their student number. This means that the Assignment Marks contain less information specific to each student than is permitted by USQ’s own policy concerning assessment, which provides that results for individual assessment items ‘shall be displayed or published using Student number only.’[25] Other than relying on voluntary disclosure by the individual students, there appears to be no mechanism to begin a cross-referencing process, eg. there is no other publicly available listing or database of the Assignment Marks. During the review, USQ raised the case of 6XY7LE and child of 6XY7LE and Department of Education, Training and Employment[26] to support its submission.[27] I am satisfied that the information that was in issue in 6XY7LE was of an entirely different character in that it comprised ‘opinions of third parties ... in relation to students and parents at a primary school’[28] in circumstances where the applicant contended that the identity of third parties was known to him.[29] In contrast, the Assignment Marks are numerical, not descriptive, and could only be cross-referenced if multiple students were to volunteer the breakdown of their individual marks, as discussed above. Therefore, in my view, 6XY7LE can readily be distinguished from the facts of this review. Having considered the factors set out in Mahoney,[30] I find that the identities of individual students are not reasonably ascertainable from the Assignment Marks and that therefore, the Assignment Marks do not comprise the personal information of USQ students. Accordingly, in assessing the public interest factors below, I have found that the nondisclosure factors relating to personal information and privacy, do not apply in the circumstances of this case. Irrelevant factors USQ submits that if the Assignment Marks are released, they could be manipulated and disseminated and this will result in people drawing incorrect conclusions from the data.[31] Under the RTI Act, whether disclosure will result in misunderstanding or misinterpretation is specifically prescribed as an irrelevant factor[32] and therefore, I have not taken USQ’s submissions in this regard into consideration. Further, mischievous conduct by the applicant that could result from disclosure is also prescribed by the RTI Act as an irrelevant factor.[33] To the extent USQ has submitted that manipulating the data in Excel ‘would be a very bad misuse of statistical concepts’,[34] I consider that submission seeks to raise a factor that is prescribed as irrelevant, and therefore, I have disregarded it in making this decision. Factors favouring disclosure USQ receives government funding and provides public education for approximately 27,000 students.[35] In my view, there is a public interest in USQ being accountable in the performance of its functions, including the way academic staff attribute marks to students in pieces of assessment, thereby raising two factors in favour of disclosure.[36] USQ submits that disclosing the Assignment Marks will not further contribute to its accountability because the applicant is already aware of the University’s grading standard, or rubric.[37] USQ further submits that ‘significant material and effort has been dedicated towards ensuring the assessment marking standards are objective and transparent, and that students are aware of the process and deliberations involved.’[38] While the applicant may already be aware of certain information about the University’s grading policies, in my view the Assignment Marks would provide evidence of how the marks were attributed across the specific marking criteria in the two assignments. In affording moderate weight to the relevant factors,[39] I have also taken into account the marking rubric information already available to the applicant and the fact that the Assignment Marks only relate to one subject, for one course, in one semester, rather than demonstrating USQ’s accountability at a broader university-wide level. I also find that disclosure of the Assignment Marks could reasonably be expected to contribute to the administration of justice for the applicant as it would provide him with access to additional information that may form relevant evidence in any appeal/complaint process that he wishes to pursue.[40] However, I attribute only limited weight to this factor as commencing an appeal/complaint process is not entirely dependent on the applicant having access to the Assignment Marks. Further, it is likely that any appeal/complaint bodies would have broad powers to otherwise access relevant evidence to assess the merits of the applicant’s case. During the review, the applicant raised a number of other public interest factors which he submitted favoured disclosure of the Assignment Marks.[41] In the circumstances of this case, I do not consider they apply. In any event, I am satisfied that the public interest factors discussed above, carry sufficient weight in this case to favour disclosure of the Assignment Marks, without examining any further disclosure factors. That is, my decision not to consider any other factors favouring disclosure, has not disadvantaged the applicant as the final decision is favourable to him. Factors favouring nondisclosure For the reasons given at paragraphs 16 to 26 above, I have found that the Assignment Marks do not comprise the personal information of other students, and therefore, I am satisfied that the nondisclosure factors concerning personal i[42]ormation and privacy42 do not apply in this case. USQ has submitted that disclosure of the Assignment Marks will have an adverse effect on its financial affairs and prejudice its business, commercial and/or financial affairs.[43] USQ is concerned about the potential for it to be negatively perceived if it is seen to be releasing student results[44], that this may have a detrimental impact on student attitudes surrounding USQ and its law program[45] and that USQ may suffer reduced enrolments as a result.[46] In this regard, USQ specifically submitted as follows: The University submits that it is indeed reasonably foreseeable, on the basis that the University draws much of its enrolment from mature entry students, many of whom are first-in-family tertiary students, or from low socioeconomic status backgrounds. A common characteristic of these students is a lack of confidence in their ability to cope with University course assessment. Knowing in advance that their peers could have access to specific marks and comments will create a deeper barrier to pursuing study.[47] Reputational damage has previously been found to prejudice business and financial affairs if it will ultimately result in pecuniary damage, such as loss of income or profits through loss of customers.[48] In this review, I must consider whether this kind of reputational damage ‘could reasonably be expected to’ result from disclosure of the Assignment Marks.[49] The expectation must arise as a result of disclosure of the Assignment Marks, rather than from other circumstances.[50] While I accept that there may be particular students who may disagree, in principle, with the publication of assessment marks more generally, I do not consider that the disclosure of the Assignment Marks could reasonably be expected to lead to students entirely abandoning their tertiary studies at USQ.[51] I find that it is not reasonably foreseeable that USQ would suffer reduced enrolments, or any other form of financial disadvantage, due to the release of de-identified marks for one subject, in one course, in one semester. Accordingly, I am satisfied that the nondisclosure factors concerning adverse effect/prejudice to USQ’s business, commercial and/or financial affairs do not apply in this case. USQ also submits that if the Assignment Marks are released, students will be reluctant to provide their personal information to USQ in future and it will be forced to amend its collection notice. I do not accept this submission for two reasons. Firstly, as stated earlier in these reasons, I have found that the Assignment Marks do not comprise personal information. Secondly, the argument that disclosure of the Assignment Marks could ‘prejudice the future supply of information of this type to government’[52] is somewhat misconceived as the marks are generated internally by USQ academic staff who are required to mark assignments as part of their employment.[53] USQ sought to clarify this submission by arguing that the word ‘supply’ should not be interpreted narrowly and that, while the Assignment Marks are generated internally by USQ staff, their creation is dependent on the provision of assessment items by students for marking.[54] I find that this submission is also flawed as it is premised on the basis that students submit assessment on a voluntary basis. The fact of the matter is that students submit assessment in order to achieve a pass mark, or better, in the course in which they are enrolled. While there may be instances in which students do not submit assessment, USQ’s policy is that students are required to complete assessment items as part of their course, and in relation to assignments, failure to submit by the deadline results in a penalty, and may ultimately result in a failing Final Grade.[55] Accordingly, I am not satisfied that there could reasonably be expected to be any relevant prejudice to the supply of information to USQ, and I do not consider the nondisclosure factor set out in schedule 4, part 4, section 7(1)(c) of the RTI Act applies in this case. USQ has submitted that disclosure of the Assignment Marks could also reasonably be expected to prejudice, or cause harm to, its deliberative processes.[56] USQ has correctly submitted that ‘deliberative processes’ involved in the functions of government have been defined as ‘...thinking processes – the processes of reflection, for example, upon the wisdom and expediency of a proposal, a particular decision or a course of action’.[57] It has also been defined as ‘careful consideration with a view to decision’.[58] USQ submits that in this case, the relevant ‘deliberative process’ is:[59] ...undertaken by University staff, in which the relevant marker undertakes a process of thinking and reflection upon the information contained with each students’ assessment item (with reference to the relevant marking criteria and guidance), with a view to making a decision as to whether the assessment item conforms with specific requirements, as a part of a broader undertaking by the University to assess students’ compliance with the requirements of their respective academic programs. To the extent that this submission appears to suggest that the relevant deliberative process is comprised of a student’s entire academic program, I do not accept it. Rather, in this context, the relevant ‘thinking process’ is reflecting on and considering a student’s work to determine the appropriate mark in each assessment task. Given that this process is complete, I cannot identify any relevant prejudice. I do not accept that disclosure of the Assignment Marks in this case will reduce a ‘future inclination towards appropriate pedagogical candour, honesty and forthrightness’ as suggested by USQ.[60] Further, the Assignment Marks represent a decision after a thinking process, not information prepared[61] in the course of, or for, this thinking process. Accordingly, I am satisfied that neither of the nondisclosure factors concerning deliberative process apply in this case. USQ also submitted that disclosure of the Assignment Marks could reasonably be expected to prejudice the effectiveness of a method or procedure for the conduct of its tests, examinations or audits.[62] USQ’s submission is that the Assignment Marks are comprised of a significant amount of information and this information could be used by a student to ‘formulate a method to exploit or undermine the University’s assessment procedures, and thus “game the system”’. I am satisfied that the Assignment Marks do not contain information that would allow students to confine their studies in a particular way, rote learn answers, or otherwise allow for students to achieve marks that do not reflect their educational attainment.[63] Further, I am unable to accept the submission that disclosing marks for two assignments[64] would allow a student to ‘game the system’. Accordingly, I do not consider that schedule 4, part 4, section 3(a) of the RTI Act applies in relation to the Assignment Marks.[65] USQ has also raised concerns that disclosure of the information would create an unacceptable precedent, and that other aggrieved students may repeatedly submit similar access applications, diverting USQ’s resources from its core business.[66] I note that even if this were the case, the RTI Act provides an information access regime that is to be applied with a ‘pro-disclosure bias’,[67] and USQ is required to consider an access application on its own merits.[68] Accordingly, I am not satisfied that USQ’s concerns in this regard give rise to a relevant factor favouring nondisclosure. Finally, I have also considered USQ’s submissions regarding potential breaches of the Competition and Consumer Act 2010 (Cth) and the Fair Trading Act 1989 (Qld) to the extent they relate to the non-disclosure factor concerning the prohibition on disclosure by another Act.[69] I am however, unable to identify any provisions in those Acts, or any other legislation which could be interpreted as prohibiting publication of the Assignment Marks and therefore, I find that factor does not apply. Balancing the relevant public interest factors In summary, I find, in addition to the RTI Act’s pro-disclosure bias, disclosure of the Assignment Marks is favoured by the moderate weight in enhancing USQ’s accountability in the way its academic staff attribute marks to students in pieces of assessment, and the limited weight in advancing administration of justice for the applicant. While USQ has strongly argued for the application of various public interest factors favouring nondisclosure and I have carefully considered USQ’s submissions, I find that no nondisclosure factors apply in the circumstances of this review. Therefore, on balance, I am satisfied that the public interest weighs entirely in favour of disclosure of the Assignment Marks and access to the Assignment Marks may not be refused under section 47(3)(b) of the RTI Act. DECISION I set aside the decision under review. In substitution, I find that access to the Assignment Marks may not be refused under the RTI Act. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI ActKatie ShepherdAssistant Information Commissioner Date: 8 December 2017 APPENDIX Significant procedural steps Date Event 18 December 2016 OIC received the external review application. 20 December 2016 OIC notified the applicant and USQ of receipt of the external review application and asked USQ to provide relevant procedural documents. 10 January 2017 USQ provided OIC with the requested documents. 13 January 2017 OIC notified the applicant and USQ that the external review application had been accepted and asked USQ to provide a copy of the located documents. 19 January 2017 OIC received the requested documents from USQ. 2 February 2017 OIC conveyed an oral preliminary view to USQ. 15 February 2017 OIC conveyed a written preliminary view to USQ. 1 March 2017 OIC received a written submission from USQ. 9 June 2017 OIC conveyed a further written preliminary view to USQ. 10 July 2017 OIC received a further written submission from USQ. 13 July 2017 OIC spoke to USQ about certain aspects of its submission. 23 August 2017 OIC provided the applicant with an update on the status of the review, by telephone. 5 October 2017 OIC provided the applicant with an update on the status of the review, by email. 10 October 2017 OIC provided USQ with an update on the status of the review, by telephone. 28 November 2017 OIC provided the applicant with an update on the status of the review, by email. [1] The applicant and USQ made extensive written submissions to OIC during the review. To the extent those submissions are relevant to the issues for determination in this review, I have considered them in these reasons.[2] Six pages.[3] Pages 1-3 relate to Assignment 1 and pages 4-6 relate to Assignment 2. [4] Submission to OIC dated 10 July 2017 at [5]-[6].[5] Generally, there is a practical onus on applicants to raise sufficiency of search issues—it is not incumbent on agencies. [6] USQ was established by University of Southern Queensland Act 1998 (Qld) for a public purpose. It is not contested that USQ is a ‘public authority’ and therefore, an ‘agency’ for the purposes of the RTI Act: section 14 and section 16 of the RTI Act, and see also section 10 of the Right to Information Regulation 2009 (Qld). [7] Section 3 of the RTI Act. [8] Section 44 of the RTI Act. [9] Section 47 of the RTI Act.[10] Section 47(3)(b) of the RTI Act. [11] Schedule 4 of the RTI Act lists factors that may be relevant when deciding whether disclosure of information would, on balance, be contrary to the public interest. This list is not exhaustive and therefore, other factors may also be relevant in a particular case.[12] Section 49(3) of the RTI Act.[13] Section 87 of the RTI Act. In this review, USQ has relied on the ground for refusing access in section 47(3)(b) of the RTI Act and as such, I have not considered whether access may be refused to the Assignment Marks on any other ground. [14] See schedule 5 of the RTI Act which refers to section 12 of the Information Privacy Act 2009 (Qld). [15] Mahoney and Ipswich City Council (Unreported, Queensland Information Commissioner, 17 June 2011) (Mahoney) at [19].[16] Mahoney at [20].[17] Ibid.[18] Mahoney at [21], cited with approval in Marchant and Queensland Police Service (Unreported, Queensland Information Commissioner, 10 September 2013) (Marchant) at [15]-[16]. In Marchant, the Assistant Information Commissioner found that the date and reasons for police callouts to a women’s hostel was not the personal information of individuals resident at the time (approximately 16 women), as their identities were not reasonably ascertainable from the information. [19] Ibid.[20] Submission to OIC dated 1 March 2017, paragraph 1.3.6(i).[21] Submission dated 1 March 2017, paragraph 1.3.6(ii). [22] Submission to OIC dated 10 July 2017 at [8]. [23] Submission to OIC dated 10 July 2017 at [9].[24] With the exception of a small number of comments that do not relate to the content of students’ work, but rather, relate to whether an assignment was submitted or whether there was a marking rubric available.[25] USQ Assessment Procedure (10 July 2017) http://policy.usq.edu.au/documents/14749PL (USQ Assessment Procedure) at [4.3.13] (accessed on 1 December 2017). [26] [2014] QICmr 1 (15 January 2014) (6XY7LE).[27] Submission dated 1 March 2017, paragraph 1.3.3.[28] 6XY7LE at [20].[29] 6XY7LE at [32].[30] At paragraph 19 above.[31] Submission to OIC dated 1 March 2017, paragraphs 4.1.3 - 4.1.4.[32] Schedule 4, part 1, item 2 of the RTI Act.[33] Schedule 4, part 1, item 3 of the RTI Act. [34] Submission to OIC dated 1 March 2017, paragraph 4.1.4.[35] USQ’s 2016 Annual Report, available at https://www.usq.edu.au/about-usq/governance-management/plans-reports/annual-report (accessed on 24 November 2017).[36] Schedule 4, part 2, item 1 and 11 of the RTI Act.[37] Submission dated 1 March 2017, paragraph 5.1.1.[38] Submission to OIC dated 10 July 2017 at [13].[39] Schedule 4, part 2, item 1 and 11 of the RTI Act.[40] Schedule 4, part 2, item 17 of the RTI Act. I note USQ’s submissions dated 10 July 2017, which state that too much weight has been attributed to this factor, and that ‘marking has far more of the characteristics of a deliberative process rather than an administrative decision’. This submission is misconceived. The factors concerning administration of justice do not relate solely to ‘administrative decisions’, and may apply in relation to a variety of legal processes, including complaints proceedings, appeal processes, quasi-judicial and judicial proceedings.[41] Schedule 4, part 2, items 5, 6, 10, 12 and 16 of the RTI Act. [42] Schedule 4, part 3, item 3 and part 4, section 6 of the RTI Act. [43] Schedule 4, part 4, section 7(c) and schedule 4, part 3, item 2 of the RTI Act. [44] USQ’s decision dated 15 December 2016.[45] Submission dated 1 March 2017, paragraph 4.1.7 – 4.1.10.[46] Submission to OIC dated 10 July 2017 at [17]. [47] Ibid. USQ further argued that it should be allowed an opportunity to conduct a survey of relevant students ‘to ascertain whether the University’s assertions are correct’ with respect to the anticipated prejudice to its financial affairs. In the circumstances of this case, I did not consider this was a necessary, or appropriate step to take, in the conduct of this external review—section 95 of the RTI Act—particularly given that the USQ Assessment Procedure explicitly provides (at 4.3.13) that results for individual assessment items should be displayed or published by student number.[48] Cannon and Australian Quality Egg Farms Limited [1994] QICmr 9; (1994) 1 QAR 491 at [82]. Schedule 4, part 3, item 2 and part 4, section 7(1)(c)(ii) of the RTI Act.[49] The expectation must be reasonably based and not irrational, absurd or ridiculous (Attorney-General v Cockcroft [1986] FCA 35; (1986) 64 ALR 97 at 106), not a mere possibility (Murphy and Treasury Department [1995] QICmr 23; (1995) 2 QAR 744 (Murphy) at [44]).[50] Murphy at [54].[51] Given that release of the Assignment Marks would constitute disclosure of less information than is permitted under the USQ Assessment Procedure (see footnotes 25 and 47 above) it is difficult to see how release in this case could reasonably be expected to result in students abandoning their studies, or in any other relevant adverse impact.[52] Schedule 4, part 4, section 7(c)(ii) of the RTI Act, as submitted by USQ at paragraph 4.1.1 of its 1 March 2017 submissions. [53] Generally, this factor will be more relevant where information that is provided to government by an external third party, eg. a commercial entity contracting with government. See for example, Quandamooka Yoolooburrabee Aboriginal Corporation and Department of Natural Resources and Mines; Sibelco Australia Ltd (Third Party) [2014] QICmr [47] (19 November 2014) at [92]-[100]. [54] Submission to OIC dated 10 July 2017 at [18]. [55] USQ Assessment Procedure at [4.1] and [4.2.2]. Under this procedure, assignments presented after the deadline are subject to penalty unless an extension of time has been approved by the Course Examiner. If there is no student effort to address the requirements of the assignment, no mark is recorded for that assessment item, and this also impacts on eligibility for ‘Supplementary Assessment’ (which is ordinarily available if a Student has failed to achieve a passing Final Grade by 5% or less). [56] Schedule 4, part 3, item 20 and schedule 4, part 4, section 4 of the RTI Act.[57] Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at [28-30] citing with approval the definition given in Re Waterford and Department of Treasury (No.2) [1984] AATA 67; (1984) 5 ALD 588 at 606.[58] Ibid.[59] Submission dated 10 July 2017 at [20].[60] To the extent that USQ’s submission relates to concerns that students may gain ‘exploitable insights’ and ‘game the system’ this is dealt with at paragraph 42 below.[61] Or obtained, or recorded, or a consultation or deliberation that has taken place in the course of, or for, the deliberative processes. In contrast, notes prepared by the marker in relation to an assessment may constitute deliberative process information.[62] Schedule 4, part 4, section 3(a) of the RTI Act. This factor was relied upon in USQ’s decision dated 15 December 2016, along with schedule 4, part 4, section 3(b) of the RTI Act. In its submissions to OIC dated 1 March 2017, USQ indicated that it no longer relied on these factors. In more recent submissions to OIC, USQ ‘re-enlivened’ reliance on schedule 4, part 4, section 3(a).[63] Compare to Lucas and The University of Queensland [2017] QICmr 14 (7 April 2017), where I found that disclosure of a marking guide (and extracts of this guide) in a particular course would, on balance, be contrary to the public interest.[64] Including in relation to each of the five marking criteria.[65] I have also considered the other factors relevant to prejudice to the effectiveness/objects of tests, examinations or audits (schedule 4, part 3, item 21 and schedule 4, part 4, section 3(b) of the RTI Act), and for the same reasons, I am satisfied that they do not apply to disclosure of the Assignment Marks.[66] USQ’s decision dated 15 December 2016 and in submissions made to OIC by telephone on 13 July 2017.[67] As set out in section 39(1) and section 44(1) of the RTI Act.[68] Section 41 of the RTI Act sets out the circumstances where an agency may refuse to deal with an application because of the effect on its resources. This provision was not relied upon by USQ, and does not arise for consideration in this case, given that the scope of the application was very narrow and the Assignment Marks are comprised of only six pages.[69] Schedule 4, part 3, item 22 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Gresham and Queensland Principal Club [2001] QICmr 17 (13 August 2001)

Gresham and Queensland Principal Club [2001] QICmr 17 (13 August 2001) Gresham and the Queensland Principal Club (S 26/01, 13 August 2001, Information Commissioner) (This decision has been edited to remove merely procedural information and may have been edited to remove personal or otherwise sensitive information.) 1.-2. These paragraphs deleted. REASONS FOR DECISION Background The applicant is a member of the Gold Coast Turf Club (GCTC) who has concerns regarding expenses incurred by committee members of the GCTC for travel and entertainment during the 1998/99 financial year. In September 2000, he took his concerns to the Queensland Principal Club (the QPC), the body established by Part 3 of the Racing and Betting Act 1980 Qld to control, supervise and regulate horse racing in Queensland. The QPC investigated the complaint and, by letter dated 16 October 2000, informed the applicant of the outcome of its investigation and that it did not intend to take the matter further. The applicant was not satisfied with that response and, by letter dated 27 November 2000, sought access under the FOI Act to two internal memoranda of the QPC concerning the investigation of his complaint. By letter dated 8 January 2001, Mr M Pearson on behalf of the QPC informed the applicant of his decision that the documents were exempt from disclosure to him under s.41(1) of the FOI Act. The applicant sought internal review of that decision by letter dated 15 January 2001, but received no decision within the prescribed time. By letter dated 31 January 2001, the applicant sought review by the Information Commissioner, under Part 5 of the FOI Act, of the QPC's deemed decision on internal review confirming Mr Pearson's refusal of access to the memoranda: see s.52(6) of the FOI Act. External review process The documents in issue were provided to me by the QPC. They comprise two memoranda dated 27 September 2000 and 16 October 2000 from Mr J Turner, Finance Director, QPC to Mr K Hasemann, Chief Executive Officer, QPC. By letter dated 2 March 2001, the Assistant Information Commissioner informed the QPC of his preliminary view that the memoranda did not qualify for exemption under s.41(1) of the FOI Act. The QPC lodged a submission in reply, dated 17 April 2001, contesting the preliminary views expressed by the Assistant Information Commissioner. The GCTC was informed of the external review and granted status as a participant in accordance with s.78 of the FOI Act. The relevant parts of the submission of the QPC were provided to the GCTC and the applicant. At the same time, both the GCTC and the QPC were provided with copies of the applicant's external review application and attachments, and invited to lodge any submissions or evidence they wished to put forward in support of their cases. The QPC lodged an additional submission dated 19 June 2001 and the GCTC lodged a submission dated 25 June 2001. In making this decision I have taken into account the following: the contents of the documents in issue; initial FOI access application dated 27 November 2000; initial decision dated 8 January 2001; application for internal review dated 15 January 2001; application for external review dated 31 January 2001, with attachments; submissions from the QPC dated 17 April 2001 and 19 June 2001; submissions from the GCTC dated 25 June 2001. Jurisdictional issue The GCTC contended that: The right to access documents under the Act only applies in relation to governmental type agencies; it does not operate against private individuals or corporations. ... Although the [QPC] is a public authority, the documents solely regard the affairs of the [GCTC], a private entity, being an unincorporated Association comprising all members for the timebeing of the Club. ... The memorandums in question concern private Club matters. We submit that if you were to disclose the documents, you would be disclosing information wholly regarding the inner operations of a private club (which are private matters of members), and not the information of a governmental agency to which the Act necessarily applies. If this submission is a claim that documents containing information about a private sector organisation are not subject to the application of the FOI Act, it is clearly wrong. Section 21 of the FOI Act provides that a person has a legally enforceable right to be given access in accordance with the Act to documents of an agency. The term "document of an agency" is defined in s.7 of the FOI Act to mean a document in the possession, or under the control, of an agency, whether created or received in the agency. This definition extends to documents in the possession of an agency and those to which the agency is entitled to access: see Re Price and Nominal Defendant [1999] QICmr 3; (1999) 5 QAR 80 at p.89, paragraph 18. In fact, many documents held by agencies (and probably most documents, in the case of regulatory agencies) refer to, or deal with, issues concerning private individuals or organisations. Parliament has recognised the interests of those individuals and organisations, not by excluding from the application of the FOI Act documents which refer or relate to them, but by including exemption provisions which can take those private interests into account in appropriate circumstances: see s.5, and for example, sections 44(1) and 45(1) of the FOI Act. The documents in issue were created by an officer of an agency for the use of officers of that agency. They are clearly documents of the agency for the purposes of the FOI Act. Application of s.41(1) of the FOI Act Sections 41(1) and (2) of the FOI Act provide: 41.(1) Matter is exempt matter if its disclosure— (a) would disclose— (i) an opinion, advice or recommendation that has been obtained, prepared or recorded; or (ii) a consultation or deliberation that has taken place; in the course of, or for the purposes of, the deliberative processes involved in the functions of government; and (b) would, on balance, be contrary to the public interest. (2) Matter is not exempt under subsection (1) if it merely consists of — (a) matter that appears in an agency's policy document; or (b) factual or statistical matter; or (c) expert opinion or analysis by a person recognised as an expert in the field of knowledge to which the opinion or analysis relates. A detailed analysis of s.41 of the FOI Act can be found in Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2; (1993) 1 QAR 60 at pp.66-72, where, at p.68 (paragraphs 21-22), I said: Thus, for matter in a document to fall within s.41(1), there must be a positive answer to two questions: (a) would disclosure of the matter disclose any opinion, advice, or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, (in either case) in the course of, or for the purposes of, the deliberative processes involved in the functions of government? and (b) would disclosure, on balance, be contrary to the public interest? The fact that a document falls within s.41(1)(a) (ie. that it is a deliberative process document) carries no presumption that its disclosure would be contrary to the public interest. ... An applicant for access is not required to show that disclosure of deliberative process matter would be in the public interest; an applicant is entitled to access unless an agency can show that disclosure of the particular deliberative process matter would be contrary to the public interest. In Re Trustees of the De La Salle Brothers and Queensland Corrective Services Commission [1996] QICmr 4; (1996) 3 QAR 206, I said (at paragraph 34): The correct approach to the application of s.41(1)(b) of the FOI Act was analysed at length in my reasons for decision in Re Eccleston, where I indicated (see p.110; paragraph 140) that an agency or Minister seeking to rely on s.41(1)(a) needs to establish that specific and tangible harm to an identifiable public interest (or interests) would result from disclosure of the particular deliberative process matter in issue. It must further be established that the harm is of sufficient gravity when weighed against competing public interest considerations which favour disclosure of the matter in issue, that it would nevertheless be proper to find that disclosure of the matter in issue would, on balance, be contrary to the public interest. The Assistant Information Commissioner expressed the preliminary view to both the QPC and the GCTC that the bulk of each of the documents in issue was merely factual matter. It largely records the inquiries made by Mr Turner for the purposes of his investigation and the results of those inquiries. The submissions of the QPC and the GCTC have done nothing to persuade me to the contrary. Nevertheless, given my finding below with regard to the public interest balancing test, I do not consider it necessary to identify which particular matter in each document does or does not meet the requirements of s.41(1)(a). I will consider the application of the public interest balancing test to all of the matter in issue. Public interest considerations favouring non-disclosure The QPC and GCTC identified a number of considerations that they contended weighed against disclosure of the documents in issue. In summary, they are: adverse effects on the ability of the QPC to carry out its functions because: clubs would be less likely to co-operate with the QPC in providing information to it in the future; and QPC officers who prepared reports would be less likely to provide full and frank reports if they were aware that information of this type might be disclosed; adverse effects on the GCTC because: the comments in the memoranda were preliminary only and the GCTC had not been given the opportunity to respond to critical comments in the memoranda; the GCTC is a private organisation whose dealings should not be disclosed under the FOI Act; the GCTC is a commercial operation and disclosure might have a negative effect on its commercial interests, including its ability to attract sponsors; an adverse effect on individuals who were criticised in the memoranda who had not had an opportunity to respond to it. Effect on the ability of the QPC to carry out its functions The QPC argued that it operates in a complex context, having to deal with clubs that are primarily governed by general laws relating to unincorporated or incorporated bodies. It contended that this gives rise to a significant risk of legal disputation in the administration of the Racing and Betting Act. It contended that this means that it is required to operate in a co-operative fashion with race clubs in order to minimise the potential for litigation. It stressed the importance of full and open co-operation from clubs in relation to communication with the QPC. It said that it wished to avoid a situation where requests for information would be narrowly considered on the basis of what was legally required. In that regard, I am not satisfied that the QPC is in any different position from any other regulatory or supervisory body which seeks or requires information from the individuals or organisations that it regulates. The functions and powers of the QPC are set out in the Racing and Betting Act, and there is nothing before me to show that those powers are diminished by anything in the general law or legislation relating to the constitution of clubs. Particularly with regard to financial matters, the QPC has the power and obligation to examine the financial statements given by a club and to "make such inquiry into and take such action with regard to the statements, or an item or matter contained in or arising out of the statements" as it thinks fit: s.131 of the Racing and Betting Act. In addition to the legislative power, clubs must be aware that it is the role of the QPC to control, supervise and regulate horse racing and that the QPC has the ultimate power with respect to the registration of race clubs. There is therefore a significant incentive for clubs to co-operate fully with the QPC with regard to any complaint, in order to demonstrate that there is no basis why their registration should be called into question. The submissions of the QPC and the GCTC have suggested that the information in issue is particularly sensitive. However, I am not satisfied that that is the case. The bulk of the memoranda simply record the course of Mr Turner's investigation. There are some suggestions for improvements in accounting and management controls, but these are relatively minor. Moreover, both the course of the investigation and the general nature of the recommendations for improvement have already been made known to the applicant in letters from the Chief Executive Officer of the QPC dated 13 October and 16 October 2000. For example, Mr Hasemann stated: The discussion between Mr Turner and Mr Steer, and the assessment of the Assistant Auditor General, has confirmed that some tightening of accounting and management controls at the Gold Coast Turf Club, in respect of individual Committee member expenses and use of corporate credit cards, is warranted. In that regard a number of recommendations have been made to the club, several of which, I understand, have already been adopted. [letter dated 13 October 2000] ... The club has now provided me with a comprehensive response to recommendations made on the implementation of tighter controls and policies governing Committee member expenses, and to queries regarding the nature and purpose of individual transactions in 1998/99. In relation to expenses incurred during the 1998/99 year, I am satisfied, following consideration of the information provided by the club, that there are no grounds for a reasonable suspicion of activities by officials in breach of Section 134 of the Racing and Betting Act. I am also satisfied that the Committee has now taken the necessary decisions to improve accountabilities and controls in relation to these expenses. [letter dated 16 October 2000] Taking into account the nature of the matter that is in the documents in issue, the extent of disclosure which has already been made to the applicant, the legislative powers of the QPC, and the advantage to clubs in co-operating with the QPC, I am satisfied that disclosure of the documents in issue could not be expected to lead to any significant reduction in the level of co-operation by Clubs with the QPC in the future. I therefore do not give significant weight to this claimed public interest consideration. Likewise, I do not consider that disclosure of the documents in issue could be expected to cause Mr Turner, or other officers of the QPC in a similar position, to refrain from carrying out their duties by failing to fully inform senior officers of the QPC about matters which they are investigating. At pp.106-107 (paragraphs 132-134) of Re Eccleston, I said: I consider that the approach which should be adopted in Queensland to claims for exemption under s.41 based on the third Howard criterion (i.e. that the public interest would be injured by the disclosure of particular documents because candour and frankness would be inhibited in future communications of a similar kind) should accord with that stated by Deputy President Todd of the Commonwealth AAT in the second Fewster case (see paragraph 129 above): they should be disregarded unless a very particular factual basis is laid for the claim that disclosure will inhibit frankness and candour in future deliberative process communications of a like kind, and that tangible harm to the public interest will result from that inhibition. I respectfully agree with the opinion expressed by Mason J in Sankey v Whitlam that the possibility of future publicity would act as a deterrent against advice which is specious or expedient or otherwise inappropriate. It could be argued in fact that the possibility of disclosure under the FOI Act is, in that respect, just as likely to favour the public interest. Even if some diminution in candour and frankness caused by the prospect of disclosure is conceded, the real issue is whether the efficiency and quality of a deliberative process is thereby likely to suffer to an extent which is contrary to the public interest. If the diminution in previous candour and frankness merely means that unnecessarily brusque, colourful or even defamatory remarks are removed from the expression of deliberative process advice, the public interest will not suffer. Advice which is written in temperate and reasoned language and provides justification and substantiation for the points it seeks to make is more likely to benefit the deliberative processes of government. In the absence of clear, specific and credible evidence, I would not be prepared to accept that the substance or quality of advice prepared by professional public servants could be materially altered for the worse, by the threat of disclosure under the FOI Act. There is no evidence before me which establishes, and my consideration of the contents of the documents in issue does not in my view support, a finding that disclosure of the documents in issue would inhibit candour and frankness in future similar communications to an extent that would be contrary to the public interest in the efficient and effective performance of the QPC's functions. Adverse effects on the GCTC It is contended that the memoranda were not final reports, and that they contained comments critical of the GCTC to which it had no opportunity to respond. In that regard, the QPC referred to the decision of the Commonwealth Administrative Appeals Tribunal in Re Howard and the Treasurer of the Commonwealth [1985] AATA 100; (1985) 7 ALD 626. Along similar lines, the GCTC contended that in Re Eccleston, I agreed that disclosure of interim reports containing criticism of particular people without their response, and before completion of a final report, was unfair and contrary to the public interest. My views on such claims were stated in paragraph 96 of Re Pope and Queensland Health [1994] QICmr 16; (1994) 1 QAR 616: It is possible to envisage circumstances in which the public interest in fair treatment of individuals might be a consideration favouring non-disclosure of matter comprising allegations of improper conduct against an individual where the allegations are clearly unfounded and damaging, and indeed might even tell against the premature disclosure of matter comprising allegations of improper conduct against an individual which appear to have some reasonable basis, but which are still to be investigated and tested by a proper authority. In this case, however, I am dealing with a report into allegations of improper conduct against an individual, the report having been made by an independent investigator who has allowed the subject of the allegations a reasonable opportunity to answer adverse material. The weight to be accorded to public interest considerations (in the nature of fair treatment of individuals) which might favour non-disclosure of such a report must be judged according to the circumstances of each case. If allegations against an individual are found, on investigation, to lack any reasonable basis, and they involve no wider issues of public importance (such as whether proper systems and procedures are being followed in government agencies), the public interest in fair treatment of the individual might carry substantial weight in favour of non-disclosure (on the basis that the unsubstantiated allegations ought not to be further disseminated, even though accompanied by an exoneration). However, the public interest in accountability of government agencies and their employees (for the manner in which they expend public funds to carry out their allocated functions in the public interest) will generally always be in issue in such situations. In particular, there is a clear public interest in ensuring that allegations of improper conduct against government agencies and government employees, which appear to have some reasonable basis, are properly investigated, and that appropriate corrective action is taken where individuals, systems or organisations are found to be at fault, and that there is proper accountability to the public, in respect of both process and outcomes, in this regard. Each case must be judged on its own merits, and I consider that the weight of relevant public interest considerations (of the kind discussed in this paragraph) clearly favours disclosure of the Seawright Report. The matter in issue does not contain criticisms of individuals. For the most part, it records the course of the investigation made by Mr Turner, and information supplied in the course of that investigation. There are a small number of suggestions for improvement in accounting and management controls (see paragraph 19 above). However, that information is not in the nature of tentative suggestions for investigation of possible wrongdoing or notes pointing to further avenues for investigation. It comprises firm recommendations following consideration of the procedures in existence at the GCTC. Indeed, the date of the second memorandum is the date of the letter informing the applicant of finalisation of the investigation. Furthermore, it is clear that the GCTC accepted that improvements could be made and implemented those improvements: see the letter from Mr Hasemann dated 16 October 2000. I do not consider that there is anything in the documents in issue which could be characterised as an unproven allegation that should not be disclosed in the public interest. The GCTC has contended that it is a private organisation and that its dealings with the QPC should be kept confidential. It contends that the information deals with matters within the GCTC, which should not be subject to public scrutiny (see paragraph 9 above). As I indicated above, Parliament has recognised the interests of individual members of the public, and organisations, in terms of the exemption provisions set out in Part 3, Division 2 of the FOI Act. Parliament has recognised that the very fact that matter concerns an individual's personal affairs gives rise to a public interest consideration favouring non-disclosure. It has not accorded the same level of protection to organisations. Section 45(1) provides that certain material such as trade secrets are exempt matter but that otherwise, a business organisation wishing to avoid disclosure must show a reasonable expectation of an adverse effect before the potential for exemption arises in relation to business information. I am satisfied that there is no general public interest consideration favouring non-disclosure of information about a business or other non-government organisation that would favour non-disclosure merely because the information concerns a non-government organisation. The GCTC did not contend that the matter in issue could reasonably be expected to have an adverse effect on its commercial operations. The QPC made a suggestion to that effect in terms of the application of the public interest balancing test in s.41(1), but did not raise the application of s.45(1)(c) of the FOI Act. There is no material before me to show that disclosure of the matter in issue could reasonably be expected to have such an adverse effect. I have examined the contents of the matter in issue, and I am not satisfied that there is a reasonable basis for expecting that disclosure of the matter in issue could have an adverse effect on the business, commercial or financial affairs of the GCTC. I am satisfied both that the matter in issue does not qualify for exemption under s.45(1)(c) of the FOI Act, and that there is no public interest consideration of significant weight favouring non-disclosure based on that factor. Adverse effect on individuals by disclosure of matter critical of them It is contended that there is matter critical of individuals in the documents in issue and that, for similar reasons to those discussed in paragraph 23 above, disclosure would therefore be contrary to the public interest. However, I am unable to identify any matter in the documents in issue which could reasonably be characterised as being "criticism of particular people". Some people are mentioned and their activities are described, but there is no suggestion that they have departed from any procedures required by the GCTC. I find that this claim does not raise a public interest consideration of significant weight favouring non-disclosure. Public interest considerations favouring disclosure The QPC contended that there was no public interest in citizens being informed about the processes of a private club. However, Parliament has seen fit to enact detailed legislation concerning horse racing in Queensland which regulates the activities of clubs and provides for close supervision of clubs, particularly in relation to financial matters. The very operation of a race club is subject to registration by the QPC. Without that registration, the club cannot conduct race meetings. Further, s.134 of the Racing and Betting Act regulates in detail the ends to which a club may apply its receipts and profits. Section 130 requires every member of a committee of a club to comply with the provisions of the Act that relate to a club. Section 131 requires clubs to audit their books and to provide financial statements to the QPC. It also provides that the QPC can make such inquiries into and take such action with regard to the statements as it thinks fit. Further, the Minister can request the Auditor-General to examine the books and accounts of any club. It is therefore incorrect to characterise clubs as merely private organisations. Particularly with regard to financial matters (which are the subject of the documents in issue), there is legislation which closely regulates, and requires supervision of, the activities of clubs. I consider that there is a public interest favouring disclosure of information that shows whether or not the GCTC has complied with its obligations under the Racing and Betting Act. In carrying out its role to control, supervise and regulate racing (see s.11A(1) of the Racing and Betting Act), the QPC has wide powers with respect to race clubs, including the following: 11B.(2) Without limiting subsection (1), the Queensland Principal Club has the powers conferred on it under this Act and may— ... (c) register or license, or refuse to register or license, or cancel or suspend the registration or licence of, a race club, or an owner, trainer, jockey, racing bookmaker, racing bookmaker's clerk or another person associated with racing, or disqualify or suspend any of those persons permanently or for a specified period; and (d) supervise the activities of race clubs, persons licensed by the Queensland Principal Club and all other persons engaged in or associated with racing; and (e) direct and supervise the dissolution of a race club that ceases to be or is not registered by the Queensland Principal Club; and (f) appoint an administrator to conduct the affairs of a race club; and ... (s) order an audit of the books and accounts of a race club by an auditor who is a registered company auditor; ... I consider that there is a strong public interest in enhancing the accountability of the QPC for the way in which it conducts investigations relating to the control, supervision and regulation of racing clubs. The QPC has already informed the applicant in general terms of the steps taken in the investigation and the outcome of the investigation: see the letters dated 13 and 16 October 2000 quoted at paragraph 19 above. Nevertheless, I consider that there is a public interest in disclosure of the additional details contained in the documents in issue. There are also references in the documents in issue to the role that officers of the Auditor-General played in the course of the investigation. To that extent, disclosure of the matter in issue would enhance the accountability of that office for the performance of its functions. Finding I do not consider that the QPC or the GCTC has raised any public interest considerations of significant weight favouring non-disclosure of the particular documents in issue. There are significant public interest considerations favouring disclosure of the documents. I find that disclosure of the documents in issue would not, on balance, be contrary to the public interest. I therefore find that the documents in issue do not qualify for exemption under s.41(1) of the FOI Act. Application of s.40(a) and (b) of the FOI Act The GCTC has also claimed that the matter in issue is exempt under s.40(a) and (b) of the FOI Act, which provide: 40. Matter is exempt matter if its disclosure could reasonably be expected to — (a) prejudice the effectiveness of a method or procedure for the conduct of tests, examinations or audits by an agency; or (b) prejudice the attainment of the objects of a test, examination or audit conducted by an agency; ... I have significant doubts that the investigation undertaken by Mr Turner can be regarded as a "test, examination or audit" as those words are used in s.40(a) or s.40(b) of the FOI Act. There is provision for the QPC to examine financial statements given following an audit by a club appointed auditor. There is also provision in the Racing and Betting Act for the Auditor-General to conduct an examination of the books and accounts of a club. However, the investigation which Mr Turner undertook falls short of what would, in normal parlance, be regarded as an audit. Even if it could be described as such, I am not satisfied that either of the prejudicial consequences specified in s.40(a) and s.40(b) could reasonably be expected to follow from disclosure of the documents in issue. The GCTC has put forward no additional grounds to support a finding of such prejudice. I have discussed and rejected the grounds that were put forward that might give rise to an expectation of such prejudice in my discussion of the public interest considerations favouring non-disclosure in the context of s.41(1) of the FOI Act. Further, s.40 is subject to a public interest balancing test, and I consider that the public interest considerations favouring disclosure of the documents in issue that I identified in applying s.41(1) alone, are sufficiently strong to warrant a finding that disclosure of the matter in issue would, on balance, be in the public interest. I therefore find that the matter in issue does not qualify for exemption under s.40(a) or (b) of the FOI Act. DECISION I set aside the deemed decision of the QPC refusing access to the documents in issue described at paragraph 6 of my reasons for decision. In substitution for it, I find that those documents do not qualify for exemption from disclosure to the applicant under the FOI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Mt Coot-tha Local Residents and Brisbane City Council [2021] QICmr 49 (27 September 2021)

Mt Coot-tha Local Residents and Brisbane City Council [2021] QICmr 49 (27 September 2021) Last Updated: 24 January 2022 Decision and Reasons for Decision Citation: Mt Coot-tha Local Residents and Brisbane City Council [2021] QICmr 49 (27 September 2021) Application Number: 314791 Applicant: Mt Coot-tha Local Residents Respondent: Brisbane City Council Decision Date: 27 September 2021 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - FORMS OF ACCESS - COPYRIGHT - monitoring reports - whether giving access to a copy of the document would involve an infringement of the copyright of a person other than the State - access granted by way of inspection only - section 68(4)(c) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - access refused to information about reserves at quarry - business, commercial, financial affairs - whether disclosure would, on balance, be contrary to public interest - whether access may be refused under sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary 1. The applicant applied to Brisbane City Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to a range of documents[1] relating to the operation of the Mount Coot-tha Quarry (MCQ) in Brisbane. 2. The scope of the access application was subsequently expanded by agreement with Council[2] during the processing of the access application, to include the graphical blast vibration reports for two monitoring locations, in relation to blasts that occurred on nine different dates (Expanded Scope).[3] 3. In its decision dated 16 August 2019, Council gave an explanation to the applicant about the monitoring points in response to Item 1 of the applicant’s access application and otherwise decided to: refuse to deal with Item 2 of the application;[4] and grant access to 11 pages in full and refuse access to one part page[5] in response to Item 3 of the application.[6] 4. Council’s decision did not address the Expanded Scope. 5. The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision.[7] 6. For the reasons set out below, the decision under review is varied and access to: the Monitoring Reports (see paragraph 155) can be granted by way of inspection only, under section 68(4)(c) of the RTI Act, as providing the applicant with a copy of these documents would involve an infringement of the copyright of a person other than the State; and the Information in Issue (see paragraph 24) is refused under section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest. Background 7. The applicant is an organisation that comprises residents of homes within the vicinity of the MCQ. Reviewable decision 8. The decision under review is Council’s decision dated 16 August 2019. Evidence considered 9. The applicant made numerous submissions to OIC during the external review and I have carefully considered this material. A number of the applicant’s submissions do not engage with the issues for determination in this review or make requests that are outside the jurisdiction of OIC. On several occasions during the review, OIC explained the limits of the Information Commissioner’s jurisdiction to the applicant. Despite these communications, the applicant continued to provide OIC with submissions raising matters that were either irrelevant to the issues for determination, or beyond OIC’s jurisdiction. To the extent the applicant’s submissions relate to issues beyond the scope of this review, they are not referred to in these reasons for decision. 10. The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and the Appendix). 11. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), which provides that it is unlawful for a public entity to make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a human right relevant to the decision.[8] Here, the right to seek and receive information[9] is particularly apposite. I 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] I consider a decision-maker will be ‘respecting and acting compatibly with’ the right to seek and receive information and other rights prescribed in the HR Act, when applying the law prescribed in the Information Privacy Act 2009 (Qld) (IP Act) and the RTI Act.[12] I have, in accordance with section 58(1) of the HR Act, acted in this way in making this decision. 12. Significant procedural steps in this review are set out in the Appendix to this decision. Issues for Determination 13. The applicant initially applied for access to: Item 1: MCQ blast vibration transducer coupling/mounting method used (what and when): including concrete block, soil spike, epoxy etc (a) All monitoring locations including the quarry office. (b) If this was varied, when, what was the change and on what dates. Item 2: MCQ development documents and plans: operation, blasting, blast creation, blast monitoring, extraction, shutdown, downsize, closure, closure dates, decommissioning, crusher, screener. This would include [Company Name], [Company Name], DES and BCC documents. Item 3: All documents relating to the 28 February 2019 blast, including; the large dust cloud, dust monitoring reports, pollution reports, actions, complaint, remediation, fine, [Company Name], [Company Name], DES etc. Any plans for an additional dust monitoring location on Scenic Drive. 14. As noted at paragraph 2, the scope of the application was expanded by agreement between the applicant and Council, during the processing period, to include an Expanded Scope. However, Council did not address the Expanded Scope in its decision. 15. On external review OIC required Council to undertake searches for any documents responsive to the Expanded Scope.[13] Council located eighteen pages of documents titled ‘Brisbane City Works – [MCQ] Monitoring Results’ (Monitoring Reports). 16. The Monitoring Reports are prepared by an independent third-party company (Company A) and comprise data collated from measurement devices located in two locations on the MCQ Site. The measurement devices record the seismic data created as a result of blasting conducted at MCQ. The data recorded is presented in the Monitoring Reports using words, figures, and a chart. 17. Council submitted that the Monitoring Reports contain the ‘intellectual property’ of Company A and are ‘copyright protected’ to Company A[14] and therefore access to the Monitoring Reports should only be granted by way of inspection.[15] 18. OIC subsequently consulted with Company A in relation to the disclosure of some of the information comprised within the Monitoring Reports.[16] While Company A was agreeable to the disclosure of the information within the Monitoring Reports, it argued that the Monitoring Reports were subject to copyright and therefore access should be by way of inspection only.[17] 19. OIC formed the view, on a preliminary basis, that the Monitoring Reports were subject to copyright, but access to them could be given by way of inspection,[18] subject to the redaction of the personal information of the author of the reports and information comprising the blast design details and explosive loading details, on the ground that disclosure would, on balance, be contrary to the public interest.[19] This view was conveyed to the applicant. [20] 20. The applicant did not object to OIC’s view in relation to the redaction of information, however the applicant did not agree that providing access to a copy of the Monitoring Reports would involve an infringement of the copyright of Company A. Consequently, the question of whether the provision of a copy of the Monitoring Reports[21] to the applicant would involve an infringement of copyright is an issue for determination in this decision (Form of Access Issue).[22] 21. As noted at paragraph 3, Council refused access to all of the documents it located in response to Item 2 of the applicant’s access application on the ground that the applicant had made a previous application for the same[23]ocuments.23 In its decision, Council referred to a previous access application made by the applicant in 2017 and stated that the document responsive to the 2017 application was a document titled the Draft Mt Coot-tha Quarry Revised Extraction Plan, August 2015 (Extraction Plan). In response to the applicant’s 2017 application, Council refused access to the Extraction Plan. Council stated that the document responsive to Item 2 of the applicant’s access application was the Extraction Plan. 22. During the review, OIC requested further information from Council to ascertain whether there had been any changes or updates to the Extraction Plan since the applicant’s 2017 application. In response, Council located 17 pages of documents that had been created since the 2017 application (Extraction Plan Updates).[24] Council submitted that access to all 17 pages of the Extraction Plan Updates should be refused on the ground that disclosure would, on balance, be contrary to the public interest.[25] 23. The Extraction Plan Updates comprise two letters and additional information provided to Council by an independent company that handles the quarry planning and development for MCQ (Company B). The Extraction Plan Updates contain: information in relation to the reserves of quarry material at MCQ, including the material volumes, the corresponding values and the locations of the reserves; and third party personal information, namely, the signature and contact details of the author of the Company B material and the names, job titles and contact details of other Company B employees. 24. During the review, preliminary views about access to the Extraction Plan Updates were conveyed to Council[26] and the applicant.[27] As a result, the applicant elected not to pursue access to the third party personal information and Council agreed that access should be granted to three part-pages of information from the two letters.[28] The rest of the information contained within the two letters and additional information provided by Company B to Council remains in issue (Information in Issue).[29] 25. Consequently, the second issue to be determined in this decision is whether access to the Information in Issue in the Extraction Plan Updates may be refused. Given the nature of the information, on the ground that disclosure would, on balance, be contrary to the public interest requires consideration (Disclosure Issue).[30] Form of Access Issue 26. In relation to the Form of Access Issue (noted at paragraphs 15 - 20 above), the question to be determined is whether the provision of a copy of the Monitoring Reports to the applicant would involve an infringement of the copyright of Company A. Relevant law 27. Generally, OIC is not involved in reviewing ‘form of access’ decisions involving copyright, as the RTI Act specifically excludes these matters from OIC’s jurisdiction.[31] However, as set out above, Council did not address the applicant’s request for access to the Monitoring Reports in its decision. In this particular circumstance, where Council has not addressed the applicant’s request and OIC determines that access may be given to the Monitoring Reports,[32] it falls to OIC to consider the issue of the form of access insofar as it relates to copyright in the conduct of the external review. 28. The RTI Act provides that if giving access in the form requested by the applicant would involve an infringement of the copyright of a person other than the State, access in that form may be refused and given in another form.[33] 29. The Copyright Act 1968 (Cth) (Copyright Act) deals with copyright in works in Australia. Copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author was a qualified person at the time when the work was made.[34] 30. The word ‘original’ is not defined in the Copyright Act, but has been taken to mean that the work originates from the author, i.e., it was not copied,[35] and will result where the author has applied his/her knowledge, judgement, skill or labour.[36] 31. Relevantly, the Copyright Act defines ‘artistic work’ to include a drawing, whether the work is of artistic quality or not.[37] ‘Drawing’ includes ‘a diagram, map, chart or plan’.[38] 32. The Copyright Act defines ‘literary work’ to include a table, or compilation, expressed in words, figures or symbols.[39] 33. Copyright in relation to an artistic or literary work is an exclusive right to do various acts, including reproducing the work in a material form.[40] Infringement of copyright occurs when a person who is not the owner of the copyright, and does not have the licence of the owner, does or authorises the doing of any act comprised in the copyright.[41] 34. However, the Copyright Act does provide that some acts do not infringe copyright – for example, fair dealings for the purpose of criticism or review, research or study, parody or satire, reporting news, judicial proceedings or giving professional advice,[42] and acts done for the services of the Crown.[43] Findings 35. As previously noted, Council argued that the Monitoring Reports are subject to copyright and therefore access should be by way of inspection only. Company A, the purported owner of the copyright, stated that while it was agreeable to the applicant inspecting the Monitoring Reports, the Monitoring Reports were subject to copyright and it did not agree to copies being provided to the applicant. [44] 36. Council also submitted:[45] Some of the information contained in these reports is not required for Council’s licence conditions, but is prepared in order to collect vital technical information which may be used for future predictions and analysis of blasting results. 37. The applicant argued that access should be given to a copy of the Monitoring Reports. The applicant sought access to a copy of the Monitoring Reports, as it considered that MCQ was not complying with Schedule F of Council’s development permit, which refers to the testing of noise level in noise sensitive places.[46] Further the applicant submitted that only inspecting, rather than receiving a copy of the Monitoring Reports ‘is simply not good enough, especially as the MCQ is almost totally mined and is facing closure’.[47] 38. In relation to the monitoring undertaken by Company A, the applicant submitted:[48] [Company A] technician [X], sets up the equipment and runs the [company name] software, which creates a recording of the vibration. In these instances, it is the manufacturer’s software which is doing the recording. The information which is being recorded is the seismic effect, not any effect that [Company A] created. We cannot understand how the OIC can consider this simple measurement as a “work of art”, when it is simply a recording of a seismic event, which was not created by [Company A]. The actual seismic event is the “work of art”, which was not created by [X], all he did was to take a snapshot of the blast using other people’s software. Because the seismic event was physically released into the public domain by [Council], we believe that it is no longer subject to copyright. Anybody else who measured the blast would have created the exact same document, because the process is conducted using a standard process which must adhere to a specified standard. The process of measuring the blast, is a strictly regulated operation, which leaves no ability to create a “work of art”, even the monitoring location and the exact process was specified by the [Department of Environment and Science (not Council and not Company A)]. Please allow me to emphasise, if anybody was to setup blast monitoring device in the same place and with the same standard process, as specified by the [Department of Environment and Science], then they would achieve exactly the same timeline chart. There is zero ability to use creativity to create a work of art, the only exception being if it is used for the purpose of falsely monitoring so as to report a reduced effect. The produced timeline is not specifically unique, unless it was deliberately altered to reduce the reading. 39. The applicant also submitted that the blasts conducted at MCQ are ‘a form of detailed, planned, theatrical-style seismic and decibel performance event’ which requires ‘a great deal of expertise, experience, licensing, planning, storage and relative timing calculations’.[49] Further the applicant submitted that as the applicant’s chairman was prevented from recording one of the blasts at MCQ on 28 February 2019, this supports the applicant’s view that it is the blast that is the ‘work of art’ and accordingly is protected by copyright,[50] rather than any information comprised within the Monitoring Reports and copyright rests solely with the company which undertakes the blasting. 40. To the extent that the applicant submits that the blasts conducted at MCQ are the artistic work, I disagree. The information comprised in each Monitoring Report comprises the data from the seismic monitoring at MCQ recorded as both words and figures and a chart. As noted above at paragraph 31, the definition of ‘artistic work’ comprises ‘drawings’ and ‘drawings’ is defined to include charts. The definition of ‘literary works’ includes a table, or compilation, expressed in words, figures or symbols. In my view the Monitoring Reports meet both the definition for artistic and literary work (Copyrighted Works). 41. I also disagree with the applicant’s submission that anyone else who measured the blasts conducted at MCQ would create the same document. While other measurements conducted may record the same data, it is the presentation of that data, through compilation and the charts, in the Monitoring Reports that comprise the Copyrighted Works. 42. The Copyright Act requires that the Copyrighted Works be original. There is no information before me to suggest that the Copyrighted Works are not the original work of Company A, or that they were not created by Company A applying its knowledge, judgement, skill or labour.[51] Consequently, I consider it is reasonable to conclude that the Monitoring Reports are original.[52] 43. As noted at paragraph 33 above, infringement of copyright occurs when a person who is not the owner of the copyright, and does not have the licence of the owner, does or authorises the doing of any act comprised in the[53]opyright.53 44. In relation to the ownership of the copyright the applicant submits:[54] ... we believe that the owner of the data, is the person responsible for deliberately specifying non-best practice and possible damage to the seismic recording quality. 45. To the extent that the applicant submits that ownership to the copyright of the Monitoring Reports has been transferred from Company A to the manager of MCQ and as a result ultimately to Council, on the basis of the applicant’s view that the type of monitoring specified by the MCQ manager is not best practice, I disagree. Even if the type of monitoring specified by the MCQ manager is not best practice, I do not consider that this would have the effect of transferring the ownership of the copyright as suggested by the applicant. I also note that there is no other information before me to suggest that Company A is not the copyright owner of the Monitoring Reports. Express Licence 46. Council submitted that it does not hold a licence from Company A, permitting it to carry out any of the acts that would otherwise be the exclusive right of Company A. In this regard, Council submitted:[55] The Council has employed the services of [Company A] since 2002 through a purchase order system with no specific details of contractual arrangements or the report requirements except that there is a verbal understanding that it addresses the requirements of AS 2187 Use of Explosives... Part 2... Appendix J and Council’s Environmental Authority Licence conditions to provide a report. 47. I have reviewed some of the purchase orders (Purchase Orders) referred to by Council and I am satisfied that they do not contain any provisions that provide an express formal licence or authority for Council, to undertake any of the exclusive rights of Company A under the Copyright Act.[56] Implied Licence 48. I have also considered whether a licence may be implied into the Purchase Orders between Council and Company A. A licence may be implied by conduct[57] or by the need to give business efficacy.[58] In Hardingham v RP Data Pty Limited,[59] the Federal Court of Australia set out the principles that it considers are relevant to whether, after identification of the express terms of an agreement, it is to be implied that a licence was granted and the scope of such a licence. 49. The four principles referred to by the Court are as follows:[60] the ordinary contractual principles as to the implication of terms apply a licence of copyright will be implied only to the extent that it is necessary the implication is to be drawn from all the relevant circumstances existing at the time of the agreement, including what the parties then contemplated, objectively assessed; and the onus of establishing infringement lies on the copyright owner with the result that the copyright owner bears the onus of establishing the absence of an express or implied licence.[61] 50. In relation to the first two principles referred to in Hardingham, there is no information before me to suggest that the Purchase Orders are of a particular class of contract to which a licence may be implied as a legal incident or that the particular circumstances require a licence to be implied to give business efficacy to the Purchase Orders. However, for the reasons given below, I consider that it is arguable that a licence may be implied into the Purchase Orders for the necessity of Council complying with its reporting obligations under the Environmental Protection Act 1994 (Qld) (EPA Act). 51. In relation to the third requirement, the Federal Court stated the implication is to be drawn from all the relevant circumstances existing at the time of the agreement, including what the parties then contemplated, objectively assessed. The Court referred to the case of Beck v Montana Constructions Pty,[62] in which Jacobs J explained his rationale for concluding that there was an implied licence as follows:[63] [T]he engagement for reward of a person to produce material of a nature which is capable of being the subject of copyright implies a permission, or consent, or licence in the person giving the engagement to use the material in the manner and for the purpose in which and for which it was contemplated between the parties that it would be used at the time of the engagement. 52. The Federal Court stated that: [64] the ‘purpose’ for which the ‘material’ was to be used is determined objectively by reference to the parties’ words and conduct and the circumstances in which the agreement was reached. 53. The Purchase Orders record that consideration has been paid to Company A by Council for the production of the Monitoring Reports. As noted above at paragraph 51, the courts have been inclined to imply a licence, where it would otherwise be unfair to deprive the party paying the consideration of the material produced as a result of the parties’ agreement. 54. Schedule F of Council’s development permit[65] prescribes that the noise level and ground vibration emanating from a blast conducted at MCQ must not exceed a certain level.[66] Schedule H places an obligation on Council to monitor its own activities in relation to Schedule F[67] and self-report (Exception Report) to the Department of Environment and Science (Department) any blast conducted at MCQ that exceeds any of the limits prescribed in Schedule F. 55. In making an Exception Report, Council is required to provide the full analysis results in relation to any non-compliance to the Department.[68] The Department may also require Council to provide a copy of a record on request.[69] 56. On the information before me, I consider that the purpose for which Company A creates the Monitoring Reports for Council is for Council to satisfy itself that it is complying with the development permit conditions and its environmental licence, and to enable MCQ to collate technical information to analyse the blasting results and inform future blasting plans. Accordingly, it follows that, in complying with its monitoring obligations under Schedule H, it may be necessary for Council to provide a copy of a Monitoring Report to the Department, if any blast at MCQ exceeded the permitted limits in Schedule F. 57. I consider that, at the time Company A entered into an agreement with Council to provide Council with the reporting data, it is reasonable to expect that the parties would have contemplated that Council may be required at some time in the future, to make an Exception Report to the Department, which would necessitate Council providing the Department with the Monitoring Report in relation to any non-compliant blast. However, taking into account that Company A has included a statement on the Monitoring Reports indicating that it owns the copyright, I consider that, if a licence is to be implied into the Purchase Orders, it would be restricted to the purpose of permitting Council to provide a copy of any relevant Monitoring Report to the Department, if Council was required to make an Exception Report, or for Council to comply with a request from the Department. 58. The applicant considers that it should be given access to a copy of the Monitoring Reports as this will visually indicate how MCQ ‘has never once complied with their DA Schedule-F requirements’.[70] In making this submission, the applicant has not argued that Council has been required to make an Exception Report to the Department in relation to its Schedule F obligations, or that the Department has required Council to provide copies of the Monitoring Reports. Rather, the applicant’s submissions focus on its view that:[71] the measurement devices used to measure the blasts should be fixed to the ground using the concrete block method and not soil spikes; and measurement devices should also be placed in the homes of local residents, as conditions F4 to F6 of Schedule F require that monitoring should be conducted in ‘any noise sensitive place’. The applicant submits this will demonstrate that noise levels in private homes located near MCQ exceed the levels prescribed in Schedule F of the development permit. 59. The applicant’s submissions are in effect challenging Council’s interpretation of its monitoring obligations under its development permit and how Council conducts its monitoring. I do not consider that, at the time of entering into the agreement to provide the Monitoring Reports, it could reasonably have been contemplated by either Council or Company A that a licence would be implied into the Purchase Orders to permit Council to provide copies of the Monitoring Reports to the applicant in these circumstances. 60. Consequently, I do not consider that any implied licence relating to the Department and arising from obligations under the EPA Act would extend to Council copying the Monitoring Reports for the purposes of satisfying the concerns of the applicant, and accordingly I do not consider that Council has an implied licence to reproduce the Monitoring Reports in order to provide access to them pursuant to the RTI Act. 61. In view of my findings above, I consider that, if Council were to copy the Monitoring Reports to provide access to the applicant, this would constitute reproduction in a material form, which would infringe the copyright of Company A. Fair Dealing 62. The applicant submits that local residents attempted to arrange for Company A to carry out monitoring in private homes located near MCQ. The applicant stated that this request was denied and therefore the applicant has:[72] ... the right to obtain the [MCQ] Seismic Monitoring Data, for the purpose of determining and reporting the effects on our homes, privacy and mental health. 63. I understand that the applicant undertook private monitoring in one of the homes located near MCQ and accordingly considers that being provided with a copy of the Monitoring Reports will afford the applicant the opportunity of comparing the data comprised in the Monitoring Reports with the data from its own private monitoring. 64. The only provision that could arguably apply in these circumstances is section 41 of the Copyright Act, which provides that a fair dealing with Copyrighted Works does not constitute an infringement of the work if it is for the purpose of criticism or review. However, the relevant dealing is Council’s dealing, that is, Council’s purpose in copying the Monitoring Reports, and not the applicant’s dealing, that is the purpose for which the applicant seeks the documents.[73] It follows that Council’s purpose in copying the Monitoring Reports would be to fulfil its obligation under the RTI Act and not for the purposes outlined in section 41 of the Copyright Act. 65. The applicant also submits that one of its members has been served a Show Cause Notice by Council[74] and the member requires copies of the Monitoring Reports for the purpose of demonstrating to the member’s lawyer the ‘scale of the seismic and noise effects’ from the blasts undertaken at MCQ.[75] The applicant asked if there is ‘a facility where the OIC would release this data to [the] lawyers’.[76] 66. Section 43 of the Copyright Act provides an exception to infringement in the Copyright Act. Specifically, section 43(1) provides that copyright is not infringed by anything done for the purposes of a judicial proceeding or a report of a judicial proceeding. Further, section 43(2) of the Copyright Act provides that a fair dealing with an artistic work does not constitute an infringement of the copyright in the work if it is for the purpose of the giving of professional advice by a legal practitioner. 67. This section of the Copyright Act has been considered by the Information Commissioner in Western Australia (WA Information Commissioner), in relation to an application to an agency for documents relating to a planning and development application.[77] The access applicant indicated that it would undertake to use the documents only for the purpose of giving legal advice and for the purpose of judicial proceedings, such that copying the documents would not be an infringement of copyright in accordance with section 43 of the Copyright Act. 68. The WA Information Commissioner decided that the application of a defence provided by section 43 of the Copyright Act is restricted to circumstances in which the party copying the document can establish that the purpose for which the copying is done, is for its purposes, and not that of any other party.[78] 69. I consider the WA Information Commissioner’s interpretation of section 43 of the Copyright Act is correct. I am of the view that this is supported by section 68(4)(c) of the RTI Act, which provides that if giving access in the form requested by the applicant would involve an infringement of copyright of a person other than the State, access in that form may be refused and given in another form. 70. It follows that it is Council’s purpose in copying the Monitoring Reports that must be considered in relation to the fair dealing exception in section 43 of the Copyright Act. Council’s purpose in copying the Monitoring Reports in the circumstances of this case, would be to fulfil its obligation under the RTI Act and not for the purposes outlined in section 43 of the Copyright Act. 71. In view of the above, I do not consider that the fair dealing exceptions to infringement of copyright apply in the circumstances of this matter. Crown use 72. Section 183(1) of the Copyright Act provides that copyright in a work is not infringed by a State doing any of the acts comprised in the copyright if this is done “for the services of the Commonwealth or State”. That expression is not defined. 73. As noted by Assistant Information Commissioner Rickard in V11 and Brisbane City Council,[79] it is unclear whether the Crown use provision extends to local governments, such as Council. I am also not aware of any legal authority that supports that view for the purposes of the Copyright Act. 74. Based on the material currently before me, I am unable to conclude that Council’s copying of the Monitoring Reports for the purpose of providing access to them under the RTI Act would be an act done for the services of the Commonwealth or State falling within the purview of the statutory licence contemplated in the Crown use provision. 75. In conclusion, after carefully considering the relevant provisions of the Copyright Act, and also taking into consideration that the copyright owner has expressly advised OIC that it is not willing for the applicant to receive copies of the Monitoring Reports, I am satisfied that the Monitoring Reports are subject to copyright and that providing the applicant with a copy of these documents under the RTI Act would constitute an infringement of copyright. 76. Accordingly, I find that access to the Monitoring Reports in the form sought by the applicant (being provided with copies) may be refused and instead given in another form (by way of inspection) under section 68(4)(c) of the RTI Act.[80] Disclosure Issue Relevant law 77. Access to documents may be refused to the extent they comprise information the disclosure of which would, on balance, be contrary to the public interest.[81] 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.[82] 78. In assessing whether disclosure of information would, on balance, be contrary to the public interest, a decision maker must:[83] identify factors irrelevant to the public interest and disregard them identify factors in favour of disclosure of information identify factors in favour of nondisclosure of information; and decide whether, on balance, disclosure of the information would be contrary to the public interest. Findings 79. In considering the Disclosure Issue (noted at paragraphs 21 - 25 above), I have kept in mind the RTI Act’s pro-disclosure bias[84] and Parliament’s intention that grounds for refusing access should be interpreted narrowly.[85] Also, in my assessment of whether disclosure of the Information in Issue would, on balance, be contrary to the public interest, I have carefully considered the non-exhaustive lists of factors in schedule 4 of the RTI Act, and considered whether any other public interest factors are relevant. 80. I have not taken any irrelevant factors into account in making this decision.[86] Factors favouring disclosure 81. The applicant submitted that releasing the Information in Issue would allow local residents to ‘know how close [Council] plan to blast’ as Council ‘are allowed to blast anywhere inside their KRA-42 Resource Processing area’ and will allow local residents to ‘gauge how bad the blast will be’.[87] 82. The applicant also submitted that the Information in Issue should be disclosed as it believes that MCQ has a scheme where it can resume its former blasting operations and gravel extraction, by lowering the height of all the mine benches and:[88] ... lowering of the benches, will propagate up the hill towards Scenic Drive, thereby creating instability in Scenic Drive. 83. In this respect, the applicant is concerned that MCQ:[89] ... may have a secret plan to actually remove the uphill section of the much-loved Scenic Drive. By making the area unstable and erosion persistent, this will enable them to close the current uphill road and then later blast it away. 84. Further the applicant submitted that: the noise and vibrations within homes near MCQ during a blast ‘severely affects the local residents mental and physical health’;[90] and there are concerns within the community about MCQ continuing to operate and the ultimate cost of rehabilitation of the site once MCQ discontinues its operations.[91] 85. The applicant’s submissions give rise to a consideration of the following public interest factors favouring disclosure: whether disclosure could reasonably be expected to promote open discussion of public affairs and enhance Council’s accountability[92] whether disclosure could reasonably be expected to contribute to positive and informed debate on important issues or matters of serious interest;[93] and whether disclosure could reasonably be expected to reveal environmental or health risks or measures relating to public health and safety.[94] 86. I recognise that there is a general public interest in promoting access to government held information. I also acknowledge that Council provides very limited publicly available information in relation to its operations at MCQ. 87. To the extent that the Information in Issue comprises details of the reserves of asphalt aggregate situated at MCQ and accordingly may provide an indication of the expected life of MCQ, I consider it reasonable to expect that disclosure of the Information in Issue will help to promote discussion about MCQ’s future operations, enhance Council’s accountability in that respect and foster informed debate. 88. I consider that the two factors in favour of disclosure in relation to transparency and accountability and contributing to positive and informed debate attract significant weight, embodying as each does the strong public interest in ensuring government in Queensland, including local government is conducted as transparently as possible.[95] 89. I have considered the applicant’s concerns about future erosion and instability at MCQ and also the applicant’s view that disclosure of the Information in Issue will allow local residents to ‘gauge how bad the blast will be’, as part of my deliberation regarding whether the disclosure of the Information in Issue could reasonably be expected to reveal environmental or health risks or measures relating to public health and safety.[96] I note that the applicant made these submissions before receiving the three part-pages of information from the two letters from Company B that Council has since released.[97] 90. While I acknowledge the concerns of the applicant in relation to the effects of any future blasting conducted at MCQ, I note that the Information in Issue comprises advice of a preliminary nature in relation to the reserves of quarry material and the locations of those reserves at MCQ and does not contain any final plans for the future operations at MCQ nor does it contain information about risks to the environment, health risks or measures relating to public health and safety. 91. In view of the above, the Information in Issue does not on its face reveal any environmental or health risks or measures relating to public health and safety. Accordingly, I am satisfied that this pro-disclosure factor does not apply. 92. Finally, as noted at paragraph 79, I have also carefully considered the remaining factors listed in schedule 4, part 2 of the RTI Act and turned my mind to other possible factors favouring [98]sclosure;98 however, I am satisfied that no other public interest factors favouring disclosure are relevant in the circumstances of this review. Factors favouring nondisclosure 93. The RTI Act recognises that factors favouring nondisclosure will arise in circumstances where disclosure of the Information in Issue could reasonably be expected to: prejudice the commercial competitive activities of an agency;[99] or prejudice trade secrets, business affairs or research of an agency or person (together, the Prejudice Factors);[100] or cause a public interest harm because disclosure of the Information in Issue – would disclose information concerning the business, professional or commercial or financial affairs of an agency or another person; and could reasonably be expected to have an adverse effect on those affairs or to prejudice the future supply of information of this type to the government (Harm Factor).[101] 94. The Prejudice Factors and Harm Factor are directed towards preventing unwarranted commercial disadvantage to: persons who carry on a commercial activity who supply information to government or about whom government collects information; and agencies which carry on commercial activities. 95. The applicant made extensive submissions throughout the course of the review, focussed on its view that the MCQ should be closed and the area rehabilitated to something akin to The Eden Project in the United Kingdom. The applicant also raised concerns that the cost of rehabilitation of the site would continue to increase for every year that MCQ continued to operate. It is on that basis that the applicant considered that the commercial income generated at MCQ is less than the costs of rehabilitation of the site and as a result the commercial viability of MCQ is ‘non-existent’.[102] 96. The applicant also submitted that MCQ is ‘virtually totally “gutted”’ and therefore Council’s ‘previously used “commercial in confidence” defence now seems invalid’.[103] The applicant also considered that ‘road gravel is inexpensive and commonly available and is the place for quarries that are not located in Urban Tourism Venues’.[104] 97. The applicant submitted information in relation to the price of asphalt gravel from other competing quarries[105] and relative trucking times and distances,[106] to support its view that it would be more commercially viable to obtain asphalt aggregate from other quarries and rehabilitate MCQ. 98. Further the applicant submitted that OIC should request that Council provide OIC with its ‘rehabilitation costings and compare this with their meagre mine-gate profit’ and on that basis ‘OIC would be in a much better position to make value judgements on BCC MCQ operations’.[107] 99. While I acknowledge the commitment of the applicant to its views, I am not tasked to decide whether it is more commercially viable for Council to close MCQ and rehabilitate the site into a tourist attraction, rather than continue its current operation as a quarry, nor am I tasked to decide whether other quarries could supply the same products currently supplied by MCQ. Rather, I am required to consider whether the quarry activities at MCQ are a commercial activity of Council and whether disclosure of the Information in Issue would prejudice or harm that commercial activity. In this respect, I note that the applicant has not provided any submissions to address the issue of whether disclosure of the Information in Issue could reasonably be expected to prejudice or harm a commercial activity of Council. Prejudice Factors Commercial activity of Council 100. MCQ has been operated by Council since Council’s formation in 1926.[108] As noted above the Information in Issue is essentially comprised in two letters to Council, in which advice is provided to Council by Company B in relation to reserves at MCQ. 101. Despite the applicant, in its correspondence to Council, appearing to accept that MCQ undertakes a commercial activity on behalf of Council,[109] the applicant subsequently submitted to OIC that it does not believe that MCQ conducts any commercial activities, as it only supplies materials to a named large construction company (Company C), and Company C make political donations to the Liberal National Party of Queensland.[110] To the extent that the applicant appears to be suggesting that MCQ is not conducting a commercial activity on behalf of Council because it supplies materials to Company C, I disagree. Political donations are irrelevant to the question of whether MCQ conducts a commercial activity on behalf of Council. The applicant’s own submission acknowledged that MCQ supplies material to Company C. The supply of goods is a commercial activity. 102. During the external review, Council submitted that it operates two large asphalt plants at Eagle Farm and Riverview, which are supplied by MCQ, and is one of South East Queensland’s largest asphalt producers to not only Council, but also the commercial asphalt market.[111] Additionally, Council submitted that MCQ sells quarry products to commercial customers in a competitive market.[112] Based on this information, I am satisfied that the operations undertaken at MCQ are a competitive commercial activity undertaken by Council. 103. Having carefully considered the Information in Issue, I am satisfied that it provides information about the available resources for future quarrying at MCQ, including specific volumes of material that may be extracted from MCQ, and therefore concerns the business or commercial affairs of Council in relation to the future supply of quarry materials and commercial asphalt. Prejudice business or commercial affairs 104. In relation to whether the release of the Information in Issue could reasonably be expected to prejudice the business affairs or competitive commercial activities of Council, I accept the submissions made by Council that the sourcing of asphalt aggregates from MCQ is a component of the cost of asphalt that Council charges to the commercial asphalt market and that Council competes in a competitive market for the sale of its quarry material. I accept Council’s submission that disclosure of the Information in Issue could, given its nature, reasonably be expected to be used by a competitor in the commercial asphalt market to calculate Council’s future supply costs of asphalt and undercut those costs, or impinge on Council’s future sales of quarry material, resulting in prejudice to the business affairs and competitive commercial activities of Council. 105. I note that the applicant has published OIC’s preliminary view on its website[113] and has specifically drawn attention to Council’s submission that the sourcing of asphalt aggregates from MCQ equates to approximately forty per cent of the cost of asphalt that Council charges to the commercial asphalt market.[114] I consider the effect of publication of the cost ratio information by the applicant increases the prejudice (and harm) that could reasonably be expected to occur from disclosure of the Information in Issue, by providing a commercial competitor with further information about Council’s commercial activity and therefore a competitive advantage. Weight 106. The applicant submitted that the information to which it seeks access is similar to information that has already been released into the public domain by Council. To the extent that the applicant suggests that any commercial prejudice (or harm – discussed under the Harm Factor heading below) that could reasonably be expected to occur from disclosure of the Information in Issue is significantly reduced, due to there being similar information already in the public domain, I disagree. The information referred to by the applicant comprises information that was presented at a conference in 2012. The PowerPoint slides that formed part of the presentation, included diagrams showing the locations of blasts that had occurred at MCQ prior to the presentation. The information in the public domain is old data and does not comprise information relating to material volumes that could be extracted by MCQ in the future and the corresponding values. Consequently, I consider that the prejudice (or harm) that could reasonably be expected to flow from disclosure of the Information in Issue is not diminished. 107. Given the costs that would flow to rate payers in the event of prejudicial impact on Council’s business and competitive commercial activities in regard to quarry material and asphalt production, I give significant weight to the prejudice factors favouring nondisclosure of the Information in Issue. Harm Factor 108. The Information Commissioner has previously found that the adverse effect required by the business affairs harm provision will almost invariably be financial in nature, whether directly or indirectly. Accordingly, in most instances the question of whether disclosure of the Information in Issue could reasonably be expected to cause the necessary prejudice or have the requisite adverse effect will turn on whether disclosure of the information is capable of causing competitive harm to the relevant entity.[115] Business or Commercial Affairs of Council 109. As noted at paragraphs 100 to 103 above I am satisfied that the Information in Issue concerns the business or commercial affairs of Council. Adverse Effect 110. In relation to whether the release of the Information in Issue could reasonably be expected to have an adverse effect or cause competitive harm to Council, I accept the submissions made by Council set out at paragraph 104 above and repeat and rely on my reasons in paragraphs 104 and 105 above, to conclude that disclosure of the Information in Issue could enable a competitor in the asphalt aggregate and quarry materials supply trade to gain a competitive advantage over MCQ in its supply of asphalt aggregate to the plants at Eagle Farm and Riverview, or generally in the quarry materials market, by ascertaining the capacity of MCQ’s reserves. Accordingly, I consider that disclosing the Information in Issue would have an adverse effect on the business or commercial affairs of Council. Weight 111. I note the agency’s submission set out at paragraph 104 above. For the same reasons set out in that paragraph, and paragraph 105, I consider that the weight to be afforded to the Harm Factor in favour of nondisclosure of the Information in Issue, is significant. Balancing the public interest 112. As outlined above, I afford the pro-disclosure factors concerning accountability and transparency and contributing to informed debate significant weight. 113. On the other hand, I also afford the nondisclosure factors regarding the commercial and business prejudice and harm factors significant weight. 114. On balance, when taking into consideration the position that disclosure of the Information in Issue under the RTI Act means there can be no restriction on its use or dissemination[116] and noting the commercial sensitivity of the information and the implications for rate payers, I consider that the factors favouring disclosure of the Information in Issue are outweighed by the factors favouring nondisclosure in this case. 115. Accordingly, I consider that access to the Information in Issue may be refused on the ground that its disclosure would, on balance, be contrary to the public interest. DECISION 116. As set out above, I vary the decision under review and find that access to: the Monitoring Reports is granted by way of inspection only under section 68(4)(c) of the RTI Act as providing the applicant with a copy of the documents would involve an infringement of the copyright of a person other than the State; and the Information in Issue identified above can be refused under section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest. 117. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.Assistant Information Commissioner CorbyDate: 27 September 2021 APPENDIX Significant procedural steps Date Event 26 August 2019 OIC received the applicant’s external review application. 27 August 2019 OIC notified the applicant and Council that the external review application had been received and requested procedural information and documents from Council. 27 August 2019 The applicant contacted OIC. 27 August 2019 Council provided OIC with the procedural information. 6 September 2019 OIC sought further information from Council, and Council provided this. 24 September 2019 OIC notified the applicant and Council that the external review had been accepted and requested the information in issue from Council. 30 September 2019 Council provided the information in issue to OIC. 11 October 2019 The applicant provided OIC with information in relation to its view about the cost of rehabilitation at MCQ. 1 November 2019 The applicant provided OIC with information in relation to why it considers it should be provided access to all information requested. 8 November 2019 OIC wrote to Council requiring it to carry out further searches to locate documents responsive to the applicant’s access application and requested that it provide further information in relation its decision to refuse to deal with Item 2 of the applicant’s access application. 8 November 2019 OIC wrote to the applicant to provide an update, to explain to the applicant OIC’s role on external review and to confirm that OIC does not have the ability to require an agency to answer questions or provide explanations about documents. 12 November 2019 The applicant contacted OIC and provided information about the measurements of previous blasts conducted at MCQ. 19 November 2019 Council provided OIC with copies of its decisions in relation to the applicant’s previous access applications. 19 November 2019 Council contacted OIC requesting an extension of time in which to provide a response to OIC’s letter dated 8 November 2019. 19 November 2019 OIC agreed to provide Council with an extension of time to provide a response to OIC’s letter dated 8 November 2019. 2 December 2019 The applicant contacted OIC and provided information as to why it considers it should be provided with further information and also requested that OIC conduct an investigation into why the Department of Environment and Science had ignored a recommendation for conducting its own monitoring. 3 December 2019 Council provided OIC with a copy of the Monitoring Reports located as a result of conducting further searches. 9 December 2019 OIC contacted the applicant to provide an update and reiterated OIC’s role on external review. 10 December 2019 The applicant provided OIC with information in relation to why it considers it should be provided access to all information requested. 13 December 2019 The applicant provided OIC with a copy of its MCQ ‘Rehabilitation Spreadsheet’. 6 January 2020 The applicant provided OIC with information in relation to why it considers it should be provided access to all information requested. The applicant also requested that OIC require Council to provide residents local to MCQ with details of the estimated strengths of future blasts, when Council sends out its notice of blast emails to local residents. 7 January 2020 The applicant sent OIC an email addressed to the Queensland Ombudsman. 13 January 2020 The applicant provided OIC with its analysis of previous blast vibration data and information in relation to its view that all monitoring conducted must adhere to Schedule F of MCQ’s development permit. 16 January 2020 The applicant provided OIC with further information to support its view that Council should provide local residents with information about the planned blast strength in its notice of blast emails sent out to local residents. 20 January 2020 OIC wrote to Council requiring: further information in relation to its decision to refuse access to the information in Item 2 of the applicant’s access application, on the ground that the applicant had made a previous application for the same documents; and seeking clarification in relation to the date referred to in one of the Monitoring Reports located by Council. 29 January 2020 OIC provided the applicant with an update by telephone and also explained OIC’s role on external review. 7 February 2020 The applicant contacted OIC requesting access to the documents provided to OIC by Council. 10 February 2020 OIC received Council’s response to OIC’s letter dated 20 January 2020. 17 February 2020 The applicant emailed OIC, asking if OIC could provide an opinion on the applicant’s request that Council include the estimated blast strength in its notice of blast emails to residents local to MCQ. 26 February 2020 The applicant telephoned OIC and requested an update. 27 February 2020 OIC provided the applicant with an update and advised that OIC cannot request or direct Council to include further information in the emails it releases to residents local to MCQ. 30 March 2020 The applicant emailed OIC, requesting access to the documents provided to OIC by Council and also requesting access to the ‘Event Reports’ (Event Reports) created in response to the blasts conducted at MCQ.[117] 14 April 2020 OIC contacted Council and sought clarification of Council’s submission dated 3 December 2019 and required Council to conduct searches to locate the Event Reports. 15 April 2020 OIC provided the applicant with an email update. OIC received an acknowledgment email from the applicant. 2 May 2020 The applicant emailed OIC, advising that it was simply seeking access to the Monitoring Reports. 12 May 2020 OIC contacted Council to request a response to OIC’s letter dated 14 April 2020. 26 May 2020 The applicant telephoned OIC and requested an update. 27 May 2020 OIC contacted Council to request a response to OIC’s letter dated 14 April 2020. 27 May 2020 OIC provided the applicant with an update. 28 May 2020 Council emailed OIC, seeking a further extension of time to respond to OIC’s letter of 14 April 2020. 28 May 2020 The applicant emailed OIC, requesting access to documents that fall outside the scope of its access application. 2 June 2020 OIC received Council’s response to OIC’s letter dated 14 April 2020. 15 June 2020 OIC wrote to Council requesting further information in relation to Council’s 28 May 2020 submission. 10 July 2020, 31 July 2020 OIC contacted Council to request a response to OIC’s letter dated 15 June 2020. 31 July 2020 OIC received Council’s response to OIC’s letter dated 15 June 2020. 13 August 2020 OIC provided the applicant with an update. The applicant emailed OIC, advising that it had made a new access application to Council. 18 August 2020 The applicant emailed OIC, providing information as to why it considers it should be provided with the Monitoring Reports. 3 September 2020 The applicant emailed OIC, requesting that OIC provide it with copies of the documents OIC had received from Council or alternatively provide the applicant with a description of the documents. 7 September 2020 OIC conveyed a preliminary view to Council concerning access to information comprised in the 17 pages of documents forming part of the Extraction Plan. OIC provided an update to the applicant. 8 September 2020 The applicant copied OIC into an email it sent to Council in relation to blasts conducted at MCQ on 18 June 2020 and 3 September 2020. OIC was subsequently copied into an acknowledgment email from Council to the applicant. 11 September 2020, 13 September 2020, 19 September 2020 The applicant copied OIC into its emails to Council in response to Council’s email dated 8 September 2020. 1 October 2020 OIC contacted Council to request a response to OIC’s letter dated 7 September 2020. 3 October 2020 The applicant emailed OIC, providing information in relation to its complaint to Council about victimisation of the chairperson of the applicant. 6 October 2020 OIC granted Council an extension of time to provide a response to OIC’s letter dated 7 September 2020. 25 November 2020 OIC contacted Council requesting a response to OIC’s letter dated 7 September 2020. 26 November 2020 Council provided OIC with its response to OIC’s letter dated 7 September 2020. 27 November 2020 OIC contacted Council seeking clarification in relation to Council’s mark-up of the Monitoring Reports. OIC provided an update to the applicant. 27 November 2020 The applicant emailed OIC, providing information as to why it considers the Monitoring Reports should be disclosed to it. 11 December 2020 The applicant contacted OIC and requested an update by telephone. 14 December 2020 Council provided OIC with its response to OIC’s email dated 27 November 2020. OIC provided the applicant with an update by telephone. 22 December 2020 OIC contacted Council requesting further information from Council in relation to its view that access should be refused to some information in the Monitoring Reports. 4 January 2021 The applicant provided OIC with its response to Council in relation to a report from an independent company which concluded that the blasts conducted at MCQ had not resulted in any property damage. 14 January 2021 The applicant provided OIC with a copy of its correspondence to Council in relation to its complaint that it considers that Council has never complied with Schedule F of the development permit. 18 January 2021 OIC provided the applicant with an update. 25 January 2021 The applicant provided OIC with its ‘final’ complaint email to Council. 28 January 2021 OIC contacted Council to request a response to OIC’s letter dated 22 December 2020. 1 February 2021 The applicant copied OIC into an email to Council in relation to another access application that Council was processing. 2 February 2021 The applicant emailed OIC, raising concerns about its other access application with Council. 3 February 2021 OIC contacted the applicant to explain that OIC cannot provide any advice in relation to an application being processed by Council. 4 February 2021 OIC received an acknowledgement email from the applicant. 4 February 2021, 8 February 2021 The applicant copied OIC into its email to Council in relation to its other access application. 11 February 2021 OIC consulted with Company A in relation to the release of some of the information comprised within the Monitoring Reports. OIC contacted Council and requested that it release a marked-up copy of the relevant Monitoring Reports to Company A. 11 February 2021 Council confirmed to OIC that it had provided Company A with a marked-up copy of the Monitoring Reports. 18 February 2021 The applicant emailed and telephoned OIC, requesting a copy of the documents by the following day. OIC provided the applicant with an update. The applicant sent a further email to OIC in relation to its complaint about Council to the Human Rights Commission. 19 February 2021 The applicant emailed OIC, advising that it required the documents responsive to its access application as part of the processing of its complaint to the Human Rights Commission. 22 February 2021 The applicant copied OIC into its email to Council in relation to its other access application being processed by Council. 11 March 2021 OIC provided the applicant with an update. 12 March 2021 OIC contacted Council providing OIC’s view that Council had not met the onus to satisfy OIC that access should be refused to some of the information in the Monitoring Reports.[118] 17 March 2021 Company A provided a response to OIC. 31 March 2021 The applicant emailed OIC, requesting that information be released that day. 1 April 2021 The applicant telephoned OIC requesting an update. The applicant also emailed OIC, requesting an update in relation to its other access application being processed by Council. OIC provided an external review update to the applicant and advised that it could not provide advice in relation to its access application with Council. 6 April 2021 OIC provided an update to the applicant, as requested by the applicant. 8 April 2021 OIC provided a preliminary view to the applicant. OIC contacted Council to request that it release some information to the applicant and arrange for the applicant to inspect the Monitoring Reports. Council provided OIC with an acknowledgment email. The applicant emailed OIC, stating that it was not satisfied with inspecting the Monitoring Reports. 9 April 2021 The applicant provided a submission to OIC. 12 April 2021 The applicant and Council copied OIC into the emails between them in relation to inspection of the Monitoring Reports. 12 April 2021 OIC provided the applicant with a response to comments and queries raised in the applicant’s emails dated 8 and 9 April 2021. 13 April 2021 The applicant copied OIC into its email to Council in which the applicant made submissions to Council in relation to the refused information. 14 April 2021 The applicant emailed OIC, requesting that it be provided with access to the refused information. 15 April 2021 OIC provided a response to the applicant’s request to be provided with access to the refused information. 16 April 2021 The applicant emailed OIC, advising that it would be in a position to provide a submission the following week. 21 April 2021, 23 April 2021 The applicant copied OIC into its emails to Council in relation to the refused information. 28 April 2021, 3 May 2021, 4 May 2021 The applicant provided a submission to OIC. 7 May 2021 The applicant copied OIC into its email to Council in relation to inspection of the Monitoring Reports. 11 May 2021, 12 May 2021 The applicant provided a submission to OIC. 17 May 2021 The applicant provided a submission to OIC, in which it requested that it be provided with a copy of a letter from Council. 19 May 2021 OIC wrote to the applicant in relation to its submissions and its request that it be provided with a copy of the letter from Council. 21 May 2021 The applicant provided a submission to OIC. 24 May 2021 The applicant telephoned OIC and requested an update. 25 May 2021 OIC provided the applicant with an update. 27 May 2021 The applicant provided a submission to OIC. 31 May 2021 OIC provided an update to the applicant. 9 June 2021 OIC contacted Council to request a copy of Council’s purchase orders with Company A. 14 June 2021 The applicant sent two emails to OIC. 15 June 2021 OIC provided an update to the applicant. 28 June 2021 OIC contacted Council to seek further information in relation to its commercial prejudice submission. 12 July 2021 OIC contacted Council requesting a response to OIC’s email dated 9 June 2021. 15 July 2021 Council provided OIC with a copy of a current purchase order. 16 July 2021 Council provided OIC with copies of some of the purchase orders relevant to the time period of the Monitoring Reports. 22 July 2021 The applicant emailed OIC, requesting an update. 26 July 2021 OIC provided an update to the applicant. 22 August 2021 The applicant provided a submission to OIC. 24 August 2021 The applicant copied OIC into an email to Council in which it complained about the blast that was conducted at MCQ that day. 13 September 2021 The applicant emailed OIC, requesting an update. 16 September 2021 OIC provided an update to the applicant. [1] See paragraph 13 for full terms of the original application.[2] On 28 June 2019 the applicant contacted Council to request that the scope of the application be expanded. By email dated 1 July 2019 Council agreed to include the Expanded Scope.[3] Being 7 December 2017, 9 February 2018, 2 March 2018, 23 March 2018, 19 April 2018, 3 May 2018, 31 May 2018, 14 June 2018 and 21 June 2018.[4] On the ground that the applicant had made a previous application for the same documents under section 43 of the RTI Act. Under Council reference number 2016/17-278 (2017 application).[5] On the ground that, on balance, disclosure would be contrary to the public interest under section 47(3)(b) of the RTI Act.[6] Council’s decision dated 16 August 2019 erroneously referred to 10 pages being released in full. 11 pages were actually released in full. [7] Received by OIC on 26 August 2019.[8] Section 58(1) of the HR Act.[9] Section 21(2) of the HR Act. [10] Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). [11] XYZ v Victoria Police (General) [2010] VCAT 255 (XYZ) at [573].[12] XYZ at [573]; see also Horrocks v Department of Justice (General) [2012] VCAT 241 at [111].[13] OIC’s letter to Council dated 8 November 2019.[14] Council’s letter to OIC dated 2 June 2020.[15] Except for certain information (the blast design details and explosive loading details) appearing in the Monitoring Reports, which Council maintained should not be disclosed – Council’s letter to OIC dated 31 July 2020. [16] In a letter dated 11 February 2021, pursuant to sections 37 and 89 of the RTI Act.[17] Company A’s letter to OIC dated 17 March 2021.[18] Section 68(1)(a) of the RTI Act.[19] Section 47(3)(b) of the RTI Act.[20] Section 90(1) of the RTI Act.[21] Subject to the redaction of the report author’s personal information and blast details as noted at paragraph 19.[22] Section 68(4)(c) of the RTI Act. Consideration of the Form of Access Issue begins at paragraph 26 below.[23] Section 43 of the RTI Act. [24] Council’s letter to OIC dated 10 February 2020.[25] Section 47(3)(b) and schedule 4, part 3, items 2, 17 and 20 and part 4, section 4(1) of the RTI Act.[26] Letter to Council dated 7 September 2020.[27] Letter to the applicant dated 8 April 2021. In an email to the applicant dated 31 May 2021, OIC advised the applicant that it would proceed to a formal decision on the basis that the applicant objected to OIC’s preliminary view in relation to the Information in Issue and the Disclosure Issue.[28] OIC’s letters dated 8 April 2021 and 19 May 2021, submissions from the applicant dated 8 April 2021, 9 April 2021, 12 April 2021, 14 April 2021, 16 April 2021, 28 April 2021, 3 May 2021, 4 May 2021, 11 May 2021, 12 May 2021 and 17 May 2021 and the applicant’s emails to Council dated 12 April 2021, 13 April 2021, 21 April 2021, 23 April 2021 and 7 May 2021.[29] 7 pages of PDF 1, 5 pages of PDF 2, 2 part-pages of PDF 3 and 1 page and 2 part-pages of PDF 4.[30] Section 47(3)(b) of the RTI Act. Consideration of the Disclosure Issue begins at paragraph 77 below.[31] Section 85 of the RTI Act provides that ‘a person affected by a reviewable decision may apply to have the decision reviewed by the information commissioner’. ‘Reviewable decision’ in Schedule 5 of the RTI Act means to include ‘(i) a decision giving access to a document in a form different to the form applied for by the applicant, unless access in the form applied for would involve an infringement of the copyright of a person other than the State’ [emphasis added].[32] Subject to the redaction of the report author’s personal information and blast details as noted at paragraph 19.[33] Section 68(4)(c) of the RTI Act.[34] Section 32(1) of the Copyright Act.[35] Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16; (2012) 201 FCR 173; University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 608-610.[36] MacMillan and Co Ltd v Cooper (1923) LR 51 Ind App 109; Interfirm Comparison (Aust) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104.[37] Section 10 (definition of ‘artistic work’) of the Copyright Act.[38] Section 10 (definition of ‘drawing’) of the Copyright Act.[39] Section 10 (definition of ‘literary work’) of the Copyright Act.[40] Sections 31(1)(a) and 31(1)(b) of the Copyright Act.[41] Section 36(1) of the Copyright Act.[42] Part III, Division 3 of the Copyright Act – Acts not constituting infringements of copyright in works. [43] Section 183(1) of the Copyright Act.[44] Company A’s letter to OIC dated 17 March 2021.[45] Council’s email to OIC dated 14 December 2020.[46] Development permit IPDE00920708. Schedule F relates to the emission of noise.[47] Applicant’s email to OIC dated 4 January 2021.[48] Applicant’s email to OIC dated 9 April 2021.[49] Applicant’s email to OIC dated 21 May 2021.[50] Applicant’s telephone call with a Review Officer on 25 May 2021.[51] Interfirm Comparison (Aust) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104.[52] There is no information before me to suggest that the Monitoring Reports have been published or that the author of the reports is not a qualified person for the purposes of section 32 of the Copyright Act.[53] Section 36(1) of the Copyright Act.[54] Submission to OIC dated 23 April 2021 at page 5.[55] Council’s letter to OIC dated 31 July 2020.[56] Section 31(1)(b) of the Copyright Act.[57] Lorenzo & Sons Pty Ltd v Roland Corp (1992) IPR 376 at 380-2.[58] Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337.[59] Hardingham v RP Data Pty Limited [2019] FCA 2075, 147 IPR 489 at [44]- [50] (Hardingham). [60] Hardingham at [44]-[50].[61] As my decision relates to access of documents under the RTI Act and does not relate to an actual claim of infringement, I do not consider that it is necessary for me to consider the fourth principle referred to in Hardingham.[62] Beck v Montana constructions Pty [1964-5] NSWR 229 (Beck).[63] Beck at 235.[64] Hardingham at [49].[65] Permit number IPDE00920708.[66] At [F4] to [F6].[67] At [H9] to [H16].[68] At [H18].[69] At [A5].[70] Submission to OIC dated 28 April 2021 at page 2.[71] Applicant’s emails to OIC dated 24 August 2019, 12 November 2019, 2 December 2019, 6 January 2020, 13 January 2020, 18 August 2020, 27 November 2020, 4 January 2021, 25 January 2021, 18 February 2021, 3 May 2021, 11 May 2021, 21 May 2021, 13 June 2021, applicant’s submission to OIC dated 28 April 2021 at 3-4, 7 and 16 and applicant’s emails to Council dated 8 September 2020, 11 September 2020 and 13 September 2020.[72] Applicant’s email to OIC dated 9 April 2021.[73] Amos v Central Coast Council [2018] NSWCATAD 101 at [75]; Sandy v Kiama Municipal Council [2019] NSWCATAD 49 at [40] and Hoyts Multiplex Cinemas Pty Ltd v City of Gosnells [1997] WAICmr 1 at [25]- [30] (Hoyts).[74] Pursuant to section 167 of the Planning Act 2016 (Qld).[75] Applicant’s email to OIC dated 14 June 2021.[76] Applicant’s email to OIC dated 14 June 2021.[77] In Hoyts.[78] Hoyts at [25]. In reaching that decision the WA Information Commissioner referred to the decision of Beaumont J in De Garis and Anor v Neville Jeffress Pidler Pty Ltd [1990] FCA 352; (1990) 37 FCR 99, in which Beaumont J considered section 40 of the Copyright Act.[79] [2021] QICmr 39 (6 August 2021) at [41]-[44].[80] Subject to the redaction of the report author’s personal information and blast details as noted at paragraph 19.[81] Sections 47(3)(b) and 49 of the RTI Act. Section 47(2)(a) of the RTI Act requires the grounds to be interpreted narrowly.[82] However, there are some recognised public interest considerations that may apply for the benefit of an individual. See Chris Wheeler, ‘The Public Interest: We Know It's Important, But Do We Know What It Means’ [2006] AIAdminLawF 2; (2006) 48 AIAL Forum 12, 14. [83] Section 49(3) of the RTI Act. [84] Section 39 of the RTI Act.[85] Section 47(2)(a) of the RTI Act.[86] Section 49(3)(d) of the RTI Act.[87] Applicant’s email to OIC dated 6 January 2020.[88] Applicant’s email to OIC dated 16 April 2021.[89] Applicant’s email to OIC dated 16 April 2021.[90] Applicant’s email to OIC dated 6 January 2020.[91] See the website of Michael Berkman, MP for Maiwar https://www.michaelberkman.com.au/quarry; ‘Mt Coot-tha Residents Fight for Quarry Closure, Future Zipline Plans May Be Affected’, Chapel Hill News (online) https://chapelhillnews.com.au/mt-coot-tha-residents-fight-quarry-closure-future-zipline-plans-may-affected/.[92] Schedule 4, part 2, item 1 of the RTI Act[93] Schedule 4, part 2, item 2 of the RTI Act.[94] Schedule 4, part 2, item 14 of the RTI Act.[95] A public interest reflected in the very existence of the RTI Act, and Parliament’s recognition that in a ‘free and democratic society there should be open discussion of public affairs’, that information ‘in the government’s possession or under the government’s control is a public resource’, and that ‘the community should be kept informed of government’s operations...’: Preamble, sections 1(a)-(c) of the RTI Act.[96] Schedule 4, part 2, item 14 of the RTI Act.[97] As noted at paragraph 24 above.[98] Noting that, given the wording of section 49(3)(b) of the RTI Act, the factors favouring disclosure listed in schedule 4, part 2 of the RTI Act are non-exhaustive.[99] Schedule 4, part 3, item 17 of the RTI Act.[100] Schedule 4, part 3, item 15 of the RTI Act.[101] Schedule 4, part 4, section 7(1)(c) of the RTI Act.[102] Applicant’s email to OIC dated 6 January 2020.[103] Applicant’s email to OIC dated 14 January 2021.[104] Applicant’s email to OIC dated 16 April 2021.[105] Applicant’s email to OIC dated 11 May 2021.[106] Applicant’s email to OIC dated 21 May 2021.[107] Applicant’s email to OIC dated 11 May 2021.[108] Council’s letter to OIC dated 31 July 2020 at page 3.[109] As evidenced by the applicant’s email to Council dated 11 September 2020, in which it states a prominent electoral candidate interviewed truck drivers outside MCQ and was advised by the truck drivers that ‘none of the MCQ gravel is ever delivered to BCC facilities, all gravel goes to commercial outlets and asphalt factories’.[110] Telephone call between the applicant and an OIC Officer on 14 December 2020.[111] Council’s letter to OIC dated 31 July 2020.[112] Telephone call between myself and Council on 28 June 2021.[113] http://www.mtcoot-tha.org (accessed on 10 June 2021).[114] http://www.mtcoot-tha.org (accessed on 11 June 2021).[115] Kalinga Wooloowin Residents Association Inc and Brisbane City Council; City North Infrastructure Pty Ltd; Treasury Department (Unreported, Queensland Information Commissioner, 9 May 2012) at [89].[116] As observed by Judicial Member McGill SC in FLK v Information Commissioner [2021] QCATA 46 at [17]. While the observation was made in relation to the IP Act, I consider the observation is equally applicable to access of information obtained via the RTI Act.[117] Access to these reports was addressed in OIC’s preliminary view dated 8 April 2021, the applicant did not raise any objections to OIC’s preliminary view in this respect.[118] Section 87(1) of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Pemberton and The University of Queensland [2008] QICmr 26 (23 September 2008)

Pemberton and The University of Queensland [2008] QICmr 26 (23 September 2008) Office of the Information Commissioner Decision and Reasons for Decision Application Number: 210529 Applicant: Dr John Pemberton Respondent: University of Queensland Decision Date: 23 September 2008 Catchwords: FREEDOM OF INFORMATION - section 77(1)(a) of the Freedom of Information Act 1992 (Qld) - Commissioner may decide not to deal with an application for review - whether application for review is lacking substance FREEDOM OF INFORMATION - sufficiency of search - whether reasonable grounds to believe further relevant documents are in the possession or under the control of the agency FREEDOM OF INFORMATION - section 25(3) of the Freedom of Information Act 1992 (Qld) - documents which post-date the freedom of information application Contents REASONS FOR DECISION Summary 1. In this decision, I have found that the application for review is lacking substance and therefore, this is an appropriate case in which to exercise my discretion under section 77(1)(a) of the Freedom of Information Act 1992 (Qld) (FOI Act) not to deal with the application for review. Background 2. By letter dated 24 January 2008 the Applicant applied to the University for access to the following (FOI Application): • all documents concerning the death of Dr Zhou, from his initial appointment until the date of the FOI Application, particularly documents showing: o the exact time and date when Dr Zhou returned to China o the precise date and location of his death o any information on the cause of his death • a list of viruses held by the Lions Immunology Research Centre (Research Centre) for the period 1991 to the date of the FOI Application including viruses held at other sites used by members of the Research Centre • details of any accidents or incidents within or associated with the Research Centre from 1991 to the date of the FOI Application • a list of all viruses held within the Molecular Biosciences Building of the University from the period 1991 to the present time • details of any accidents or incidents involving viruses in the Molecular Biosciences Building from 1991 to the present time including the following information: o the day and date of the incidents o the names of the viruses o who was infected or affected o whether any of those infected suffered or still suffer the after effects • any documents regarding a coronial inquest into the death of Dr Zhou. 3. On 17 February 2008, the Applicant reached agreement with the University to amend the scope of his FOI Application as follows: • the request for documents concerning Dr Zhou’s death is limited to Dr Zhou’s medical records or any documents discussing Dr Zhou’s ‘pre-existing condition’. Specifically, information relating to Dr Zhou’s salary, superannuation entitlements and memorial service were excluded from the terms of the FOI Application • the request for lists of viruses is limited to a list of current viruses held in the former Lions Immunology Research Centre and the Molecular Biosciences Building as at the date of the FOI Application.[1] 4. By letter dated 4 April 2008, Mr A Zgrajewski[2] informed the Applicant that he had located 451 folios in response to the FOI Application. With respect to those folios, Mr Zgrajewski decided (Original Decision) to: • grant full access to 173 folios • grant partial access to 278 folios because they contain matter which is: o exempt from disclosure pursuant to section 44(1) of the FOI Act o not relevant to the FOI Application and can therefore be deleted pursuant to section 27(3) of the FOI Act. 5. In the Original Decision, Mr Zgrajewski also made the following statements: • The only documents relating to the death of Dr Zhou is a death certificate. All other documents on his personnel file relate to his appointment as a University employee, salary, superannuation entitlements and a memorial service following his death • A search of Occupational Health and Safety records was unable to identify any incident or accident reports that involve viruses used in the Molecular Biosciences Building. • As previously advised, the University is unaware of any coronial inquest into Dr Zhou’s death. It follows that the University had no records of this inquest. 6. By letter dated 21 April 2008, the Applicant applied to the University for internal review of the Original Decision on the following grounds (Internal Review Application): • inadequate searches were conducted for documents relating to accidents or incidents involving viruses within the Molecular Biosciences Building • additional documents relating to the death of Dr Zhou such as accompanying correspondence to the death certificate should have been located by the University. 7. By letter dated 12 May 2008, Mr D Porter[3] responded to the Internal Review Application as follows: • Dr Zhou’s death certificate was provided to the University as an attachment to a letter concerning his superannuation benefits[4] and therefore, that letter was not within the scope of the FOI Application • apart from the death certificate, the University does not hold any documents concerning Dr Zhou’s medical records or ‘pre-existing condition’ • additional inquiries were made and further searches were conducted for documents relating to any accidents or incidents involving viruses within the Molecular Biosciences Building from 1991 to present • the Occupational Health and Safety Unit observed as follows with respect to this part of the FOI Application: A search for relevant records was undertaken by 3 senior officers in the Occupational Health and Safety Unit, which comprises a search of all electronic records back to 1995 and a manual search of all hard copy reports from 1991 to 1995; Any record that mentioned ‘virus’ as well as any record with ‘biological agent’ were provided to the FOI Officer to consider as part of [the] FOI application; There are no incident reports for an incident of Hendra Virus from 1997 as suggested because in 1997 the Occupational Health and Safety Unit did not have any biological safety resources and most issues were dealt with by the Institutional Biosafety Committee. • the FOI Officer searched the Biosafety Committee minutes for 1997 and identified a number of items relating to Equine Morbillivirus (commonly known as Hendra Virus). However, the minutes did not relate to an incident or accident and therefore, those documents fall outside the scope of the FOI Application • the FOI Officer conducted an additional thorough search of Records Management Services and could not find any documents relating to incidents involving the Hendra Virus • the FOI Officer did locate a file which contained information concerning an investigation by the Criminal Justice Commission into a complaint the Applicant had made to them regarding the Hendra Virus but those documents are not within the scope of the FOI Application because they do not relate to specific incidents or accidents involving the Hendra Virus. 8. On the basis of the observations, inquiries and searches set out in paragraph 7 of this decision, Mr Porter issued the Internal Review Decision in which he found that: • the University holds no further documents responsive to the FOI Application • the University has discharged its obligations under the FOI Act • the Original Decision should be affirmed. 9. By letter dated 28 May 2008, the Applicant applied to this Office for external review on the following grounds (External Review Application): • inadequate searches were conducted by the University for documents concerning the death of Dr Zhou • the University has produced no documents to support the explanation of Dr Zhou’s death given by Professor Ian Frazer in The Australian Article • the University should hold documents relating to meetings concerning, and copies of documents supplied to The Australian for the purpose of publishing The Australian Article[5]. Steps taken in the preliminary assessment 10. By letter dated 5 June 2008, this Office informed the Applicant that preliminary inquiries were being made of the University regarding the External Review Application and that this Office would contact him again once those inquiries were complete. 11. By letter dated 10 June 2008, the University provided this Office with copies of documents relevant to the FOI Application, including all correspondence exchanged between the Applicant and the University during the processing of the FOI Application. 12. By letter dated 26 August 2008, I informed the Applicant that I had formed the view that his External Review Application was lacking substance on the following bases: • there are no reasonable grounds to believe that the following documents are in the possession or under the control of the University: o additional documents concerning the death of Dr Zhou, or o documents relating to Professor Frazer’s comments in The Australian Article • any documents produced in response to the FOI Application which led to the publication of The Australian Article (if such documents in fact exist) would post-date the FOI Application and are therefore, not within the scope of the FOI Application due to the operation of section 25(3) of the FOI Act. 13. Based on the reasons set out in paragraph 12 of this decision, I informed the Applicant that I considered this to be an appropriate case in which to exercise my discretion under section 77(1)(a) of the FOI Act not to deal with the External Review Application (Preliminary Assessment). 14. In my letter dated 26 August 2008, I invited the Applicant, if he did not agree with the Preliminary Assessment, to provide me with submissions in response. I specifically requested the Applicant to provide any evidence he had in his possession to substantiate his beliefs about biosafety problems in University laboratories which he alleges contributed to Dr Zhou’s death. 15. By letter dated 1 September 2008[6], the Applicant made submissions in response to the Preliminary Assessment and provided a document in support of his contentions regarding biosafety problems at the University. Findings 16. The External Review Application: • questions the adequacy of searches undertaken by the University for documents concerning the death of Dr Zhou • contends that the University holds documents which would further explain Professor Frazer’s comments in The Australian Article about Dr Zhou’s state of health • contends that the University holds documents which were generated in response to the FOI Application which then led to the publication of The Australian Article. 17. The Applicant’s submissions in relation to the existence of additional documents concerning Dr Zhou and Professor Frazer’s comments in The Australian Article raise the issue of sufficiency of search. 18. The Applicant’s submissions with respect to documents leading to the publication of The Australian Article require analysis of the scope of the FOI Application. 19. I have examined both of these issues below. Sufficiency of search 20. In reviews in which sufficiency of search is raised, the following questions are relevant: (i) are there reasonable grounds to believe that the requested documents exist and are documents of the agency as that term is defined in section 7 of the FOI Act and if so (ii) have the search efforts made by the agency to locate such documents been reasonable in all the circumstances of the review.[7] Reasonable grounds 21. In determining whether there are reasonable grounds to believe that additional relevant documents are in the possession or under the control of an agency, the Information Commissioner has previously indicated[8] that an applicant will ordinarily need to: • explain fully their grounds for believing that the respondent agency holds additional responsive documents • disclose any relevant documentary or other evidence which tends to support the existence of reasonable grounds for such a belief. Documents concerning the death of Dr Zhou 22. In the External Review Application, the Applicant indicates that he is seeking access to documents that will ‘...shed light on the mysterious and unexpected death of Dr Zhou’. The Applicant also makes the following assertions: Dr Zhou was a research scientist of major national and international significance. His rapid and mysterious death should have set off a chain of events including intense scrutiny of what had happened. Dr Zhou’s death was the culmination of a series of events surrounding biosafety problems in the laboratories ... at the University of Queensland St. Lucia campus. Whoever or whatever killed Dr Zhou is still out there. 23. The Applicant contends that[9]: • Dr Zhou’s death must have been investigated by the University because he died as a result of being infected with a virus or bacterium in his work place, and therefore, • further documents exist in relation to Dr Zhou’s death that have not been disclosed to him. 24. The Applicant opines that Dr Zhou’s death was the result of infection by a virus or bacterium which occurred in a University laboratory because of poor biosafety practices. 25. The Applicant reasons that the fact that Dr Zhou’s death certificate identifies his cause of death as ‘septic shock’ demonstrates that Dr Zhou was infected with a virus or bacterium in his work place. 26. Additionally, in support of his contentions, the Applicant provided this Office with a copy of a letter dated 24 September 1997 which was sent to Mr Jim Holt, Secretary of the University’s Biosafety Committee by Professor John Mackenzie, Head of the University’s Bioscience Department (Professor Mackenzie Letter). I have examined this letter and note that it concerns the following: • possible contamination (from an unknown source) with the Hendra Virus of stocks of the ‘J’ and Mossman viruses held by the University • laboratory practices and testing carried out by the University on the virus stocks • inactivation of all stocks of ‘J’ and Mossman viruses • measures taken to confirm whether virus stocks were contaminated by the Hendra Virus. 27. The Professor Mackenzie Letter does not provide any evidence to suggest that the laboratory and biosafety practices at the University contributed to the death of Dr Zhou. Rather, it concerns an isolated incident which occurred some time prior to 19 September 1997, with respect to unconfirmed contamination of discrete virus stocks. 28. There is no evidence in the Professor Mackenzie Letter: • that any human was contaminated with the virus concerned • which suggests that Dr Zhou was involved with the laboratories or viruses concerned. 29. There is no evidence before me to support the Applicant’s contention that Dr Zhou’s death was the result of any biosafety issues in University laboratories or that he was ‘infected in the work place’. 30. I also note that Dr Zhou’s death did not occur in a University laboratory or on University premises— Dr Zhou died in China in March 1999. 31. I consider that in circumstances where a University employee (or an employee of any organisation for that matter) dies while situated in another country (not for work related purposes) the employer would not ordinarily be expected to conduct an investigation into that employee’s death. It follows that I consider it is unreasonable to expect an employer to generate any documents in relation to the death of an employee who died while overseas for non-work related purposes.[10] 32. Ultimately, the Applicant has not provided me with any evidence to support his allegation that the University was complicit in the death of Dr Zhou due to biosafety problems in its laboratories. In the absence of any such evidence, I am satisfied that the Applicant’s allegations are unsubstantiated and do not establish any reasonable grounds to believe that the University holds any further documents relating to the death of Dr Zhou. Documents relating to Professor Fraser’s comments in the Australian Article 33. In the External Review Application, the Applicant contends that: Evidently Professor Fraser knew something that Dr Zhou’s wife ... did not know, The university has produced no documents to support the explanation of Dr Zhou’s death given by Professor Fraser to the Weekend Australian. 34. I have examined The Australian Article and note that Professor Frazer is quoted as saying that Dr Zhou suffered bouts of ‘tiredness’. 35. In the External Review Application, the Applicant did not identify any types of documents which he believes the University should hold in relation to Professor Frazer’s comments in the Australian Article. 36. On the information available to me, I have not been able to identify any documents which I consider it reasonable to believe the University would have in its possession or under its control in this regard. Generally speaking, I would not expect a colleague to keep records about the state of health of a fellow colleague. Summary 37. Based on the information before me, I am satisfied that there are no reasonable grounds to believe that the University has in its possession or under its control: • further documents concerning the death of Dr Zhou • documents which relate to or further explain Professor Frazer’s comments in The Australian Article about Dr Zhou’s state of health. 38. As I have found that there are no reasonable grounds to believe any additional relevant documents are in the possession or under the control of the University, it is unnecessary for me to address the second question posed in Shepherd.[11] Scope of the FOI Application 39. In the External Review Application, the Applicant submits that The Australian Article was: ...cobbled together in response to my FOI application. If this was stage managed, then the University of Queensland should have working documents relating to meetings and any possible written documents supplied to the Australian Newspaper. 40. I have interpreted that submission as a request by the Applicant for access to documents which, following receipt of the FOI Application, were generated by the University and resulted in the publication of The Australian Article. 41. I am satisfied that any such documents would fall outside the scope of the FOI Application due to the operation of section 25(3) of the FOI Act. That section provides: 25 How applications for access are made ... (3) The application is taken only to apply to documents that are, or may be, in existence on the day the application is received. 42. Any documents which the University generated following receipt of the FOI Application and which led to the publication of The Australian Article (if such documents in fact exist) would post-date the FOI Application and are therefore, outside the scope of the FOI Application. Section 77 of the FOI Act 43. This section relevantly provides: 77 Commissioner may decide not to review (1) The commissioner may decide not to deal with, or not to further deal with, all or part of an application for review if— (a) the commissioner is satisfied the application, or the part of the application, is frivolous, vexatious, misconceived or lacking substance; or ... 44. I am satisfied that the External Review Application is lacking substance based on the following: • there are no reasonable grounds to believe that additional documents concerning the death of Dr Zhou or relating to Professor Frazer’s comments in The Australian Article are in the possession or under the control of the University • documents produced in response to the FOI Application which led to the publication of The Australian Article (if such documents in fact exist) would post-date the FOI Application and are therefore, not within the scope of the FOI Application due to the operation of section 25(3) of the FOI Act 45. Accordingly, pursuant to section 77(1)(a) of the FOI Act, I decide not to deal with the External Review Application. DECISION 46. Pursuant to section 77(1)(a) of the FOI Act, I decide not to deal with the External Review Application because I am satisfied that it is lacking substance on the following bases: • there are no reasonable grounds to believe that additional documents concerning the death of Dr Zhou or documents relating to Professor Frazer’s comments in The Australian Article are in the possession or under the control of the University • any documents produced in response to the FOI Application which led to the publication of The Australian Article (if such documents in fact exist) would post-date the FOI Application and are therefore, not within the scope of the FOI Application due to the operation of section 25(3) of the FOI Act. 47. I have made this decision as a delegate of the Information Commissioner, under section 90 of the FOI Act. ________________________ Assistant Commissioner Corby Date: 23 September 2008 [1] This information was extracted from Mr Zgrajewski’s decision dated 4 April 2008.[2] Freedom of Information Officer at the University.[3] Secretary and Registrar at the University.[4] On 17 February 2008, the FOI Application was amended so as to exclude any documents relating to Dr Zhou’s superannuation entitlements, salary and memorial service.[5] The article which appeared in on pages 1 and 6 of The Weekend Australian on 3 May 2008. The Applicant provided this Office with a copy of the Australian Article under cover of the External Review Application.[6] Received in this Office on 11 September 2008. [7] Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 at paragraphs 18-19. Referred to as Shepherd in this decision.[8] In Ainsworth; Ainsworth Nominees Pty Ltd and Criminal Justice Commission; A (Third Party); B (Fourth Party) (1999) 9 QAR 284 at paragraph 46.[9] Set out in his submissions dated 1 September 2008.[10] I do however acknowledge that some personnel documents may be generated by the employer to show that the employee in no longer in employment by the organisation. However, the scope of the applicant’s FOI Application did not extend to such documents.[11] See paragraph 20 of this decision.

queensland

court_judgement

Queensland Information Commissioner 1993-

Edmistone and Blackall-Tambo Regional Council [2016] QICmr 12 (15 April 2016)

Edmistone and Blackall-Tambo Regional Council [2016] QICmr 12 (15 April 2016) Last Updated: 20 January 2017 Decision and Reasons for Decision Citation: Edmistone and Blackall-Tambo Regional Council [2016] QICmr 12 (15 April 2016) Application Number: 312625 Applicant: Edmistone Respondent: Blackall-Tambo Regional Council Decision Date: 15 April 2016 Catchwords: ADMINISTRATIVE LAW - RIGHT TO INFORMATION - EXEMPT INFORMATION - employment contracts of a senior Council employee - Council granted access to majority of information in the contracts - the employee objected to disclosure of their total remuneration amounts - whether disclosure of the amounts would found an action for breach of confidence - schedule 3, section 8 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - EXEMPT INFORMATION - employee resigned from Council following information access request for his employment contracts - allegations of bullying - whether disclosure of the total remuneration amounts could reasonably be expected to result in a serious act of harassment or intimidation against the external review applicant - schedule 3, section 10(1)(d) of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - accountability and transparency in expenditure of public funds - employment information of a public servant - privacy and personal information - whether disclosure would, on balance, be contrary to the public interest - sections 47(3)(b) and 49 of the Right to Information Act 2009 (Qld) ADMINISTRATIVE LAW - RIGHT TO INFORMATION - DISCLOSURE DECISION - ONUS ON EXTERNAL REVIEW - whether the external review applicant has established that a decision not to disclose the information is justified or that the Information Commissioner should give a decision adverse to the access applicant - section 87(2) of the Right to Information Act 2009 (Qld) REASONS FOR DECISION Summary An application was made to Blackall-Tambo Regional Council (Council) under the Right to Information Act 2009 (Qld) (RTI Act) for access to the employment contracts of Council’s Manager of Works,[1] for the period 2008 to 2015.[2] Council located two employment contracts for the Manager of Works (Contracts) for the relevant period.[3] Council sought the views of the external review applicant on disclosure of information in the Contracts which Council was proposing to release. Council decided to grant access to most of the information in the Contracts, including the amounts representing the total remuneration package, contrary to the applicant’s objections.[4] The applicant applied to the Office of the Information Commissioner (OIC) for external review of Council’s decision to grant access to the remuneration amounts. For the reasons set out below, I affirm Council’s decision to disclose the remuneration amounts. I have found that the information is not exempt and nor would its disclosure, on balance, be contrary to the public interest under the RTI Act. Background Significant procedural steps relating to the application and external review are set out in the Appendix. Reviewable decision The decision under review is Council’s decision dated 16 October 2015 to disclose information, contrary to the applicant’s objections. Evidence considered Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and the Appendix). Information in issue The information in issue in this review consists of the amounts of the total remuneration package in each of the Contracts (Total Remuneration).[5] Relevant lawOnus on external review The participant in the external review application who opposes the disclosure decision has the onus of establishing that a decision not to disclose information is justified, or that the Information Commissioner should give a decision adverse to the person who wishes to be given access to the information.[6] Therefore, in this review, the applicant bears the onus of establishing that access to the Total Remuneration can be refused under the provisions of the RTI Act.Right of access to information Under the RTI Act, access should be given to a document unless giving access would, on balance, be contrary to the public interest.[7] The RTI Act sets out certain grounds on which access to information may be refused.[8] It is Parliament’s intention that these grounds are to be interpreted narrowly.[9] Access may be refused to exempt information[10] and contrary to public interest information.[11] These grounds for refusal are examined below. Exempt information – breach of confidence Information will be exempt if its disclosure would found an action for breach of confidence.[12] The words of the section refer to an action based in equity for breach of an equitable obligation of confidence.[13] For this exemption to apply, five cumulative elements must be established:[14] information must be able to be specifically identified[15] information must have the necessary quality of confidence and will not extend to information that is generally known, useless or trivial[16] circumstances of the communication must create an equitable obligation of confidence[17] disclosure to the access applicant must constitute an unauthorised use of the confidential information;[18] and disclosure would result in detriment to the applicant.[19] Findings I am satisfied that the Total Remuneration is specifically identifiable, thereby satisfying requirement a). I am also satisfied that the Total Remuneration is not commonly known and is not useless or trivial information. Council’s Annual Reports,[20] published during the period in which the Contracts were in force, contain a disclosure statement regarding the remuneration paid to senior contract employees, as required by section 201 of the Local Government Act 2009 (Qld) (LG Act).[21] However, these statements are only expressed in bands of $100,000 and do not disclose the specific salary figures, nor do they link the salary bands to the relevant senior employees, by name or title. The information disclosed in the Annual Reports gives no more than a general guide as to the salary bands paid to Council’s senior management team. I do not consider this equates to the specific figures comprising the Total Remuneration being generally available. Therefore, I find that requirement b) is also satisfied. For element c) to apply, the information must have been communicated and received on the basis of a mutual understanding of confidence. The understanding must have existed at the time of the communication and may be express or implied.[22] This is usually the most difficult requirement to satisfy and requires that the ‘recipient should be fixed with an enforceable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it.’[23] The applicant submitted that it was implied during his employment negotiations that the contents of the Contracts, including the remuneration schedules would be kept confidential.[24] Neither of the Contracts contains a confidentiality clause and they are not marked with a ‘confidential’ watermark or in any other way.[25] There is also no evidence of an express agreement between the Council and the applicant that the Contracts were negotiated on a confidential basis. Other than the applicant’s assertions, there is no evidence available to OIC to suggest confidentiality was expressly sought or offered during negotiation of the Contracts. In addition, Council decided to disclose the majority of information in the Contracts, including the Total Remuneration, to the access applicant under the RTI Act. I consider that Council’s willingness to disclose the Contracts lends support to the view that Council did not consider the negotiations were conducted on a confidential basis. On the basis of the above, I am satisfied that element c) cannot be established on the facts of this case. Therefore, I do not consider it is necessary to examine the remaining elements of the breach of confidence exemption. Accordingly I find that there is no foundation for an equitable action for breach of confidence and therefore, the Total Remuneration is not exempt information under schedule 3, section 8 of the RTI Act. Exempt information - serious act of harassment or intimidation Schedule 3, section 10(1)(d) of the RTI Act provides that information is exempt if its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.[26] The RTI Act does not define ‘serious act of harassment or intimidation’ – therefore, the terms should be given their ordinary meaning. The Information Commissioner has previously indicated that: a serious act of harassment is an action that attacks, disturbs or torments a person and that causes concern or apprehension or has undesired consequences; and a serious act of intimidation is an action that induces fear or forces a person into some action by inducing fear or apprehension and that causes concern or apprehension or has undesired consequences.[27] Further, the Information Commissioner has noted that some degree of harassment or intimidation is contemplated as permissible before the right to access documents is removed.[28] In Sheridan, the Information Commissioner considered the phrase ‘could reasonably be expected to’ and found that, depending on the circumstances of the particular review, a range of factors may be relevant in determining whether an act could reasonably be expected to occur. These factors may include, but are not limited to: past conduct or a pattern of previous conduct the nature of the relevant matter in issue the nature of the relationship between the parties and/or third parties; and relevant contextual and/or cultural factors.[29] The Information Commissioner has previously found that the following two requirements must be present for it to apply: an apprehended serious act of harassment or intimidation; and a reasonable basis for expecting that that act would occur if the Information in Issue were disclosed.[30] Findings The applicant submitted to OIC that he has been the subject of bullying and harassment in connection with this matter and was ‘forced out’ of his position at Council.[31] OIC invited the applicant to provide further submissions about the allegations and in particular, to explain how he considered disclosing the Total Remuneration would be likely to lead to a serious act of harassment or intimidation.[32] The applicant elected not to provide OIC with any further submissions on this point. The applicant has not provided specific details of the past alleged conduct and there is also no indication that complaints have been made to the police to corroborate the allegations. In the circumstances of this case, I am satisfied that there is no evidence available to OIC to establish a sufficient connection between disclosure of the Total Remuneration and the likelihood of a serious act of harassment or intimidation. In the absence of any further evidence to support the applicant’s allegations, I am unable to find that the Total Remuneration is exempt under schedule 3, section 10(1)(d) of the RTI Act. Contrary to the public interest Under the RTI Act, access to information may be refused if its disclosure would, on balance, be contrary to the public interest.[33] The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. The RTI Act identifies various factors that may be relevant to deciding the balance of the public interest[34] and explains the steps that a decision-maker must take[35] in deciding the public interest as follows: (i) identify any irrelevant factors and disregard them (ii) identify relevant public interest factors favouring disclosure and nondisclosure (iii) balance the relevant factors favouring disclosure and nondisclosure; and (iv) decide whether disclosure of the information in issue would, on balance, be contrary to the public interest. Findings (i) Irrelevant factors The applicant has questioned the access applicant’s alleged motivations for seeking access to the Contracts.[36] The RTI Act provides that in deciding the balance of the public interest, it is irrelevant that disclosure of the information could reasonably be expected to result in mischievous conduct by the access applicant.[37] I also consider that the access applicant’s reasons for seeking information under the RTI Act are irrelevant to the public interest test.[38] In accordance with the RTI Act, I have not taken the applicant’s submissions on this issue into account in making this decision. I do not consider any other irrelevant factors arise on the facts of this case. (ii) Factors favouring disclosure The RTI Act recognises that the public interest will favour disclosure of information where disclosure could reasonably be expected to promote open discussion of public affairs and enhance the government’s accountability;[39] and ensure effective oversight of expenditure of public funds.[40] For the reasons set out below, I find that the above factors apply to the Total Remuneration. The Information Commissioner has previously held that there is a general public interest in seeing how taxpayers’ money is spent and the public interest is sufficient to justify disclosure of the gross income payable from the public purse to the holder of a public office.[41] Previous decisions of the Information Commissioner and in other jurisdictions have also established that the public interest is served by disclosing the total remuneration package of a public officer but not the amounts of the individual benefits/bonuses which make up the package.[42] The Information Commissioner has also recognised that the public interest is even stronger in the case of senior officers who have responsibility for ‘devising and/or implementing strategic and operational plans, and delivering key performance outcomes’.[43] During the period in which the Contracts were in force, the Manager of Works role formed part of the senior management team[44] and the appointee was required to contribute to decisions affecting the Council and development of Council policy.[45] Given the seniority of the Manager of Works role and its significant responsibilities, I consider the role is equivalent to that of a senior executive in a public sector agency and that therefore, the public interest in disclosing the total salary package attached to the Manager of Works role is very strong. I have considered whether the information published in the Annual Reports about senior management remuneration is sufficient to discharge the public interest factors relating to accountability, transparency and effective oversight of public funds. However, the published information provides only a very general guide to the remuneration of senior management and does not link specific salaries to particular roles.[46] While the publication of this information is one of Council’s accountability measures, I consider the information is of such a limited nature that it does not discharge the public interest factors at paragraph 37 above. I therefore find that the weight of those factors is only marginally reduced by the information published in the Annual Reports. For the reasons set out above, I afford significant weight to the factors favouring disclosure of the Total Remuneration. (iii) Factors favouring nondisclosure The Applicant submitted that: the negotiation of the Contracts, including the Total Remuneration, was in confidence disclosure would constitute a breach of the applicant’s privacy; and release of the Total Remuneration would be in breach of the LG Act.[47] The RTI Act recognises that the public interest will favour nondisclosure of information where disclosure could reasonably be expected to: cause a public interest harm if the information consists of information of a confidential nature that was communicated in confidence and disclosure could reasonably be expected to prejudice the future supply of information of this type[48] prejudice the protection of an individual’s right to privacy[49] cause a public interest harm if it would disclose personal information of a person, whether living or dead;[50] and where disclosure of the information is prohibited by an Act.[51] Given my findings at paragraphs 20-22 above in relation to the breach of confidence exemption, I am satisfied that the Total Remuneration was not communicated in confidence and therefore, I find that the public interest factor at a) in paragraph 46 above, does not apply in this case. With respect to the factors at b) and c) above, I accept that the Total Remuneration comprises the applicant’s personal information.[52] I also consider that information about a person’s salary reflects their financial situation and therefore, the Total Remuneration attracts a certain level of privacy. However, I also acknowledge that the Total Remuneration has a dual character in that it also reflects the cost of having the duties of the relevant position performed for the benefit of the public.[53] In Stewart, the Information Commissioner accepted that the public interest in protecting a person’s income information must be balanced against the public interest in transparency in expenditure of public funds and in relation to gross salary of a public servant, the latter public interest is deserving of greater weight.[54] As set out above, the Total Remuneration represents the gross salary package of the Manager of Works during the Contract periods. The individual amounts of each component of the package, net income, superannuation and salary packaging information, are not revealed by the Total Remuneration.[55] As the Information Commissioner recognised in Stewart, those individual figures are of a more sensitive, personal nature.[56] On this basis, I find that the public interest harm in disclosing the Total Remuneration is only moderate in this case. In considering the privacy which attaches to a senior Council employee’s total remuneration package, I am satisfied that it does not sit at the high end of the privacy spectrum along with family, medical and relationship information. However, as the applicant is no longer a Council employee, I find that his privacy is somewhat higher than that of a serving public officer. I have also taken into account the publication requirements discussed above at paragraph 16 and the fact that the Total Remuneration represents the salary paid, from public funds, to the applicant during his period of public service. On the basis of the above, I afford the factor at c) above, moderate weight in favour of nondisclosure. The applicant submitted that disclosing the Total Remuneration would breach the LG Act.[57] I have considered whether this raises the factor favouring nondisclosure relating to disclosure prohibited by an Act.[58] Section 201(4) of the LG Act states: (4) To remove any doubt, it is declared that nothing in this section requires the exact salary of any employee in senior management to be separately stated in the annual report. Having carefully considered the wording of section 201 of the LG Act, I am satisfied that it does not prohibit the disclosure of the Total Remuneration. The section clarifies that there is no mandatory requirement to publish exact salaries in a local government annual report. However, there is nothing in the language of the section which prevents or prohibits publication. For this reason, I do not consider the factor at paragraph 52 above applies to the Total Remuneration. (iv) Balancing the public interest The RTI Act sets out a pro-disclosure bias in deciding access to documents.[59] In this case, there are several additional factors favouring disclosure of the Total Remuneration in terms of enhancing local government transparency and effective oversight of public funds. In my view, these factors are deserving of significant weight due to the seniority and responsibilities of the Manager of Works role. I have marginally reduced the weight of these factors on the basis that the information published in Council’s Annual Reports provides a certain level of transparency in Council’s remuneration expenses. I acknowledge that disclosing the Total Remuneration would reveal a component of the applicant’s personal information. However, as the information relates to a time when the applicant was a public officer, being paid by public funds, I consider the harm arising out of disclosure and any resulting infringement of the applicant’s privacy is only moderate in this case. On balance, I find that the factors favouring disclosure outweigh the factors favouring nondisclosure in this case. Accordingly, I find that disclosure of the Total Remuneration would not, on balance, be contrary in the public interest, and therefore, access may not be refused under section 47(3)(b) of the RTI Act. Conclusion For the reasons set out above, I find that the applicant has not discharged the onus to justify a decision refusing access to the Total Remuneration as its disclosure: would not found an action for breach of confidence[60] could not reasonably be expected to result in the applicant being subjected to a serious act of harassment or intimidation[61]; and would not, on balance, be contrary to the public interest.[62] DECISION I affirm the decision of Council dated 16 October 2015 to grant access to the Total Remuneration. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act. ________________________ K Shepherd Assistant Information Commissioner Date: 15 April 2016 APPENDIX Significant procedural steps Date Event 27 August 2015 Council received the access application. 11 September 2015 Council consulted the third party. 25 September 2015 The third party responded to consultation letter. 28 September 2015 Council requested further submissions from the third party. 2 October 2015 The third party responded to request for further submissions. 16 October 2015 Council issued its decision to the access applicant and third party, granting access to most of the information in the Contracts. 19 October 2015 OIC received an application for external review from the third party. 19 October 2015 OIC notified Council that the third party had applied for external review of Council’s disclosure decision. OIC asked Council to provide procedural documents by 27 October 2015. OIC also advised the third party that his external review application had been received. 27 October 2015 Council provided OIC with the requested procedural documents. 4 November 2015 OIC notified the external review applicant and Council that the application for external review had been accepted. 19 January 2016 The access applicant confirmed to OIC that it wished to proceed with its request to access the information which was the subject of the external review applicant’s disclosure objections. 21 January 2016 The external review applicant confirmed to OIC that his objections only concerned disclosure of the Total Remuneration. 18 February 2016 OIC conveyed a preliminary view to the external review applicant that there was no basis, under the RTI Act, to refuse access to the Total Remuneration. 20 February 2016 The external review applicant provided submissions to OIC, contesting the preliminary view. 26 February 2016 OIC asked the external review applicant to provide further submissions by 11 March 2016 in relation to his concerns about harassment. 1 March 2016 OIC sent a letter to the access applicant, conveying an update on the status of the review. 15 March 2016 OIC advised Council of the current status of the review, in a telephone call. [1] At the date of the access application, this role was occupied by the external review applicant. [2] The access application also requested access to the employment contracts of Council’s Chief Executive Officer for the same period. A separate external review was conducted with respect to disclosure of that information and was resolved informally between the parties. Accordingly, this review relates solely to information in the employment contracts of the Manager of Works. [3] Dated 31 January 2011 and 4 October 2013.[4] Council refused access to the applicant’s residential address and individual components of the salary package under section 47(3)(b) of the RTI Act. The access applicant did not seek external review of Council’s decision to refuse access to that information and therefore, that aspect of Council’s decision is not the subject of this external review. [5] There are three separate figures. In the Contract dated 31 January 2011, the figure appears on page 10. In the Contract dated 4 October 2013, the figures appear on page 11 (Schedule B) and on page 12 (Schedule C). During the external review, the applicant advised OIC that he did not object to disclosure of the remaining information in the Contracts to which Council decided to grant access. Accordingly, that does not form part of the information in issue in this review. [6] Section 87(2) of the RTI Act.[7] Section 44(1) of the RTI Act. This is referred to as the ‘pro-disclosure bias’ in deciding access to documents.[8] Section 47(3) of the RTI Act. [9] Section 47(2)(a) of the RTI Act. [10] Section 47(3)(a) and 48 and schedule 3 of the RTI Act.[11] Section 47(3)(b) and 49 and schedule 4 of the RTI Act. [12] Section 48 and schedule 3, section 8 of the RTI Act. [13] TSO08G and Department of Health (Unreported, Queensland Information Commissioner, 13 December 2011) at [12] (TSO08G). [14] See the Information Commissioner’s analysis in B and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 (B and BNRHA), applying section 46(1)(a), the equivalent exemption under the repealed Freedom of Information Act 1992 (Qld) (FOI Act). For a restatement of the criteria in the context of the RTI Act, see TSO08G at [13]. [15] B and BNRHA at [60] to [63]. [16] B and BNRHA at [64][17] B and BNRHA at [76]. [18] B and BNRHA at [103] to [106]. [19] B and BNRNA at [111] citing Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109 (Lord Keith of Kinkel at 256). [20] Available at http://www.btrc.qld.gov.au/annual-reports [21] Section 201 of the LG Act requires a local government’s annual report to state the total of all remuneration packages payable to senior management and the number of employees in senior management being paid each band of remuneration (stated to be an increment of $100,000).[22] B and BNRHA at [90].[23] B and BNRHA at [76]. [24] External review application. The applicant also relied on letters of objection dated 25 September 2015 and 2 October 2015 sent during the consultation process.[25] This is however, only one factor to be evaluated in the circumstances of a case and is not determinative. See B and BNRHA at [91]. [26] Subject to the exceptions in schedule 3, section 10(2) of the RTI Act. [27] Richards and Gold Coast City Council (Unreported, Queensland Information Commissioner, 28 March 2012) [13], applying Sheridan and South Burnett Regional Council (Unreported, Queensland Information Commissioner, 9 April 2009) (Sheridan) at [199]-[200]. The decision in Sheridan concerned section 42(1)(ca) of the now repealed FOI Act. Schedule 3, section 10(1)(d) of the RTI Act is drafted in substantially the same terms as the provision considered in Sheridan. Therefore, the Information Commissioner’s findings in Sheridan are relevant in interpreting schedule 3, section 10(1)(d) of the RTI Act. [28] Sheridan at [187]. [29] Sheridan at [193]. [30] Mathews and The University of Queensland (Unreported, Queensland Information Commissioner, 21 September 2012) at [27]. [31] Applicant’s submissions to OIC dated 20 February 2016. [32] Letter from OIC to the applicant dated 26 February 2016. [33] Sections 47(3)(b) and 49 of the RTI Act. [34] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant in a particular case.[35] Section 49(3) of the RTI Act. [36] Applicant’s external review application dated 19 October 2015. [37] Schedule 4, part 1, item 3 of the RTI Act. [38] In State of Qld v Albietz, Information Commissioner (Qld) & Anor [1996] 1 Qd R 215, de Jersey J noted at 219 ‘... the Freedom of Information Act does not confer any discretion on the Information Commissioner, or the Supreme Court, to stop disclosure of information because of any particular motivation in the applicant’. [39] Schedule 4, part 2, item 1 of the RTI Act. [40] Schedule 4, part 2, item 4 of the RTI Act. [41] Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 at 257-258 (Stewart), Lower Burdekin Newspaper Company Pty Ltd and Lower Burdekin Shire Council; Hansen; Covolo, Cross (Third Parties) [2004] QICmr 6; (2004) 6 QAR 328 at [26] (Lower Burdekin) and Sheridan and South Burnett Regional Council, Ors (Unreported, Queensland Information Commissioner, 23 June 2008) at [52]. [42] Re National Tertiary Education Industry Union (Murdoch Branch) and Murdoch University; Ors [2001] WAICmr 1 (2 January 2001) at [70]-[71] (Re NTEIU) and Asher v Department of State & Regional Development [2002] VCAT 609 (6 August 2002) (Asher).[43] Lower Burdekin at [27]. [44] 2008/2009 Annual Report (p.8), 2009/2010 Annual Report (p.17), 2010/2011 Annual Report (p.24), 2011/2012 Annual Report (p.18), 2012/2013, 2013/2014 and 2014/2015 Annual Reports (p.15), available at http://www.btrc.qld.gov.au/annual-reports. The Position Description for the Manager of Works role (Schedule A to the Contracts) states that the Manager of Works is to participate as a member of the Executive Management Team. Council decided to grant access to the Position Description and the external review applicant does not object to its disclosure. [45] As stated in the Position Description. [46] See paragraph 16 above.[47] Applicant’s external review application dated 19 October 2015.[48] Schedule 4, part 4, item 8(1) of the RTI Act. [49] Schedule 4, part 3, item 3 of the RTI Act. [50] Schedule 4, part 4, item 6(1) of the RTI Act.[51] Schedule 4, part 3, item 22 of the RTI Act. [52] Within the meaning of section 12 of the Information Privacy Act 2009 (Qld). This is consistent with the Information Commissioner’s conclusion in Stewart at paragraph [80] that information about a person’s income is their ‘personal affairs’.[53] In Asher disclosure of the total remuneration package of senior public servants was considered reasonable, despite it being considered the officer’s personal affairs. [54] Stewart at [80]. See also Forbes and Department of Premier and Cabinet (1993) 6 VAR 53 at 60-61 (Forbes) cited in Re NTEIU at [56]. [55] As set out at note 4 above, Council decided to refuse access to that information in the Contracts and the access applicant did not seek external review of that decision. Therefore, that information is not in issue in this review.[56] At [80] and Forbes at 60-61.[57] Applicant’s external review application dated 19 October 2015. [58] Schedule 4, part 3, item 22 of the RTI Act. [59] Section 44 of the RTI Act. [60] Sections 47(3)(a), 48 and schedule 3, section 8 of the RTI Act. [61] Sections 47(3)(a), 48 and schedule 3, section 10(1)(d) of the RTI Act. [62] Sections 47(3)(b) and 49 of the RTI Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 (9 June 2017)

F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 (9 June 2017) Last Updated: 11 August 2017 Decision and Reasons for Decision Citation: F60XCX and Department of Natural Resources and Mines [2017] QICmr 19 (9 June 2017) Application Number: 312854 Applicant: F60XCX Respondent: Department of Natural Resources and Mines Decision Date: 9 June 2017 Catchwords: ADMINISTRATIVE LAW – INFORMATION PRIVACY ACT – REFUSAL OF ACCESS – EXEMPT INFORMATION - LEGAL PROFESSIONAL PRIVILEGE – whether in-house legal advice was independent – whether legal professional privilege has been waived – relevance of Freedom of Information Act 1982 (Cth) – Schedule 3, section 7 of the Right to Information Act 2009 (Qld) and section 67(1) of the Information Privacy Act 2009 (Qld) ADMINISTRATIVE LAW – INFORMATION PRIVACY ACT – REFUSAL OF ACCESS – CONTARY TO PUBLIC INTEREST – information related to workplace investigation arising from applicant’s complaint – procedural fairness considerations for a complainant in a workplace investigation – personal information of other individuals – 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) and section 67(1) of the Information Privacy Act 2009 (Qld) REASONS FOR DECISION Summary The applicant applied to the Department of Natural Resources and Mines (the Department) under the Information Privacy Act 2009 (Qld) (IP Act) for documents relating to a complaint he lodged with the Department. The Department located 542 pages of information and 6 audio recordings relevant to the information access application. In relation to these documents, the Department decided[1] to: grant access to 251 pages grant partial access to 17 pages, subject to the deletion of material pursuant to section 49(1) of the Right to Information Act 2009 (Qld) (RTI Act)[2] grant partial access to 1 page with the deletion of material pursuant to section 49(1) and Schedule 3, section 7 of the RTI Act refuse access to 233 pages pursuant to section 49(1) of the RTI Act; and refuse access to 40 pages pursuant to Schedule 3, section 7 of the RTI Act. On internal review, the Department decided to uphold its original decision.[3] The applicant then applied to the Office of the Information Commissioner (OIC) for external review of this decision.[4] For the reasons set out below, I vary the Department’s internal review decision and find that parts of the information in issue[5] are subject to legal professional privilege and therefore exempt from disclosure and it would be, on balance, contrary to the public interest to disclose[6] other parts of the information in issue. Background The applicant made a complaint to the Department about the conduct of a particular officer (Officer X). The complaint relates to the appropriateness of feedback provided by Officer X about the applicant’s professional performance. The Department engaged a specialist workplace investigator (Workplace Investigator), independent of the Department, to conduct an investigation into the conduct of Officer X. The Workplace Investigator interviewed the applicant as part of the investigation process, as well as, a number of other relevant individuals. The outcome of the investigation was that the allegations against Officer X were not substantiated. The Department took no further action against Officer X regarding the applicant’s complaint. The Department provided the applicant with a summary of the Workplace Investigator’s findings and the outcome of the investigation into Officer X.[7] The applicant is not satisfied with the outcome of the investigation nor is he satisfied that the investigation was conducted in a transparent and proper manner.[8] Appendix 1 to these reasons for decision sets out the significant procedural steps taken during the external review. Reviewable decision The decision under review is the Department’s internal review decision dated 17 May 2016. Evidence considered I have disclosed the evidence, submissions, legislation and other material I have considered in reaching this decision in these reasons (including footnotes and appendices). Information in Issue On external review, OIC facilitated the release of additional documentation, to which the Department had previously refused access.[9] This information consisted of 101 pages (3 full pages, and 98 part pages). The information that remains in issue in this review and is the subject of this decision is contained in 288 pages. This information consists of the entire content of 190 of those pages and 6 audio recordings and some information on 98 pages (Information in Issue).[10] Issues for determination The issues for determination in this review are whether: access to 40 pages of the information in issue should be refused on the basis that it would be privileged from production in a legal proceeding on the ground of legal professional privilege; (Category A Information);[11] and access to 150 full pages, 98 part pages and 6 audio recordings of the information in issue should be refused on the basis that, on balance, disclosure would be contrary to the public interest (Category B Information).[12] Category A Information Relevant law The IP Act confers on an individual a right to access documents of an agency, to the extent they contain the individual’s personal information.[13] This right of access is subject to limitations, including grounds for refusal of access.[14] The RTI Act provides that information is ‘exempt information’ if it would be privileged from production in a legal proceeding on the ground of legal professional privilege (LPP).[15] It is well settled that LPP 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.[16] Thus, for information to attract LPP, the following elements must be established: confidential communications dominant purpose test; and professional relationship and independence. Finally, it is also settled law that LPP can be lost if it is expressly[17] or impliedly[18] waived. Applicant’s submissions The applicant submits[19] that this review should consider: whether the in-house lawyer provided the advice in an independent way; and whether the Department, by its actions, impliedly waived LPP in relation to the information. Additionally, the applicant asserts that: In the context of federal FOI legislation, it is recommended that government departments and agencies not claim LPP in relation to particular information unless it is considered that ‘real harm’ would result from releasing the information. I believe that the same principles should be applied in the Queensland FOI legislation context. And that; In this instance, there would not be real harm in releasing the subject information to me. Instead, the truth would be exposed. I ask that the OIC intervene to recommend to the Department that the information be released to me on this basis. Findings Confidential communications and Dominant purpose The applicant’s submission querying whether the Department can claim LPP focuses on the issue of whether the third element of the test has been satisfied in relation to the Category A Information. Accordingly, I do not propose to explore the first two elements of the test except in so far as to state that I am satisfied, on the basis of the information before me in this review, that the first two elements of the test for LPP are satisfied. Professional relationship and independence In this matter, the applicant has asked OIC to consider if the Department’s in-house lawyer provided advice with the requisite degree of independence. LPP only attaches to confidential communications between a legal adviser and a client if: the advice is provided by the legal adviser in his or her capacity as a professional legal adviser; and the legal adviser is competent and independent.[20] The High Court of Australia has established that LPP may protect communications between salaried employee legal advisers of a government department or statutory authority and his/her employer as client (including communications through other employees of the same employer) provided there is a professional relationship of legal adviser and client, which secures to the advice an independent character notwithstanding the employment.[21] A lawyer employed by a government agency or an ‘in-house’ lawyer may claim privilege on behalf of his or her employer as the client.[22] However, an in-house lawyer will not have the required degree of independence if their advice is affected by their personal loyalties, duties and interests.[23] In Potter and Brisbane City Council[24], the Information Commissioner found that the Brisbane City Council’s City Solicitor and the professional staff of the City Solicitor’s office: were appropriately qualified legal practitioners conducted their practice with the requisite degree of independence from their employing organisation; and had given legal advice to the Council which attracted LPP. In this review, the Department has submitted: the Category A Information was created specifically for the purpose of obtaining legal advice[25] it was not disclosed to any party outside the relevant units of the department;[26] and the advice was provided by a suitably qualified legal practitioner acting in the capacity of an in-house legal advisor.[27] Having reviewed the Category A Information, I note that the legal advice was sent directly between an officer in the Employee Relations Unit and an officer in the In-house Legal Unit. The sole reference to another individual being involved in the communication is of another legal officer with the Department’s In-house Legal Unit, who appears to have provided assistance in the provision of the legal advice. There is no evidence before me to suggest that the officer who provided the legal advice (or anyone else in the In-House Legal Unit) were answerable to other persons in respect of the advice they provided about the workplace investigation. Furthermore, there is no evidence before me to indicate that the advice was provided in a manner that differed from the usual practice of obtaining and/or providing in-house legal advice. For the reasons outlined above, I am satisfied that the officer in the In-house Legal Unit who provided the legal advice (which comprises Category A Information) was an appropriately qualified legal practitioner who provided the advice with the requisite degree of independence from the Department. As all three elements have been met, I am satisfied that the Category B Information attracts LPP, and is exempt information. Waiver of legal professional privilege The applicant asserts that the Department’s actions may have impliedly waived LPP, but has not expanded on his concerns in this regard. Nonetheless, I have considered whether the Department has impliedly waived LLP in accordance with the test set out in Mann v Carnell[28] at page 13 which states: What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. As outlined in paragraph 30, the Category A Information is correspondence between the Department’s In-House Legal Unit and the Employee Relations Unit only. There is no evidence before me to suggest this communication has been disclosed to any other individuals. Accordingly, there is no evidence before me to indicate that the Department has taken actions inconsistent with the maintenance of confidentiality that impliedly (or expressly) waive LPP. Particularly, I do not consider that the Department has taken any action that has disclosed the substance or effect of communications subject to LPP, in part or full. I am satisfied that the internal communications between the Department’s officers has not resulted in a waiver of LPP. Should ‘real harm’ be considered? I will now consider the applicant’s submission that OIC should consider taking the approach recommended to federal government departments, namely that they should not claim LPP unless real harm would result from releasing the information. I understand the applicant’s reference to this ‘recommended’ approach to be a reference to the advisory notice issued by the then Secretary of the Commonwealth Attorney-General’s Department dated 2 March 1986, following a Federal Cabinet decision in June 1985, known as the ‘Brazil Direction’.[29] In summary, the ‘Brazil Direction’ directed that Commonwealth agencies should not refuse access to non-contentious material only because there were technical grounds of exemption available under the Freedom of Information Act 1982 (Cth). The Brazil Direction, was not however, a direction to the Australian Information Commissioner to consider the question of ‘real harm’ in determining if information were exempt information under the Commonwealth Freedom of Information Act 1982. In Queensland, under the IP Act and RTI Act, government departments have a discretion to release information, even if it is exempt. Thus, a government department may choose to disclose information to an applicant under the IP or RTI Acts, even though it is subject to LPP. However, those Acts do not bestow the power to exercise the same discretion upon OIC. Section 118(2) of the IP Act states: If it is established that a document is an exempt document or a contrary to public interest document, or contains exempt information or contrary to public interest information the commissioner does not have power to direct that access to the document, or the document to the extent of the information, is to be given. Thus, as I have established that the Category A information satisfies the requirements for exemption under the RTI Act, I have no discretion to consider the issue of whether there would be any ‘real harm’ to the department in disclosing the Category A information and whether the information should be otherwise disclosed. Conclusion – Legal professional privilege I am satisfied that the Category A Information is exempt information on the grounds that it is subject to LPP and accordingly access to the Category A information is refused. Category B Information Relevant law Access to information may be refused where disclosure would, on balance, be contrary to the public interest. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest and explains the steps that a decision-maker must take into account in deciding the public interest as follows: identify any irrelevant factors and disregard them identify relevant public interest factors favouring disclosure and nondisclosure balance the relevant factors favouring disclosure and nondisclosure; and decide whether disclosure of the information would, on balance, be contrary to the public interest.[30] The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that, in general, a public interest consideration is one which is common to all members of, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual. Applicant’s Submissions The applicant provided a number of submissions to OIC during the course of the review. Additionally, the applicant provided extensive information about the background events which lead to his making a complaint about Officer X. I have carefully considered each of the submissions raised by the applicant and I have distilled the submissions into central issues discussed below. Findings Irrelevant factors I do not consider that any irrelevant factors arise in this matter. Factors favouring disclosure Personal information of the applicant A factor favouring disclosure of some parts of the Category B Information is that it is the personal information of the applicant. [31] The applicant has submitted: This is not about disclosing information relating to unsubstantiated allegations about [Officer X]. Rather, it is about disclosing information about what [Officer X] and other witnesses state about me and my work...this is my personal information (not [Officer X’s] personal information).[32] ... In the course of the investigation [Officer X] made further comments and expressed further opinions about me and my work...I am entitled to know exactly what [Officer X] stated about me and my work....during the investigation; this is clearly my personal information and I am entitled to know this information.[33] The Category B Information was created for the purpose of investigating the conduct of Officer X in relation to feedback expressed by Officer X about the applicant’s professional performance. I am satisfied that to some extent, the Category B Information consists of the applicant’s personal information, in that it discusses the bases for his complaint to the Department, which was feedback about his work performance.[34] I give significant weight to this factor. Disclosure would reveal that information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant The applicant submits that ‘If you deny me access to my personal information, I will be precluded from exercising my right to seek amendment of the information and put the record straight.’[35] Accordingly, I have considered whether disclosing the Category B Information could reasonably be expected to reveal that information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant as this is recognised in the RTI Act as a factor favouring disclosure of information.[36] The applicant stated that in his view[37], ‘In the course of the investigation, [Officer X] made further comments and expressed further opinion about [him] and his work .... [He is] entitled to know what [Officer X] stated about [him] and [his] work ... during the investigation... Without knowing what was said about [him] and [his] work ... during the investigation, how can [he] challenge and rebut this information and set the record straight? [Refusal of access] means that the Department can keep a record of the comments made, and opinions expressed, by [Officer X] and other persons about [him] and [his] work ..., without [his] knowledge of its content. Also, this means the Department can disseminate this untruthful information to third parties, as if it is the unchallenged truth, and continue to trash [his] good name. I have carefully reviewed the Category B information. It is, by its very nature, the particular opinions and versions of events expressed by the relevant individuals who provided statements in the investigation (including Officer X). It is shaped by factors such as the individuals’ memories of relevant events and subjective impressions. This inherent subjectivity does not mean that the Category B Information is necessarily incorrect or unfairly subjective.[38] Additionally, no further comment or opinion about the applicant and his work is contained in the Category B Information in the sense that no new commentary or opinion is expressed. Rather, the Category B Information contains opinion about Officer X’s conduct in providing feedback about the applicant. I note that in the course of the investigation of his complaint, the applicant; sought copies of the statements of Officer X and other witnesses in order to question the accuracy of the evidence given and rebut it; and questioned the integrity of the investigation process. Information already disclosed to the applicant pursuant to this access application shows that the Workplace Investigator addressed these issues in the course of the investigation. In particular, at pages 21 – 22 of the Investigation Report, the Workplace Investigator set out the advice that had been given to the applicant on these issues. Of relevance to the public interest factor being considered by me are the following excerpts from those pages: 3. All parties who participate in an investigation, including [Officer X] as the subject officer, are given a warning/direction about maintaining confidentiality. Should [Officer X] (or anyone else) choose to ignore that direction by contacting witnesses, it is a matter for the Department to discipline [that person] accordingly. It is not something that I would become involved with as the Investigator and I will not be providing any ‘written confirmation’ that this has not occurred. If the integrity of an investigation is compromised by any persons, this will be reported to the Department and evidence weighted accordingly. Witnesses are asked to provide the facts of a matter, to the best of their recollection. Any statement I obtain from [a witness] will be in accordance with my standard practice of gathering the necessary and relevant information. 4. As outlined within my email of 15 January 2015, Chapter 5 of Corruption in Focus explains that preserving confidentiality is important because it ensures the integrity of any investigation. To that end, the identity of the person under investigation and any other person involved in the investigation should be kept confidential. Therefore, I cannot compromise the integrity of my investigation by releasing the investigation plan to external parties (or giving the client permission to do so). ... 6. I will not be providing [the applicant], or anyone else who has participated in the investigation, with copies of any statements/records of interview I obtain. Please see point 4 above re maintaining confidentiality... I note that there is nothing in the information before me to suggest that it was necessary for the Workplace Investigator to give low weight in their findings to any evidence provided by any witnesses in the course of the investigation. The applicant clearly remains disgruntled with the procedure adopted by the Workplace Investigator, the outcome of the investigation and the fact he was not privy to the evidence provided by Officer X and other witnesses. However, there is nothing in the information before me to suggest that disclosure of the Category B Information could reasonably be expected to reveal that the Category B Information is incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. Accordingly, I give this factor in favour of disclosure very low weight. Accountability and transparency In summary, the applicant has submitted: I am particularly concerned that the 2 senior officers at [another agency] who bullied me gave statements to the investigator.[39] The Department has acted in a secretive manner and done its utmost to cover-up the information [sought in this application].[40] ... The investigation was flawed from the outset. It was obvious, from the outset that the investigator was never going to conduct an impartial and unbiased investigation.[41] ... The Department refused to provide me with the terms of reference and investigation plan, after I requested these documents at the outset. What did it have to fear? There was no transparency and accountability.[42] ... I know the reason why the Department did not make any adverse finding about [Officer X’s] conduct. This is because [Officer X’s] evidence and the evidence of other witnesses was NOT tested during the investigation.[43] ... I will be seeking to reopen the investigation, so that the truth is exposed and [Officer X] is brought into account for [Officer X’s] conduct. This will include ensuring that – The investigation is conducted by an independent body (not by the Department); and [Another department] provides full access to [relevant documents] as part of this reconstituted investigation.[44] The applicant’s submissions give rise to the following factors favouring disclosure regarding the accountability and transparency of government, particularly in circumstances where disclosing information could reasonably be expected to: allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official[45] reveal the reason for a government decision and any background or contextual information that informed the decision;[46] and reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.[47] In addition to the submissions of the applicant, I have also considered if disclosure could reasonably be expected to promote open discussion of public affairs and enhance the Government’s accountability.[48] Open discussion of public affairs and enhancing government accountability Although the applicant has not explicitly argued that disclosure of the Category B Information could promote open discussion of public affairs and enhance government accountability, and thus be a factor in favour of disclosure in the public interest, I have nonetheless considered this factor below. Generally, there is a public interest in workplace investigations being conducted with as sufficient a degree of transparency and accountability as to afford the parties to such an investigation (and the public generally) with an understanding of the outcome and conclusions of the investigation. This does not, however, extend to affording complainants a right to second-guess or reinvestigate such investigations . Particularly in circumstances where other avenues of redress for perceived investigative inadequacy are available. As the applicant was the complainant in the workplace investigation, it is understandable that he seeks access to the Category B Information to be more informed of the nature and extent of the investigation. However, in this regard I note that the applicant has been provided with the content of the feedback from Officer X and in the external review process the applicant has received the following information about the workplace investigation: the substance of the allegations investigated the investigation methodology and the investigative process information that the applicant provided during the workplace investigation process the conclusion and outcome of the investigation; and details of the relevant policies and legislation pertinent to the investigation. I have reviewed the Category B Information in light of the applicant’s assertions that the investigation was flawed from the outset and biased. There is nothing in the information before me to support the applicant’s assertions. Rather, the investigation appears to have been conducted in the usual manner of such investigations. In this regard, I note the information set out at paragraph 54 above. In light of the above, I consider that the applicant has received sufficient information about the investigation to understand the reasons for the workplace investigation finding regarding his complaint. I do not consider that releasing the Category B Information would enhance the transparency or accountability of the Department in relation to the workplace investigation. Accordingly, while this public interest factor in favour of disclosure is relevant, I have afforded it low weight. Deficiencies in the conduct or administration of an agency or official Another public interest factor to consider in favour of disclosing the Category B Information is whether disclosure of the information could reasonably be expected to allow or assist with inquiry into possible deficiencies in the conduct or administration of an agency or official. It is evident that the applicant believes that the investigation into Officer X’s conduct was deficient and not conducted appropriately. Accordingly, he is seeking the Category B Information in order to have the investigation reopened and investigated by an independent body. As referred to above at paragraph 63, the applicant has received information about the workplace investigation. Although there is a requirement for an agency to be accountable and transparent in the conduct of workplace investigations, it does not oblige an agency to provide a complainant with access to its entire investig[49]ion file.49 I consider that it is not reasonable to expect that the release of the Category B Information would disclose a deficiency in either the conduct of Officer X (given the result of the investigation was to find the allegation against Officer X unsubstantiated), the Workplace Investigator, or investigation itself. As previously observed, the information before me suggests that the workplace investigation process was in accordance with the usual conduct of such matters. I note that the applicant may raise any concerns about deficiencies in the conduct or administration of the Department regarding the investigation with relevant integrity bodies without accessing the information in issue. Accordingly, as there is nothing in the information before me to suggest inappropriate conduct on the part of the Workplace Investigator or the Department; that the information appears on its face to be appropriate in the circumstances of the investigation; and there are other avenues of redress that do not necessitate the provision of the information; I afford this factor in favour of disclosure low weight. The reason for a government decision and any background or contextual information that informed the decision If disclosing information could reasonably be expected to reveal the reason for a government decision and any background or contextual information that informed the decision, it is relevant to consider this public interest factor favouring disclosure. I appreciate that the applicant is dissatisfied with the outcome of the investigation, and he seeks further information to reveal all of the evidence relied upon in the investigation. As the workplace investigation was instigated by the Department because the applicant raised a complaint about the feedback provided by Officer X, I am satisfied that he is aware of the background to the investigation. The applicant will also likely be aware of who provided witness statements in the investigation, as there are only a small number of individuals who are privy to, and capable of providing information of evidential value to, the matter about which the complaint relates. The applicant is likely to be aware of some of the content of these statements. As noted at paragraph 63, the applicant has received information, through the external review process, about aspects of the investigation. I consider that the applicant has received sufficient information to assist his understanding of the background and contextual circumstances of the workplace investigation decision. On the evidence before me, I am not satisfied that the release of Category B Information will provide the applicant with further information that reveals the reasons for his complaint being found unsubstantiated. Accordingly, I afford this factor low weight, as the applicant is already aware of the background and context of the investigation decision and the disclosure of the Category B Information could not reasonably be expected to expand his understanding in a significant way. Reveal or substantiate that an agency or Official has engaged in misconduct or negligent, improper or unlawful conduct A factor favouring disclosure in the public interest will arise where disclosing information could reasonably be expected to reveal or substantiate that an agency or official has engaged in official misconduct or negligent, improper or unlawful conduct. It is clear from the applicant’s submissions that he considers that the disclosure of further information will reveal or substantiate his complaint of improper conduct on the part of Officer X and/or his concerns about the manner the workplace investigation was conducted. The applicant raises serious allegations regarding the manner in which the Department conducted the workplace investigation, including that it failed to test the relevant evidence collected. It is evident from the information before me that the allegations against Officer X were not substantiated following an independent investigation. Thus disclosing the Category B Information (which primarily concerns that investigation) will not disclose that Officer X engaged in misconduct or other improper conduct. Additionally, the evidence before me suggests that the investigation was conducted appropriately. As noted at paragraph 54 the workplace investigator was clearly on notice that the integrity of the investigation would be scrutinised by the applicant. The investigator included in the investigation report the concerns of the applicant in this regard and the responses that had been given by the Workplace Investigator to the applicant. Accordingly, I am of the opinion that the Category B Information does not disclose that either Officer X or the Department or its agent acted inappropriately. I am not satisfied that the disclosure of Category B Information to the applicant will reveal or substantiate inappropriate conduct by the Department or Officer X. Accordingly, I afford this factor low weight. Advance fair treatment and procedural fairness In summary, the applicant submitted that : I strongly believe that in the statements [Officer X] provided as part of the investigation of my complaint, [Officer X] continued to make false, unfounded and defamatory statements about me and my work...[50] ... I wish to bring defamation proceedings against [Officer X]. I need further evidence of [Officer X’s] defamatory comments.[51] ... I was never given the opportunity to comment on, or respond to, witness statements or records of interview during the investigation. Accordingly, I was denied the most basic right to procedural fairness. This meant that [Officer X] was able to perpetuate [Officer X’s] lies, misleading information and malicious, unbalanced and vicious comments about me and my work...[52] ... What [OIC] don’t appear to understand is that a person cannot simply express an opinion about the work of another person with impunity. There needs to be a proper basis for such an opinion.[53] In my case, the complaint which lead to the investigation was about [Officer X’s] comments and opinion about me and my work...That is, ultimately the information in question is about me and impacts on my reputation. This is a different scenario to that of other investigations dealt with by OIC.[54] ... If the [Workplace Investigator] had acted in a fair and improper manner, I would have been given access to this information during the investigation. Furthermore, I would have been afforded procedural fairness by being given the opportunity to respond to this information before findings were made on my complaint.[55] ... I suggest that a witness in an investigation would appreciate that whatever he or she states to the investigator would be put to the complainant for response. Otherwise, the witness would not be concerned about the truth of his or her evidence, and would state whatever he or she liked with impunity. In this instance, I suggest [Officer X] and other witnesses would appreciate that their evidence would be revealed to me, particularly given that this matter concerned my personal and work reputation.[56] In accordance with the applicant’s submissions, I have considered whether disclosing the Category B Information could reasonably be expected to: contribute to the administration of justice generally, including procedural fairness[57] contribute to the administration of justice for the applicant as an individual;[58] and advance the fair treatment of the applicant in accordance with the law in his dealings with agencies.[59] Contribute to the administration of justice generally, including procedural fairness Generally speaking, in the workplace investigation context, the principle of procedural fairness does not extend to the complainant in the same manner in which it extends to the subject of the workplace investigation. It is essential that the fundamental requirements of procedural fairness (that is, a fair hearing and decision-maker free from bias) should be afforded to the subject of the complaint, whose future employment and reputation may be impacted by the outcome of the investigation. The obligation to provide procedural fairness to the applicant, as a complainant, is less onerous. In this matter, the applicant has been provided procedural fairness in that he had the opportunity to provide a statement as part of the workplace investigation. There is no evidence before me to indicate that the applicant’s complaint (including the evidence he provided in the workplace investigation) was disregarded or not properly considered by the Department. The applicant submits that he should be given the opportunity to respond to any comment made about his professional performance in order to provide a response articulating his version of events. However, as previously mentioned at paragraph 49, the purpose of the investigation was not to bring into question the professional conduct of the applicant, but rather to investigate the professional conduct of Officer X. The comments made in witness statements, as part of the workplace investigation, are for the consideration of the investigator and subsequent decision maker in testing the evidence. I am not satisfied that procedural fairness dictates that the complainant should be provided with the witness statements, nor am I satisfied that a response from the complainant would have assisted the investigator or the decision maker. The applicant has clearly articulated, in making a complaint about Officer X, that he disagrees with the feedback provided. Accordingly, I do not consider that any further response by the applicant would afford procedural fairness or contribute to the administration of justice generally. I have afforded this factor low weight. Contribute to the administration of justice for the applicant as a complainant A public interest factor favouring disclosure will arise if disclosing information could reasonably be expected to contribute to the administration of justice for a person, for example, by allowing a person subject to adverse findings to access information that may assist them in legal proceedings. The applicant has raised that he is considering defamation proceedings in relation to the comments of Officer X. In determining whether this public interest factor in favour of disclosure applies, I must consider whether: the applicant has suffered loss, or damage, or some kind of wrong, in respect of which a remedy is, or may be, available under the law; the applicant has a reasonable basis for seeking to pursue the remedy; and disclosing the information held by an agency would assist the applicant to pursue the remedy, or evaluate whether a remedy is available or worth pursuing.[60] I acknowledge the applicant’s view that he has been adversely effected by Officer X’s feedback. I note that the applicant’s employer has identified the feedback as a contributing factor regarding the non-renewal of the applicant’s employment contract. It is evident that the applicant considers that due to this adverse effect, he is able to claim a remedy, specifically in reference to defamation. I am not, however, satisfied that the release of Category B Information will enable him to assess if there is a reasonable basis to pursue a defamation claim, as it would appear the applicant already has full access to the feedback provided by Officer X, which he considers to be the basis for a defamation action. I do not consider that the release of full copies of witness statements, containing personal opinions, will allow the applicant to evaluate whether a legal remedy against Officer X for defamation is available or worth pursuing. Therefore, this factor is afforded low weight. Advance the fair treatment of the applicant, as an individual The RTI Act gives rise to a factor favouring disclosure where disclosing information could reasonably be expected to advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies. This public interest factor does not require a decision maker to ensure that an applicant is provided with sufficient information to enable that applicant to be subjectively satisfied that he or she received fair treatment rather, it is about providing information to ensure fair treatment in future dealings. As stated in paragraph 97, while the applicant has been adversely effected by the feedback provided by Officer X, there is no evidence before me, which indicates that the information gathered as part of the workplace investigation would advance the fair treatment of the applicant in his future dealings with either this former employer or the Department (the subject of this review). Accordingly, I am satisfied that the disclosure of the Category B Information will not advance the fair treatment of the applicant. I afford this factor low weight. Factors favouring nondisclosure I will now turn to a consideration of factors favouring nondisclosure. Personal information and privacy of other individuals As noted earlier in this decision, a public interest factor which favours disclosure of some of the Category B Information is the fact that it contains the applicant’s personal information. However, the personal information of the applicant is intrinsically intertwined with the personal information of other individuals, as the Category B Information contains the opinions, and comments of other individuals. The applicant refers to the case of Re McKinnon and Department of Immigration and Ethnic Affairs[61] (McKinnon) and submits that: “intertwined personal information should be separated where possible, without diminishing or impairing the quality or completeness of the applicant’s personal information”. [62] The case of McKinnon is a federal Freedom of Information matter, which relates to a migration matter whereby Mrs McKinnon and Mrs Powell sought to vary a decision made by the Department of Immigration and Ethnic Affairs to release documents to Mr Powell which included documents where they expressed their versions of events and opinions. These documents were relied upon when Mr Powell’s visa was cancelled without notice under section 128 of the Migration Act 1958, after Mrs Powell withdrew her sponsorship. The factual circumstances and the information in issue in McKinnon are different to those in this matter, however, the principle espoused in McKinnon that intertwined personal information should be separated, where possible, is pertinent. I have carefully reviewed the Category B Information with a view to separating the applicant’s personal information from that of the other individuals, however, in this instance, it is not possible to separate the applicant’s personal information from the personal information of other individuals without ‘diminishing or impairing the quality or completeness of the applicant’s personal information’. As it is not possible to separate the personal information of the applicant and other individuals, I have considered whether disclosing the Category B Information could be reasonably expected to: prejudice the protection of an individual’s right to privacy;[63] and cause a public interest harm if it would disclose personal information of a person.[64] The applicant submits that: [OIC] has blindly followed the approach taken in other cases considered by the OIC on external review, in which the applicant seeks access to investigation and complaint documents....ultimately the information in question is about me and impacts on my reputation.[65] ... I do not accept your observation that the majority of the Category B Information is the personal information of individuals other than me. Also, I reject your finding that this information is highly sensitive personal information which would not ordinarily be released under the IP Act.[66] I have distinguished this matter from other information access applications related to workplace investigations. In particular, in this matter, it is relevant that the applicant is the complainant and not the subject of the investigation. The applicant submits that the High Court decision of Smallbone v New South Wales Bar Association [2011] FCA 1145 (Smallbone) should be considered to support the disclosure of other persons’ opinions. By way of summary, in Smallbone, Mr Smallbone sought injunctive relief under section 98 of the Privacy Act 1988 (Cth). The information in issue in Smallbone concerned Mr Smallbone in that it was comments[67] obtained through a consultation process undertaken by the New South Wales Bar Association (NSW Bar Association) related to his application for Senior Counsel. The NSW Bar Association provided Mr Smallbone with limited access to the comments by deidentifying the names of the individuals who provided feedback. There is no real parallel with the facts of Smallbone and the present matter, though Officer X’s position is probably more akin to Mr Smallbone’s position, by virtue of the fact that Officer X was to respond to the allegations or opinion of others as was Mr Smallbone. Given that a very limited number of individuals are privy to Officer X’s feedback it is reasonable to infer that the applicant would be able to identify the opinions of individuals who provided evidence. As such, deidentification of statements by simply removing the names of individuals who provided statements in the investigation would not adequately protect the individuals’ privacy in this matter. Ordinarily where personal information is about routine day-to-day work activities of public sector employees, it is considered to be routine personal work information and the public interest factor in favour of not disclosing that type of personal information is given very low weight. Although the Category B Information in this case appears in a workplace context, it relates to a confidential workplace investigation and thus is not wholly related to routine day-to-day work activities and is not routine personal work information of the various individuals involved in the investigation.[68] The disclosure of the Category B Information under the IP Act would be a significant intrusion into the privacy of the individuals who provided statements and the extent of the public interest harm that could be anticipated from disclosure is significant. Furthermore, although the applicant may know some of the Category B Information as a result of his participation in the investigation processes, it does not negate the weight to be attributed to these factors. In these circumstances, I afford these public interest factors favouring nondisclosure significant weight. Prejudice to the fair treatment of individuals A relevant factor favouring nondisclosure of the Category B Information is if disclosure may reasonably be expected to prejudice the fair treatment of individuals.[69] In this matter, as previously noted, the Category B Information is primarily about the investigation of the subject of the complaint, Officer X. This complaint was investigated by the Workplace Investigator in accordance with the terms of reference outlined by the Department. The allegations raised by the applicant were ultimately found to be unsubstantiated. The applicant submitted that he “was denied the most basic right to procedural fairness when the investigator refused to provide [him] with details of the evidence of Officer X and the other witnesses and denied [him] the opportunity to respond to the evidence.”[70] As previously observed at paragraphs 89 and 90, a complainant and subject of a complaint attract different procedural fairness rights in workplace investigations. While the applicant submits that he has not been afforded the same rights in relation to reputational damage, this submission is not pertinent to this public interest factor as the feedback provided by Officer X, which the applicant states adversely damaged his reputation, was not provided as part of the workplace investigation process. This feedback was provided to the applicant’s employer prior to the workplace investigation. I have reviewed the Category B Information and there is nothing within this information that would warrant the right of reply to which the applicant is referring. The disclosure of information relating to unsubstantiated allegations about Officer X has the potential to adversely affect the reputation and the current and future employment of Officer X. I consider that the public interest weighs strongly against disclosing information relating to unsubstantiated allegations as to do so may result in the unfair treatment of the individual about whom the complaint was made. I afford this factor significant weight. Prejudice to management function and ability to obtain confidential information The RTI Act recognises public interest factors favouring nondisclosure of information in circumstances where disclosing information could reasonably be expected to prejudice an agency’s management function[71] or its ability to obtain confidential information.[72] In workplace investigations, the expectation is usually that staff supply information to workplace investigators on the understanding that it will be used for the investigation or any subsequent disciplinary investigations. It is also expected that staff will cooperate in the investigative process and provide information in an open and honest manner. The applicant submits that: ...a witness in an investigation would appreciate that whatever he or she states to the investigator would be put to the complainant for a response. Otherwise, the witness would not be concerned about the truth of his or her evidence, and could state whatever he or she liked with impunity.’[73] ... In this instance, procedural fairness required that- details of the evidence of [Officer X] and other witnesses should have been disclosed to me; and I should have been given a full and fair opportunity to respond to this evidence before any findings were made on my complaint. This is because the evidence was about me and my work...[74]... In these circumstances, [Officer X] and other witnesses would have implicitly understood that whatever they stated about me and my work...would be divulged to me. I do not accept the applicant’s submission that there was an implicit understanding that the applicant (as the complainant in the workplace investigation) would be informed of the content of witness statements. Evidence gathered in such investigation is designed to prove or disprove the allegation against the subject of the complaint. It is the subject to whom the evidence must be put if it contains adverse allegations. Although I appreciate that the applicant raised the complaint about Officer X in relation to feedback about his work performance, this does not mean that an investigation into Officer X’s conduct is about the applicant. Disclosing the Category B Information could reasonably be expected to have a detrimental effect on the Department’s management function, as disclosing information of this type would tend to discourage individuals from coming forward with relevant information in the future. I am also satisfied that disclosure of this information could reasonably be expected to cause staff to lose confidence in the finalisation of investigations, particularly where allegations are found to be unsubstantiated.[75] This, in turn, would significantly impact the effectiveness of future investigations.[76] I afford this factor significant weight. Balance factors favouring disclosure and factors favouring nondisclosure I have set out below the weight apportioned to each of the public interest factors for and against the disclosure of the Category B information. I have then balanced those factors against each other to ascertain where the balance of the public interest lies. The IP Act is to be administered with a pro-disclosure bias meaning that access to information should be granted unless giving access would, on balance, be contrary to the public interest.[77] I have taken into account the various factors enlivened by the applicant’s submissions as well as other factors identified by me. Additionally, I have reviewed the various factors for and against disclosure enunciated in Schedule 4 of the RTI Act. I did not consider any other factors listed in Schedule 4 of the RTI Act to be relevant to this matter. There is a public interest factor of significant weight in releasing the applicant’s personal information to him. However, weighted against this public interest factor is that fact that the applicant’s personal information is intrinsically intertwined with the personal information of other individuals, namely Officer X and other individuals who provided witness statements. The personal information and privacy considerations relating to other individuals involved in the investigation (and referenced throughout the documents) attracts significant weight, as it is within a workplace investigation context where the allegations were found to be unsubstantiated. I afforded very low weight to the factor favouring disclosure which would reveal that the information was incorrect, unfairly subjective or irrelevant. Although the applicant asserts that the witnesses provided statements which did not accurately reflective his professional conduct and performance, I am not satisfied that the release of the Category B Information would facilitate an amendment to the information.[78] I have afforded low weight to the disclosure of the Category B Information in relation to accountability and transparency factors. I am not satisfied that the release of further information would provide the applicant with a better understanding of the Department’s reasons for finding the complaint unsubstantiated or that the Department’s investigation was deficient. I have also afforded low weight to procedural fairness factors favouring the disclosure of the Category B Information. The applicant is not the subject of the complaint and, accordingly cannot expect to be afforded the same right of response or appeal. In relation to potential defamation proceedings, I consider that the applicant already has sufficient information to evaluate whether a remedy is available or worth pursuing. In contrast, I am satisfied that this same factor favouring nondisclosure should be afforded significant weight, as the disclosure could detrimentally effect the treatment of individuals involved in the investigation, including Officer X. I am also mindful that disclosure could reasonably be expected to prejudice the ability of agencies to conduct workplace investigations and manage staff in the future. I have afforded significant weight to this factor in favour of nondisclosure. Taking into account all of the matters set out above, I am satisfied that, on balance, the public interest factors favouring nondisclosure of the Category B Information outweigh the public interest factors favouring disclosure. DECISION For the reasons set out above, I vary the decision under review and find that: access to the Category A Information may be refused under section 67 of the IP Act and section 47(3)(a) and schedule 3, section 7 of the RTI Act; and access to the Category B Information can be refused under section 67 of the IP Act and sections 47(3)(b) and 49 of the RTI Act on the basis that its disclosure would, on balance, be contrary to the public interest. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act. Assistant Information Commissioner Corby Date: 9 June 2017 APPENDIX 1: SIGNIFICANT PROCEDURAL STEPS Date Event 12 June 2016 OIC received the application for external review of the Department’s decision 24 June 2016 OIC informed the applicant and the Department that the application for external review had been accepted. OIC requested the Department to provide the documentation relevant to the application. 13 July 2016 OIC received the requested procedural documents from the Department. 4 August 2016 OIC requested further information from the Department in relation to the scope of the documentation and clarification about searches. 19 August 2016 the Department was granted an extension to the response to OIC until 26 August 2016. 22 August 2016 OIC and the Department discussed OIC’s request for the further information regarding the Department’s searches. 25 August 2016 The Department responded to OIC’s letter dated 19 August 2016, providing further information about the searches conducted and copies of the relevant documents. OIC and the Department discussed OIC’s request for the further information regarding the Department’s searches. 17 October 2016 OIC requested further clarification from the Department regarding management of applicant’s complaint. 3 November 2016 The Department provided a response to OIC’s letter dated 17 October 2016, including copies of further information. OIC and the Department discussed OIC’s requested the Department to provide further information about the management of the applicant’s complaint in relation third party involvement. 18 November 2016 The Department provided a response to OIC’s request of 3 November 2016, confirming the third party involvement in the investigation of the applicant’s complaint. 23 November 2016 OIC conveyed a written preliminary view to the Department, providing a marked up version of the documentation to be released, and inviting PSC to provide submissions by 7 December 2016. 6 December 2016 The Department requested an extension to the submission response period. OIC granted an extension until 14 December 2016. 13 December 2016 OIC received the Department’s submissions in response to the preliminary view dated 23 November 2016.OIC and the Department discussed the requirement of third party consultation prior to the disclosure of the documentation 9 January 2017 OIC conveyed a second written preliminary view to the Department, and requested submissions by 17 January 2017. 17 January 2017 OIC received further submissions in response to the preliminary view dated 9 January 2017. 10 February 2017 OIC conveyed written preliminary view to applicant, inviting the applicant to provide submissions by3 March 2017. OIC wrote to the Department requesting that further documents be released to the applicant. 16 February 2017 OIC and the Department discussed OIC’s request to disclose documentation to the applicant.OIC received correspondence from the Department confirming that the further documents had been released to the applicant. 27 February 2017 – 10 April 2017 Communication between the applicant and OIC where the applicant sought clarification on various points in the preliminary view and an extension to the response period. OIC clarified the points raised by the applicant and granted a number of extensions to the response period. 12 April 2017 OIC received submissions from the applicant. 18 April 2017 – 12 May 2017 Various communications between OIC and the applicant regarding the possibility of the applicant being deidentified in this decision. By telephone conversation on 11 May 2017, and confirmed by letter dated 12 May 2017, OIC agreed to issue a deidentified formal decision. 21 May 2017 OIC received further correspondence from the applicant requesting reassurance that the decision would not contain any information that would make it possible to reasonably ascertain the applicant’s identity. APPENDIX 2: INFORMATION IN ISSUE Table 1, Category A Information File Page number Full refusal Part refusal Ground of refusal A 1 - 7. X LPP A 81 – 89. X LPP A 96 – 102. X LPP B 343 – 344. X LPP C 1 – 15. X LPP Table 2, Category B Information File Page number Full refusal Part refusal Ground of refusal A 8 - 10. X CTPI A 12 – 29. X CTPI A 31 – 44. X CTPI A 45 – 73. X CTPI A 74 – 77. X CTPI A 78 – 79. X CTPI A 80. X CTPI A 92. X CTPI A 95. X CTPI B 5. X CTPI B 9 – 41. X CTPI B 42 – 72. X CTPI B 73 – 76. X CTPI B 77 – 78. X CTPI B 79 – 81. X CTPI B 85. X CTPI B 88. X CTPI B 129 – 130. X CTPI B 133 – 134. X CTPI B 142 – 151. X CTPI B 153 – 157. X CTPI B 247 – 288. X CTPI B 290 – 297. X CTPI B 299 – 315. X CTPI B 350. X CTPI B 352. X CTPI B 389 – 392. X CTPI B Audio file – part 1 X CTPI B Audio file – part 2 X CTPI B Audio file – part 3 X CTPI B Audio file – part 4 X CTPI B Audio file – part 5 X CTPI B Audio file – part 6 X CTPI D 1 – 5. X CTPI D 8. X CTPI D 12. X CTPI [1] Department’s original decision dated 18 March 2016. [2] Section 67 of the IP Act provides that access to information may be refused on the same grounds as under section 47 of the RTI Act. This decision will refer to the relevant RTI Act grounds for refusal. [3] Internal review decision dated 17 May 2016. [4] External review application dated 12 June 2016. [5] See paragraph 14 for definition of ‘information in issue’. [6] Sections 47(3)(b) and 49 of the RTI Act. [7] In a letter dated 27 November 2015. [8] Addendum to information access application dated 14 November 2015. [9] The information in issue includes interview transcripts, precis of interviews, and the personal details and witness statements of other individuals who provided evidence regarding the workplace investigation into Officer X. [10] Appendix 2 sets out the partially nondisclosed information and fully nondisclosed information, together with the basis for the nondisclosure. [11] See Appendix 2, Table 1. [12] See Appendix 2, Table 2. [13] Section 40(1)(a) of the IP Act. Section 12 of the IP Act defines personal information as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’. [14] Grounds for refusal of access are set out in section 47 of the RTI Act. Section 67(1) 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. [15] Schedule 3, section 7 of the RTI Act. [16] Esso Australia Resources Ltd v Commission of Taxation [1999] HCA 67; (1999) 74 ALJR 339. [17] Goldberg v Ng (1994) 33 NSWLR 639 at page 670. [18] Osland v Secretary to the Department of Justice [2008] HCA 37 at paragraph 45. [19] Page 5 of letter from applicant dated 12 April 2017. [20] Proudfoot v Human Rights and Equal Opportunity Commission [1992] AATA 317; (1992) 28 ALD 734 at 740. [21] Waterford v Commonwealth [1987] HCA 25; (1986) 163 CLR 54 per Mason and Wilson JJ at paragraph 7 of their Honours’ judgement. [22] Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 530-531. [23] Seven Network News v News Ltd [2005] FCA 1551; (2005) 225 ALR 672 at 674. [24] (1994) QAR 37. [25] The Department’s decisions dated 18 March 2016 and 17 May 2016. [26] The Department’s decisions dated 18 March 2016 and 17 May 2016. [27] Confirmed by the Department in a telephone conversation dated 7 June 2017. [28] [1999] HCA 66; (1999) 201 CLR 1. [29] https://www.oaic.gov.au/freedom-of-information/foi-archive/foi-guidelines-archive/part-5-exemptions-version-1-1. [30] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive; in other words, factors that are not listed may also be relevant. [31] Schedule 4, part 2, item 7 of the RTI Act. [32] Page 12 of letter from applicant dated 12 April 2017. [33] Page 6 of letter from applicant dated 12 April 2017. [34] Personal information is defined in section 12 of the IP Act as information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. [35] Page 6 of letter from applicant dated 12 April 2017. [36] Schedule 4, part 2, item 12 of the RTI Act. [37] Page 6 of letter from applicant dated 12 April 2017. [38] Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [15]-[20]. [39] Page 3 of applicant’s letter to the Department dated 17 April 2016. [40] Page 1 of letter from applicant dated 12 April 2017. [41] Page 4 of letter from applicant dated 12 April 2017. [42] Page 4 of letter from applicant dated 12 April 2017. [43] Page 8 of letter from applicant dated 12 April 2017. [44] Page 5 of letter from applicant dated 12 April 2017. [45] Schedule 4, part 2, item 5 of the RTI Act. [46] Schedule 4, part 2, item 11 of the RTI Act. [47] Schedule 4, part 2, item 6 of the RTI Act. [48] Schedule 4, part 2, item 1 of the RTI Act. [49] 8A3BPQ and Queensland Police Service [2014] QICmr 42 (30 October 2014) at paragraphs 23-24. [50] Page 2 of applicant’s letter to the Department dated 17 April 2016. [51] Page 5 of letter from applicant dated 12 April 2017. [52] Page 4 of letter from applicant dated 12 April 2017. [53] Page 8 of letter from applicant dated 12 April 2017. [54] Page 8 of letter from applicant dated 12 April 2017. [55] Page 9 of letter from applicant dated 12 April 2017. [56] Page 10 of letter from applicant dated 12 April 2017. [57] Schedule 4, part 2, item 16 of the RTI Act. [58] Schedule 4, part 2, item 17 of the RTI Act. [59] Schedule 4, part 2, item 10 of the RTI Act. [60] Willsford and Brisbane City Council (1993) [1996] QICmr 17; 3 QAR 368 at [17] and confirmed in 10S3KF and Department of Community Safety (Unreported, Queensland Information Commissioner, (16 December 2011). [61] Full citation: Cheryl Anne McKinnon and Lynette Powell and Department of Immigration and Ethnic Affairs [ 1995] AATA 364 (12 December 1995). [62] Page 9 of letter from applicant dated 12 April 2017. [63] Schedule 4, part 3, item 3 of the RTI Act. [64] Schedule 4, part 4, section 6 of the RTI Act. [65] Page 8 of letter from applicant dated 12 April 2017. [66] Page 9 of letter from applicant dated 12 April 2017 with reference to the case of Katz v Victorian Police [2013] VACT 2046 at [38] at page 10 of the same letter. [67] In total 579 persons were consulted in relation to all applications for Senior Counsel and 458 persons responded with some persons providing comment in relation to Mr Smallbone. The exact number of persons who responded to Mr Smallbone’s application is unclear. [68] Underwood and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 18 May 2012) at paragraph 60. [69] Schedule 4, part 3, item 6 of the RTI Act. [70] Page 11 of letter from applicant dated 12 April 2017. [71] Schedule 4, part 3, item 19 of the RTI Act. [72] Schedule 4, part 3, item 16 of the RTI Act. [73] Page 10 of letter from applicant dated 12 April 2017. [74] Page 11 of letter from applicant dated 12 April 2017. [75] Daw and Queensland Rail (Unreported, Queensland Information Commissioner, 24 November 2010) at [17]. [76]I6XD0H and Department of Community Safety (Unreported, Queensland Information Commissioner, 26 June 2012) at [6]. [77] Section 64 of the IP Act. [78] In accordance with section 74 of the IP Act.

queensland

court_judgement

Queensland Information Commissioner 1993-

Hopkins and Department of Transport [1995] QICmr 28; (1995) 3 QAR 59 (28 November 1995)

Hopkins and Department of Transport [1995] QICmr 28; (1995) 3 QAR 59 (28 November 1995) Last Updated: 23 February 2001 OFFICE OF THE INFORMATION ) S 34 of 1995; S 94 of 1995COMMISSIONER (QLD) ) (Decision No. 95028) Participants: S 34 of 1995 ROSS MALCOLM HOPKINS AND BARBARA WINIFRED HOPKINS Applicants - and - DEPARTMENT OF TRANSPORT Respondent S 94 of 1995 LINO ROY PRESOTTO AND MARY W PRESOTTO Applicants - and - DEPARTMENT OF TRANSPORT Respondent DECISION AND REASONS FOR DECISIONFREEDOM OF INFORMATION - refusal of access - reports provided to the respondent by registered valuers assessing the compensation payable to the respective applicants following resumption by the respondent of portions of land owned by the respective applicants - reports disclosed to the respective applicants except for the valuation figures assessed by the registered valuers and explanation of the methods and calculations employed in assessing those figures - whether disclosure of the information withheld from the applicants would found an action for breach of confidence - whether a legally enforceable duty of confidence is owed by the respondent to the registered valuers in respect of the matter in issue - application of s.46(1)(a) of the Freedom of Information Act 1992 Qld.Freedom of Information Act 1992 Qld s.21, s.30, s.41(1)(a), s.46(1), s.46(2), s.78, s.81Acquisition of Land Act 1967 Qld s.24Freedom of Information Act 1982 VicValuers Registration Regulation 1992 Qld s.6"B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279Chantrey Martin v Martin [1953] 2 QB 286Conlan and Rural Finance Commission, Re (1986) 1 VAR 325Fraser v Evans [1969] 1 QB 349Leicestershire County Council v Michael Farraday and Partners, Limited [1941] 2 KB 205O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310Parry-Jones v Law Society [1969] 1 Ch 1Smith Kline and French Laboratories (Aust) Limited and Ors v Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291Stephenson Jordon & Harrison Ltd v MacDonald & Evans (1952) 69 RPC 10Tournier v National Provincial and Union Bank of England [1924] 1 KB 461Wentworth v De Montfort & Ors (1988) 15 NSWLR 348 DECISION1. In application for review no. S 34 of 1995, I set aside the decision under review (being the internal review decision made on behalf of the respondent by Mr W J Rodiger on 15 February 1995). In substitution for it, I decide that the applicants have a right to be given access under the Freedom of Information Act 1992 Qld to the matter withheld from them pursuant to the decision under review.2. In application for review no. S 94 of 1995, I vary that part of the decision under review (being the internal review decision made on behalf of the respondent by Mr W J Rodiger on 4 April 1995) which relates to the matter still remaining in issue in this review, as identified in paragraph 13 of my accompanying reasons for decision, by finding that the applicants have a right to be given access to that matter, under the Freedom of Information Act 1992 Qld.Date of Decision: 28 November 1995 ...........................................................F N ALBIETZINFORMATION COMMISSIONER TABLE OF CONTENTS PageBackground 1The external review process 3Evidence lodged by the participants 5Relevant provisions of the FOI Act 8Application of s.46(1)(a) to the matter in issue 9Conclusion 18OFFICE OF THE INFORMATION ) S 34 of 1995; S 94 of 1995COMMISSIONER (QLD) ) (Decision No. 95028) Participants: S 34 of 1995 ROSS MALCOLM HOPKINS AND BARBARA WINIFRED HOPKINSApplicants - and - DEPARTMENT OF TRANSPORT Respondent S 94 of 1995 LINO ROY PRESOTTO AND MARY W PRESOTTO Applicants -and - DEPARTMENT OF TRANSPORT Respondent REASONS FOR DECISIONBackground1. The applicants in each of these cases seek review of decisions by the respondent to refuse them access to parts of valuation reports (and associated documents) obtained by the respondent, in which registered valuers state their assessment (and the method and calculations by which their assessment was reached) of the appropriate amount of compensation to which the respective applicants are entitled, following partial resumption by the respondent (for road-widening purposes) of residential land owned by the applicants.2. The respective applicants reside on the same road, and were both affected by the respondent's road-widening proposals. These two cases raise common issues, and can be conveniently dealt with together. 3. By application dated 31 October 1994, Mr and Mrs Hopkins applied to the Department of Transport (the Department) under the Freedom of Information Act 1992 Qld (the FOI Act) for "all documents concerning valuation of our property to do with our property resumption". I will not recount all the steps along the way, but by the time of the making of the decision under review in application for review no. S 34 of 1995 (being the internal review decision made on behalf of the Department by Mr W J Rodiger on 15 February 1995), Mr and Mrs Hopkins had obtained access in full to some 62 pages of material, and access in part to a further four pages of material. The Department, however, refused to give access to certain matter on four pages of a valuation report prepared by Herron Todd White, Valuers (HTW) and also refused to give access to any matter contained in a valuation report prepared by Michael Slater Property Valuers, on the basis that the matter withheld was exempt matter under s.46(1)(a) of the FOI Act.4. By letter dated 20 February 1995, Mr and Mrs Hopkins applied for review by the Information Commissioner, under Part 5 of the FOI Act, of Mr Rodiger's decision of 15 February 1995. In their application for review, Mr and Mrs Hopkins said: A large section of our property was resumed by the Transport Department for widening of Albany Creek Road. We were told by the Property Services Section that the Transport Department would be open and accountable in all their dealings with us the property owners. But when it comes to advising us what value "the professionals" (valuers) put on our resumed land, it is all of a sudden not accountable to us but to the valuer! We are taxpayers, our taxes fund the running of the Government Departments and our taxes paid the valuer's fees! So why can’t we see a full copy of their report? How do we know whether the Transport Department will offer us the value put on our property by the valuers if we don’t get to see the reports? Claiming exemption under s46(1) of the Act as a breach of confidence is a load of rubbish. What difference does it make to the valuers if we the owners of the land know what value they put on the land? After all it was our land before the Transport Department came along and decided to build a 6 lane highway through Albany Creek and Aspley. Surely we should be the first to know what value they put on our land! We are not asking for information on anyone or thing except matters concerning our property valuation.5. By letter dated 8 February 1995, Hopgood and Ganim, Solicitors, acting on behalf of Mr and Mrs Presotto, applied for access under the FOI Act to - 1. All departmental and policy documentation relating to: (a) the proposed widening of Albany Creek Road from Beckett Road to Albany Creek from a two (2) lane road to a four (4) lane road with a central median; and (b) the Department of Transport's requirements regarding the resumption of the whole or part of any parties adjoining Albany Creek Road for the purposes of the proposed road widening. 2. All valuations made by the Department of Transport or commissioned by the Department of Transport from external sources relevant to the value of the properties subject to resumption or resumed by the Department of Transport along Albany Creek Road including Lot 1 on RP78433. 3. All other departmental documentation relevant to the proposed widening of Albany Creek Road.6. As is evident from the terms of their FOI access application, Mr and Mrs Presotto's interest was not, at that stage, confined to valuations of their own property. The Department's initial decision made on 20 March 1995 gave them full access to some 80 pages of material, and part access to a further two pages, but refused access to valuation reports, and associated documents, prepared by HTW and Michael Slater Property Valuers. On 4 April 1995, that decision was affirmed on internal review by Mr Rodiger, who relied solely on s.46(1)(a) of the FOI Act as the basis for exemption.7. By letter dated 9 May 1995, Hopgood and Ganim, acting on behalf of Mr and Mrs Presotto, applied for review by the Information Commissioner, under Part 5 of the FOI Act, of Mr Rodiger's decision of 4 April 1995.The external review process8. In both cases, the documents claimed to be exempt were produced to my office and examined. In both cases, the Department had obtained valuation reports (and associated documents) from HTW (the valuations in issue) and subsequently from another valuer, Michael Slater (the Slater valuations).9. It was pointed out to Mr and Mrs Presotto's solicitors that their request for access to valuation reports relating to other landowners may raise issues as to the application of s.44(1) of the FOI Act. By letter to me dated 18 May 1995, Hopgood and Ganim confirmed that their clients' request for access pursuant to the FOI Act to the valuation reports of HTW and Michael Slater Property Valuers was now to be confined to those valuation reports relevant to the value of their clients' property only.10. I was subsequently informed by officers in the property section of the Department (which handles the process of acquiring land, including assessment and payment of compensation) that, in respect of both sets of applicants, negotiations to resolve the question of compensation for the compulsory acquisition of land had been unsuccessful, and the Department had therefore referred both matters to the Land Court under s.24 of the Acquisition of Land Act 1967 Qld. Section 24 of the Acquisition of Land Act (so far as relevant) provides that either the landowner or resuming authority may refer to the Land Court, for hearing and determination, the matter of the amount of compensation payable for a compulsory acquisition of land. When a resuming authority refers such a matter to the Land Court, s.24(6) of the Acquisition of Land Act provides that the resuming authority is to set out the amount that it is willing to pay for compensation in respect of the compulsory acquisition of the land.11. Since the figures contained in the references to the Land Court were identical to the compensation figures assessed in the Slater valuations, the Department agreed to release the Slater valuations to the respective applicants. This left in issue only the HTW valuations, and of those documents, matter comprising information of a merely factual or descriptive nature concerning the parcels of land owned by the respective applicants, has been released to the respective applicants (clearly, information of that kind is not confidential information vis-à-vis the respective applicants). What remains in issue can be broadly described as the valuation assessments arrived at, and the manner of application (including relevant calculations) of the valuation method employed by the registered valuers who undertook these tasks on behalf of HTW.12. For the sake of precision, I will record that the matter remaining in issue in application for review no. S 34 of 1995 comprises -(a) a dollar amount, concerning Mr and Mrs Hopkins' property, deleted from a letter dated 8 August 1994 from HTW to the Department (other matter deleted from this letter concerns other landowners, and is not in issue);(b) the same dollar amount, deleted from page 3 of a document prepared by HTW described as "Assessment Report of compensation resulting from resumptions for road-widening purposes ... Claimant: R M and B W Hopkins"; and(c) all matter contained under the heading "Assessment Calculations" on pages 7 and 8 of the document described in (b) above.13. The matter remaining in issue in application for review no. S 94 of 1995 comprises -(a) a dollar amount, concerning Mr and Mrs Presotto's property, deleted from a letter dated 8 August 1994 from HTW to the Department (other matter deleted from this letter concerns other landowners, and is not in issue);(b) the same dollar amount, deleted from page 3 of a document prepared by HTW described as "Assessment Report of compensation resulting from resumptions for road-widening purposes ... Claimant: L R and M W Presotto";(c) all matter contained under the heading "Assessment Calculations" on page 8 of the document described in (b) above; and(d) a supplementary letter (which partially revises the matter referred to in (c) above) dated 15 September 1994 from HTW to the Department, except for those parts of the letter which specifically refer to the affairs of other landowners (and which are not in issue by virtue of the applicants' concession referred to in paragraph 9 above).14. On 9 June 1995, a conference was convened by the Assistant Information Commissioner, attended by representatives of the Department and the Crown Solicitor (who has acted on behalf of the Department in this external review) and Mr Ross Perkins, an Associate Director of HTW, who was the valuer who prepared the valuation in respect of land owned by Mr and Mrs Hopkins. These matters could not be resolved at that conference, and accordingly directions for the further conduct of these external reviews were given. Mr Perkins was informed that HTW could participate independently in these reviews (see s.78 of the FOI Act) or, if it wished, could liaise with the Department to ensure that its concerns were satisfactorily addressed in the evidence and submissions lodged on behalf of the Department. By letter dated 15 June 1995 to Ross Perkins of HTW, I extended to HTW the opportunity to lodge evidence and submissions. No material was received directly from HTW; however, the evidence lodged by the Crown Solicitor on behalf of the Department included a statutory declaration from each of the valuers who prepared the reports in issue on behalf of HTW. 15. During the course of this external review, evidence and submissions were lodged (and subsequently exchanged between the participants and HTW) as follows:(a) by the Crown Solicitor on behalf of the Department - ? written submissions lodged on 14 July 1995 in each matter (these were, ?in essence, identical apart from references to factual differences between the two external reviews) ? statutory declarations by Errol Norman Miller of the Department, dated 10 July 1995, in each matter (again these were, in essence, identical apart from references to factual differences between the two external reviews) ? a statutory declaration by Ross Bevan Perkins (of HTW) dated 12 July 1995, in respect of Mr and Mrs Hopkins' application for external review ? a statutory declaration by David John Mapleston (of HTW) dated 13 July 1995, in respect of Mr and Mrs Presotto's application for review (Mr Mapleston was the registered valuer from HTW who assisted Mr Perkins by preparing the valuation in respect of the Presotto land.) ? points of reply to the submissions made by the applicants in each matter(b) by Mr and Mrs Hopkins - ? a submission/declaration dated 23 August 1995(c) by Hopgood and Ganim, on behalf of Mr and Mrs Presotto - ? a written submission lodged on 22 August 1995 (no formal evidence was lodged) ? a short reply (to the Department’s points of reply) lodged on 5 October 1995.16. Mr and Mrs Hopkins' claim for compensation for the acquisition of their land was resolved shortly after the conference referred to in paragraph 14 above. However, they still wished to pursue access to the matter withheld from them under the FOI Act. Mr and Mrs Presotto's claim for compensation has not yet been resolved.Evidence lodged by the participants17. Mr Miller's evidence in relation to each external review is almost identical, and I have edited it so that it reads as applicable to both external reviews. Mr Miller declared: 1. I am the Area Manager for the Metropolitan North District of the Department and have held this position for approximately ten years. 2. I am responsible for the day to day management of resumption matters within the Metropolitan North District of the Department. 3. I have been employed by the Department (formerly the Main Roads Department) dealing with property resumption issues for approximately 35 years. 4. When a land owner's property is resumed, the Department engages a valuer to prepare a valuation to assist in negotiations for compensation. Valuers are selected on the basis of their known expertise and their ability to give evidence in the Land Court, if required. 5. All dealings between the Department and the valuer are confidential. To my knowledge it is not the Department's practice to make valuations available to landowners. When the issue of compensation is to be determined in the Land Court, the final valuation relied upon by the Department is usually made available to the claimants shortly before the hearing, and is only released after consultation with the valuer. 6. Any valuer engaged by the Department clearly understands that the valuation will not be released without consultation with the valuer. This is particularly so in the case of a valuation which is prepared early in the negotiation period, as a valuation can substantially change during the course of negotiations as further information comes to light. 7. HTW Valuers have done intermittent work for the Department over a long period of time. 8. The information contained in the valuation provided by [Mr Perkins and Mr Mapleston] in relation to [the properties of the respective applicants] is private to HTW Valuers and the Department, and is not otherwise available. 9. The Department would always keep that valuation confidential and it is the understanding between the Department and HTW Valuers that the valuation will not be released without prior consultation with the valuer. 10. If the valuation was released, this could jeopardise future working relationships between the Department and HTW Valuers and also other valuers. Valuers may be reluctant to provide the Department with detailed valuations.18. The statutory declarations by Mr Perkins and Mr Mapleston are substantially similar. Both commenced by setting out their qualifications as valuers. Mr Mapleston is a senior valuer with HTW and has been employed by HTW since 1993. He is an Associate of the Australian Institute of Valuers and Land Economists, and is a registered valuer in Queensland. He has over 20 years experience as a valuer in Queensland and Victoria. Mr Perkins is an Associate Director with HTW and has been employed by HTW since 1991. Between 1983 and 1991, he was employed by the Department of Lands, and was registered as a valuer in early 1988. HTW were engaged by the Department to prepare a series of valuations to assist in negotiations for compensation in relation to resumed land along Albany Creek Road, Bridgeman Downs. Mr Mapleston assisted Mr Perkins by preparing the valuation in relation to the property owned by Mr and Mrs Presotto.19. The remainder of the evidence by Mr Perkins and Mr Mapleston is largely in common, and I will set out the relevant extract from Mr Mapleston's statutory declaration: ... 4. The valuation report dated 31 March 1994 was prepared and given to the Department on a strictly confidential basis for the sole use of the Department and for no other use or disclosure. 5. There was an implied understanding between the Department and HTW Valuers that the valuation would not be released without prior consultation with me. 6. I am aware that HTW Valuers have done intermittent work for the Department over a long period of time. 7. The information contained in the valuation I prepared dated 31 March 1994 is private to HTW Valuers and the Department and is not otherwise available. 8. If the valuation was released, this could jeopardise future working relationships between the Department and HTW Valuers. In future, I would be reluctant to provide the Department with detailed valuations.20. The relevant extracts from Mrs Hopkins' "submission/declaration" are as follows: In all our discussions with the Department of Transport from the time we were advised that our property was to be resumed/acquired, we have always understood that the Department would assess the value of the estate by employing a registered valuer to assess the value of our interest in the resumed land. I had many discussions with Chris Rowley of Property Services who advised me ... that independent valuers, Herron Todd and White were coming out ... to value the property. He never at any stage, nor did any person from the Department advise us that they would be seeking more than one valuation and that we would not be privy to any of the valuation material. In the booklet forwarded to us by the Department entitled "Acquisition: Your Property, Your Rights", under the heading "How is compensation assessed?", the second paragraph states "Queensland Transport will have the property valued and our Property Officer will then contact you to discuss compensation". It does not say: but you are not entitled to see the valuation, or that it is a secret document, or the FOI Act prohibits this valuation being disclosed to you, or in fact that we [i.e. the Department] can seek more than one valuation at tax payers’ expense and you can never see any of them!! This booklet is written to supposedly dispel any fears landowners may have in having their property resumed, and to explain what you are to expect in the resumption process. I expected to be given a copy of the valuation/s on our property and that we and the Property Officer would sit down and discuss compensation. This did not happen. How can two parties sit down and discuss something when only one party is privy to the information? The Transport Department should not be able to claim this information exempt under confidentiality clauses between them and Herron Todd & White, when the costs for this valuation were paid for by taxpayer monies. The Transport Department, Herron Todd & White state in their latest submission to you that the release of this matter could be detrimental to their interests. ... However, when they take on the job they know that if the matter goes to the Land Court, the whole of the valuation must be made available to the landowner. If they really believe that the release of the valuation will be detrimental to their interests they wouldn't take on the job. ... ... Ross Perkins came out and inspected the property ... and conducted a thorough inspection of the property and house. I believe their valuation is the only one that honestly can reflect an independent assessment of the property at the time of proclamation. They [HTW] too had a clause at the bottom of their valuation stating that the report was for the use only of Queensland Transport. However, again they would have known that if their valuation was successful and it was to be used in the event of a Land Court hearing, it would have to be made available to the landowner. If it can really be detrimental to their interests in having the full valuation released to the land owner, they wouldn't be in this line of work.Relevant provisions of the FOI Act21. Section 46 of the FOI Act provides: 46.(1) Matter is exempt if - (a) its disclosure would found an action for breach of confidence; or (b) it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest. (2) Subsection (1) does not apply to matter of a kind mentioned in section 41(1)(a) unless its disclosure would found an action for breach of confidence owed to a person or body other than - (a) a person in the capacity of - (i) a Minister; or (ii) a member of the staff of, or a consultant to, a Minister; or (iii) an officer of an agency; or (b) the State or an agency.Application of s.46(1)(a) to the matter in issue22. Pursuant to s.81 of the FOI Act, the Department has the onus of establishing that the decisions under review were justified, or that the Information Commissioner should give a decision adverse to the applicants. The only ground of exemption relied upon by the Department is that contained in s.46(1)(a) of the FOI Act.23. The Department contends that it owes a duty of confidence to HTW in respect of the matter in issue, the disclosure of which (the Department contends) would found an action for breach of confidence by HTW as plaintiff. The Department states at page 4 of its submission that "there appears to be no suggestion in the present case of any contractual obligation of confidence arising out of the circumstances of the communication of the information in issue from HTW Valuers to the Department", and its case for exemption under s.46(1)(a) is consequently put in terms of the requirements for an action in equity for breach of confidence.24. I note, however, that, while there is no evidence in these cases of any relevant express contractual stipulation for confidence, HTW was in a contractual relationship with the Department with respect to the provision of the valuation reports in question. The learned authors of Meagher, Gummow, Lehane, Equity: Doctrines and Remedies, (Butterworths, 3rd ed, 1992) have commented, in their chapter on confidential information (at p.866): Where there is a contract then it is to the contract that the court should look to see from express words or necessary implication what the obligations of the parties are and the introduction of equitable concepts should be resisted: Vokes v Heather (1945) 62 RPC 135 at 142; Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VicRp 17; [1979] VR 167 at 191. ... Yet in a number of cases where there has been a contractual nexus the judges have nevertheless treated equitable principles at length as if they overlapped or were concurrent with the common law: [case examples are then cited] ... .25. Despite the concerns of those who regard it as important to preserve the purity of equitable doctrine, the leading text-writers in this field (F. Gurry, Breach of Confidence, Oxford University Press, 1984; R. Dean, The Law of Trade Secrets, Law Book Co, 1990) would agree with the comment by Professor Finn, after a survey of relevant cases, that "the implied contractual obligation does not differ from the equitable obligation, either in its content or in the circumstances necessary to bring it into existence, though ... the equitable obligation can arise where there is no contractual relationship at all": P. Finn, Fiduciary Obligations, Law Book Co, 1977, at pp.136-137; see also Re "B" and Brisbane North Regional Health Authority [1994] QICmr 1; (1994) 1 QAR 279 at pp.298-300, paragraphs 49-52.26. It would appear, therefore, that the approach adopted by the Department is permissible, notwithstanding the existence of a relevant contractual relationship between HTW and the Department. The Department’s written submission sets out the five cumulative criteria which must be satisfied for protection in equity of confidential information, and addresses each criterion. Those five criteria are: (a) it must be possible to specifically identify the information in issue, in order to establish that it is secret, rather than generally available information (see Re "B" at pp.303-304; paragraphs 60-63); (b) the information in issue must possess "the necessary quality of confidence"; i.e. the information must not be trivial or useless information, and it must possess a degree of secrecy sufficient for it to be the subject of an obligation of conscience, arising from the circumstances in or through which the information was communicated or obtained (see Re "B" at pp.304-310; paragraphs 64-75); (c) the information in issue must have been communicated in such circumstances as to fix the recipient with an equitable obligation of conscience not to use the confidential information in a way that is not authorised by the confider of it (see Re "B" at pp.311-322; paragraphs 76-102); (d) it must be established that disclosure to the applicant for access under the FOI Act would constitute a misuse, or unauthorised use, of the confidential information in issue (see Re "B" at pp.322-324; paragraphs 103-106); and (e) it must be established that detriment is likely to be occasioned to the original confider of the confidential information in issue if that information were to be disclosed (see Re "B" at pp.325-330; paragraphs 107-118).27. It is unnecessary for me to address each of these criteria, because I am satisfied (for the reasons which follow) that the Department cannot establish the third criterion, and that there is no basis for its assertion that a legally enforceable duty of confidence, whether in equity or pursuant to an implied contractual term, is owed by the Department to HTW in respect of the matter in issue.28. It appears that the relationship between HTW and the Department was that of professional and client. In Leicestershire County Council v Michael Farraday and Partners, Limited [1941] 2 KB 205, the English Court of Appeal held that the relationship between the Leicestershire County Council and the respondents, a firm of valuers, was that of "client and professional man". (I also note that, speaking extra-judicially, the recently retired Chief Justice of the High Court of Australia, Sir Anthony Mason, has expressed the view that "... nowadays we would have little difficulty in recognising that valuers constitute a profession": see Mason, "Legal Liability and Professional Responsibility", [1992] SydLawRw 12; (1992) 14 Sydney Law Review, 131, at p.135.) It is characteristic of recognised professions that their members offer a service that - ? is expert, being the product of special skill and knowledge (entry to the profession being conditional, invariably, on successful completion of a prescribed course of study, and, frequently, on obtaining additional practical experience under the supervision of experienced members of the profession); and ? is provided for the benefit of the client and in the interests of the client, and not in the interests of the professional service provider (apart, of course, from the latter's interest in receiving reasonable remuneration for the service rendered).29. In the instant cases, the Department has contracted with HTW for the exercise of one of the ordinary professional services which a registered valuer offers, i.e. the application of the professional valuer's skill, knowledge and experience to the task of assessing the amount of compensation to which Mr and Mrs Hopkins and Mr and Mrs Presotto are entitled, for the diminution in value of their respective properties, resulting from resumption of portions of their land for the Department's purposes. 30. In the ordinary case, that which the valuer has contracted to provide to the client (usually a report containing the valuer's professional assessment, for example, of the value of a particular parcel of land at a specified date or dates, and an explanation of the basis on which the valuation figures were reached) becomes the property of the client, who has paid for the preparation of the report, to do with as the client pleases. There is a clear implication in the judgments in Leicestershire County Council v Michael Farraday and Partners that those documents which it is the duty of a professional valuer, pursuant to the terms of the relevant contract, to prepare and forward to his or her client, become the property of the client (though documents prepared by the professional for his or her own assistance in carrying out the expert work remain the property of the professional): see per MacKinnon LJ at p.215, and per Goddard LJ at p.217; see also Chantrey Martin v Martin [1953] 2 QB 286. These two English Court of Appeal decisions were among the authorities relied on by the New South Wales Court of Appeal in Wentworth v De Montfort & Ors (1988) 15 NSWLR 348 where, in the context of the professional relationship of solicitor and client, the Court expressed approval of the proposition that documents prepared by the solicitor for the benefit of the client and which may be said to have been paid for by the client, belong to the client (at p.355 per Hope JA, with whom Samuels and Mahoney JJA agreed).31. It is a recognised incident of the relationship between professional and client that the professional has a legal duty to keep the client's affairs secret (Parry-Jones v Law Society [1969] 1 Ch 1, at p.7), though the scope of the duty of secrecy must vary with the special circumstances peculiar to each profession (Tournier v National Provincial and Union Bank of England [1924] 1 KB 461, at p.486, per Atkin LJ). It is not an ordinary incident of the relationship of professional and client that the client owes a duty of confidence to the professional in respect of the information communicated by the professional to the client, pursuant to the professional retainer.32. Specific legislative provision has been made in Queensland with respect to the duty of confidence owed by a registered valuer to a client. Section 6 of the Valuers Registration Regulation 1992 Qld provides:Duty of confidentiality 6.(1) A registered valuer must not disclose or make use of a valuation made for a client. (2) Subsection (1) does not apply if - (a) the client gives the valuer written permission to disclose the details of the valuation; or (b) the valuer is required by law to disclose the details.This provision, particularly s.6(2)(a), is consistent with my view that it is ordinarily the right of the client to control the use and dissemination of a valuation which the client has paid to obtain.33. There is nothing special or exceptional about the instant cases that would take them outside of the ordinary principle that a valuation prepared by a professional valuer for a client, and paid for by the client, becomes the property of the client, which may be used or disseminated as the client pleases. The matter in issue in these cases contains no special information of particular sensitivity or value to the valuers who prepared it, and who communicated it to the Department. The matter in issue merely records the basis on which the valuers exercised their skill, knowledge and experience - their 'know-how' - in executing the task which they contracted to perform, and the result of that exercise (i.e., the figures assessed).34. In Stephenson Jordon & Harrison Ltd v MacDonald & Evans (1952) 69 RPC 10, a firm of management consultants sought to restrain the publication of lectures written by, and said to be based upon expertise acquired by, a former employee while he was in the firm's employment. In refusing the application to restrain the dissemination of allegedly confidential information, Lord Evershed MR said (at p.15): ... I think that the most that can be said under this head is that the putting together and the applying in a particular way of principles which were generally common to the profession of management engineers is the subject which is said to be confidential; and that is described by one of the witnesses, I think not inaptly, by a phrase which has obtained some popularity today - namely, 'know-how'. 'Know-how’ seems to me to indicate something essentially different from secret and confidential information. It indicates the way in which a skilled man does his job, and is an expression of his individual skill and experience.35. The significance of this distinction has been recognised by the High Court of Australia in a case reasonably (though not precisely) analogous to the instant cases, in that it concerned the communication of allegedly confidential information by a professional person pursuant to a professional-client relationship: see O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310. The solicitor in that case, Mr Komesaroff, failed to establish that certain information, legal advice and legal documents, which had been conveyed to an agent of his client, were entitled to protection as confidential information. Mr O'Brien, an accountant, had approached Mr Komesaroff about the possibility of minimising the tax liability of a client. Mr Komesaroff's firm acted on behalf of the client in devising a viable scheme for tax minimisation, including providing legal advice and drafting relevant legal documents. The client had insisted that relevant documents be made available to his accountant, O'Brien. It was claimed that O'Brien then used the information thus obtained for the benefit of his own clients. Mason J (with whom Murphy, Aickin, Wilson and Brennan JJ agreed) said: The action for breach of confidence is founded upon an alleged confidential communication to the appellant of, and consequential misuse of, certain information relating to, first, the form of a unit trust deed drafted by the respondent which expressed a concept to minimise taxation and estate duty for the beneficiaries of the trust and, secondly, a scheme designed to minimise taxation by using an overseas trust in a suitable "tax haven" country in conjunction with an Australian trust entity. (at p.134) ... In relation to the unit trust deeds, the primary judge was not satisfied that any information of a confidential nature was imparted to the applicant by the respondent. His Honour held that there was much that was public property and common knowledge in the deeds and that, although the respondent's skill and ingenuity went into producing them, the deed was not to be regarded as containing confidential information capable of founding an action for breach of confidence. His Honour said that he was not satisfied that a reasonable person in the position of the appellants would recognise that the documents contained information which was, apart from the question of copyright, the property of the respondent: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd. [1979] VicRp 17; [1979] VR 167 at p.191. (at p.323) ... Plainly enough, in the light of the findings of the primary judge and the evidence, there is very little, if anything, in the [unit trust deeds, and draft memorandum and articles of association for a private company, drafted by Mr Komesaroff] that can constitute confidential information. Generally speaking the contents of the unit trust deeds and the articles of association were matters of common knowledge. Information may be categorised as public knowledge though only notorious in a particular industry or profession: see Finn, Fiduciary Obligations (1977), p.146. Only those improvements evolved by the respondent could give rise to a claim for relief for breach of confidence ... [cases cited] ... . It is at this point that the respondent has consistently failed to identify the particular contents of the documents which he asserts constitute information the confidentiality of which he is entitled to protect. The consequence is that he has failed to formulate a basis on which the court could grant him relief on the assumption that some part or parts of the documents constitute confidential information. (at p.326) ... ... In particular I have some difficulty in perceiving how advice as to the general legal effect of statutory provisions can constitute confidential information. And the form of minutes, resolutions and the provisions of a trust deed seem unlikely repositories of confidential information. ... (at p.327) ... In some respects the information which the respondent seeks to protect in this case resembles know-how. The information represents his accumulated knowledge, skill and experience in a particular field. He asserts that it is all confidential information. Obviously this cannot be right. Much of it is common knowledge, as the findings of fact made by the primary judge indicate. As to the problems associated with the classification of know-how as confidential information, see Amway Corporation v Eurway International Ltd [1974] RPC 82 at pp.85-87; Stephenson Jordan & Harrison Ltd v MacDonald & Evans (1952) 69 RPC 10 at p.15. ... (at p.328)36. Mason J went on to say that "if the respondent [Mr Komesaroff] were able to identify some particular pieces of information and show that they were confidential or that an obligation of confidence had arisen with respect to them he would be entitled to protection of them". However, it is fairly clear from the parts of the judgment quoted above (in particular the third paragraph quoted above) that Mason J was of the view that a professional person could obtain relief for breach of confidence only in respect of an interest in protecting the confidentiality of some identifiable innovation or improvement on the store of common knowledge in the relevant profession.37. Like a lawyer advising on the meaning and effect of a statute, the provision of valuation reports of the kind in issue is one of the basic professional services which valuers provide. The valuer places his or her accumulated skills, knowledge and experience at the service of a client who requires them for a particular task. The matter in issue embodies the application of the valuers' accumulated knowledge, skill and experience, their 'know-how', to a particular task they contracted to perform for a client. In my opinion, there is nothing in the matter in issue which the valuers are entitled to protect as the valuers' confidential information. 38. I draw attention, in this regard, to what was said by Rowlands J (President) of the Victorian Administrative Appeals Tribunal in Re Conlan and Rural Finance Commission (1986) 1 VAR 325, a case in which the respondent sought to resist disclosure to the applicant of a valuation report prepared for the respondent in respect of the applicant's property. Although he was considering exemption provisions in the Freedom of Information Act 1982 Vic which do not correspond to s.46(1) of the Queensland FOI Act, the following remarks by Rowlands J are of general relevance (at p.327): In this case the information in itself is of no substantial value to the valuer (or his business undertaking) once it is transmitted to the respondent agency, in his report. ... It might be said that keeping in touch with property values in the area is of some worth to a person in the valuer’s position just as each case builds up the reservoir of knowledge of any professional person. However, having been rewarded by the agency for the assembly and delivery of the information the valuer cannot reasonably complain that its disclosure unreasonably compromises his interests. This is not the case of a business undertaking supplying information concerning itself to Government nor is it the situation of a business supplying hard won information concerning other businesses or business in general which it might properly regard as an asset of its own which ought not to be given away by Government to others.39. Absent exceptional circumstances (and none are present in the instant cases), I am unable to accept that information provided by a valuer to a client, of the kind now in issue (which, in essence, states the figures assessed by HTW as appropriate compensation for the resumption of land from Mr and Mrs Hopkins, and Mr and Mrs Presotto, respectively, and explains the method and calculations by which those figures were assessed), can constitute confidential information which the valuer is entitled to protect from further disclosure by virtue of a binding legal obligation of confidence owed by the client to the valuer. In my opinion, equity would not recognise or enforce an obligation of conscience owed by the Department to HTW not to use or disclose the matter in issue in a way which is not authorised by HTW, nor would the law imply a contractual term to that effect.40. The Department's written submission contends that the evidence of Mr Miller, Mr Mapleston and Mr Perkins (see paragraphs 17 and 19 above) establishes that there was a mutual understanding between HTW and the Department that mutual duties of non-disclosure applied to valuation reports supplied to the Department by HTW.41. The existence of a mutual understanding that person A will not further disclose information supplied by person B does not necessarily mean that a legally enforceable duty of confidence is owed by person A to person B. Whether a legally enforceable duty of confidence is owed depends on an evaluation of the whole of the relevant circumstances including (but not limited to) the nature of the relationship between the parties, the nature and sensitivity of the information, and the circumstances relating to its communication, such as those referred to by a Full Court of the Federal Court of Australia in Smith Kline and French Laboratories (Aust) Limited and Ors v Secretary, Department of Community Services and Health [1991] FCA 150; (1991) 28 FCR 291 at pp.302-3: see Re "B" at p.316 and pp. 314-316; paragraphs 84 and 82.42. Here, there is no doubt that HTW owed a duty of confidence to the Department in respect of the matter in issue: see s.6 of the Valuers Registration Regulation 1992 Qld, which is reproduced at paragraph 32 above. The Department's understanding that HTW would treat the matter in issue as confidential was soundly based. However, when all the relevant circumstances are evaluated, there is, in my opinion, no basis for elevating the practice of the Department (as disclosed in the evidence) of treating valuation reports as confidential, into a legally enforceable duty of confidence owed by the Department to HTW.43. Mr Miller has attested (in paragraph 5 of his statutory declaration) that, to his knowledge, it is not the Department's practice to make valuations available to land owners. When the issue of compensation is to be determined in the Land Court, the final valuation relied upon by the Department is usually made available to the claimants shortly before the hearing, and is only released after consultation with the valuer. If the adoption of this practice was contributed to by a belief that the Department owed a legal duty of confidence to its valuers, I consider that belief was mistaken.44. The more likely explanation is that the practice has been adopted and maintained by the Department because it suits the Department’s own purposes and convenience. The Department can negotiate with a landowner over compensation for resumption without disclosing its expert valuation evidence until the time when disclosure is required for the purposes of a hearing in the Land Court. If further relevant information, not taken into account by its valuers, comes to light in the course of negotiations, it can arrange for a fresh valuation which takes account of the further relevant information. If so minded, it could approach a number of different valuers, and choose to rely on the valuation most favourable to the Department, perhaps (in circumstances where a valuation is capable of being undertaken without access to the landowner's premises) without the landowner even being aware of the existence of multiple valuations.45. The adherence by the Department, for its own purposes and convenience, to a practice of ordinarily not disclosing the valuation reports it acquires, accounts for the expectation of non-disclosure of valuation reports which is referred to in the evidence of Mr Perkins and Mr Mapleston. The fact that the Department consults the relevant valuer before disclosing a valuation report preparatory to a hearing in the Land Court must, in my opinion, be properly characterised as merely a matter of professional courtesy (the valuer may be required to give evidence in the Land Court explaining and supporting his or her valuation). I do not think it can be seriously suggested that, at that point (or at any earlier stage in negotiations if, for example, it suited the Department's purposes to exchange valuation reports with a person whose land had been resumed), the valuer would be entitled, if so minded, to restrain the Department from disclosing the valuation report by an action for breach of confidence based on a legally enforceable duty of confidence owed by the Department to the valuer.46. In my opinion, the whole of the relevant circumstances, particularly the nature of the relationship between professional valuer and client, and the considerations referred to at paragraphs 30-38 above, tell against the existence of a legally enforceable duty of confidence owed by the Department to HTW.47. The situation in these cases is roughly analogous to that described by the English Court of Appeal in Fraser v Evans [1969] 1 QB 349, a case in which Mr Fraser, a public relations consultant retained to act on behalf of the Greek Government, owed a contractual duty of confidence in respect of reports supplied by him to the Greek Government. The position of HTW is analogous to that of Mr Fraser, and the position of the Department is analogous to that of the Greek Government, as described in the following extract from the judgment of Lord Denning MR (at p.361): There is no doubt that Mr Fraser himself was under an obligation of confidence to the Greek Government. The contract says so in terms. But there is nothing in the contract which expressly puts the Greek Government under any obligation of confidence. Nor, so far as I can see, is there any implied obligation. The Greek Government entered into no contract with Mr Fraser to keep it secret. We have seen affidavits - one of them as late as this morning - which say that it was not the policy of the Greek Government to publish, or allow the publication, of any documents prepared by Mr Fraser or his firm, and that they would, as matter of practice, keep them confidential. But that policy still leaves them free, in point of law, to circulate the documents or their contents to anyone whom they pleased. The information was so obtained for them by Mr Fraser under a contract with them. They paid for it. They were the people entitled to the information. They were the people to say aye or no whether it should be communicated elsewhere, or be published generally.48. The assertions by the declarants to the effect that if the valuations were released, valuers may be reluctant to provide the Department with detailed valuations (see the final paragraph of each of the statutory declarations lodged on behalf of the respondent: at paragraphs 17 and 19 above) do not, in my opinion, have any credence. It would not be acceptable to the Department to receive valuation reports which did not disclose the method and calculations used to assess the valuation figures arrived at. The Department would need to make its own assessment of the quality and reliability of valuation reports, so as to assess whether they could appropriately be relied on in negotiations with a landowner, and in Land Court proceedings if necessary. It is part of the discipline of a professional valuer to explain and justify assessments made in the exercise of professional judgment. I do not believe there is any shortage of competent valuers willing to undertake work for the Department, even though they might face the prospect of scrutiny of their valuation reports by an applicant for access under the FOI Act, in addition to the prospect of scrutiny by the Land Court.49. This issue is, in any event, not really relevant to the application of s.46(1)(a). It would be relevant to a consideration of the third element which must be established to found an exemption under s.46(1)(b) (i.e. that disclosure could reasonably be expected to prejudice the future supply of like information). The Department, however, has conceded in its written submission that the matter in issue is matter of a kind mentioned in s.41(1)(a) of the FOI Act; hence, by virtue of s.46(2), s.46(1) does not apply to the matter in issue unless its disclosure would found an action for breach of confidence owed to a person or body other than the persons or bodies mentioned in s.46(2)(a) and (b). (The Department has asserted that disclosure of the matter in issue would found an action for breach of confidence owed to HTW, which is not a person or body mentioned in s.46(2)(a) or (b)). Section 46(1)(b) is therefore rendered redundant in the circumstances of this case: see Re "B" at p.292, paragraphs 35-36. 50. At page 10 of its written submission, the Department has drawn attention to the fact that each of the valuation reports in issue contained a disclaimer clause in the following terms: This valuation is for the use only of Queensland Transport, to whom it is addressed and for no other purpose. No responsibility is accepted to any third party who may use or rely on the whole or any part of the content of this valuation. No responsibility will be accepted for photocopied signatures.51. This disclaimer clause, however, is consistent with the views I have expressed above. It acknowledges that the valuation report is for the use of the respondent Department, and that it may consequently come into the hands of a third party or parties. The clause disclaims any responsibility on the part of HTW in respect of the use of, or reliance on, the valuation report by any third party who might obtain it. It represents a prudent attempt to limit any professional liability that might potentially be visited on HTW solely to that occasioned by the use of, or reliance on, the valuation report by the particular client for whom it was prepared.52. The valuation reports in issue also contain another paragraph in the following terms: Neither the whole nor any part of this valuation nor any references thereto may be included in any published documents, circular or statement, nor published in part or full in any way, without written approval of the form and context of which it may appear.53. Again, this contemplates that HTW's client may wish to exercise its rights of property in the valuation report which it has paid to acquire, by republishing it in whole or in part. The paragraph purports to reserve to HTW (presumably for safeguarding against any possible professional liability) a right to approve the form and context of any re-publication. Assuming this to be a valid contractual term between HTW and the Department, I think that, in the event of a dispute arising in respect of it, it would be interpreted by a court so as not to unreasonably restrict the client's right to use the report it has paid for, i.e. that HTW could not unreasonably withhold written approval of the form and context of a proposed re-publication by the Department.54. No issue as to form or context could reasonably arise in respect of the provision of a complete copy of the valuation report to an applicant for access under the FOI Act. Indeed, such an issue should not even arise in that context. Section 21 of the FOI Act confers a legally enforceable right of access to documents in the possession or control of the Department, subject only to exemptions and other exceptions to be found in the FOI Act itself. The paragraph of the valuation report now under consideration does not, in its terms, purport to impose any duty of confidence, nor does it raise any other basis for the application of any of the statutory exemptions or exceptions to the right of access conferred by the FOI Act. The provisions of the FOI Act would therefore override any contractual reservation made by the paragraph of the valuation report now under consideration: the forms by which access may be obtained to documents of an agency are prescribed in the FOI Act itself (see s.30 of the FOI Act).Conclusion55. For the foregoing reasons, I am not satisfied that the matter in issue is exempt matter under s.46(1)(a) of the FOI Act. 56. In application for review no. S 34 of 1995, I set aside the decision under review, and in substitution for it I decide that the applicants have a right to be given access under the FOI Act to the matter which has been withheld from them pursuant to the terms of the decision under review.57. In application for review no. S 94 of 1995, the Department has refused access under the FOI Act to some matter which the applicants no longer seek (see paragraph 9 above). I therefore vary that part of the decision under review which concerns the matter remaining in issue, as identified at paragraph 13 above, by finding that the applicants have a right to be given access under the FOI Act to the matter remaining in issue in this review, as identified in paragraph 13 of my reasons for decisions..................................................................F N ALBIETZINFORMATION COMMISSIONER